A Theory of Constitutional Standards and Civil Liberty

Abstract

Why would potentially intolerant majorities in a democracy protect the rights of unpopular groups? This paper models the formation of legal standards that determine the extent of civil liberty in a society. It is shown that tolerant legal standards emerge over time, despite all individuals' having intolerant preferences. Each period citizens choose activities that have social consequences. A majority vote determines which of these activities are legally protected. Because of errors in observability or interpretability of these activities, voters from the majority will not impose excessively intolerant standards, for fear that they may end up severely punishing members of their own group by mistake. Extending this framework to a dynamic model, I examine Markovian equilibria of the game when government improves with time its ability to correctly observe and interpret citizens' activities. These improvements allow an unchanging majority to impose increasingly intolerant standards over time. Tolerant civil liberties emerge, however, if there is a large enough probability that the dominant group will lose its majority in the future. Each group seeks to prevent the auditing capabilities of government from improving too much over time in order to prevent future majorities from successfully enforcing more intolerant standards.