Right-wing conservative proposal to use sortition

Coming from the right-wing in Texas, interesting to see they suggest using sortition to select a ‘super grand jury’ for the sake of, possibly, resisting federal enforcement of what any citizen might want to declare as unconstitutional.

In the lecture by Étienne Chouard, he makes much of the fact that Athenians distrusted each other and therefore had several ‘controls’ before, during and after final decisions made in the Assembly.  I have found myself sometimes agreeing with inquiries that say “Well, you must believe in the essential goodness of human nature if you trust just anyone to deliberate upon policy issues.”

This proposal from the Tenth Amendment Commission could be a sensible citizen control. I’m glad to see sortition considered by the ‘Don’t Tread on Me’ folks.

[The Tenth Amendment in its entirety: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”]

15 Responses

  1. One doesn’t have to go far into the proposal before noting the following anti-democratic element:

    membership drawn from a pool of constitutionally knowledgeable persons, excluding public employees, contractors, or pensioners, active lawyers, or current members

    Beyond the exclusion of the non-negligible sectors explicitly named, this presumably implies some sort of a competency test (for “constitutional knowledge”).

    Just can’t trust some people.


  2. Agree that it’s encouraging to see that sortition is of equal appeal to the left and the right. In fairness to this particular proposal, constitutional knowledge is a relevant criterion for a body that is devoted to deciding what is or isn’t constitutional (this isn’t a constitutional convention in the sense of making new proposals) and there is a logic in excluding those with a vested interest.


  3. Saw this and almost posted about it. This site endorses a book by Robert Natelson, a fringe kook constitutional law professor. I think these people would rule anyone ineligible to serve who believed that Barack Obama was born in the U.S. I actually like the idea of jury nullification, and the extension proposed here, but any such procedure would have to deal with the substantial number of crazies we have in the U.S. (Not that the current political system is very good at dealing with those same crazies…)


  4. > constitutional knowledge is a relevant criterion for a body that is devoted to deciding what is or isn’t constitutional

    As usual, these exclusionary rules are logically inconsistent. Anybody who agrees that “constitutional knowledge” is necessary for decision would make sure to either become “constitutionally knowledgeable” or to defer to those with such “knowledge”. Excluding people who have divergent opinions on what this knowledge is or its importance is an attempt to circumvent the democratic process.

    > there is a logic in excluding those with a vested interest.

    Any member of society has an interest in public policy and there is no difference between “vested interest” and simply “interest”. As long as people’s interests are represented according to their weight in the population, this is simply the democratic procedure. Again, this clause is a transparent attempt to put the thumb on the scales in favor of the proposers’ preferred policies.

    > any such procedure would have to deal with the substantial number of crazies we have in the U.S.

    In a well functioning sortition-based system, the “crazies” would be dealt with by having their power limited to their share in the population.


  5. I am the author of this proposal, which is more fully discussed at http://nullifynow.net . It should be understood that the first stage in the selection of the “Federal Action Review Commission” is selection of one candidate by each of 254 county grand juries, most of which are themselves selected at random, with the final 23 members selected at random from that pool of candidates for three staggered terms of service on the Commission. The instruction to those grand juries to select someone constitutionally knowledgeable and to exclude persons who feed at the government trough is not enforceable except as a matter of honor, but it can be expected that most grand juries would take the instruction seriously.

    The proposal is also presented at http://constitution.org/reform/us/tx/nullification/nullcomm.htm

    However, I object to characterization of the proposal as “right-wing”. The left-right paradigm is only proper for distributionist issues. This is not about distribution or redistribution of wealth. It is about compliance with the Constitution as originally meant and understood.


  6. Keep in mind that in the United States today about half of all persons are net consumers of federal taxes (“getters”) and about half net producers (“payers”). Also called “takers” and “makers”. The unhealthy trend is toward expansion of the first at the expense of the second. There is also a tendency for the takers to be deluded about how sustainable the benefits are, and to have a skewed understanding of the Constitution. Constitutional decisions need to be weighted toward producers if we want clear-headed decisions about what the Founders meant.


  7. Agreed. In my book A People’s Parliament (p.144), I argue that those who live off the public purse should be excluded from the sortition franchise, citing J.S. Mill in support:

    “The assembly which votes the taxes, either general or local, should be elected [allotted] by those who pay something towards the taxes imposed” (Mill, 1991, p.33).

    This was jumped on by Vernon Bogdanor when he reviewed the book in TLS, enabling him to dismiss me as a right-wing ideologue. But it’s good that sortition appeals equally to Rawlsian egalitarians, neo-Marxists and those of us who just want to make sure the trains run on time. Having said that, I’m a little concerned about those who seek to give the Founders god-like status, it reminds me a little of Biblical fundamentalists.


  8. FWIW, I’m a big fan of jury nullification. I think there’s a lot of merit to the idea, at least in the abstract, of a randomly-selected group of American citizens reviewing the actions of the government. But I emphasize the “random selection” bit. I would like to see a fair cross-section of the community, not a group of those pre-screened by those who have a very particular ideological agenda. (I didn’t see anything about “not enforceable except as a matter of honor” in the proposal, but perhaps I missed it.) And yes, the view that the country divides nearly into people who parasitically draw off of the government and people who pull themselves up by their own bootstraps is very much a particular ideological agenda. We all benefit from the government in various ways, and we all ought to contribute to it as best we can. That’s true regardless of the specific merits of any one particular tax or regulation or the overall size of the government.


  9. OK, better if we don’t go down the route of franchise exclusions for the sortition and focus on those things we can agree on.


  10. The main design objective of sortition is to avoid rent-seeking or the “public choice” problem — those having the greatest stake in the outcomes of public decisions effectively investing disproportionately more to influence the ways those decisions are made. Those who have come to rely on departures from strict compliance with the Constitution as originally meant and understood, the “reliance interests”, function as a powerful political faction, perhaps half the population, and it is the policy preferences of that faction that are driving the sovereign debt bubble that threatens a worse depression than that of the 1930s, which led to a world war, and would now likely lead to a global nuclear war. It is difficult to write a selection method that excludes them, but one can reduce their influence by drawing one candidate from each county, giving some weight to rural counties. The desired skillset of the body is that of judges, but judges that haven’t been corrupted by their political connections and economic interests, as most sitting judges are. The body is to make scholarly and judicial decisions, not majoritarian decisions.


  11. Again, this is not a lawmaking body, but a judicial body, with only a negative jurisdiction to find official actions of federal actors unconstitutional. It has no jurisdiction to find anything constitutional, other than by not taking it up at all, which is not a finding. No one is being “excluded from the franchise”.


  12. Sortition is aimed at giving all people equal political power, i.e., the same influence over public decisions – a goal also known as democracy. Excluding people from various parts of the political process is anti-democratic.

    And yes – your entire line of argumentation is based on a Right Wing world view. “Reliance interests”, whatever that means, are not inherently any less legitimate than “Independence interests”, or whatever the alternative to “reliance interests” is in your system of ideas.


  13. Sortition is a method of enabling more deliberate decisions by impartial persons not under the control of outside interests, but some kinds of decisions require specialized knowledge and skill. The U.S. Constitution did not set up a democracy in which majorities would always prevail, even to the infringement of the rights of individuals and minorities. We have checks and balances to prevent majoritarian tyranny, and that means structuring decisionmaking so that minorities nor even individuals can block the will of the majority in certain ways.

    You don’t want to choose judges purely at random from the general population. The job of the judge is not just to decide among opposing arguments, he must understand those arguments at least as well as they do, and he must know how to conduct a court and administer a judicial office with law clerks and other staff.

    The usual solution for selecting judges is to require they be members of the bar, or at least have passed the bar exam, and have a minimum number of years in practice. Unfortunately, lawyers in this country are not taught the Constitution and few of them have to learn about it even in long careers in the practice of law. However, in most communities there are a few constitutional scholars who are known to other members of the community, and this plan offers the way to make them candidates for a random selection of members of the Commission. The plan was worked out with the advice of constitutional scholars, most but not all of whom are lawyers and legal historians.

    I find fewer than 200 persons in the U.S. with a deep knowledge of the Constitution as originally meant and understood, although the number seems to be growing. It is hoped such a commission would accelerate that growth.

    In the meantime we have a problem with rent seekers, those “reliance interests”, who use the political process to do things that if done directly would be prosecuted as crimes. Their methods might be nonviolent but they are still a kind of internal enemy. That doesn’t mean most of them are not charming people, but being bent on pillaging the public fisc in a way thatwill bring down destruction on all of us, they cannot be treated as equal to those trying to preserve the rule of law in the long term.


  14. Jon,

    You feel that most people have no understanding of how a country should be run. If other people feel like you then those other people, if selected into power at random, would seek and follow the advice of those who (you and they feel) do have a good understanding of how to run things.

    So, your views will prevail and determine policy if they are shared by a large part of the population. On the other hand, if other people do not feel like you, then they will, naturally, act in ways that you disagree with.

    That is the democratic way. Trying to design the system in a way that will amplify the power of those who agree with you and diminish the power of those who disagree you is anti-democratic.


  15. I’m inclined to agree with Yoram here, were it not for his ignoring the temporal dimension. Burke argued that society was a contract between the dead, the living and the unborn and I would agree with Jon’s suggestion that a focus on the intentions of the dead might well be the best way to protect the interests of the unborn. Most of the focus on the interests of the unborn has been in terms of environmental degradation, but the legacy of debt is just as important. Unfortunately it’s hard to present this perspective without being tarred with the brush of right-wing constitutional fundamentalism.

    Certainly sortition per se has no inherent property that can take us beyond the interests of the present generation, we need to look elsewhere for that. My preference is Rothbard and Hoppe’s case for hereditary monarchy (as part of a mixed constitution) but this has won me few friends on this forum. Eric Nelson (Harvard) is doing some interesting work on the (frustrated) monarchical leanings of many of the Federalists (Hamilton in particular). It would be interesting to speculate how things might have turned out differently had George III responded in a different way to the 1775 petition.

    Arguably the greatest departure from the founders’ intentions is the short-term and politicised nature of the presidency, but it’s hard to understand how anything other than a freehold office could have a long-term perspective (the real-estate analogy being taken literally). A reliance on judges and exegesists really does make the Constitution look like the Ark of the Covenant, whereas what is needed is a living embodiment of the monarchical principle. Unfortunately this presupposes pigs taking wings, so I’m not holding my breath.


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