Recent years have seen the blossoming of scholarly interest in both popular constitutionalism and social epistemology, but there has been little cross-fertilization between these two literatures. I think this is an oversight, and I'd like to sketch out some tentative connections between the two ideas. Popular constitutionalism has both descriptive/explanatory and normative aspects. On the descriptive side, it claims that constitutional practice is in fact shaped by the beliefs and actions of ordinary citizens rather than merely judges, scholars, or office-holders; on the normative side, it stands for the proposition that this is in some sense desirable—whether as a matter of political morality or constitutional accuracy. Social epistemology is rather less well-defined, but at least two research programs that fall under its header have clear applications to constitutionalism: the use of social-scientific methods to investigate the knowledge-producing properties of social structures, and the more theoretical work concerning attributions of doxastic states to collectivities.
On one conventional view of constitutional meaning, average citizens are irrelevant. This view is often grounded in a positivist view of law as grounded in a social practice or convention among officials such as that defended by H.L.A Hart. On this view, law just is whatever the rules of recognition accepted by officialdom (usually glossed as the courts) validate; so long as the system is minimally efficacious, average citizens need neither endorse nor even have knowledge of the underlying social practice. If we believe constitutions to exist primarily as rules of recognition—as the criteria for legality within a given society—citizens can thus remain ignorant of their constitution.
Not all versions of popular constitutionalism will conflict with this picture. One could coherently believe both that the meaning of the constitution is determined by the correct interpretation of the social practice of particular political elites and that popular views about constitutional meaning will often have a causal effect on that elite practice. One could add to this a normative claim that the people have a right to exercise this causal power. But again: neither of this views presents any difficulty for the elite-practice model.
The difficulty comes if we see constitutionalism as entailing something stronger than the “regrettably sheeplike” society imagined by Hart, and certain flavors of popular constitutionalism might well do the trick. This conception of constitutionalism would borrow from the aspirational conception of law developed by Lon Fuller and recently rehabilitated by Jeremy Waldron and focus attention on the ideal of constitutionalism as the subjection of the state to strong demands of publicity and restraint. In other words, we can speak of a state being more or less constitutional to the degree that its constitutional limitations are both real and known to be real. Moreover, the character of our discourse about constitutional meaning will change as we move from less to more constitutional polities: it will become more truth-apt, and we will be able to speak confidently about its objectivity.
On this view, the people do matter—not merely in a causal but a constitutive way. They matter because the public character of constitutions places restrictions on both the substance of the constitutional rules and the nature of the political and social institutions in which these rules are embedded. And here we see the connection to social epistemology: we need to understand how people come to have the beliefs they do about the political order, and the relationship between these belief-forming processes and the institutional structure of the polity.
Note that it is an open question how much actual knowledge on the part of the citizenry constitutionalism's publicity requirement demands. Certain republican understandings of constitutionalism that emphasize self-government and the collective choice of the people to live under these rules rather than other ones might push towards fairly strict requirements, which in turn would have quite drastic consequences for appraising actually-existing political structures. But this is not inevitable: one could defend an understanding of publicity that emphasized justified true beliefs in the binding and objective character of the constitutional rules, without requiring each citizen to have personal knowledge of those rules. (In order for the beliefs to be justified, of course, it would have to be the case that each citizen could in fact verify this if they chose.)
Ultimately, this idea of constitutionalism implies embedding the epistemological question of how one knows what the constitution is within the metaphysical question of what, in fact, constitutions are. But this is not a case of conceptual confusion or category error. Legal philosophers have long adduced epistemological constraints on the concept of law; for contemporary examples one need only look to Joseph Raz's argument for hard positivism, or Mark Greenberg's recent claim about the “rational relation” determination of legal content. In the case of constitutionalism, moreover, this move seems quite reasonable. Much of the confusion and controversy that besets constitutional theory lies in the difficulty of reconciling the descriptive, social-practice aspect with the aspirational nature of constitutions. Accepting this aspirational aspect, the demands of publicity that come packaged into any defensible understanding of constitutional government, results in a happy marriage: the aspirational elements turn out to be those that are themselves necessary for any coherent account of social rule-following more generally.
Note to self: may need to abandon all of this once I've fully digested this stuff.
