Sortition for the Irish constitution rewrite

Martina Devlin writes in the Irish Independent:

[T]he Constitution, which forms the basis of our self-government as a people, definitely needs an overhaul. Not some tinkering, but the level of in-depth, bonnet-to-boot servicing a vintage Rolls-Royce dating back to 1937 could expect.

The decision to use significant citizen input into this exercise is a welcome approach, and the Government deserves credit for reserving two-thirds of the 99 available seats for citizens.

It’s these 66 citizens who interest me, rather than the political figures assigned to the remaining 33 places. The success of the constitutional convention, and the level of popular support it attracts, hinges on who is chosen to join the Class of 66. Handpicked individuals who can be relied on to play follow-the-leader or slip into someone else’s version of the green jersey won’t fit the bill. We need transparency in the selection process.

Will they be chosen at random from the electoral register? Or will they be appointed by the Government specifically to speak on behalf of lobby groups?

I’d argue for random. These citizens have an important, even historic, function. In their ordinariness, their non-party political status, their non-special interest alignment, they have the capacity to represent the bulk of the Irish population. Even from such a low numerical base.

They should be chosen by lottery, as happened in Ancient Athens for the Council of 500. But I’d like them to correspond to something approaching a demographic mix, unlike the Greek city-state, which restricted itself to adult male citizens after military service was completed. Use that model and the convention will fall flat on its face at the representative hurdle.

I stress the random element because we need to avoid any suggestion of elitism. If we want citizens to connect with this ambitious move to reform the Constitution, any appearance of exclusiveness or jobs for the boys will prove counter-productive.

Since ancient times, selection by lottery has been considered the fairest method because elections favour the well-known, the wealthy and gifted speakers. Obviously convention participants need to be thoughtful, however, and willing to reflect on ways to progress our democracy. Perhaps those prepared to make such an investment in time and effort could be invited to put forward their names, with a view to inclusion in a random selection process.

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21 Responses

  1. Very interesting. It’s exactly what Etienne Chouard promotes. He added after participating to a conference in Tunisia that we should also control the convention itself, because giving the power to write the constitution to some individuals will also put them in a situation where they are able to defend the interest of small groups as opposed to what’s good for society. In Tunisia, some of the people elected in the convention aren’t transparent at all, not answering to e-mails, not talking to the media. I think that we should have transparency when a small group is writing the constitution.

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  2. L14B –

    I think that documents, like a constitution, and one-off events, like constitutional conventions, are less important than the institutions that run the day-to-day government. No general statement of principles, however well thought-out, can withstand a sustained attack by a government bodies that are antagonistic to those principles.

    Allotted bodies should be permanent living institutions that are able to respond to changing circumstances – including by making institutional changes to the way they work. It is the representativeness of the allotted bodies that guarantees a democratic government – something that a fixed set of rules is completely incapable of doing.

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  3. Yes, and the diversity of lived experience is essential for effective day-to-day government. I’m sceptical though about allowing allotted chambers to alter their own terms of reference, as constitutional changes normally require supermajorities or referenda. I’m also puzzled as to why sortition comes up so often in constitutional matters — few people have a view on d’Hont mechanisms, closed party lists and single-member plurality districts, whereas everyone has a view on the price of bread or whether their children should be sent off to fight someone else’s war.

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  4. > I’m also puzzled as to why sortition comes up so often in constitutional matters

    A foundational consideration shows that in fact no other mechanism can be democratic. This also explains why limiting the power of allotted representation cannot be democratic.

    I think the matter can be put concisely by asking what body would be empowered to determine that an allotted body is not allowed to implement a certain policy. Why would we think that that veto-powered body would be more representative than the allotted body it is over-ruling?

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  5. I agree that it would be undemocratic for a body constituted by other means to veto the informed judgment of an allotted body. This is because the aggregated votes of the allotted body are a reasonable approximation of how everybody would vote; the only difference being that, assuming carefully balanced advocacy, the judgment of the microcosm can be reasonably well informed rather than just unconsidered prejudice. However this is not the case when it comes to policy initiation (constitutional proposals etc) as these are the volitional acts of particular individuals and have no democratic mandate, as descriptive representation only pertains to groups, not individuals.

    It’s helpful to distinguish between two properties of randomness, one which is rational and one which is irrational. Descriptive (statistical) representation is an example of the former, because it depends on the ratio of (say) male and female (or any other criterion deemed salient for political representation). A random sample of several hundred would be likely to be around 50/50 male and female, which would fulfil the rational requirement for gender equality in representation. On the other hand a speech act (e.g. a constitutional proposal) of an individual member of an allotted assembly would be random in the irrational sense of “post code code lottery” — a pejorative reference to any perceived inequality of provision of a social good depending on where you happen to live. Individual “x” happened to be randomly selected, so to privilege her speech acts would be an irrational use of the lottery. Contrary to Stone and Dowlen, it’s important to distinguish these two entirely different types of “lottery principle”, as failing to do so leads to some strange (and entirely undemocratic) proposals for the political potential of sortition.

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  6. Yoram, If I understood your argument, this is a very good one, because no constitution can’t be broken by a government determined to broke the rules. However, a good constitution can program democratic institutions (Do you think that elected representatives would put an alloted day-to-day government into practice ? No professional politician is for sortition’s use into politics: it would end up their carriers. So it has to be decided in the constitution, because that’s the rules they have to accept and the rules that limit their powers. In a good constitution, it can be decided that the one defending it (Constitutional court) will have nothing to do with the people in power.

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  7. >No professional politician is for sortition’s use into politics

    Why then do we hear that the future of Japanese nuclear policy is in the hands of a randomly-selected group of citizens?:

    https://equalitybylot.wordpress.com/2012/07/12/japans-energy-future-too-important-to-be-left-to-experimental-polling-method/

    It would seem to be increasingly likely that governments will contract out difficult and potentially unpopular decisions to allotted bodies. However professional politicians would be (rightly) opposed to claims that sortition and democracy are synonymous. Candidates for election have (in the absence of direct-democratic alternatives) an essential role to play in the formulation of policy options, which the public can then choose prior to deliberative scrutiny by an allotted body.

    An allotted body with full powers would be akin to having the functions of judge, jury and executioner combined. This isn’t just undemocratic, it’s a fundamental assault on civil liberties. The only reassuring thing is that it has a zero probability of ever being implemented.

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  8. L14B,

    > However, a good constitution can program democratic institutions

    I agree. My point is that we should not see constitutional convention as a once-and-for-all event. An allotted chamber should function like a permanent constitutional convention.

    > In a good constitution, it can be decided that the one defending it (Constitutional court) will have nothing to do with the people in power.

    What is this constitutional court? In my mind it must be a representative body – that is, it must be selected by sortition. The current arrangement in which it is made of professionals gives those professionals and those who select them great political powers and is therefore anti-democratic.

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  9. > It would seem to be increasingly likely that governments will contract out difficult and potentially unpopular decisions to allotted bodies.

    If anything, it would seem that ad-hoc allotted bodies would be used as a tool of the elites to manufacture consent by constructing a charade of democratic decision-making. Those bodies (as the article points out) would be easily manipulated by the professionals who constitute them and who design the setting within which they operate.

    I agree with L14B – there is very little chance that a professional politician would hand any real power to a body selected by sortition. Politicians spend their lives gathering political power. They don’t give it away.

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  10. I know of only 2 current examples of constitutional courts. One is very bad (France), the other does look better, however I’d like to know if you think why it could be problematic.
    In France, le Conseil constitutionnel has all the former president life-elected in it + 1 member nominated by the current president + 1 nom. by the president of the senate + 1 by the president of the deputy chamber. and maybe I forgot some but you see the whole idea : there is a confusion between this court and executive/legislative powers.

    In Germany they are only jurists and I think that their main concern is to strictly look if the constitution is well-adapted, more objectively, but I don’t think that someone can be totally objective. However it seems that they are doing a good job, don’t know if it’s true.

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  11. We’ll just have to keep an eye on the Japanese example, as it certainly sounds like a good example of politicians seeking to outsource a difficult decision. This is a common situation in the UK: politicians know that they are no longer trusted, hence the reliance on supposedly impartial royal commissions and judicial enquiries. Tentative experiments with outsourcing to ad hoc allotted assemblies should be whole-heartedly welcomed rather than dismissed as a charade by those who insist that sortition is the only valid form of democracy.

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  12. L14B:

    I don’t know anything about the German court.

    My objection to professional courts is based on general principles, and on my familiarity with the the U.S. and the Israeli high courts (which are also composed of judges and lawyers only).

    As a rule, putting political power (i.e., the power to influence public policy) in the hands of an unrepresentative body is anti-democratic. Contrary to the judicial myth, quite obviously, “interpreting the law” or “interpreting the constitution” is not a mechanical or technical task. It is a subjective task and whoever carries it out carries it out according to their values, ideas and interests. Giving judges and lawyers the power to make political decisions allows them to influence public decisions in ways that are detrimental to the interests of the average person.

    This principle plays out as can be expected in the U.S. and Israeli courts which regularly make decisions that promote the interests of the elites at the expense of the public. The so-called “money is speech” doctrine promoted by the US court is an example of this happening. At the same time, the free speech rights of protesters are constantly being restricted. On a different matter, the courts promote the rights of owners and erode the rights of workers. See, for example, the case of Ledbetter v. Goodyear.

    My guess is that if you look at the record of the German court you will find that the pattern is similar (although likely not as extreme as in the U.S. court). It is just difficult to imagine that a body which is run by members of an elite would work for the benefit of the masses. The fact that those members of the elite carry fancy diplomas, wear robes, use fancy words and are surrounded by books leaves me unimpressed as to their selflessness. (Of course, if you have evidence to the contrary, I’d be interested to examine it.)

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  13. >a body which is run by members of an elite would work for the benefit of the [huddled] masses

    Same tired old trope (and antediluvian political sociology), along with the dogmatic claim that there are only class-based economic interest and everything else is just flim-flam.

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  14. very interesting. I don’t have counter-arguments and I don’t know myself much of the German court. But don’t you think that, if the constitution is protected and the conformity of the laws checked by a group of alloted citizens, for example, don’t you think that, because of their little experience, the elite could manage to pass unconstitutional laws, that would be difficult to detect by normal citizens, because of the complexity of the law system ? And that at the end, a constitution wouldn’t be that much protected by non-informed citizens ?

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  15. L14B,

    I agree that manipulation by elites is a risk. High powered allotted bodies should have terms measured in years – long enough to generate a fair amount of experience and sophistication. A permanent body will also have some institutional memory that would cross terms. The importance of those factors is part of the reason why short-term ad-hoc bodies such as those used by Fishkin or those proposed by Ethan Leib are not a step forward, and potentially a step backward.

    Could you give an example of a specific scenario that you think would be better handled by a court of professionals than by a court of citizens?

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  16. > Same tired old trope

    The tired old trope is that power corrupts. What kind of alchemy you believe goes on in law-school that makes lawyers and judges exempt from this rule?

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  17. No-one is disputing the psychological observation that power corrupts (hence the need for pluralistic checks and balances), the problem is the tired old trope of the elite vs masses. In the nineteenth century this was a reasonably accurate sociological distinction, but social stratification in a modern multicultural society is a lot more complex. This is a substantive issue, as your insistence on a full-power model for an allotted legislature presupposes a homogeneous mass of people, all sharing the same interests, so that it matters little which of these identical clones rises to their feet to speak as they will all be singing from the same hymn-sheet.

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  18. Early in this discussion Yoram wrote
    “I think the matter can be put concisely by asking what body would be empowered to determine that an allotted body is not allowed to implement a certain policy. Why would we think that that veto-powered body would be more representative than the allotted body it is over-ruling?”

    What about another allotted body whose sole function was to develop fair rules and limits for other allotted bodies to follow, so that no individual body fell into corrupt power-seizing mode? We want a body that is not being tempted by current corrupting power to make rules for the future body.

    A useful analogy is that the “me” of yesterday and the “me” of tomorrow wants me to not eat that unhealthy food in front of me right now. But the me of right now wants to eat it. which “me” should decide…Those who advise dieters suggest establishing a procedure when one isn’t being tempted, to follow in the future when temptation arises, in hopes that the me of yesterday and the me of a hundred tomorrows won’t suffer due to the corruption of the present me.

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  19. Terry,

    Having some sort of an allotted constitutional court which can veto the allotted legislative body is a reasonable arrangement. However, given that both bodies are allotted from the same population, it is not clear what would be the situations in which the two bodies would disagree. And when they do disagree, why should we believe that the veto-powered body is inherently more committed to safeguarding the constitution than the legislative body?

    When considering such questions, it must also be kept in mind that there is always a down side to introducing another body to the process. Spreading power thinner and making the process more complicated reduces the motivation of each allotted individual to invest time and effort in their decision-making and makes it easier for sophisticated players to manipulate the process.

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  20. There’s also the small matter that we first need to successfully make the case for any sort of allotted body, let alone a multitude. Even if you don’t believe in the virtues of a mixed constitution, it might be better to hold your nose and pretend that you do. If it’s the case (as Yoram and Terry believe) that allotment is the only democratically valid and operationally effective show in town then all you need to do is open a small crack and the rest will follow on automatically. If you insist on perfection from the start you’ll end up with nothing.

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  21. Please avoid the shortcomings of the U.S. Constitution by learning from our experience with its ambiguities. Proposed amendments are at http://amend-it.org and reform legislation at http://jonroland.net/proposed_bills

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