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
Kahan, Dan M., "Cognitive Bias and the Constitution" (2013). Faculty Scholarship Series. Paper 4693.