Peter J. Woolley: Health Insurance and Strip Searches: The Public ...

As the U.S. Supreme Court heard oral arguments last week on the Affordable Care Act, much was made of public attitudes toward the legislation, including people's assessments of the constitutionality of the health insurance law's "individual mandate." Frank Newport, editor in chief of the Gallup Poll, asked ordinary Americans to judge the constitutionality of the Affordable Care Act, noting, "Americans are not constitutional law scholars."

Of course, he is right in a very narrow sense. Less than .5 percent of the public have a law degree. Only small segments of the public pay substantial, sustained attention even to high-profile cases like this one, never mind the particulars of the full reach of the interstate commerce clause, or whether requiring health insurance is akin to mandating consumption of broccoli. But such a caveat should not lead us to overlook the public's proper role in, and talent for, constitutional interpretation.

Over the past two Supreme Court terms, the Fairleigh Dickinson University poll PublicMind has asked voters their unconsidered legal opinions about cases being heard by the high court, testing the proposition that the public not only can be, but are, constitutional thinkers. Those results have already demonstrated that people's judgments of constitutional issues can be independent of their ideological positions. Similarly, Newport finds that in the health insurance debate a significant portion of the public separates its policy preferences from its legal judgment (with roughly equal numbers seeing the health law as a "good" vs."bad" thing, compared to 7 out of 10 saying the law is unconstitutional). For many jurists as well as scholars, this ability to distinguish personal preferences from legal judgment is the very heart of responsible constitutional interpretation. This ability to make such distinctions goes beyond the health insurance case.

Indeed, while both judicial experts and occasional Court-watchers focused en masse this past week on Florida v. Health and Human Services, the Court also announced its decision in other important matters, including a criminal law ruling in Florence v. Freeholders which had also been nationally polled. This case posed the question to the Justices -- and the public -- of whether jails can strip search any prisoner admitted to the prison population regardless of the alleged offense.

The back-story of Albert Florence is somewhat checkered: He had previous run-ins with the law, and on this occasion, troopers pulled his car over on the infamous stretch of I-95 known as the New Jersey Turnpike, where they quickly determined that Florence had an outstanding bench warrant for failure to pay a speeding fine. Florence produced official court papers showing he had in fact paid the fine. Nonetheless, lawmen, going with erroneous computer records, arrested, cuffed, processed, strip-searched, and jailed him in the county where he was stopped. After six days he was shipped to jail in the county that issued the bench warrant originally -- where he was strip-searched again. A state judge then released him on the grounds that, well, Florence kept more accurate records than the police. The bench warrant was an error.

When asked (long before the Court announced its decision), the public concluded, by two-to-one (65 percent - 31 percent), that automatic strip searches are unreasonable, a result that contrasted with the Court's ruling on Monday. By the narrowest five-to-four margin, the Justices held that the routine strip search was reasonable as long as the subject of the search was going to be placed into a population of prisoners.

The polled public had none of the nuances of the case to consider, nor did it have the benefit of training in jurisprudence, or years of experience issuing complex legal decisions. More than four of five admitted they had never heard anything about the case. Nonetheless, they offered a clear ruling on a significant question of civil liberties.

A skeptic might argue that the public's ruling was an artifact of question construction: Voters didn't really think these things about prison searches until they were forced to think, and even then they just made something up. But the most interesting numbers were those on the bottom line: Only 4 percent were unsure or had no opinion. The public did not express uncertainty or pass off the decision to someone else by giving "mixed," "don't know," or refusal responses.

Clearly, the fact that Americans are not constitutional law scholars is not enough reason to shy away from asking them what is constitutional and what is not. In important areas of public affairs, like voting, we do not consider the public's lack of training or technical expertise to be a knock against the inherent value of their judgment. Polling on Florence, the Affordable Care Act, and other cases, demonstrates that constitutional law -- which is fundamentally about contested values -- is a subject where the public's voice is vital, distinctive, and worth knowing more about.

Peter J. Woolley and Bruce Peabody are professors of political science at Fairleigh Dickinson University in Madison, New Jersey. Woolley directs the university's polling group, PublicMind. Peabody is the author of The Politics of Judicial Independence.

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