This post by Cass Sunstein (I think) reminded me of that thing I was talking about last week. Paraphrasing myself: “social facts are different than physical facts… blah blah blah… one of the things that makes them different is they change over time.”
Sunstein argues the second amendment has only very recently been broadly interpreted by experts as granting an individual right to own guns. For example, “[a]s recently as 1992, Chief Justice Warren Burger, a conservative Republican appointee, rejected the individual rights view in public.” He speculates as to what caused this change: better interpretation of the amendment (the scholarship had it wrong before), the NRA cajoled everyone into believing the more pro-gun view, judges (who have a lot of sway in the public imagination in these matters) have become more conservative or there has been information cascades.
Even if supposing what he says about the shifting consensus is true, I’m not sure what to make of Sunstein’s list. Are these things causes of the shift or effects of it? For example, maybe judges are becoming more pro-gun rights because the politicians who appoint them are pro-gun. Politicians are being elected by people that had already become more pro-gun. The consensus changed so the judges changed.
Also, information cascades may be a mechanism for the consensus on the second amendment to change, but it wouldn’t be the cause of a change. There’s no reason why a different consensus wouldn’t have been “cascaded”, so to speak. Sunstein mentions some prominent liberal scholars that helped legitimize the individual rights view. Why did these scholars have such sway whereas other anti-individual rights scholars relatively little sway? ((It would take one hell of an argument to convince me some agency like the NRA was so genius as to pull off such a brilliant gorilla marketing campaign. I’ve worked in marketing. Those people ain’t no geniuses.))
Another issue is why does the shifting consensus of academics and judges matter. Because they’re the experts, does their interpretation of the amendment become the truth about it? Are social facts just the consensus of experts or the elite? If so, who makes up an elite or who gets to call themselves experts? I think the answers to these questions will depend on which domain we’re talking about, but it seems likely that the expert consensus matters less in the area of constitutional law, especially in democracies.
What causes social facts, like the interpretation of the second amendment, to change over time? There could be “real” changes like the physical facts or other higher-order social facts (e.g. the scholarly reinterpretation of the amendment) have changed. Otherwise, there may be legitimate (e.g. judges) or illegitimate (e.g. special interests) power shifts in society. One group becomes relatively more powerful ((But you have to wonder why they became more powerful.)) and so their views become more important in determining the social fact.