Sortition & Referenda

I’ve been rather quiet on the blog lately. I hope to change that in the weeks ahead. Rather than comment on some of the recent postings, I thought I’d raise a topic that I thought merited a post on its own.

One of the most common uses of sortition that has been proposed is to approve or reject legislation drafted by some other body–usually, an elected legislative body.  The new People’s Senate Party in Canada, for example, endorses this proposal. In some respects, this makes the randomly-selected house (hereafter Representative House, or RH) into a substitute for a referendum. Instead of seeking approval for laws from the people as a whole, seek it from a randomly-selected sample.

I think there’s a lot of merit to this proposal, but I have a serious concern that I think merits addressing. Basically, I think that there are two types of legislation. On the one hand, there is “must-pass” legislation–stuff like the defense budget, or the debt ceiling. There’s an interesting literature on legislation like this. Take, for example, the work by Thomas Romer on referenda for school district budgets. Typically, the practice is that if such referenda are not approved, the district budget reverts to some insanely low level, one that no parent would want. School board officials are assumed to want to maximize the size of the budget. And so unsurprisingly, Romer argues, they propose the maximum possible budget that a majority will approve via referendum (i.e., the one that leaves the mediam voter indifferent between approval and rejection). And given how bad rejection is, this could be rather large.

The point is that when it comes to “must-pass” legislation, referenda are a rather weak constraint on elected legislators. I fear the same might be true for a RH.

Then there’s “optional” legislation, i.e., legislation that need not pass. Here it is true that a RH could make a real difference. But it’s important to note that it’s a negative difference. In effect, it’s a veto. And this is again consistent with the empirical literature on referenda. Basically, it’s much easier to defeat a referendum than to pass one (although both tasks can take a ton of money in a large polity like the state of California).

What I think all of this suggests is that if we want to feel comfortable with a RH in charge of up-or-down votes on legislation, we also have to feel comfortable with the flow of proposals that will reach them. If the RH never sees a bill that corrects a real problem, then it can’t really do anything. A RH in the U.S. would almost certainly pass a single-payer health care bill, but an elected legislature in the pay of the health insurance industry would never send such a bill to the RH.

Now there are several ways around this problem. One is to have the RH draft and approve legislation. Another is to have one RH draft, and another approve, legislation. Neither of these options leaves any room for the perceived advantages of elected decision-making bodies. (If you don’t think there are any, you won’t care). Yet another way would be to make it easier to get a proposal before a RH–maybe letting members of the general public make proposals. The trick here would be to do this in a manner that wouldn’t overwhelm the system with unlimited numbers of looney proposals.

So I guess I raise all this as a cautionary question. How comfortable should we be with an elected legislature with proposal power? And would we be less comfortable if a randomly-selected body had to draft all legislation itself? I know this topic has been touched on various times, but I think it’s worthy of detailed consideration in its own right.

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33 Responses

  1. A thoughtful post.

    1) With must-pass legislation, does this not depend on the rules? If the reject default were the existing budget, rather than an artificially low one then there would be a genuine choice. This is the choice that businesses and private individuals have to make all the time, so why not elected officials?

    2) Agree that elected politicians should not provide their own filter for optional legislation, hence the need for election manifestos — a political party that proposed a single-payer health-care bill might well succeed both electorally (assuming UK-style campaign budget restrictions) and in RH scrutiny. The existing power of lobbies is because the elected politicians that they sponsor also decide the outcome (via the conflation of advocacy and judgment).

    3) If members of the general public make proposals, a filter would be required (Terry has suggested Review Panels, I have suggested 100,000 signatures followed by public votation).

    4) Our degree of comfort with RH drafted-legislation would depend on our commitment to democracy as opposed to klerotocracy (as would the choice between Review Panels and votation).

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  2. > Neither of these options leaves any room for the perceived advantages of elected decision-making bodies. (If you don’t think there are any, you won’t care).

    I fall comfortably into this category. Do you, Peter, really think that elected bodies have any advantages over allotted ones? If so, what are they?

    > Yet another way would be to make it easier to get a proposal before a RH

    A possible procedure here would be to send to the approving body any proposal that garners support beyond some low threshold (say, 20%) in the proposing body.

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  3. Peter,

    This is exactly the issue that I am wrestling with (I have tentative leanings, but am still “seeking”).

    I just want to make sure you saw the thread that relates to this question that Keith started here:

    https://equalitybylot.wordpress.com/2011/10/13/athenian-democracy-reincarnate/

    which was jumping off from the later part of a long rambling (76 responses!) previous thread here:

    https://equalitybylot.wordpress.com/2011/09/13/sortition-in-spain/

    Terry

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  4. > Now there are several ways around this problem

    First, I wonder, if there is a RH would people feel more comfortable voting for lesser parties since the RH has the final say on legislation? Would you get an elected assembly of three parties where there used to be two? Four where there used to be three? Eventually dozens? Then there would be a better chance of a more diverse flow of proposals.

    Assuming this would not happen, why can’t the RH simply voice publically that certain problems are not being fixed due to the reluctance of the elected parties to address them? This will put pressure on the elected members. Why can’t the RH make amendments to proposals instead of just thumbs up or down? Why can’t the public petition the RH to be tougher on certain issues? Why can’t individual proposals from the public be forced on the elected body if it finds a champion in the RH or if the RH tdecides to bring it forward through a consensus or some other mechanism? Etc, etc.

    I’m not endorsing any of these. They are just off the top of my head. I’m just saying, the future is wide open. I don’t believe there are merely “several ways around the problem”. Furthermore, I do believe that the RH should have the power to be self-correcting. Since it is a cross-section of society, any failings that it exhibits, it should have the authority to fix. We must accept that there will be a period of experimentation, and the answers may not be as we expected.

    > Do you, Peter, really think that elected bodies have any advantages over allotted ones? If so, what are they?

    One advantage. They give comfort to many in the public. They have proven to be an improvement over despots and monarchs.

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  5. > Furthermore, I do believe that the RH should have the power to be self-correcting. Since it is a cross-section of society, any failings that it exhibits, it should have the authority to fix.

    Right. This is more or less the line of argument I proposed here: Limiting the allotted chamber’s powers – a foundational argument.

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  6. > This is more or less the line of argument I proposed here

    Yes. A few years ago I created a comprehensive website that outlined why we should have an allotted chamber with full legislative powers and no elected chamber. But I didn’t really feel comfortable promoting it. It is quite radical and resides just in the realm of theory.

    My view is that power and rights do not readily move from the few to the many, but even less easily do they move the other way. Can anyone imagine the UK becoming a straight up monarchy again? So I want to put in place a sortive body which will bring the opinions of the public right into the parliament buildings. Thereafter, whatever the public believes, this body will believe, and further changes towards giving the sortive body more authority may occur.

    So nothing is worth considering as much as the tactics we can use to get sortition in the door, in whatever form possible.

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  7. Hmm, a nice example of tactical entryism — Leon would have approved! Personally I prefer to sort out the basic principles and distinctions and stick to them.

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  8. > Personally I prefer to sort out the basic principles and distinctions and stick to them

    I would rather let a sortive body figure out almost everything. To do otherwise is hypocritical. But I’ll let you address them with your expert views. ;)

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  9. A randomly-selected group of citizens is the best judge of everyday political decisions because we can all bring our day-to-day experience to bear. But the notion that the optimal answer to structural constitutional design issues will magically emerge from the black box of an allotted assembly is quite another thing. Most citizens have no experience at all of such matters so it’s unclear how the cognitive diversity (the epistemic value) and/or the representativity (the normative value) of a random assembly can best resolve issues like this. The members of the BC constitutional assembly were under no obligation to accept the limitation of the alternatives suggested to them by the permanent staff and advisors, they simply did this because the brief for the forum was so alien to their normal lived experience. And when they did recommend a constitutional settlement they failed to persuade their fellow citizens of its merit. This is the likely outcome of “letting a sortive body figure it out”. However my insistence that there is a role for “expert views” (ie the standard analytic distinctions that political theorists normally use in such matters) has won me few friends on this forum in the past, so I’m not overly surprised by Mike’s taunt. If there is no interest in the analytic meaning of terms like “democracy” (other than “something nice”) then this is pretty much par for the course. However Peter Stone, the originator of this thread, does earn his dinners through making these analytic distinctions and no doubt will respond in due course.

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  10. Keith,

    Just one little quibble on your statement…
    “And when they did recommend a constitutional settlement they failed to persuade their fellow citizens of its merit.”
    The referendum put forth by the Citizens’ Assembly got 58% of the vote, and passed in nearly, or in every single district. It was only the fact that the legislature had imposed a super-majority requirement of 60% on the referendum that caused it not to go into affect. (The referendum got a higher percentage of the vote than the average vote of the sitting legislators, I have been told.)

    Terry

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  11. Mike,

    > A few years ago I created a comprehensive website that outlined why we should have an allotted chamber with full legislative powers and no elected chamber.

    Is this website still online?

    > My view is that power and rights do not readily move from the few to the many, but even less easily do they move the other way. Can anyone imagine the UK becoming a straight up monarchy again?

    A concentration of power can occur (and is likely to occur) without official notice. I think there has been a severe concentration of power in the hands of elites all over the Western world (and in particular in the U.S.) over the last 4 decades and in particular over the last decade.

    > So I want to put in place a sortive body which will bring the opinions of the public right into the parliament buildings. Thereafter, whatever the public believes, this body will believe, and further changes towards giving the sortive body more authority may occur.

    I agree that a gradual approach is the best way to implement a radical reform such as sortition – both because it is the most likely to reach the best long term results and because it is the most likely to find popular support. (The promise of the best long term results justifies the public’s likely preference for a gradualist approach).

    I think, however, that we should be clear about our long term objectives and the reasons for holding them, and also make sure that the short term changes are such that they lead naturally to the longer term objectives. I believe that a veto-power-only chamber could be easily outmaneuvered by elite powers so as to render it virtually powerless and even to make it the target of the public’s displeasure with the system. There is a risk that the wrong short term steps will make it less likely rather than more likely that sortition will become a powerful institution in the political system.

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  12. Thanks for pointing that out Terry, but if I’m not mistaken the follow-up referendum led to a resounding defeat for the BC assembly proposal. The point that I’m trying to make though is that citizen assemblies are better suited to judge issues regarding which citizens can bring their own lived experience to bear (ie most bread-and-butter legislative issues) as opposed to arcane constitutional proposals. Political theorists however do have something to contribute to the latter, if not then we might as well shut up shop and get a proper job. I also agree with Yoram that honesty is the best policy, albeit combined with a gradualist approach to implementation. If you believe an allotted chamber should have full powers then you should say so up front.

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  13. One possible step-by-step approach I have considered is the idea of establishing allotted bodies for single defined legislative tasks, where the body would have full power. For example, using the Citizens Assembly in BC as an example…there are certain issues where elected politicians have an obvious conflict of interest (such as campaign finance reform, or redistricting). Other areas where elected politicians don’t WANT to make decisions (military base closings in the U.S.), and others where they aren’t trusted (managing a universal health care system). These are areas where the powers that be might allow the creation of a sortition body and delegate full powers. If the allotted body does a good job, the model will be established, and could win popular advocacy. As one minor example, Oregon currently establishes an allotted body to review initiative ballot referenda items, and report to the voters (hardly full power, but a potentially positive experience).

    Terry

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  14. That would certainly pass the democratic objections raised elsewhere and would benefit from all the experience that has been gained in deliberative polling. So I would hope we could all agree on that.

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  15. > One possible step-by-step approach I have considered is the idea of establishing allotted bodies for single defined legislative tasks, where the body would have full power.

    Yes – this does seem like a very good idea. Peter suggested a similar idea some time ago. The crucial point in my mind is the matter of “full power”, i.e., that the allotted bodies will not only apply existing rules but will get to set the rules within their areas of activity as they see fit.

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  16. Yoram,

    I would go one level less ambitious, for a first big step…So perhaps I should say “real power” rather than “full power.” To get the sortition ball rolling, I would support the creation and delegation of authority to a sortition panel to decide on some public policy matter that would then automatically go into effect ( NOT advisory). Thus the task, and even the rules of procedure might be established by the elected legislature. Remember this is not the final ultimate goal, but the chance for the public to observe sortition in practice.

    Of course there is a risk that the elected chamber would set a task and rules that put the sortition panel into a no-win situation and be a bad example.But, I am assuming they wouldn’t establish the panel unless they wanted it to work. For an initial trial, I think any elected body would insist on setting parameters.

    Of course, this real power vs. full power fall back position of mine would be different if the creation and delegation were coming from the voters directly through an initiative referendum (as some states in the U.S. allow).

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  17. > But, I am assuming they wouldn’t establish the panel unless they wanted it to work.

    I think it is often the case that panels are convened with the intent of placating a frustrated public while assuring that no significant results are achieved.

    > For an initial trial, I think any elected body would insist on setting parameters.

    Sure – only very rarely do people in power willingly relinquish some of that power to others. To be of any value, the allotted body would have to cause some anguish to the incumbents and this must start with denying them the ability to manipulate the settings in their favor.

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  18. >Sure – only very rarely do people in power willingly relinquish some of that power to others.

    That’s no longer the case in the UK. If the government is faced with making controversial decisions the standard practice now is to create an independent commission and then hand the job over to them. These are usually comprised of the Great and the Good but, given the growing evidence that citizen juries are just as capable of reviewing evidence and coming up with sensible recommendations as Royal Commissions (and they have the added bonus of democratic legitimacy), then Terry’s suggestion is a lot more acceptable than would have been the case several years ago, so would agree that this is a sensible compromise.

    In the UK context there’s no reason why it would have to be an either/or choice. Take, for example the Hutton Commission investigation into the death of Dr. David Kelly. There was widespread agreement at the time that the commission conducted its investigations in an even-handed and open manner — the problem was only with the verdict. Lord Hutton had a background in the Diplock Courts of Northern Ireland which had no juries; if the verdict in the Kelly case had been left to a citizen jury then nobody would have claimed it was a whitewash. I appreciate the example I’ve chosen was quasi-judicial, but I don’t see any difference in principle between it and the sort of assembly Terry is suggesting. Calling it a Royal Commission (with a jury) would also have the benefit of constitutional precedent. The last two UK governments have been surprisingly supportive of the concept of citizen juries, so I think this would be pushing at an open door and they would also be less disposed to ignore the outcome (“kick the issue into the long grass”) if there was a democratic verdict involved.

    UK governments are also well-disposed to making such commissions non-partisan, thus the Conservative coalition government chose Lord Hutton (a Labour peer) to come up with recommendations on pensions policy. Governments really do prefer to outsource controversial and difficult policy decisions so I think Terry’s suggestion merits very serious consideration.

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  19. > That’s no longer the case in the UK.

    Oh, what a wonderful place is the UK, where the powerful are happy to share their power with the hoi polloi.

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  20. It’s more a question of not wanting to take unpopular decisions. This is not limited to the UK, as the widespread problem of government indebtedness is because the electoral system encourages mendacity. Everyone knew that budget cuts were inevitable, yet no political party was prepared to say so before the last election.

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  21. > Everyone knew that budget cuts were inevitable

    Your ability to seriously retransmit conventional wisdom, with all its transparent fallacies and contradictions is rather comic. Someone should give you a column in the Times.

    I am pretty sure that as usual I am wasting my time discussing anything of substance with you, but let me just point out that budget cuts are not inevitable. First, most governments, like the UK government, can simply print money, and even in the countries of the Euro-zone, where the government cannot print money, “government indebtedness” can be fixed by raising taxes on the rich.

    You should read more or at least take yourself less seriously. Ideally both.

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  22. By “inevitable” I meant that every major political party would have introduced budget cuts, but the electoral system does not encourage honesty. I’m not an economist (and I don’t believe you are either) so I was not seeking to make a substantive claim. Best not to debate substantive policy issues on a forum like this but I’m puzzled by your visceral reaction against any expression of conventional wisdom (at least from me!). One of the implicit arguments for (or against) sortition is that it enables policy to be driven by the wisdom of crowds — thus it’s likely that (for example) penal policy would swing markedly to the right under a sortive regime. You have often claimed that “conventional wisdom” is in fact indoctrination by elites but you have never really explained how sortition would undermine this. I agree that media monopolies should be broken up but, given that most citizens are informed by popular media sources (as opposed to the radical internet resources that you prefer), I think the conventional wisdom is likely to prevail over the radical alternatives that your prefer.

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  23. > You have often claimed that “conventional wisdom” is in fact indoctrination by elites but you have never really explained how sortition would undermine this.

    The average person is much less beholden to conventional wisdom than is the average member of the electoral elite. And, as I have repeatedly mentioned on this blog, I believe that democratic media must be an important part of a democratic system. But then, again, I guess, you were not seeking to make a substantive claim.

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  24. I’m puzzled as to how empirical individuals fit in to your eitle/masses classification. Does my own adherence to conventional wisdom make me a member of the elite? And are there other criteria — income for example — and if so what is the threshold? Are there educational criteria? — if so it would appear to be an inverse relationship if educated elite members are more susceptible to the conventional wisdom. I ask these questions because my own view (as a sociologist) is that the elite/masses distinction belongs to an earlier age, but it would appear to be central to the arguments that you make on this forum.

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  25. The elite/masses spectrum concept (it is, of course, more of a spectrum than a dichotomy) is as relevant as ever. This view, running contrary to the conventional wisdom you so faithfully recite, and despite constant propaganda in mass media, is commonly accepted among the masses.

    To state the obvious: important indicators for the position of a certain individual or household along the elite/masses spectrum are wealth, income, education, occupation, social connections and positions on certain fundamental political questions.

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  26. OK so where does that place me on the spectrum, and is your observation on the inverse relationship between education and gullibility a general rule or is it just limited to me? I’m also puzzled by your claim that fundamental political viewpoints also fall into line with your dichotomy. To chose one obvious example from the UK, mass opinion on most fundamental political issues has always been considerably more right-wing than the political class; left-wing parties have only really attracted popular support due to adopting redistributive fiscal policies. It’s also the case that most people view themselves as middle-class and/or adopt a middle-class lifestyle. I don’t mention this in order to enter into a debate over substantive issues (this is not the place); I’m simply struggling to understand the archaic sociological model that is clearly so central to your views on sortition.

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  27. >> it is, of course, more of a spectrum than a dichotomy
    > your dichotomy

    There is really very little point of having this exchange if you insist on attributing to me positions I specifically disclaim. Unfortunately, this attitude of carelessness with the facts is typical of your conduct rather than an aberration.

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  28. Hello.

    > … taunt…

    I might be misreading some of the comments here, but I wasn’t really taunting anyone. I was just saying that there is a role to be played by the experts who have spent years thinking about sortition. But their role should be to address an already established sortive body on how that body might evolve or on what tasks it might be suitable to take on. If the experts cannot convince a randomly selected group of what the randomly selected group should/could do, then the group should ignore the experts and do what it wants. And they might fail. And that’s not bad either. Experimentation.

    > Is this website still online?

    No.

    > I think, however, that we should be clear about our long term objectives and the reasons for holding them

    Agreed. Keeping in mind that the future will look nothing like we imagined. It’s like in business: you create a business plan. The banker likes it and funds your business. Six months later the plan shows no resemblance to what you are doing.

    > I believe that a veto-power-only chamber could be easily outmaneuvered by elite powers so as to render it virtually powerless and even to make it the target of the public’s displeasure with the system.

    Good point. But for sortition to really get as far as a chamber of parliament, something quite remarkable must have already happened in the public’s consciousness–unless you think that a sortive body can be established by the activities of some elite faction and then it just needs to prove itself.

    > I have considered is the idea of establishing allotted bodies for single defined legislative tasks

    I totally agree

    A quick word or two on the Citizens’ Assembly since I voted for it twice. I’m sure there are researched opinions on this, and I am just giving my intuitive thoughts. The first time, it came out-of-the-blue and seemed simple: parties get seats proportional to the votes they garner. Good. The second time, there were years of explanation leading up to the reforendum. And it all seemed pretty complicated. The more the advocates appealed to our reason to comprehend this rational system, the less they appealed to common sense and morality. People were just suspicious.

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  29. Mike: And it all seemed pretty complicated. The more the advocates appealed to our reason to comprehend this rational system, the less they appealed to common sense and morality.

    This shows why sortiive bodies are better able to judge everyday legislative issues, where they can bring their own lived experience to bear.

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  30. > This shows why sortiive bodies are better able to judge everyday legislative issues, where they can bring their own lived experience to bear

    But a quasi-sortive body came up with the proposal to begin with. How do you explain that? My own view is that the Citizens’ Assembly probably made the “right” decision given the options to them. And yet a) the public perhaps didn’t spend the time to understand it (which it often won’t) and b) the advocates of the STV proposal went about their presentation of it all wrong. They appealed to those for whom a rational explanation will resonate, but not to those for whom morality or fairness would have won the day.

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  31. I don’t have detailed knowledge about this constitutional assembly but my understanding was that they relied heavily on the permanent secretariat as a source of proposals. And I’m not sure how much the diversity of lived experience (the primary virtue of an allotted body) can inform this sort of technical decision. And whilst morality and fairness are crucial, past experience of how these things work out in practice is more relevant, and the normal source for this is constitutional historians and political scientists rather than citizens selected at random. (This is not the case for regular legislative issues, where lived experience is the best source for aggregate judgment.)

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  32. Keith,

    The BC Citizens Assembly relied on a variety of political scientists to report on all of the election systems used around the world on a national level, while presenting what values each maximized or sacrificed (such as simplicity, connection between MP and constituents, proportionality, etc.). The Citizens Assembly weighed the systems based on their common sense weighting of these competing values. thus they had almost no real world experience with these different voting systems, but had plenty of real-world experience on what they WANTED from their representation. Admittedly, they could have been “steered” by their experts, but if they had used some sortive process for selecting experts and pro-con presentations of competing experts…there is no reason they couldn’t tackle even more complex constitutional issues. The point is, that they were not pre-biased as elected representatives would inevitably be.

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  33. Thanks Terry, I was only responding to Mike’s claim that the assembly “came up with the proposal” and also pointing out that morality/fairness is not the only criterion for constitutional design — rational assessment of workability is as important as wanting an outcome. I’m puzzled as to why it’s felt that citizen assemblies are a good way of designing constitutions but are not suitable for making everyday legislative decisions.

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