ORIGINAL PAPER

The Dead Hand of the Past? Toward an Understandingof ‘‘Constitutional Veneration’’

James R. Zink1 • Christopher T. Dawes2

� Springer Science+Business Media New York 2015

Abstract Some observers argue that excessive veneration of the U.S. Constitution

has blinded Americans to its flaws and made them reluctant to consider necessary

reforms. In this paper, we test the assumptions that underlie these claims. We report

the results of two survey experiments that examine the existence and effects of

constitutional status quo bias at both the state and federal levels. Our findings

support the notion that a proposed policy involving constitutional change imbues the

constitutional status quo with normative value and, in turn, disposes individuals to

resist the proposal. These results hold even at the state level. In addition to the

institutional obstacles to constitutional amendment, therefore, we find evidence of

another, psychological barrier to constitutional change that is based specifically in a

sense of constitutional attachment.

Keywords Constitutional veneration � Constitutional amendment � Constitutionalchange � Ballot measures � Status quo bias � Existence bias � Constitutionalism

Electronic supplementary material The online version of this article (doi:10.1007/s11109-015-9325-

5) contains supplementary material, which is available to authorized users.

& James R. Zink

jrzink@ncsu.edu

Christopher T. Dawes

cdawes@nyu.edu

1 Department of Political Science School of Public and International Affairs, North Carolina State

University, 212 Caldwell Hall, Campus Box 8102, Raleigh, NC 27695-8102, USA

2 The Wilf Family Department of Politics, New York University, 19 W 4th St., 2nd Floor,

New York, NY 10012, USA

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Polit Behav

DOI 10.1007/s11109-015-9325-5

Introduction

With just 27 amendments in the nearly 225 years since its ratification, the U.S.

Constitution stands as one of the oldest and least changed constitutions in existence

today. One reason for this is that the amendment process outlined in Article V

makes the Constitution among the hardest in the world to amend (Lutz 1994). But

some argue that a culture of ‘‘constitutional veneration’’ among the public acts as an

additional, psychological barrier to constitutional change: citizens’ reverence for the

Constitution renders them reluctant to support proposed changes to it, sometimes

even when they prefer or would benefit from the policy embodied in the proposal

(see, e.g., Levinson 1990, 2006; Levinson and Balkin 2009; Sabato 2007; Seidman

2013). There is at least some evidence supporting this claim. A series of recent polls

show Americans overwhelmingly believe the Constitution is ‘‘an enduring

document that remains relevant today’’ without any further changes.1 Moreover,

this attitude may influence the way many citizens view constitutional reform. The

electoral college, for example, has long been the subject of criticism, but this

method of presidential selection remains, despite decades of consistent public

support for reform, not to mention a brush with constitutional crisis in the aftermath

of the 2000 presidential election.2 Aside from this kind of indirect evidence,

however, the assumption that the symbolic significance individuals attach to a

constitution can act as an obstacle to constitutional change has not been directly

tested. The question remains, then, does something like ‘‘constitutional veneration’’

exist and, if so, does it make individuals less likely to support proposals that would

effect constitutional change?

Drawing on existing behavioral research and insights gleaned from American

political thought, we seek to better conceptualize ‘‘constitutional veneration’’—or

what we more neutrally refer to as constitutional status quo bias—and examine its

effects on individuals’ willingness to support constitutional change. Extant research

in social psychology and behavioral economics offers many plausible explanations

for why individuals may resist changing a constitution that have little to do with

‘‘reverence’’ for it, such as general status quo bias (Samuelson and Zeckhauser

1988;Kahneman et al. 1991;Ritov and Baron 1992) or risk aversion (Kam and

Simas 2010;Kam 2012;Kam and Simas 2012;Eckles et al. 2014). But we report the

results of two studies that find evidence of a specific bias in favor of the

constitutional status quo. In Study 1, we used Amazon Mechanical Turk to

administer a survey experiment that examines respondents’ willingness to support

hypothetical state and federal constitutional amendment proposals. For Study 2, we

ran similar experiments in Michigan and California during the week leading up to

the November 2012 general election, using the proposed state constitutional

amendments and statutes on which respondents would actually vote on election

1 See the AP-National Constitution Center Poll, August 2012, accessed 11/22/14, http://goo.gl/5NLzDe.

For the years 2008 through 2012, the percentage of respondents endorsing the statement ‘‘The United

States Constitution is an enduring document that remains relevant today’’ were, respectively, 70, 75, 74,

74, and 69 %.2 ‘‘Americans Would Swap Electoral College for Popular Vote,’’ Lydia Saad, Gallup Politics, October

24, 2011, accessed 11/26/14, http://goo.gl/f1j5aC.

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day.3 The results for both experiments support the notion that individuals’

attachment to a constitution disposes them to reject constitutional amendment

proposals, even when accounting for alternative explanations such as individuals’

political and policy preferences, knowledge of the proposal (Lupia 1992;Lupia

1994b;Bowler and Donovan 1998;Christin et al. 2002;Kriesi 2007), and risk

orientations (Kam and Simas 2010;Kam 2012;Kam and Simas 2012;Eckles et al.

2014). To be clear, these results are perhaps attributable in part to factors such as

status quo bias, but as we shall explain in what follows, they cannot be reduced to

these other explanations—our findings suggest that, in addition to the reasons

individuals resist change in general, there is something about constitutions per se

that biases individuals against proposals that would result in constitutional change.

Our findings at the federal level, though consistent with conventional wisdom,

are important insofar as they mark the first attempt to disentangle the otherwise

observationally equivalent psychological and institutional obstacles to constitutional

change and establish the bases of constitutional status quo bias as a specific

phenomenon. It is much more surprising that we find effects at the state level, where

the different nature and purpose of a constitution, the public’s lack of knowledge

about state constitutions, and the relative ease and frequency of constitutional

change should make for a much harder test. As we explain in our concluding

discussion, our analyses suggest that constitutional status quo bias at the state level

is weaker and thus easier to overcome, but it nonetheless can have significant

consequences both for how individuals perceive and how elites frame constitutional

proposals. Finally, although our findings ultimately do not speak directly to the

complex, interrelated questions of whether the people should have more or less

control over a constitution and when and how a constitution should change, they

provide important context for these normative and practical debates, a matter to

which we will return in our concluding remarks.

Conceptualizing Constitutional Status Quo Bias

Constitutional scholar Sanford Levinson, one of the most vocal contemporary critics

of the U.S. Constitution, has argued that nearly 225 years of constitutional stasis

prove Americans revere the Constitution too much, to the point that they are blind to

its profound structural flaws and unwilling to consider much needed constitutional

reforms (Levinson 1990, 2006, 2012). He places blame for our religious-like respect

for the Constitution squarely on James Madison, who famously argued in Federalist

49 that citizens’ ‘‘veneration’’ of a constitution promotes political stability by

encouraging a basic wellspring of support and respect for the laws and institutions

of society. The Madisonian notion that the Constitution should be an object of

reverence has become an entrenched part of our political culture, Levinson argues,

which in turn has made us complicit in our own continuing political dysfunction:

‘‘To the extent we continue thoughtlessly to venerate, and therefore not subject to

3 We conducted the experiments in Study 2 before those in Study 1, but we have chosen to present the

studies in logical order rather than the order in which they were administered.

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truly critical examination, our Constitution, we are in the position of the battered

wife who continues to profess the ‘essential goodness’ of her abusive husband’’

(Levinson 2006, p. 20). Other scholars, however, argue that widespread reverence

for the Constitution reinforces its power as a shared symbol that serves as a focal

point for agreement among the citizenry (Strauss 1996, pp. 915–916). On this view,

reverence does not necessarily preclude constitutional change, but rather it helps

stabilize and structure the process and rate of change (Holmes 1993).

These competing contemporary perspectives on constitutional veneration and

change generally track founding era debates over the appropriate citizen attitude

toward a constitution. Thomas Jefferson, for example, famously warned that if

citizens accept a constitution as something that is ‘‘like the arc of the covenant, too

sacred to be touched,’’ they effectively cede their authority to a founding generation

that, however great, could not have anticipated changing circumstances or changes

among the people that arise naturally out of the ‘‘progress of the human mind’’

(letter to Samuel Kercheval, July 12, 1816, in Jefferson 1904, [12:11-12]). Jefferson

eventually recommended a sunset scheme that would have provided for the

expiration of laws and reconsideration of the constitution at the turnover of each

generation (every 19 years, by Jefferson’s calculation), thus forcing citizens to

frequently scrutinize the constitutional status quo, even if they ultimately decide

against changing it. Madison’s comments in Federalist 49 indicate he did not think

much of Jefferson’s proposal to organize frequent constitutional conventions for the

purpose of reviewing the entire constitution, but he certainly did not think

constitutional veneration should serve as a barrier to constitutional amendment.4

Even Madison, therefore, offered reasons to be wary of constitutional veneration:

under circumstances where a constitution is deficient in some important way,

citizens’ reverence for it might compound the problem by disposing them to resist

the required changes (Bailey 2012).

Although these past and present constitutional commentators take somewhat

different views on the desirability of constitutional veneration, they all highlight the

power of a constitution as a reference point that anchors citizens’ perspectives on

politics, for better or worse. Moreover, the mechanisms they implicitly describe find

indirect support in existing research on status quo bias and other types of reference-

dependent decision-making. A substantial body of research suggests that individuals

often make decisions relative to a specific reference point, and altering the reference

point can change the option they select from an otherwise identical choice set

(Apesteguia and Ballester 2009;Tversky and Kahneman 1991). In particular, simply

framing a choice as the status quo or ‘‘default’’ option renders individuals more

likely to choose that option than they would if no status quo or default reference

point were specified (Samuelson and Zeckhauser 1988; see also Eidelman and

Crandall 2012; Fernandez and Rodrik 1991; Kahneman et al. 1991; Ritov and Baron

1992; Thaler and Sunstein 2003).

4 In fact, as Bailey (2012, 735) notes, Madison only two years earlier privately expressed sympathy for

Jefferson’s 1783 proposal for periodic constitutional review—that is, the same proposal he rejected in

Federalist 49.

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These studies highlight a number of reasons why individuals may be inclined to

resist constitutional change. In some circumstances, it may be rational for

individuals to adhere to the status quo if the alternatives involve uncertainty and/

or transaction costs (Fernandez and Rodrik 1991;Samuelson and Zeckhauser 1988).

Additionally, or alternatively, they may not be willing to incur either the cognitive

costs involved in counterfactual thinking (Roese 1997) or the actual costs associated

with change (Pichert and Katsikopoulos 2008). Moreover, loss aversion may induce

individuals to irrationally choose an option that has been framed as the status quo, as

individuals tend to overweight potential losses and underweight potentials gains

associated with choosing an alternative (Tversky and Kahneman 1991). For any or

all of these reasons, individuals rely on the status quo to make sense of complicated

political issues and choices. Many citizens vote for incumbents, for example,

because they lack information about the challenger or, even if they know the

challenger’s policy positions, they remain uncertain what the challenger will do

once in office (Morgenstern and Zechmeister 2001). Individuals’ risk orientations

also make them more or less susceptible to status quo bias. For instance, Kam and

Simas (2012) find that risk-averse individuals are more likely to support candidates

for political office that exhibit qualities consistent with the status quo, such as

stability, certainty, experience, and governing competence (see also Eckles et al.

2014). Similarly, Eckles and Schaffner (2011) observe that risk-averse individuals

are less supportive of proposed military interventions when they have been primed

with subtle hints about the risks associated with involvement.

Individuals thus may resist constitutional change for the reasons they resist any

kind of political change, but aside from issues of uncertainty and risk surrounding a

policy or choice scenario, is there something specific about a constitution that makes

individuals reluctant to change it? We think one tendency in particular is relevant

for understanding the processes underlying individuals’ deference to the constitu-

tional status quo. Some research suggests the nature of the policy or choice under

consideration invests the status quo with normative qualities that dispose individuals

to resist change. Eidelman et al. (2009) find that under some circumstances

individuals often attach inflated normative value to existing states (see also Crandall

et al. 2009). This ‘‘existence bias’’ inclines individuals to remain with status quo

conditions because they assume the existence of the status quo is evidence of its

normative goodness, a tendency that is stronger the longer the status quo has been in

place (Eidelman et al. 2010).

Drawing on these studies, we suggest that, among other things, a proposed policy

involving constitutional change highlights the symbolic dimension of the consti-

tution and imbues the constitutional status quo with normative significance, thus

disposing individuals to resist the proposal. This constitutional status quo bias is

consistent with the citizen psychology implicitly described in past and present

accounts of constitutional veneration. Returning to Federalist 49, for example,

Madison emphasized constitutional reverence or veneration—something that in part

taps the affective dimension of human psychology—precisely because he thought

appeals to reason alone would be inadequate for encouraging a sense of civic

responsibility among the citizenry: ‘‘A reverence for the laws would be sufficiently

inculcated by the voice of an enlightened reason. But a nation of philosophers is as

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little to be expected as the philosophical race of kings wished for by Plato. And in

every other nation, the most rational government will not find it a superfluous

advantage to have the prejudices of the community on its side’’ (Hamilton et al.

2003, p. 312). The arguments regarding constitutional veneration generally accept

that, beyond its practical significance as a legal instrument, a constitution reflects or

articulates the highest, most enduring values and goals of the political community,

and as such it acts as an important symbol to citizens (Elkins et al. 2009, pp.

38–40). The symbolic significance citizens attribute to a constitution, in turn, can

facilitate an attachment to it or a ‘‘prejudice’’ in its favor, thus entrenching the

constitution as a reference point for citizens when they think about politics. A

proposal that implicates constitutional change, therefore, can prime this sense of

constitutional attachment and make the constitutional status quo salient to

individuals as they consider the proposal. Under these circumstances, individuals

are disposed to resist the proposal not simply out of risk aversion or uncertainty, but

also out of a specific deference to the constitutional status quo. Finally, the nature

and extent of individuals’ sense of constitutional attachment is shaped by the

institutional context: if a constitution provides for relatively difficult amendment

and revision procedures, changes to the constitution will be infrequent; if the

constitution is seldom changed, citizens will be more inclined to view it as

something that should not be changed; this view that it is normatively undesirable to

change the constitution makes it even less likely the people will use the amendment

process to change the constitution, and on and on. Thus, consistent with research

that shows individuals are more attached to the status quo the longer it has been in

place (Eidelman et al. 2010; Eidelman and Crandall 2014), individuals’ resistance

to constitutional change becomes self-reinforcing: deference to the constitutional

status quo solidifies its endurance over time, which in turn inclines individuals to

value the constitutional status quo even more.

Testing Constitutional Status Quo Bias

The logic of constitutional status quo bias described above suggests two related

expectations. First, our most basic expectation is that individuals’ abstract sense of

attachment to constitutions will dispose them to resist a proposed amendment to a

constitution. This expectation reflects the central assumption of the arguments for

and against constitutional veneration: that citizens’ reverence for a constitution can

develop into a settled deference to the constitutional status quo that counterbalances

and even overrides their policy preferences.

Second, we also expect that the extent of individuals’ resistance to constitutional

change is influenced in part by the institutional context. Past and present accounts of

constitutional veneration share the assumption that citizens accept a constitution as

an important symbol that is worthy of reverence. For individuals to perceive a

constitution as special, however, it must actually be treated differently than ordinary

law or other routine matters of government. The amendment process is an important

factor in this regard: the relative ease of constitutional amendment can affect the

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rate of constitutional change, and the rate of change over time in turn can influence

the extent to which citizens differentiate between a constitution and ordinary law.

The differences between state and federal constitutions in the U.S. federal system

allow us to compare the existence and relative strength of constitutional status quo

bias within different institutional contexts. The federal Constitution is by far the

most high profile constitution in the U.S., but each state also has its own

constitution. Unlike the federal Constitution, however, most state constitutions

today are much easier to amend and, consequently, are more frequently amended,

revised, or altogether replaced. A primary reason for this is that the state

constitutions necessarily evolved to serve many different purposes and deal with

more matters of government than the federal Constitution, which required that they

allow for greater flexibility in accommodating the constitution to changing

circumstances within the state (Dinan 2000; Lutz 1982; Tarr 2000). Thus, while

state constitutions are similar to the federal Constitution in that they also presume to

serve as a sort of symbol to citizens, the relative frequency of constitutional

amendment and change at the state-level may make them seem less ‘‘constitution-

like’’ in the eyes of citizens. If there is a link between constitutional attachment and

the ease and frequency of constitutional change, then we expect the effects of

constitutional status quo bias to be weaker or nonexistent at the state level.

Study 1

To test the plausibility of our basic expectations, we used Amazon Mechanical Turk

(MTurk) to administer a survey experiment to a national convenience sample of

adults. Several recent analyses across a variety of disciplines have validated the

MTurk subject pool (Berinsky et al. 2012; Buhrmester et al. 2011; Paolacci et al.

2010; Sprouse 2011) and it is increasingly used as a recruitment tool by studies

published in top political science journals (Huber et al. 2012; Grimmer et al. 2012).

We ran two versions of the experiment on different sets of subjects, one testing the

effect of hypothetical proposals to amend the state or federal constitution and a

follow-up survey testing the effect of hypothetical proposals to alter statutory law at

the state or federal level. Together, these surveys allow us to isolate the effects of

constitutional status quo bias and differentiate it from general resistance to legal

change. Our sample is comprised of 2088 participants that were at least 18 years old

and residents of the United States at the time of the survey. We recruited workers

that had an MTurk rating of 70 % or above and participants were paid $1 to

complete the survey. Respondents who participated in the first version of the study

were blocked from participating in the second version of the study. More details

about the sample, including summary statistics, are included in the Online

Appendix.

Our surveys asked each respondent about their willingness to support proposals

relating to two substantive issues, collective bargaining rights and a policy that

would require a legislative supermajority to approve tax increases. We chose these

specific issues to retain issue-consistency with Study 2 (below), which involved

actual constitutional amendment proposals on the same issues in Michigan’s 2012

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general election. Using these issues provides a common reference point that allows

for a more direct comparison between Study 1 and Study 2.

Respondents for both versions of the survey were randomly assigned to one of

four basic conditions—federal control, federal treatment, state control, or state

treatment—in which they were asked about both issues. For both versions of the

survey, an individual assigned to the federal control condition received both of the

following questions (in randomized order):

Would you favor a federal policy that grants public and private employees

across the country the right to organize and bargain collectively through labor

unions?

Would you favor a federal policy that requires a 2/3 majority vote of the U.S.

House of Representatives and the U.S. Senate in order for the federal

government to impose new or additional federal taxes on taxpayers or to

increase the rate of federal taxation?

The state control conditions were the same as their federal counterparts except

we refer to a ‘‘state policy’’ and similarly change other language to clearly indicate

the state context.

In the constitution version of the experiment, those assigned to the treatment

conditions were asked about the same substantive policy proposals as those in the

control, but the proposals instead were framed as amendments to the state or federal

constitution. For example, a respondent assigned to the federal constitutional change

treatment received both of the following questions in randomized order:

Would you favor an amendment to the United States Constitution that grants

public and private employees across the country the right to organize and

bargain collectively through labor unions? If approved, this amendment would

change the United States Constitution to reflect the new policy.

Would you favor an amendment to the United States Constitution that requires

a 2/3 majority vote of the U.S. House of Representatives and the U.S. Senate in

order for the federal government to impose new or additional taxes on

taxpayers or to increase the rate of federal taxation? If approved, this

amendment would change the United States Constitution to reflect the new

policy.

The questions for those assigned to the state constitution treatment condition used

the same basic wording except that we referred to the subject’s state constitution.

Similarly, those assigned to the treatment conditions in the ordinary law version

of the experiment were asked their views on the same issues as their counterparts in

the control condition, except the proposals were described as changing state or

federal law. Thus a respondent assigned to the federal ordinary legal change

treatment received the following questions in randomized order:

Would you favor a measure that grants public and private employees across

the country the right to organize and bargain collectively through labor

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unions? If approved, this measure would change federal law to reflect the new

policy.

Would you favor a measure that requires a 2/3 majority vote of the U.S. House

of Representatives and the U.S. Senate in order for the federal government to

impose new or additional taxes on taxpayers or to increase the rate of federal

taxation? If approved, this measure would change federal law to reflect the

new policy.

The state law treatment condition was the same except that we referred to state

law. The exact wording of all questions is presented in the Online Appendix.

Across both versions of the experiment, a total of 1013 subjects were assigned to

the state conditions (511 control, 240 constitution treatment, 262 law treatment) and

1075 were assigned to the federal conditions (535 control, 250 constitution

treatment, 290 law treatment).

Results

Based on the logic of constitutional status quo bias, we expect to find the following

results. First, for the version of the experiment highlighting constitutional change,

we expect that respondents assigned to the federal or state constitutional change

treatment will exhibit greater opposition to the proposal than those in the

corresponding control group, all things equal. Second, we expect a smaller effect

Table 1 Average treatment

effects for hypothetical

propositions

Support for the status quo is

coded as ‘‘0’’ if the respondent

supported proposal and ‘‘1’’ if

they opposed proposal. p-Values

are associated with two-tailed

t-tests

Support the status quo

Control Treatment Difference

Collective Bargaining

Federal constitution 0.281 0.528 0.247

(N ¼ 278) (N ¼ 250) (p\0:01)

Federal law 0.241 0.303 0.062

(N ¼ 257) (N ¼ 290) (p ¼ 0:10)

State constitution 0.250 0.396 0.146

(N ¼ 240) (N ¼ 240) (p\0:01)

State law 0.273 0.324 0.051

(N ¼ 271) (N ¼ 262) (p ¼ 0:20)

2/3 Majority

Federal constitution 0.374 0.580 0.206

(N ¼ 278) (N ¼ 250) (p\0:01)

Federal law 0.393 0.426 0.033

(N ¼ 257) (N ¼ 290) (p ¼ 0:43)

State constitution 0.412 0.512 0.100

(N ¼ 240) (N ¼ 240) (p ¼ 0:03)

State law 0.351 0.424 0.073

(N ¼ 271) (N ¼ 262) (p ¼ 0:08)

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size for the state constitution treatment compared to the federal constitution

treatment. Third, for the version of the experiment that emphasizes ordinary

statutory legal change, we do not expect to find any significant effect for the legal

change treatments at the state or federal level.

Table 1 and Fig. 1 present the average treatment effects for the constitutional and

ordinary legal change treatments for each of the four hypothetical proposals (federal

collective bargaining, state collective bargaining, federal taxation, state taxation).5

For each of the constitution scenarios at both the state and federal levels, our

treatment highlighting constitutional change resulted in a significant effect,

consistent with our first expectation. In contrast, none of the four ordinary legal

change treatments is statistically significant, which is consistent with our third

expectation. Moreover, those effect sizes are small in magnitude (between about 3

and 7 %) relative to their corresponding constitutional change treatments, which

suggests that respondents are much more willing to change statutory law than the

constitution, holding the issue constant. For three of our four issues—the federal

taxation scenario (p\0:01 one-sided) and the state (p ¼ 0:05 one-sided) and federal

(p\0:01 one-sided) collective bargaining scenarios—the effects of our constitu-

tional change treatments are significantly larger than those for the ordinary legal

CollectiveBargaining

2/3Majority

Ave

rage

Tre

atm

ent E

ffect

-0.1

0.0

0.1

0.2

0.3

0.4

Federal ConstitutionFederal LawState ConstitutionState Law

Fig. 1 Average treatment effects and 95 % confidence intervals (from a two-tailed t-tests) forhypothetical propositions

5 Results from regression analyses including several control variables are presented in Online Appendix

Table 2 and Fig. 1.

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change treatments.6 Only on the state taxation issue do we fail to find a statistically

significant difference between respondents’ resistance to constitutional change and

their reluctance to change ordinary law (p ¼ 0:30 one-sided). Figure1 also provides

a comparison of the strength of the federal and state constitutional treatments.

Consistent with our second expectation, the effect of our treatment is larger in the

federal conditions than in the state conditions. The difference between the state and

federal constitutional change treatments is significant for the collective bargaining

(p ¼ 0:05 one-sided) and taxation (p ¼ 0:04 one-sided) scenarios. Respondents

consistently demonstrate greater opposition to changes to the federal Constitution

than to their state’s constitution, which supports the notion that the relative ease and

frequency of constitutional amendment can affect the extent to which individuals

are biased against constitutional change.

These results are consistent with our expectations and provide provisional

evidence of constitutional status quo bias, but it is important to consider them in

light of other well-known biases that might offer somewhat different interpretations

of the treatment effects. One straight forward alternative explanation of the results is

that they simply reflect status quo bias rooted in risk aversion or uncertainty

surrounding policy change. But the fact that we do not observe significant effects for

most of the law treatments, along with the difference in effect sizes between the

state and federal constitutional change treatments, strongly suggest that these results

are not reducible to ordinary status quo bias. If respondents opposed the proposals

simply out of a bias against change, then we would not expect them to distinguish

between changes in statutory law and changes to the constitution at either the

federal or state level: they should be as reluctant to change ordinary law as they are

to change a constitution, holding the issue constant. Moreover, we would not expect

to find a difference in the size of effect between the state and federal constitutional

change treatments on the same issues. Finally, because risk averse individuals are

more susceptible to status quo bias (Kam and Simas 2012; Eckles et al. 2014), we

would expect our treatment effects to be especially pronounced among risk averse

respondents if our results were driven simply by status quo bias. Yet our treatment

effects do not significantly differ based on respondents’ risk orientations (see Online

Appendix Table 3).

That we find significant effects at the state level also indicates our results are not

driven entirely by the age of the constitutional status quo. Because individuals are

inclined to the value the status quo more—and thus less likely to change it—the

longer it has been in place (Eidelman et al. 2010; Eidelman and Crandall 2014), it

may be that our treatment effects have little or nothing to do with constitutions per

se and instead reflect respondents’ general reluctance to change any long-standing

status quo condition. It is possible that respondents are unwilling to change the U.S.

6 To compare average treatment effects we used a bootstrap procedure. We drew 1000 samples of

support for the status quo in the treatment and control group for both the constitution and law conditions

and calculated the difference in means for each sample. We then compared the distribution of mean

differences for the constitution and law conditions. The p-value for the test of the hypothesis that the

treatment effect associated with the constitution condition is larger than that for the law condition is the

number of negative mean differences divided by 1000. We follow the same procedure to compare the

federal and state constitutional treatments.

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Constitution in part because they know it is old, but most individuals know very

little about the age of their state’s constitution or, indeed, if their state even has a

constitution.7 Thus our state level results offer evidence that there is something

specific about constitutions aside from or in addition to age that biases individuals

against proposals that would effect constitutional change. Perhaps our results are

nonetheless attributable to this longevity bias in a more indirect way: maybe

respondents assume—either correctly or incorrectly—their state’s constitution is old

and conclude based on this assumption that it should not be changed simply because

it has endured over time. Even if this is the case, however, it only offers further

evidence that individuals are inclined to automatically attribute to constitutions a

bundle of venerable characteristics. That is, in this case it is significant not so much

that individuals are reluctant to change their state’s constitution because they

assume it is old, but rather that individuals assume their state’s constitution is old

because it is a constitution.

Finally, the results could be interpreted as evidence that individuals do not suffer

from any ‘‘bias’’ at all, but instead they behave rationally and deliberately weigh the

benefits expected from a policy change against the heightened uncertainty

associated with amending a constitution. Any policy change involves a degree of

unpredictability, and because constitutions usually are more difficult to change than

ordinary law, the costs of unintended consequences are much higher when dealing

with constitutional amendments. Respondents in our study, therefore, simply may

have engaged in an explicit and rational calculation: they expressed opposition to

using constitutional means to effect a policy change because they know it is more

difficult to undo the change should it have unforeseen negative consequences.

Moreover, the difference in the sizes of our treatment effects can be interpreted as

consistent with this possibility: just as respondents are more reluctant to change

their state’s constitution because it is harder to change than ordinary state law, they

are more reluctant to change the U.S. Constitution than their state’s constitution

because it is much harder to change the former than the latter. While it is unlikely

respondents know the exact institutional threshold for amending their state’s

constitution, it is at least plausible that they assume it is relatively easier to amend

than the U.S. Constitution.

To address this last possibility, we conducted a follow-up experiment on MTurk

using the federal collective bargaining scenarios from the original experiments. In

the follow-up study, respondents were randomly assigned to one of four conditions.

Three of the conditions—the control, federal statutory change treatment, and federal

constitutional change treatment—were exactly the same as in the original study. To

these, we added a fourth—a ‘‘certainty’’ scenario that asked:

7 The Advisory Commission on Intergovernmental Relations (ACIR) found that in 1991 only 52 % of the

population knew that their state had a constitution, with 11 % asserting definitively that their state did not

have a constitution, and 37 % expressing uncertainty on the matter (accessed on May 15, 2013, http://

www.library.unt.edu/gpo/acir/Reports/survey/S-20.pdf). Although we did not include any state consti-

tutional knowledge questions in either version of the original experiment, we did include one in the Mturk

follow-up study, described below. Following on the ACIR study, we simply asked respondents if their

state had a constitution: 53 % correctly answered ‘‘yes,’’ 2 % answered ‘‘no,’’ and 45 % indicated they

did not know whether or not their state had a constitution.

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Would you favor an amendment to the United States Constitution that grants

public and private employees across the country the right to organize and

bargain collectively through labor unions, as long as the amendment were

written so that it would not alter the basic structure of federal labor law or

fundamentally interfere with the ability of employers to manage their workers?

If approved, this amendment would change the United States Constitution to

reflect the new policy.

By conditioning the hypothetical amendment proposal on the promise that it will

be written carefully so it does not materially affect the status quo in labor law and

employer-employee relations, the new condition effectively gives permission to

support the proposal to those individuals who are troubled by policy uncertainty.

Our sample for the follow-up study is comprised of 802 respondents in total (202

assigned to the control, 199 to the federal legal change condition, 207 to the federal

constitutional change condition, and 194 to the ‘‘certainty’’ constitutional change

scenario). As with the original study, we recruited workers who were at least

18 years old and residents of the United States at the time of the survey and had an

MTurk rating of 70 % or above, and participants were paid $1 to complete the

survey. Respondents who participated in any of the original versions of the Study 1

were blocked from participating in this follow-up. More details about the questions

and the sample, including summary statistics, are included in the Online Appendix.

Table 2 and Fig. 2 present the average treatment effects for this follow-up study.8

Consistent with the original study, we find no significant difference between the

control group and the ordinary legal change treatment group. In contrast, we find a

large and statistically significant difference between the control and the basic

constitutional change treatment—the 20.7 % difference we observe in the follow-up

study is comparable in size to the difference between the control and the

constitution treatment for the federal collective bargaining scenario in the original

experiment (24.7 %). The difference between the control and the new ‘‘certainty’’

constitution treatment groups is also large and statistically significant (0.139,

p\0:01), although it is not as large is the effect for the basic constitutional change

treatment. This suggests that some of our treatment effect may be attributable to the

heightened uncertainty surrounding the relative difficulty of constitutional change,

Table 2 Average treatment effects for hypothetical propositions

Support the status quo

Control Federal

law

Difference Federal

constitution

Difference Federal

constitution ? certainty

Difference

0.248 0.281 0.034 0.454 0.207 0.387 0.139

(N ¼ 202) (N ¼ 199) (p ¼ 0:44) (N ¼ 207) (p\0:01) (N ¼ 194) (p\0:01)

Support for the status quo is coded as ‘‘0’’ if the respondent supported proposal and ‘‘1’’ if they opposed

proposal. p-Values are associated with two-tailed t-tests

8 Results from regression analyses including several control variables are presented in Online Appendix

Table 5 and Fig. 2.

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but not all of it is. Individuals remain strongly resistant to changing the constitution

even when we reassure them that the change will not substantially alter the policy

status quo.

Study 2

For our second study, we sought a test of constitutional status quo bias that does not

rely on hypothetical constitutional amendments. Accordingly, we administered

survey experiments to convenience samples of 613 Michigan and 495 California

voters during the week leading up to the November 6, 2012 general election. This

setting is a useful counterpart to Study 1 because it provides us with a realistic

environment, one in which the immediacy and real-world impact of the choice voters

confront represents a truer test of constitutional status quo bias than scenarios

involving hypothetical constitutional amendments. Moreover, the variety of

substantive issues involved in these elections help guard against the possibility that

respondents receiving our treatment questions oppose a proposal not out of a bias

against constitutional change, but rather simply because they do not think the issue

that is the subject of the proposal is serious enough to warrant an amendment.9

Federal Law Federal ConstitutionFederal Constitution

+ Certainty

Ave

rage

Tre

atm

ent E

ffect

-0.1

0.0

0.1

0.2

0.3

0.4

Fig. 2 Average treatment effects and 95 % confidence intervals (from a two-tailed t-tests) forhypothetical propositions

9 Although our Michigan and California surveys test constitutional status quo bias across a range of

substantive issues, one could argue that all of the issues involved are partisan policy issues that most of

our respondents would view as too ephemeral or not important enough to warrant a constitutional

amendment. As Dinan (2014) notes, however, citizens across the United States frequently approve policy-

oriented amendments to their state’s constitution and are not generally any more biased against policy

amendments than other amendment types. We thank the anonymous reviewer who drew our attention to

this matter.

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123

Our Michigan survey asked each respondent about six items—five proposed

constitutional amendments and one state law referendum—that would appear on the

November 6 ballot. Subjects were randomly assigned to one of two conditions for

the measure that would have amended Michigan’s constitution to protect collective

bargaining rights (Proposal 2).10 Respondents assigned to the control condition were

asked the following question: ‘‘On November 6, Michigan voters will decide on a

ballot measure that would grant public and private employees the right to organize

and bargain collectively through labor unions. Do you favor or oppose this ballot

measure?’’ Respondents assigned to the treatment condition received the same

information as those in the control, with an additional sentence noting the measure’s

constitutional effect: ‘‘If approved, the ballot measure would amend Article I of

Michigan’s state constitution by adding Section 28 to reflect the new policy. Do you

favor or oppose this ballot measure that would change the state constitution?’’ The

control and treatment questions for the remaining amendment proposals took the

same basic form. In the case of Proposal 1, the one measure relating to ordinary law,

the control and treatment questions were similar except respondents receiving the

treatment were explicitly informed that the measure would change state law if it

were approved. The complete questions are included in the Online Appendix.

For a comparative perspective, we also administered our study in California, a

state with a potentially different political culture that may attenuate the effects of

constitutional status quo bias. Although both states’ constitutions provide for very

similar amendment procedures, California voters approve state constitutional

amendments much more frequently than Michigan voters.11 Californians’ apparent

comfort with changing the state constitution suggest they generally view it more as

a practical legal instrument rather than a symbolic one, in which case we would

expect the effects of constitutional status quo bias to be relatively weak or

nonexistent in our California survey.

Our California survey asked each respondent about two items—one proposed

constitutional amendment that would increase taxes to fund education (Proposition

30) and one proposed state statute that would abolish the death penalty (Proposition

34)—that would appear on the November 6 ballot. The wording of the control and

treatment conditions took the same form as those administered in Michigan—

respondents in the control conditions were simply asked if they favored the

proposition and they received no information about the legal effect of the measure,

while those assigned to the treatments were explicitly informed that the proposition

would change the state constitution (Proposition 30) or state law (Proposition 34) if

it were approved. The control and treatment questions are included in the Online

Appendix.

For both surveys, we contracted with the firm Qualtrics (www.qualtrics.com) to

solicit subjects and administer our surveys online. Both surveys were conducted in

10 The initial random assignment for the collective bargaining proposal determined whether respondents

received treatment or control questions for the other five proposals.11 Since its current constitution went into effect in 1964, Michigan voters have considered 75 proposed

constitutional amendments, ultimately approving 32 of them (43 %). During about the same timeframe,

California voters have approved 171 of 263 proposed constitutional amendments (65 %). NCSL Ballot

Measure Database, accessed 11/20/13, http://goo.gl/m2YZ8i.

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the week leading up to the 2012 general election and subjects were compensated for

their participation. The summary statistics for the Qualtrics samples are presented in

the Online Appendix.

Results

We expect to find the following results for Study 2. First, with regard to the

proposed constitutional amendments (Proposals 2 through 6 in Michigan and

Proposition 30 in California), we expect that respondents assigned to the

constitutional change treatment will exhibit greater opposition to the proposal than

those in the control group, all things equal. Second, we expect there to be little or no

significant difference between the control and treatment groups for the Michigan

emergency powers proposal (Proposal 1) and the California death penalty

proposition (Proposition 34), the two proposals that relate to ordinary statutory

law rather than the state constitution.

Table 3 and Fig. 3 present the average treatment effects for each of the eight

proposals.12 Consistent with our first expectation, we find significant treatment

effects for all six constitutional amendment proposals, with respondents in each

treatment group demonstrating stronger opposition to the proposal than their

counterparts in the control group. In line with our second expectation, we find that

respondents are not as reluctant to change ordinary law: the treatment effect for

Michigan’s emergency powers proposal is small and not statistically significant, and

the treatment effect is negative and not significant for the California death penalty

proposition.

We wish to focus on the Michigan results, particularly Proposal 2, the collective

bargaining proposal. It is especially noteworthy we find such sizable treatment

effects for that proposal, something worth closer examination. Pre-election polls

indicated that support for Proposal 2 was correlated with party identification, with

Democrats largely supporting the measure and Republicans opposing it.13 Yet, as

illustrated in Fig. 4 and Table 4, we find large and significant treatment effects even

among strong Democrats (see also Online Appendix Table 9 and Fig. 4). This is

notable not just because they would have been strongly inclined to favor the

proposal on substantive grounds, but also because in principle they would have been

among the least concerned about uncertainty surrounding the consequences of the

proposal if it were approved. The impetus behind Proposal 2, at least as articulated

by its supporters, was to protect the existing state of labor law in Michigan against

the dramatic wave of change sweeping its neighbors.14 At the time, neighboring

states Indiana, Ohio, and Wisconsin all either had become ‘‘right to work’’ states or

were considering right-to-work legislation, and a constitutional amendment was

12 Results from regression analyses including several control variables are presented in Online Appendix

Table 8 and Fig. 3.13 Dawson Bell, ‘‘Poll: Michigan Voters Skeptical about Collective Bargaining, Bridge Proposals,’’

Detroit Free Press, September 16, 2012, accessed 3/9/14, http://goo.gl/QlBK0l.14 See ‘‘Protect Our Jobs!’’ campaign website, https://goo.gl/bJj2jO.

Polit Behav

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Table 3 Average treatment

effects for Michigan and

California propositions

Support for the status quo is

coded as ‘‘0’’ if the respondent

supported proposal and ‘‘1’’ if

they opposed proposal. p-Values

are associated with two-tailed

t-tests

Support the status quo

Control Treatment Difference

Michigan

Emergency powers 0.503 0.558 0.055

(N ¼ 288) (N ¼ 319) (p ¼ 0:18)

Collective bargaining 0.410 0.628 0.218

(N ¼ 290) (N ¼ 323) (p\0:01)

Renewable energy 0.453 0.539 0.055

(N ¼ 289) (N ¼ 319) (p ¼ 0:03)

Healthcare workers 0.360 0.465 0.106

(N ¼ 289) (N ¼ 318) (p ¼ 0:01)

2/3 Majority 0.375 0.523 0.148

(N ¼ 288) (N ¼ 321) (p\0:01)

Canada bridge 0.366 0.547 0.181

(N ¼ 287) (N ¼ 318) (p\0:01)

California

Education tax 0.394 0.481 0.087

(N ¼ 231) (N ¼ 264) (p ¼ 0:05)

Death penalty 0.522 0.488 -0.034

(N ¼ 247) (N ¼ 248) (p ¼ 0:45)

MICollectiveBargaining

MIRenewable

Energy

MIHealthcare

Workers

MI2/3

Majority

MICanadaBridge

CAEducation

Tax

MIEmergency

Powers

CADeath

Penalty

State Propositions

Ave

rage

Tre

atm

ent E

ffect

-0.1

0.0

0.1

0.2

0.3

0.4

Constitution AmendmentStatutory Change

Fig. 3 Average treatment effects and 95 % confidence intervals (from a two-tailed t-tests) for Michiganand California propositions

Polit Behav

123

seen by proponents of the measure as the only way to prevent Michigan from

adopting similar laws. From the standpoint of the proposal’s supporters, therefore, a

vote in favor of Proposal 2 would have been a vote in favor of certainty and the

status quo; conversely, a vote against the proposal would have been a vote for a

brand new labor landscape that could have uncertain consequences even for non-

union workers. Given these circumstances, Democrats should have been strongly

inclined to favor Proposal 2 on both substantive and certainty grounds, but simply

highlighting the constitutional effect of the proposal was enough to turn many

Democrats away.

Additional analysis lends further support to the notion that our results are at least

in part attributable to a specific bias in favor of the constitutional status quo.

Proposal 2, for example, was the focus of intense campaigning and was probably the

highest profile proposal on Michigan’s November 2012 ballot. Combined, both

sides of the collective bargaining fight raised over $46 million dollars, the most ever

in state history,15 and increased campaign spending on a measure generally

increases awareness of and information about it (Bowler and Donovan 1998, 2002).

In principle, then, our respondents would have been well informed about the

proposed constitutional change and would have had settled attitudes about it at the

time we administered the survey, which was within a week of the election. As such,

they should have been less susceptible to our treatment and more inclined to vote in

line with their preferences, but the treatment highlighting constitutional change

Strong Democrats DemocratsMI CollectiveBargaining

Ave

rage

Tre

atm

ent E

ffect

0.0

0.1

0.2

0.3

0.4

Fig. 4 Average treatment effects and 95 % confidence intervals (from a two-tailed t-tests) for Democratsand strong Democrats for Michigan’s collective bargaining proposition (Proposal 2)

15 See report by the Michigan Campaign Finance Network based on data compiled from the Michigan

Bureau of Elections, http://goo.gl/m9a8jq.

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nonetheless dampened support for the proposal. Indeed, the treatment effects on

Proposal 2 and all of the other Michigan constitutional amendment proposals do not

significantly differ based on respondents’ level of knowledge about the proposals.

This indicates our results are not simply driven by uninformed respondents who

cautiously default to the status quo because they lack sufficient knowledge of the

proposals to make an informed choice.16 The treatment effects also do not

significantly differ based on respondents’ risk orientations, which implies that the

results are not simply attributable to general status quo bias rooted in risk aversion

and uncertainty.17

Discussion

Our analyses support the notion that citizens’ attachment to a constitution can leave

them resistant to proposed changes to it. We consistently find evidence of this bias

in favor of the constitutional status quo across a variety of substantive issues and in

different political contexts, even when accounting for alternative explanations. Our

results at the federal level are perhaps unsurprising, but they are illuminating

nonetheless in that they provide more direct evidence of ‘‘constitutional veneration’’

as a specific phenomenon. That we found any evidence of constitutional status quo

bias at the state level is much more surprising and worth further consideration.

Our findings—and the real-world fact that state constitutions across the United

States are frequently amended—indicate that constitutional status quo bias is

weaker at the state level and thus easier to overcome. It is easier to overcome, first,

at the individual level. As Study 1 indicates, our treatment effect is smaller at the

state level, holding the issue constant, which indicates that competing considera-

tions can more easily overpower an individual’s bias in favor of the constitutional

status quo when contemplating a proposed change to her state’s constitution. This

Table 4 Average treatment effects for Michigan’s collective bargaining proposition (Proposal 2)

Support the status quo

Control Treatment Difference

Strong Democrats 0.164 0.393 0.229

(N ¼ 61) (N ¼ 84) (p\0:01)

All Democrats 0.195 0.446 0.251

(N ¼ 113) (N ¼ 130) (p\0:01)

Support for the status quo is coded as ‘‘0’’ if the respondent supported proposal and ‘‘1’’ if they opposed

proposal. p-Values are associated with two-tailed t-tests

16 Uninformed voters in particular rely on the status quo as a reference point since they generally know

more about the status quo than the uncertain and risky policy alternatives (Lupia 1994a, 1992; Bowler and

Donovan 1998).17 For the full regression analyses examining treatment effects across risk orientations and knowledge of

the proposals, see Online Appendix Table 10.

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123

bias is easier to overcome, second, at the aggregate level within the states. Since

most states only require a simple majority of the popular vote to ratify a proposed

amendment to the state constitution, far fewer individuals must be convinced that

changing the constitution is a good idea.

Constitutional status quo bias can act as an obstacle to constitutional change at

the state level, then, but other factors also play a role in deciding the fate of any

given amendment proposal. For example, the path an amendment proposal takes to

the ballot appears to substantially affect its likelihood of success: proposals that

appear on the ballot after approval by the state legislature enjoy a much higher

success rate than those that take the citizen initiative route to the ballot.18 One

possible explanation for this disparity is the strategic and information advantages

legislators usually have over groups using the initiative process: legislators often are

in a better position to evaluate the costs and benefits associated with seeking policy

change via constitutional amendment and to more accurately gauge the likelihood of

an amendment proposal’s success (Damore et al. 2012). In fact, since most states

require the approval of a super-majority in both legislative chambers to refer an

amendment to voters, the mere presence of a legislatively referred amendment on

the ballot often is indicative of a unified legislature attempting to achieve more

enduring policy accomplishments by submitting the amendment for approval to the

very same voters who elected them in such large numbers in the first place.

Conversely, since the initiative process is a much costlier way to achieve policy

goals than legislative means, groups’ reliance on the initiative process often is

evidence of their weak political position in the legislature or among the electorate.

Additionally, the legislature’s position on an amendment proposal may have effects

at the individual level: the legislature’s referral of or failure to refer an amendment

proposal can signal to voters important information about how they might benefit

from the proposal or how it aligns with their personal preferences (Boehmke and

Patty 2007). Thus while not all states have an initiative process, in those that do the

nature of an amendment proposal’s path to the ballot may weaken or enhance bias

against constitutional change. More generally, extant research suggests that

information about the citizen groups or organized interests that have sponsored a

ballot proposal or similar cues—e.g., the identity of groups, elected officials,

celebrities, or media outlets who have endorsed or spoken out against a proposal—

can help voters make informed choices (Bowler and Donovan 1998; Lupia 1994b, a;

Banducci 1998; Nicholson 2003; Lewkowicz 2006; Bowler and Donovan 2002). It

is possible these cues can provide voters with information not only about the policy

implications of a proposal, but also about the value of using constitutional means to

implement the proposal.

These other factors provide important context for our state level findings, but

they do not contradict them. Constitutional status quo bias may be easier to

overcome at the state level, but it sometimes may be the difference between the

success and failure of a proposal. Even legislatively-referred amendment proposals,

18 The annual reports provided by the Book of States (http://goo.gl/MHnBdk) show that between 1968

and 2013, about 73 % of all legislatively-referred amendments were approved compared to just about

40 % of all initiated amendment proposals.

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which enjoy all of the advantages outlined above, frequently fail. To provide some

additional context for Study 2, for example, just 22 out of 44 total legislatively-

referred constitutional amendments have been approved in Michigan since 1964,

when Michigan’s current constitution went into effect (50 %).19 This is higher than

the 32 % success rate (10 out of 31) of amendment proposals placed on the ballot by

initiative during the same time frame, but overall these numbers evince a general

unwillingness of Michigan voters to change their constitution.

Political actors implicitly acknowledge that constitutional status quo bias exists

at the state level, for they often try to enlist this reluctance to change constitutions to

help them fight proposals they oppose. Indeed, constitutional status quo bias may

have played a role in the 2012 Michigan election, our subject in Study 2. For

example, a business coalition fighting the pro-union constitutional amendment

proposals organized under the name ‘‘Citizens Protecting Michigan’s Constitution,’’

thus clearly suggesting to the public that votes in favor of the amendment proposals

are votes against the Michigan constitution, almost as if that fact alone is a sufficient

argument against the proposals. At least one advocacy group argued these sorts of

appeals were effective in turning voters against the proposals—they reminded

voters ‘‘that constitutions, even more malleable state constitutions, should not be

altered lightly’’—and that groups must change their strategies in the future to

account for citizens’ attachment to the constitution.20 The group’s analysis cites as

evidence the difference between the level of support for the proposals in pre-

election polls and the actual election results. An EPIC-MRA poll in September 2012

found that at least three of the five amendment proposals enjoyed the support of over

50 % of Michigan voters.21 The renewable energy proposal (Proposal 3), for

example, registered 55 % support in September, with 34 % expressing opposition

and 11 % undecided. In the end, however, the proposed amendment was easily

defeated 62–38 %. Arguments highlighting the sacred or fundamental status of the

state constitution will not register with every voter on every issue and they will not

always prove decisive even for those who ordinarily are susceptible to such appeals.

On close votes, however, they may help tip the balance against a proposed

amendment.

Constitutional status quo bias also may shape political elites’ strategies in

deciding whether and how to pursue constitutional change at the state level. North

Carolina’s May 2012 vote on Amendment 1, the ultimately successful constitutional

amendment that barred legal recognition of same-sex marriages and civil unions in

the state, offers an illustration. Although existing state law already prohibited same-

sex marriages, conservative legislators pushed for the amendment to make it much

more difficult to overturn the statutory ban. In speaking about the amendment, then-

N.C. House Speaker Thom Tillis conceded that same-sex marriage rights were an

inevitability, especially since younger generations are much more accepting of

19 See Michigan Bureau of Elections report on initiatives and referenda, accessed July 16, 2015, http://

goo.gl/eYWThx, updated to include May 2015 election.20 Dan Ferber, ‘‘Why Michigan’s Renewable Energy Amendment Failed,’’ Midwest Energy News,

November 13, 2012, accessed 3/9/14, http://goo.gl/6Jr6YC .21 Dawson Bell, ‘‘Poll: Michigan Voters Skeptical about Collective Bargaining, Bridge Proposals,’’

Detroit Free Press, September 16, 2012, accessed 3/9/14, http://goo.gl/QlBK0l.

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same-sex relationships. But he nevertheless defended the measure and acknowl-

edged it was intended in part to make legal recognition of same-sex marriage in

North Carolina a long and difficult journey.22 That is, not only would the

amendment prevent ‘‘activist’’ state judges from overturning the state’s law

prohibiting same-sex marriage, but, more important, it also would leave future

generations of North Carolinians less disposed to extend marriage rights to same-

sex couples. If constitutional status quo bias makes citizens reluctant to change a

constitution in the first place, it also inclines them against repealing a measure once

it has worked its way into the constitution. Of course, the sponsors of the

amendment had to succeed in getting voters to approve it in the first place, which is

why they scheduled the vote on the amendment for the May 2012 primary election

rather than placing the measure on the November general election ballot. Holding

the vote during a relatively low-salience election in which Republican voters would

decide their party’s presidential candidate (and Democrats would not) made it

likelier that conservative activists inclined to support the amendment would turn out

in much higher numbers than opponents of the amendment. To the extent citizens’

tendency to defer to the constitutional status quo might have presented an obstacle

to passing Amendment 1, therefore, conservative legislators minimized its potential

effects by strategically timing the vote.

Overall, this study also provides context for the normative debates surrounding

questions of constitutional veneration and popular constitutionalism, especially

insofar as our findings highlight how constitutional status quo bias might affect

popular constitutionalism at different levels of government. At the federal level in

particular, our findings indicate that many individuals implicitly accept the U.S.

Constitution as something that is, to use Jefferson’s words, ‘‘too sacred to be

touched.’’ To some, this is precisely why constitutional attachment is so

problematic. As Levinson (1990, 2459-60) notes, this bias ‘‘has led not to few

amendments’’ over time, ‘‘but rather to a process of surreptitious and unacknowl-

edged amendment’’ by judicial fiat or other similar means outside of those

prescribed in Article V. From critics’ perspective, then, reverence for the

Constitution subtly encourages citizens to cede their authority to change the

Constitution to the very government officials the Constitution is meant to constrain.

Whether bias against constitutional change is good or bad ultimately is a matter of

perspective, but even if we accept that this bias is problematic at the federal level,

encouraged in part by a high amendment threshold that already makes constitutional

change difficult enough, our findings show it may serve as a useful ballast for

popular constitutionalism at the state level.

We conclude by highlighting important avenues for future research. We have

sought to establish the existence of ‘‘constitutional veneration’’ and distinguish it

from the most plausible alternative explanations for why individuals might resist

constitutional change. The combined results of our experiments offer strong

evidence that constitutional status quo bias exists, and while we think demonstrating

this is an essential first step, additional questions remain about why individuals defer

22 Jim Morrill, ‘‘N.C. House Speaker Thom Tillis: Gay Marriage Ban Likely to be Reversed,’’ Charlotte

Observer, March 28, 2012, accessed November 12, 2012, http://goo.gl/Ad4cvm.

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to the constitutional status quo. In particular, why might individuals exhibit

constitutional status quo bias at the state level when many cannot even say for sure

whether their state has a constitution? Our surveys do not allow us to directly

address this question, but we speculate that our findings are a ‘‘warmglow’’ effect

resulting from the symbolism many citizens attach to the U.S. Constitution. That is,

our results are not necessarily an indication of individuals’ attachment to their

state’s constitution, but instead may be evidence that the symbolic nature of the U.S.

Constitution translates into a more generalized, abstract attachment to constitutions

in the United States. When individuals are cued to the constitutional effects of a

proposal, it activates this more diffuse sense of constitutional attachment and

disposes them against a measure that would effect a change to their state’s

constitution. But this possibility must be tested more directly.

We also note that our study investigates constitutional status quo bias in the

United States only. We assume it is a phenomenon rooted in a combination of the

emphasis historically attached to written constitutions in the U.S., the frequent

invocation of the U.S. Constitution to legitimize arguments in our public discourse,

and socialization in the ‘‘higher law’’ constitutional tradition, among other things.

However, this study can be extended to examine constitutional status quo bias

comparatively across different national-constitutional contexts, which not only

would speak to whether it is a phenomenon peculiar to the United States, but also

would offer further insights into the interrelationship among constitutional design,

citizen psychology, and constitutional change.

Finally, we think important questions remain about the normative implications of

this study. We have established that constitutional status quo bias can act as an

obstacle to change. But even if we accept critics’ view that this generally is

problematic, at least at the federal level, there exists another, more encouraging

possibility that deserves further investigation: the anchoring effect of constitutional

status quo bias may entrench important ideals that can serve aspirational purposes or

act as a rallying point whenever political practice departs from constitutional

promise. ‘‘Federal Farmer,’’ one of the most vocal opponents of the proposed

Constitution as it originally emerged from the Convention, articulated the logic of

this possibility in his argument for attaching a bill of rights to the Constitution:

We do not by declarations change the nature of things, or create new truths,

but we give existence, or at least establish in the minds of the people truths and

principles which they might never otherwise have thought of, or soon forgot....

What is the usefulness of a truth in theory, unless it exists constantly in the

minds of the people, and has their assent:—we discern certain rights...which

the people of England and of America of course believe to be sacred, and

essential to their political happiness...while the people of some other countries

hear these rights mentioned with the utmost indifference.... The reason of the

difference is obvious—it is the effect of education, a series of notions

impressed upon the minds of the people by examples, precepts and

declarations. (Federal Farmer, 1787, in Storing 1981, 2:369–370)

In other words, attachment to a written constitution becomes attachment to the

principles and values enshrined in that constitution, and those constitutional values

Polit Behav

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in turn comprise—to use Martin Luther King, Jr.’s language—a ‘‘promissory note’’

that even the most deprived citizens can call upon government to honor. If

constitutional attachment translates into attachment to constitutional principles in

this way, the potential benefits may outweigh the costs of constitutional stasis.

Acknowledgments We thank Bill Boettcher, Mike Cobb, Kim Ebert, Alan Gibson, Gregory Huber,

Cindy Kam, David Peterson, John Scott, Frederick Solt, Andy Taylor, Jennifer Wilking, John

Zumbrunnen, the Stony Brook University Center for Behavioral Political Economy, and three anonymous

reviewers for their helpful comments and suggestions. We are especially grateful to John Dinan, who

helped us navigate the data in the Book of States. This collaboration was facilitated by the Visiting Young

Scholars Program organized by the School of Public and International Affairs and the Department of

Political Science at NC State University. Replication data for this paper will be posted no later than

March 2016 at https://dataverse.harvard.edu/dataverse/polbehavior.

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