Lysander Spooner, trial juries, and legislative juries

Lysander Spooner (1808-1887) was a prominent 19th century American legal theorist, abolitionist (abolition of slavery), and competitor with the U.S. Postal Service until they shut him down. A biography and collection of his work are here.

Spooner continues to be cited in the U.S., including for example by Justice Scalia writing for the Supreme Court majority in 2008 in District of Columbia v. Heller.

Spooner was a strong advocate of “jury nullification.” He argued that trial juries have the right and duty “to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.” (An Essay on the Trial by Jury, published in 1852, page 5.)

In the following passages Spooner is talking about trial juries. Although he never mentions the possibility of legislative juries, his line of reasoning is to a large extent strikingly applicable to them. By “legislative juries” I mean juries that can veto and repeal the laws the government passes, and pass laws the government does not support.[i]

Lysander Spooner (italics and bold are as in the original, block quote function not used because it may change everything quoted to italics):

“By such trials [where juries do not judge the law] the government will determine its own powers over the people, instead of the people’s determining their own liberties against the government; and it will be an entire delusion to talk, as for centuries we have done, of the trial by jury, as a ‘palladium of liberty,’ or as any protection to the people against the oppression and tyranny of the government.” (Ibid., 10.)

“The authority to judge what are the powers of the government, and what the liberties of the people, must necessarily be vested in one or the other of the parties themselves—the government, or the people; because there is no third party to whom it can be entrusted. If the authority be vested in the government, the government is absolute, and the people have no liberties except such as the government sees fit to indulge them with. If, on the other hand, that authority be vested in the people, then the people have all liberties, (as against the government,) except such as substantially the whole people (through a jury) choose to disclaim; and the government can exercise no power except such as substantially the whole people (through a jury) consent that it may exercise.” (Ibid., 10.)
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Ganesh Sitaraman’s sortition version of the Roman tribunes

Ganesh Sitaraman proposes a sortition version of the tribunes of the Roman Republic in his new book The Crisis of the Middle-Class Constitution: Why Economic Inequality Threatens Our Republic.

Angus Deaton, the Nobel Prize winning Princeton economist, describes the proposal in his review of the book in the New York Times (March 20, 2017):

Perhaps the least familiar and most intriguing policy proposal that Sitaraman discusses is the idea of reviving the Roman tribunate: 51 citizens would be selected by lot from the bottom 90 percent of the income distribution. They would be able to veto one statute, one executive order and one Supreme Court decision each year; they would be able to call a referendum, and impeach federal officials.

Such a proposal seems fanciful today, but so is campaign finance reform, or greater redistribution. Yet we do well to remember Milton Friedman’s dictum that it takes a crisis to bring real change, so that our job in the meantime is to develop alternatives to existing policies that are ready for when “the politically impossible becomes politically inevitable.”

Sitaraman is an associate law professor at Vanderbilt Law School.

Let citizen juries decide Canada’s election rules

My article in response to Justin Trudeau (Canada’s prime minister) breaking his electoral reform promise on February 1, and more generally about the absurdity of politicians deciding the rules they are elected under. (Trudeau, before and after the 2015 Canadian election repeatedly promised to make it the last one held under first-past-the-post.)

It is neither democratic nor desirable that the prime minister and the House of Commons keep deciding Canada’s election rules. There is a far better alternative.

In Classical Athens, the birthplace of Western democracy, much of the decision-making was done by juries chosen from the citizens by lottery. A modern version of Athenian juries could be used to decide election rules today.

Politicians should not decide the rules they are elected under because fair and democratic decision-making requires that those who decide do not have a conflict of interest. Election rules are far too important to our democracy to be compromised by the strong self-interest of politicians in rules that favour themselves.
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The Canadian Citizens’ Panel on Pharmacare Reports

A Citizens Panel on Pharmacare was held in Canada. From its webpage:

In October 2016, we invited 35 randomly selected Canadians to meet in Ottawa to consider whether there are better models that can improve access to prescription drugs.

Over five days, this group heard from a range of experts, examined different options, and, together, developed a clear set of recommendations for Canada’s health ministers and policy makers.

The panel’s report is here.

Note that although it says the 35 citizens are randomly selected, if you read further you can see that what they actually mean is that they were randomly selected from people who had volunteered to be on the panel. Some of the CBC news coverage of the report:

The panel’s research was funded by the Canadian Institutes of Health Research. A committee of clinicians, senior public servants and health researchers from across Canada oversaw the process.

[Emily] Dukeshire [of Calgary, one of the citizen panelists,] said she was impressed with the process. Panelists were randomly selected from about 1,000 representative people who had volunteered to take part in the process to advise policy-makers on drug coverage for Canadians.

“This whole process was really amazing that we were all so different and from all across the country, and yet we went through this process together and we were able to come up with core values that we all believed. We were able to define some issues and then come up with some solutions together,” Dukeshire said.

Other speakers included doctors, nurses, pharmacists, brand name and generic manufacturers, insurers, retailers, patients, public agencies, academics and former policy-makers.

Should Citizen Juries Choose America’s President, Congress, Governors and State Legislators?

New article by Simon Threlkeld.

Many people think choosing politicians by popular vote is an essential part of democracy. Nevertheless, there is another way to choose politicians that is in important regards far more democratic and much better. That way is for politicians to be chosen by juries of citizens drawn from the public by random selection.

Ideally, politicians would be chosen in a way that is very democratic, well informed, and independent from moneyed interests and billionaires, with political independents being on a level playing field with party nominees, with no portion of the public being underrepresented, and with candidates not being dependent on the media to get a fair hearing. All of these things can be achieved if politicians are chosen by juries.

After briefly explaining the considerable advantages of choosing politicians by jury rather than popular vote, Simon also briefly proposes two ways juries can be used to make popular elections much more democratic.

If politicians continue to be chosen by popular election, despite the problems with that approach, there are two ways juries can be used to make popular elections much more democratic.

Why America’s Judges should be Chosen by Citizen Juries

Simon Threlkeld has a new article in Dissident Voice, proposing that America’s judges be chosen by randomly sampled judicial selection juries.

Judges should not be chosen by popular vote, nor by politicians. Both approaches are undemocratic and deeply flawed, perhaps even absurd … A far better option is for judges to be chosen by juries drawn from the public by random selection.

[…]

The problem with choosing judges by popular election is not that it puts the choice in the hands of the people, but rather that it fails to do so, or does so very badly and inadequately. Fortunately, judicial selection juries provide a remarkably good and informed way for the people to choose judges.

In a democracy the people are the rulers, and are the highest and most legitimate authority, not politicians and political parties, nor the rich interests that fund their electoral victories. For this reason, the judiciary should be chosen by the people, not by politicians. All that is needed is a good informed way for the people to choose judges, something judicial selection juries can provide.

Why Citizen Juries should decide Canada’s Voting Method and Election Rules


A brief by Simon Threlkeld to Canadian House of Commons Electoral Reform Committee, July 26, 2016, briefly explains why election rules, including those setting out the voting method, should be decided by jury, not by politicians or a referendum, and how such a jury approach to democratically deciding election rules could work.

4. Were there no good democratic alternative to politicians deciding the election rules, then perhaps we would be stuck with that very flawed approach. However, there is an excellent and highly democratic way to decide the rules, namely by using citizen juries, or as they can also be called, minipublics or citizens’ assemblies.

(In his brief to the Committee Dennis Pilon has some interesting things to say about referendums and how electoral reform in Canada has long been blocked by the self-interest of politicians. All of the briefs the Committee has posted so far at their website are good, it seems to me. Mine is so far as I know the only one they have received recommending that election rules be decided by citizen juries.)