Document Type



Cognitive Bias and the Constitution, 88 Chicago-Kent Law Review 367 (2013)


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


I will attempt to achieve these objectives by discussing two phenomena.

The first, cultural cognition, is a psychological dynamic.1 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.2 It describes a state of affairs in which enforcement of liberal

political principles is defeated, not by willful, defiance but by unconscious


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.

Date of Authorship for this Version


Included in

Law Commons