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Copyright (c) 1993 Brigham Young University Law Review
Brigham Young University Law Review

The Role of Public Opinion in Constitutional Interpretation


1993 B.Y.U.L. Rev. 1039


James G. Wilson *


American lawyers are obliged, however, to yield to the current of public opinion, which is too strong for them to resist . . . .FN **

I. Introduction

This Article seeks to answer two questions. First, to what degree has public opinion influenced American constitutional interpretation, both on and off the Supreme Court, over the past two centuries? Second, how much weight, if any, should constitutional decision-makers give to public opinion, however that protean concept is defined? The Article initially places these queries in a contemporary context by considering the extended discussion of public opinion in the Planned Parenthood v. Casey 1 opinions of Justice Souter, 2 Chief Justice Rehnquist, and Justice Scalia. Justice Souter partially relied on public opinion to not overrule the constitutional right to an abortion created in Roe v. Wade, 3 while Chief Justice Rehnquist and Justice Scalia claimed in their Casey dissents that public opinion was constitutionally irrelevant. 4

The second part of the Article demonstrates that all three Justices' arguments in Casey have a viable intellectual tradition. This section presents a history of public opinion from before the American Revolution to the present. It considers the views of David Hume, James Madison, Chief Justice Marshall, Abraham Lincoln, Chief Justice Taney, and Justice Brandeis, along with a host of others.

Part III argues that public opinion ought to influence many constitutional decisions. In other words, public opinion is a legitimate interpretive factor, comparable to text, history, structure, precedent, and policy. Indeed, some constitutional ...
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