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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The Paradox of Democratic Selection: Is Sortition Better than Voting?

Book chapter just uploaded to academia.edu by Anthoula Malkopoulou

Sortition, or the selection of political officers by lot, has its antecedent in the direct democratic tradition of ancient Athens. Its transfer into a modern context of representative democracy poses rightful scepticism not only about the practical difficulties, but more so about the theoretical inconsistencies that arise. Modern systems of political representation are based on the aristocratic idea of ‘government by the best’, who are to be selected through a competitive call for candidates (Manin 1997). Sortition, on the other hand, replaces this aristocratic criterion of competition and evaluative election with the democratic mechanics of direct and equal distribution of political office by chance. Hence, the very expression ‘democratic (s)election’ includes a paradoxical contradiction in terms, between the democratic concept of equal access to public office and the aristocratic idea of government by the (s)elected best. My aim in this chapter is to shed some light on this contradiction by critically discussing the benefits and pitfalls of using sortition today, comparing it throughout the chapter with voting and the general effects of electoral representation.

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The allotted Irish Citizens’ Assembly sends its recommendations to the Oireachtas

Wikipedia:

The Citizens’ Assembly (Irish: An Tionól Saoránach) is a citizens’ assembly established in Ireland in 2016 to consider several political questions: abortion, fixed term parliaments, referendums, population ageing, and climate change. It will produce reports to be considered by the Oireachtas (parliament).

[…]

On 26 July 2016, Mary Laffoy, a judge of the Supreme Court of Ireland, was chosen by the government as chairperson of the assembly.

The 99 other members are “citizens entitled to vote at a referendum, randomly selected so as to be broadly representative of Irish society”. As with the 66 citizen members of the Constitutional Convention, these 99 plus 99 substitutes were selected by an opinion polling company; Red C won the tender and began selection at the start of September. The Electoral (Amendment) Act 2016 was passed to enable the electoral register to be used in this process. Media were asked not to photograph the citizen members before the inaugural Assembly meeting. By the 27 November 2016 meeting, 11 of the 99 had been replaced by substitutes.

The Irish Post:

THE Irish Citizen’s Assembly has voted overwhelmingly in favour of abortion in a landslide vote.

[…]

The citizens involved in the vote had attended five two-day meetings since November 2016 and had heard from a series of legal and medical professionals.
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“Representation Against Democracy: Jacques Rancière on the French Presidential Elections”

From an interview with Jacques Rancière on the French Presidential Elections (translated from the original in French):

How would you organise collective life without representatives? By drawing lots — a measure you supported in your 2005 book Hatred of Democracy?

We should distinguish between delegation and representation. In a democracy, logically enough some people will carry out certain activities on other people’s behalf. But the delegate plays her role only once, which is not true of representatives. Drawing lots was once the normal democratic way of designating delegates, based on the principle that everyone was equally capable. I proposed bringing it back in order to reverse the drive toward professionalisation. But that is no simple recipe, any more than non-renewable mandates are. These tools are only of interest if they are in the hands of a vast popular movement. Democracy does not exist without these pressures emerging from outside the system, pressures that shake up the institutions of the state — like the “squares movements” did recently. Democracy presupposes that institutions autonomous of state structures and state agendas are able to make these egalitarian moments last.

A prominent French presidential candidate makes sortition part of his programme

A post by Arturo Iniguez.

L’Avenir en commun (A Shared Future) is the name given to the programme of La France insoumise (France Uprising) and its candidate for the May 2017 French presidential election, Jean-Luc Melenchon. The programme is arranged into 7 parts. The first one, under the tag-line L’urgence démocratique (The democratic urgency), is called La 6eme République, in reference to a new Constitution that would replace the current one, the Fifth, instigated by Charles de Gaulle in 1958. If elected president, Melenchon has promised to convene a constitutional convention and prematurely end his five-year mandate as soon as the new constitution is adopted. Thus, the very first measure in the programme is Réunir une Assemblée constituante (Summon a Constituent Assembly).

Each individual measure is developed in a separate booklet, forming a whole collection. Number 28 of the series, under the title Changer de République pour faire place au peuple (Reform the Republic to create a place for the people), explains how the members of the constitutional convention would be designated. The proposal is to combine election and sortition. In which proportion? That is left to the people themselves. At the poll, each citizen can either vote for a candidate or express his or her personal preference for sortition. The percentage of options for sortition will determine the share of seats to be sorted.

This is a clever way to avoid one of the main sources of resistance to any future attempts to introduce sortition: the opposition of those who are not interested in being sorted, will immediately resign in the event of being chosen by the lot, and are generally happy with the aristocratic setting of voting for professional politicians. These people will see any amount of power given to a purely sorted body as power directly detracted from them. Such a change will be unfair to them (the status quo is of course unfair to all those who do not vote).
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Je participe

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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