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.

Full text

Hartz-Karp: Unlike the Athenians, we don’t believe that every citizen is capable of participating in important decision-making

Janette Hartz-Karp, a professor at the Sustainability Policy Institute at Curtin University, has a sortition advocacy piece in The Conversation. It covers well known ground: history, diversity, deliberation, applications in Australia, etc.

The opening of the “What’s the obstacle to reform?” section is interesting:

So why isn’t deliberative democracy happening more often? Simple. Those in power are wary about sharing their power.

Unlike the Athenians, we don’t believe that every citizen is capable of participating in important decision-making. We assume most people are too self-interested to make decisions for the common good.

This seems to conflate two different ideas:

  1. Resistance by the elite,
  2. Anti-democratic sentiments in the population.

The first idea is clear and presents a general phenomenon. Power concedes nothing without a demand.

The second idea, however, is more intriguing. How resistant are the people themselves to democratic rule? If they are, why? An empirical study of this question could be useful.

The article also generated a lively conversation in the comments.

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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McCormick: The new ochlophobia? Populism, majority rule and prospects for democratic republicanism

Contributors to this blog who argue the case for full-mandate, voluntarist sortition will find support for their arguments in a forthcoming book chapter by John P. McCormick, author of Machiavellian Democracy. According to McCormick, electoral representation involves rule (primarily) by the rich, whereas democracy by lot is rule by the poor — a perspective that he derives from Aristotle, mediated by Machiavelli, Montesquieu [and Marx]:

The hoplites of ancient Greece and the plebeians of Republican Rome established institutions that granted ultimate legislative authority to the majority qua the poor . . . Athenian democracy and the Roman Republic exhibited primary institutions intended to insure that the poor would rule over or share rule equitably with the rich. (pp. 2-3)

Given this dichotomy it matters little which individuals are selected by preference election or sortition, as the two mechanisms will privilege (respectively) economic elites and the poor, and the resulting political decisions will (presumably) reflect the preferences of these two socio-economic groups.
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Canadian Senator advises against an allotted Senate

Paul J. Massicotte, a senator representing De Lanaudière, Quebec, responds to a piece by Prof. Arash Abizadeh advocating changing the selection procedure of the Canadian Senate to sortition.

Massicotte offers a modern version of the Socratic argument against sortition:

Who wants to play hockey for Team Canada at the next Olympics? Who knows — there could be plenty of openings if the NHL won’t let its players take part in the 2018 Winter Games. But imagine if Team Canada just randomly grabbed people from the lineup at Tim Hortons for its Olympic hockey squad. The results would obviously be disastrous. So, why would we expect anything better if we replaced the Senate with an assembly of citizens picked at random?

Forget skill and hard work — this may be your lucky year if your name is drawn from a hat.

Sounds silly, right?

It is an indication of the precarious position of the Canadian Senate with its non-electoral appointment procedure that the Senator feels that the proposal to appoint the Senate using sortition requires a refutation. It is a feeling that, as far as I am aware, no elected member of parliament has ever shared in modern times. With some luck, however, it may not be too long before arguments against sortition are offered by elected parliamentarians in the French-speaking world.

The U.S. Constitutional Convention Considered a Lottery to Select The Electoral College

convention-debatesWith Donald Trump winning a majority in the Electoral College and Hillary Clinton receiving the plurality of the popular vote, the role of the Electoral College is once again in the news.

For those interested in the history of the use and consideration of lotteries in political decisions making, here is an interesting little tid bit. During the debate at the Constitutional Convention about how the President should be selected, there was a lot of discussion of the pros and cons of various schemes for selecting the Chief Executive. Possibilities included allowing a national popular vote, having Congress elect (as in a parliamentary system), having the state legislatures elect, or having one-time electors (an Electoral College), choose the president of the United States.

According to James Madison’s notes, James Wilson, one of the most important and influential delegates to the Constitutional Convention, proposed that the electors for the Electoral College be chosen by lot from among the members of Congress.

Tuesday, July 24, 1787 notes by James Madison

Mr. WILSON then moved, that the Executive be chosen every — years by — Electors, to be taken by lot from the National Legislature, who shall proceed immediately to the choice of the Executive, and not separate until it be made.

Mr. CARROLL seconds the motion.

Mr. GERRY. This is committing too much to chance. If the lot should fall on a set of unworthy men, an unworthy Executive must be saddled on the country. He thought it had been demonstrated that no possible mode of electing by the Legislature could be a good one.

Mr. KING. The lot might fall on a majority from the same State, which would insure the election of a man from that State. We ought to be governed by reason, not by chance. As nobody seemed to be satisfied, he wished the matter to be postponed.

Mr. WILSON did not move this as the best mode. His opinion remained unshaken, that we ought to resort to the people for the election. He seconded the postponement.

Mr. GOUVERNEUR MORRIS observed, that the chances were almost infinite against a majority of Electors from the same State.

On a question whether the last motion was in order, it was determined in the affirmative, — ayes, 7; noes, 4.

On the question of postponement, it was agreed to, nem. con.