Cognitive Bias and the Constitution

Abstract

This article has reciprocal goals. The first is to use the study of public risk perceptions to add psychological realism to liberal constitutional theory. The second is to use this enriched understanding of constitutional theory to add normative depth to the study of public risk perceptions. I will attempt to achieve these objectives by discussing two phenomena. The first, cultural cognition, is a psychological dynamic. It comprises a set of related mechanisms that unconsciously motivate individuals to form perceptions of risk and related facts that cohere with important group commitments. The second phenomenon, cognitive illiberalism, is a normative concept. It describes a state of affairs in which enforcement of liberal political principles is defeated, not by willful, defiance but by unconscious bias. My thesis is that cultural cognition is an important source of cognitive illiberalism. In the course of observing social norms and applying legal rules that implement liberal political principles, citizens and governmental decision-makers are prone to unconsciously impute harm and other socially undesirable consequences to behavior that denigrates their groups' cultural outlooks.