Consent of the Governed

Posted on June 3, 2021 by Wayne Liebman

A recent conversation with a friend about sortition illuminated for me a stumbling block in making the case for lotteries–at least for advocates in the United States. This friend was adamantly opposed to lotteries. We argued back and forth for some time. In exasperation, I finally asked her what was so special about elections. She said, “Because elections are the mechanisms by which we the people express our wishes.” It was problematic for her that random selection allowed her no say in who would be chosen to be on a given panel.

In the Declaration of Independence, Jefferson wrote of certain unalienable rights (life, liberty, etc.), arguing “… that to secure these rights, Governments are instituted among Men [sic], deriving their just powers from the consent of the governed …”

By this Jefferson meant that the people give permission to their representatives to rule over them. The disconnect for most of us is that our representatives often give preference to their donors over voters, making a mockery of consent. But to argue that elections provide only the illusion of consent does not answer the concern that a randomly selected policy making body would give people no say in who’s making the rules.

One answer to the concern would be a referendum wherein voters approve the creation of a randomly selected policy-making body. The Michigan redistricting commission—a thirteen-member body selected by lot—was established by a 2018 referendum amending the state’s constitution. The commission has the power to re-draw district lines, and it was created by popular consent—60% of Michigan voters approved the amendment: they removed power from an elected group (the state legislature) and entrusted it to a group selected by lot.

The Irish Citizens’ Assembly on abortion provides an inverse example–in that case, the assembly deliberated and recommended a national referendum, which took place in 2018, when Ireland voters voted to end the ban on abortion.

If we wish to be more effective advocates for lotteries, we might keep the consent of the governed issue in mind. If it turns out to be a hidden roadblock, we have the examples of Michigan and Ireland to point to as a way that panels chosen by lot can invoke, or be invoked, with voter consent.

I’d be interested to hear from international advocates whether they feel this issue is peculiar to the U.S., or has wider application.

Filed under: Ballot measures, Elections, Sortition |

4 Responses

Yoram Gat, on June 4, 2021 at 7:14 am said:

Hi Wayne,

I am not sure how widespread this sentimental attachment to the ritual of voting is. Like believing in Santa Claus or the tooth fairy, one has to maintain a sort of child-like naivety in order to be a true believer in this electoralist dogma. So given the widespread lack of confidence in the system and its products, I would guess that it is probably more of an elite sentiment. And indeed, in contrast to the outraged protests of elite columnists, opinion polls show that there is a lot of support for allotted bodies.

Analytically, a distinction should be made between “expressing our wishes” and “consent”. The former is supposedly more of a cause-and-effect relationship while the latter is more of a formality.

Elections may give an illusion of providing a mechanism that does both, but in fact it does neither. It is certainly not a mechanism of “consent” to the electoralist system because it provides no way to express a rejection of the system. The electoralist system is not on the ballot – it is the ballot itself. As for expressing our wishes – we can express our (uninformed) preference between those on the ballot, but the electoralist mechanism pre-filters the candidates and assures that they are members of an elite. So the range of preferences is limited a-priori to a narrow range.

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Oliver Milne, on June 4, 2021 at 10:00 am said:

There’s a strong case to be made that the idea of ‘government by consent’ is self-contradictory. The whole point of the state is that it’s allowed to use coercive force – that’s what makes it a state. You can’t be consensually coerced, it’s nonsensical.

That aside, there are hybrid sortitional-electoral models that have a lot of promise. Keith and Alex’s model, in which an elected chamber puts multiple proposals on each topic before a jury which chooses between them, can very easily be defended from the kinds of criticisms you’re describing. Indeed, because of the way they have it operate – a proposal only needs 1/6th of the chamber’s support to go before a jury – their system allows more people’s voices to be heard than today’s elected legislatures, in which only the ruling coalition’s voters’ views are represented in law.

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tbouricius, on June 4, 2021 at 2:37 pm said:

There are two levels of concern about “consent of the governed.” Yes it can rationally be shown that elections fail to achieve this. There is no means for withholding consent. Those who abstain are simply ignored, and nobody in the U.S. ever voted in any referendum to HAVE elections as the means for consenting to any government. It was imposed by a landed white male elite. One can also point to the pre-selection filter of candidates, the influence of money, etc. But these are all merely RATIONAL arguments. BELIEF in the PRINCIPLE of consent runs deeper than Santa Claus. (How many millions of Catholics deeply believe the wheat wafer is actually a bit of the body of Jesus?) Even on the rational argument, a person could assert that elections just need to be “improved.” Reform the nomination and money issues, etc. The ACTUAL failings of elections don’t destroy the BELIEF that elections SHOULD and THEORETICALLY CAN provide consent … some day.

To address the BELIEF that consent is fundamental, and that elections are the means to do this, I agree that giving real authority to allotted bodies will almost certainly require a popular referendum as the boot strap method. Not worded like this, but essentially “We consent to the use of randomly selected representative bodies to democratically govern society.” As faulty as referendums are, they are nearly universally accepted as the LEGITIMATE means of giving consent (surveys generally show far stronger support for the use of referendums than sortition or politicians).

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keithsutherland, on June 5, 2021 at 11:28 am said:

In his book The Principles of Representative Government, Bernard Manin argues that election replaced sortition on account of the Natural Right theory of consent. So, yes, this is a widespread modern belief, not an American aberration. Alex and my work is based on how best to implement the notion of consent in large multicultural states, and we argue for a mixture of election and sortition (as explained by Oliver’s comment, above).

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