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 interpreting the symbolic content of these activities, voters from the majority will not impose excessively intolerant standards, otherwise they may end up severely punishing members of their own group by mistake. Extending this framework to a dynamic model, we examine Markovian equilibria of the game when government improves with time in its ability to correctly interpret citizens' activities. These improvements allow an unchanging majority to impose increasingly intolerant standards over time. It is shown that societies with high political turnover due to population changes are apt to choose tolerant legal standards. Societies with low turnover are more apt to choose more intolerant and unstable ones. Each group seeks to prevent auditing capabilities of government from improving too much over time in order to prevent future majorities from successfully enforcing more intolerant standards.