Constitutional Law Blog Essay

Knowledge Institutions in Constitutional Democracies: of Objectivity and Decentralization

“Knowledge institutions” are fundamental components of successful constitutional democracies.  As recent scholarship suggests (see Ginsburg & Huq (2018); Graber et al. (2018)), threats against the press, against institutions of higher learning, and against NGOs often accompany threats to independent judiciaries, to government watchdog offices, and to genuinely free, fair and open elections in countries with rising authoritarianisms.  (See also Levitsky & Ziblatt (2018), on the role of political parties.)  Yet knowledge institutions are sometimes studied in categories that obscure rather than illuminate their connected role in contributing to a sound epistemic base for representative democracy.  This is a plea for scholars to begin to conceptualize knowledge institutions, working together, as part of a knowledge ecosystem requiring constitutional protection and effective self-monitoring.

Knowledge institutions plainly include colleges and universities, which make up the system of higher education.  In the United States, cuts and threatened cuts in government funding for universities and for student tuition pose one kind of a challenge.  The obstruction to foreign students and scholars posed by “travel bans,” increased security requirements, and slowness and unpredictability in the visa process pose another.  Lawrence Bacow, President of Harvard University, recently expressed deep concern to the Secretaries of State and Homeland Security that U.S. immigration policy, including increased problems with visas for both students and scholars, is now so “unpredictable and uncertain” that it “poses risks not just to the individuals caught up in it, but also to the entirety of our academic enterprise” and with the essential functions of American research universities.

In Turkey, universities and their faculty have been the object of dismissals, constraints, and harassment and prosecutions, in conjunction with the rise of more authoritarian leadership. In Hungary, an influential university with foreign faculty and funding was forced out of the country, while the Academy of Science’s independence has been undermined.  And in Poland, civil and criminal defamation actions have been brought against a leading constitutional scholar critical of the current government, Wojciech Sadurski, by the dominant political party and the public broadcast station; another action was instituted (albeit only briefly pursued) by the Ministry of Justice against law professors from Jagiellonian University, associated with the Cracow Institute of Criminal Law, for their critical comments on proposed criminal code reform.

The free press is another kind of knowledge institution, of especial importance to the reliable disclosure and evaluation of current events.  Yet journalists around the world have been subject in recent years to escalating verbal attack and physical violence – including the deadly attack on Washington Post reporter Jamal Kashoggi in the Saudi embassy in Istanbul in 2018, the murders of five staffers of the Capital Gazette, in Annapolis, Maryland in 2018, the recent killings of at least two journalists in India (in 2017, Gauri Lankesh, killed in Bangalore, India; and in 2018, Chandan Tiwari, killed in Jharkhand, India), multiple reported killings of journalists in Mexico, as well as in Afghanistan, Syria, and a number of other countries.

Attacks on academics and journalists, and on academic and press freedoms in one country, may hurt not only that country’s democratic foundations, but also the knowledge-building and critical functions of universities and journalists around the world.  They may do so through direct efforts by governments to influence and limit academic activities, including those in other countries or involving researchers from other countries.  But they also may do so by inspiring – and normalizing – restrictions on academic freedom from one country to another (cf. Scheppele (2019)), thereby limiting the spread of knowledge and information by academics and journalists.

Knowledge institutions are not limited to universities and the press, but also include government and nongovernmental offices devoted to the gathering, evaluation, or dissemination of objective facts.  (As discussed below, objectivity may represent more of an aspiration than an attainable goal, but it is possible to strive for more, rather than less, accurate understandings.)  In the United States, concerns have been raised about possible threats to the objectivity of scientific offices in the government.  Thus, for example, in response to reports that a task force on climate change was being established to be headed by a well-known skeptic of climate change who believes that increased carbon dioxide is good for the planet, some 58 leaders in the military and national security communities across administrations of different parties recently expressed concern that political pressures “[i]mposing a political test on reports issued by the science agencies, and forcing a blind spot onto the national security assessments that depend on them, will erode our national security.”  A State Department analyst, it was reported, recently resigned because he was blocked from submitting written testimony referencing scientific studies supporting his assertions about national security and climate change.

“Knowledge institutions” should not be understood as a branch of constitutional government, but rather as a necessary organ of constitutional democracy, existing across public-private divides.  Knowledge institutions may be public – in addition to government offices discussed above, these include some universities and libraries.  Centrally important public functions may be performed by some government knowledge institutions.  Allocations of power and resources may turn on the accuracy and objectivity of such efforts, as is the case in the United States with respect to the Census: the Constitution requires that every 10 years, an “enumeration,” or census, of persons be conducted for purposes of apportioning representatives among the states; many federal statutes in turn use the Census data to distribute federal resources to the states.  Other knowledge institutions are private – as in privately owned newspapers and other news sources, universities, libraries, or research institutes.  Such private institutions have, throughout history, played important roles in preserving knowledge from destruction at the hands of powerful authorities.

Some knowledge institutions receive special constitutional recognition.  The U.S. Constitution protects a “free press” – well understood to be privately owned and operated, and “academic freedom” has been recognized by courts as part of what the U.S. First Amendment protects.  The German Basic Law, article 5, protects both a free press and freedom of “research.” 

Knowledge institutions may also be affected by general constitutional rights – such as rights of freedom of conscience, expression, or association, and rights to due process – that are not limited to institutions that produce knowledge.  Knowledge institutions may be helped, or hurt, by legal regimes enacted by legislatures or regulators or developed by courts, across a range of areas including anti-trust law, corporate law (including non-profits), internet regulation, tax laws, government spending and licensing programs, intellectual property law, defamation law, and others.  Together, these legal regimes regulate, in some respects constitute, and should protect the knowledge ecosystem.

All governments — even the most autocratic of governments — will require some forms of knowledge, to exercise and maintain their own power.  Universities and libraries predate modern notions of constitutions and democracy and have existed and continue to exist in non-democratic countries. But knowledge institutions play special roles in representative democracies. 

Why do constitutional democracies especially need knowledge institutions, which we can think of as organs of epistemic objectivity?  Unlike in a monarchy or autocracy, where a single or small number of rulers need to be well informed about the world, in a democracy the people as a whole – or at least a sufficient swathe of the people and of their elected representatives – need access to information to participate in governance – to be able to identify patterns of social and economic fact, as well as relevant national and world history that bear on current issues. Knowledge is needed to help develop and evaluate policy positions and distinguish claims that are well founded from those that are not.  Knowledge (including the habits of mind that a good education should produce) is needed to be able to resist manipulations, whether by those in high office, or running for high office, or foreign powers, or others, and – importantly – to be able to evaluate good faith arguments by opposing candidates for public office.  Knowledge is needed to be able to engage in reasoned argument with fellow voters.  Elections and referenda, then, require a knowledge base among voters or those from whom voters take their cues.  And knowledge is needed in order for the rule-of-law to be in effect and for the law to serve justice – so that laws, and how they are enforced, and what their effects are, can be known, and evaluated.  In short, knowledge is needed for virtually all aspects of a constitutional democracy to flourish.

Practitioners and theorists of representative democracy have emphasized the centrality of this epistemic base, from George Washington, who in the 1790s argued for a national university to help educate young people (inter alia) about how to evaluate their representatives, to Alexander Meiklejohn, writing just after World War II about how self-governance requires wise voters with true knowledge of facts, to courts in the post-World War II era, including the US Supreme Court, which wrote that “informed public opinion is the most potent of all restraints upon misgovernment.”

Knowledge institutions, such as universities, or the press, or libraries, collect information from which knowledge may be obtained; they generate knowledge; and they disseminate information and knowledge according to some form of disciplinary criteria.  (For this reason it is not clear that social media should be treated as “knowledge institutions” or instead as new forms of “communications” technology, or something in between.)  Knowledge institutions, to be sure, differ from each other – in both their institutional characteristics and in the kinds of knowledge they are expected to produce.  In academic life the quality of knowledge generated is evaluated according to the distinctive academic norms of different disciplines.  And what makes for good legal, scientific, literary, or historical knowledge generated by university faculty is evaluated according to different norms than what makes for good journalistic reporting on the activities of government officials. 

Yet together, these multiple different institutions constitute a knowledge ecosystem within which voters, representatives, and policy makers act.  

What, if anything, can constitutional scholars say about the principles that might inform a wholistic, “knowledge ecosystem” view of the epistemic foundations of democracy?  We might begin, tentatively, with at least the following two principles: objectivity and decentralization.

Objectivity: Recent attacks on the possibility of truth or objective knowledge may spring from many sources: a healthy commitment to the legitimacy of multiple perspectives on the experiences of different groups over time in law, history, or literature, or from a snarky contempt for truth captured by Steven Colbert’s phrase, “truthiness,” or from the Orwellian assertions by officials of the existence of “alternative facts.”  Despite serious epistemological issues about the possibility of objectivity, it is possible at least to aspire to better and more accurate understandings of realities.  Government policies should be based on well-informed understanding of the likely facts or likely ranges of consequences of differing actions and inactions, in order to fulfill basic constitutional purposes of advancing and protecting the well-being and rights of members of the polity.  To be sure, there will often be reasonable disagreement; aspiring to resolve those disagreements on the best available information – and with the humility to revisit decisions when new knowledge and new facts emerge – is all that can reasonably be expected. 

Yet while some constitutional systems seem to recognize the value of governments aspiring to objectivity in determining the facts, others do not.  The UK Cabinet Manual (at 26) for example, lists “objectivity” as one of the seven “principles of public life.”  Article 73 of the Kenya Constitution describes “objectivity and impartiality” as constitutionally required elements of leadership.  No analogous general commitment to objectivity and impartiality seems to exist in the U.S. at the federal level.

Should constitutional democracies articulate a principled commitment to the institutional infrastructure to support gathering and disseminating objective information?  And promote aspirations towards objectivity by government officials in evaluating facts?  And can academics, many of us steeped in respect for the value of recognizing a diversity of perspectives and viewpoints, find a way at the same time to embrace and articulate legal frameworks for promoting more reliable, rather than less reliable, understandings of important social and scientific facts?  Promoting respect for the goals of accuracy and objectivity in identifying facts relevant to public decisions may well entail articulating the grounds for respecting particular disciplinary norms – whether academic, journalistic, or judicial – of proper research, reporting, or factfinding, and understanding the purposes for which facts asserted in these different domains warrant respect in public decision-making domains.

Decentralization: At the same time, another principle for the epistemic infrastructure of constitutional democracy is that of maintaining a diversity of sources for generating knowledge by decentralized decisionmakers.  The economic market operating on its own may not conduce to maintaining multiple, reliable private sources of information; positive action by governments may be required to prevent the conglomerization of news.  And academic disciplines, too, may benefit from being shaken up by new entrants, to avoid too much confidence and too little humility about the limits of any one generation’s knowledge and wisdom.  What might be seen as simply a form of statutory anti-trust or competition policy, or of nonprofit government or taxation, then, may in fact be closely related to the positive tasks of constitutional government in sustaining genuine freedoms – of the press, of the academy, and of civil society – necessary for the kind of free and open exchanges on which good constitutional democracies thrive.  (For an example of such an approach, see Minow (2018).)

Hard Questions: These principles – of aspiring towards objectivity and of sustaining decentralized sources of knowledge – may at times be in some tension with each other.  For example, reliable data collection and findings are often promoted through standardization of procedures for the collection and production of knowledge within specific disciplines; homogenization, in these senses, may be beneficial.  Yet such homogenization may be in tension with having a diversity of knowledge producers in the same area.  Other relevant principles, only briefly mentioned here, may also conflict: transparency of research might seem an unalloyed good, necessary to promote replicability of results; but the transparency needed to assure testing and replication of research may be inconsistent with the protection of other important values, such as privacy, and may indeed be antithetical to being able to collect any data at all.

That such tensions and complications exist only emphasizes the need for more scholarly engagement with knowledge institutions – with the tasks of defining and analyzing those institutions and how they produce and disseminate knowledge, of looking at discrete knowledge institutions as parts of a larger whole, and of evaluating the legal regimes that do or should exist for their protection and promotion.  For a good knowledge ecosystem is necessary to secure the epistemic base of a well-working democracy.



CONSTITUTIONAL DEMOCRACY IN CRISIS? (Mark A. Graber et al. eds., 2018)


Martha Minow, The Changing Ecosystem of News and Challenges for Freedom of the Press, 64 Loy. L. Rev. 499 (2018)

Kim Lane Scheppele, Autocracy Under Cover of the Transnational Legal Order, in Constitution-making and Transnational Legal Order 188 (Gregory Shaffer et al. eds., 2019).