In the traditional societies studied by anthropologists, public opinion and law are fairly indistinguishable (see Chapter 2). In these societies, one comes to know intimately the law of one’s tribe, which in effect consists solely of the customs and informal norms that guide the behavior of all members of the society As a society becomes larger, more complex, and heterogeneous, there is a less direct correspondence between public opinion and the law. Because there are so many laws today and because these laws are often so complex, the average citizen cannot begin to know, let alone tinker with, the law that could affect one’s life. Some legal and political issues, of course, do capture public attention. This fact raises the question of the degree to which public opinion can influence lawmaking regarding these issues.
A related question concerns which people we have in mind when we try to understand the impact of public opinion on lawmaking. The people may mean a numerical majority, an influential elite, blacks, women, the poor, the middle class, the young, the aged, migrant workers, students, college professors, and so forth. Popular views may be similar throughout all segments of the population, but on many important issues, opinions will differ (Norrander and Wilcox, 2009).
A more meaningful way of looking at the influence of public opinion on lawmaking would be to consider the diverse opinions of many “publics” (that is, segments of society) bearing on specific concerns such as sentencing offenders for particular crimes (Walker and Hough, 1988). These opinions operate through a multitude of channels, such as the media, political parties, and the various types of interest groups. As we try to assess which segments of society are able to have their “public” opinion affect lawmaking, the law and lawmaking literature highlights the significance of wealth, power, and influence. Simply put, the “public” opinion of some groups and individuals matters more for lawmaking than the “public” opinion of other groups and individuals. As Lawrence M. Friedman (1975:163) once observed,
The "public opinion" that affects the law is like the economic power which makes the market. This is so in two essential regards: Some people, but only some, take enough interest in any particular commodity to make their weight felt; second, there are some people who have more power and wealth than others. At one end of the spectrum stand such figures as the president of the United States and General Motors; at the other, migrant laborers, babies, and prisoners at San Quentin.
The differential influence of public opinion on lawmaking processes is a well-known phenomenon among social scientists but also among lawmakers. Lawmakers are aware that some people are more equal than others because of money, talent, or choice. As Friedman (1975:164) again observed of lawmakers, in this case regarding health care reform,
They know that 100 wealthy, powerful constituents passionately opposed to socialized medicine, outweigh thousands of poor, weak constituents, mildly in favor of it. Most people do not shout, threaten, or write letters. They remain quiet and obscure, unless a head count reveals they are there. This is the "silent majority"; paradoxically, this group matters only when it breaks its silence—when it mobilizes or is mobilized by others.
Lawmakers also know that most people have no clear opinions on most issues with which judicial, administrative, and legislative bodies must deal. This means that lawmakers have a wide latitude within which to operate. Thus, for example, when legislators claim to be representing the opinion of their districts, they are, on most issues, representing the opinion of only a minority of the constituents (for example, developers versus residents of a community). This is because most residents simply do not know or care enough about the issue at hand and therefore do not communicate their views on it.
Despite these considerations, public opinion exerts influence on the lawmaking process (Carp et al., 2017). Dennis S. Ippolito and colleagues (1976) identified three types of public opinion-related influences that press lawmakers into formulating certain decisions. These three types are direct, group, and indirect influences.
Direct influences refer to constituent pressures that offer rewards or sanctions to lawmakers. Constituents may vote for lawmakers who enact legislation the constituents favor, and vote against lawmakers who fail to enact such legislation or who enact legislation the constituents oppose. The same dynamic holds true for financial contributions to election campaigns. But this kind of influence is not confined to legislators. Members of the judiciary are also pressured by citizens to make certain decisions and not to make other decisions on various social and political issues.
Group influences stem from efforts of organized interest groups representing a specific constituency Political parties, citizen action groups, and other interest groups continually influence the lawmaking process. In this context, public opinion becomes organized around a specific issue or an immediate objective (for example, pros and cons of gun control or abortion). Through the process of organizing, interests are made specific, and public-opinion backing is sought in the attempt to gain an advantage in pressing for change or redress through the legal machinery.
Finally, indirect influences occur in lawmaking when legislators act in accordance with constituent preferences because they either share such preferences or believe such preferences should prevail over their own judgment. Legislators may wish to win potential votes through their lawmaking activities, but this type of influence highlights the possibility that lawmakers may simply agree with the views of their constituents or see value in their constituents’ views even if they do not entirely share these views.
Public opinion polls seek to determine the aggregate view people hold in a community on current important issues. Many well-established commercial firms conduct these polls by following standard and complex polling procedures. Among the most respected of such polls are the Gallup, Harris, Yankelovich, and Sindlinger, Opinion Research Corporation, Roper, and Cambridge Reports polls. They often work jointly with major TV networks such as CBS, CNN, and NBC or newspapers and magazines such as the New York Times, Washington Post, and Time. In addition, there are a variety of smaller, specialized public and private and university polling organizations. A typical sample size for national polls is around 1,500 randomly chosen respondents, but some national polls include as few as 400 respondents. According to statistical theory, there is a 95% probability with a sample of 1,500 that the results obtained are no more than 3 percentage points off the figure that would be obtained if every adult in the country were interviewed.
Research going back several decades demonstrates that opinion polls do influence lawmaking (Lipset, 1976). On a variety of domestic issues, for example, public opinion has led lawmakers to enact programs that might have otherwise been delayed for months or years. Legislation concerning minimum wages, social security, and medical programs are examples of issues on which public opinion has preceded and prompted legislative action. However, in other instances, such as civil liberties and civil rights, public opinion has either lagged behind government policy or tended to support measures that are repressive of constitutional rights. For example, since the mid-1950s, the Supreme Court has played a leading role in interpreting and formulating policies on civil rights that were more progressive than the views reflected in public-opinion polls (Simon, 1974). It should be noted, however, that whether the U.S. Supreme Court does or should reflect majority public opinion has been a recurring controversy in American legal thought (Baum, 2010).
Generally, the use of polls in lawmaking is encouraged. For example, Irving Crespi (1979) suggests that lawmakers could be more effective if they learned to draw upon the full fruits of survey research. Direct evidence—unfiltered by the interpretations of special interests or lobby groups—of the wants, needs, aspirations, and concerns of the general public needs to be accounted for in lawmaking activities. In lawmaking processes, Crespi argues that first there should be an attempt to determine the views of both the general public and that segment of the public that would be directly affected by a particular law. Then that public opinion should be made part of the formative stages of the lawmaking process, and not simply a force to be coped with after the fact. As Crespi (1979:18) asserts, “The difference between treating public attitudes and opinions as a relatively minor variable instead of an influence that should be authoritative is ultimately the difference between technocratic and democratic government.”