Elections and consent

It has been claimed, notably by Bernard Manin (The principles of representative government pp. 79-93), that the reason that sortition of representatives was never considered, and in fact hardly ever mentioned, by the founding fathers of the Western system was because it conflicted with their commitment to the notion that a just system must be based on consent. The argument is that only elections, which institutionalize the act of explicit selection, are compatible with this principle and thus sortition was ruled out a-priori to such an extent that it was never part of the set of ideas being discussed.

While the commitment of the founding fathers to the principle of consent cannot be realistically disputed, the notion that they saw a strong link between elections and consent is much less convincing. This link is far from obvious since, as Manin notes, the principle of consent long predates the modern era. Such a link would therefore not have been taken for granted by the founders, and presuming that it were important to them it would surely have merited a central place in their rhetoric. In fact, however, Manin cites no primary source which argues that elections are a mechanism of consent. He quotes, for example, John Locke as saying:

And thus that, which begins and actually constitutes any Political Society, is nothing but the consent of any number of Freemen capable of a majority to unite and incorporate themselves into such a Society.

But this, of course, makes no mention of elections. Quite the contrary – it is the consent to the incorporation itself, rather than any particular procedures of the newly formed body, that is crucial.

The closest Manin comes to offering a source that actually deals with elections is when he quotes Jacques Guillaume Thouret:

All citizens have the right to concur, individually or through their representatives, in the formation of the laws, and to submit only to those to which they have freely consented.

Even here, however, “representatives” may or may not mean “elected representatives”. If it were only elected representation that could function as a mechanism of consent, it seems that this fact would have been made explicit and emphasized by Thouret (and by others).

Going beyond Manin, a strong ideological link between elections and consent, had such a link existed in the minds of the American revolutionaries, would surely have expressed itself in the Federalist Papers. But in fact, again, this link entirely absent. Consent itself is not widely discussed, but when it is, it is explicitly associated – like in Locke’s point above – with consent to the act of incorporation rather than with elections (Federalist Papers #22):

It has not a little contributed to the infirmities of the existing federal system, that it never had a ratification by the PEOPLE. Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers, and has, in some instances, given birth to the enormous doctrine of a right of legislative repeal. Owing its ratification to the law of a State, it has been contended that the same authority might repeal the law by which it was ratified. However gross a heresy it may be to maintain that a PARTY to a COMPACT has a right to revoke that COMPACT, the doctrine itself has had respectable advocates. The possibility of a question of this nature proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.

And when elections are discussed in the Federalist Papers, and unlike consent they are a topic of frequent discussion, they are rationalized not in symbolic terms as embodying the notion of consent, but rather based on rational considerations. Elections, it is argued in the Federalist Papers #57 for example, are the best method for realizing the republican objectives:

first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.

To conclude, the accepted argument that elections were the only mechanism considered for selecting political officials because they were deemed as the only mechanism compatible with the idea of consent of the governed finds little to no substantiation in the primary sources. It seems much more likely, based on the sources as well as based on general principles, that the founders never considered sortition (among a large group of citizens) as mechanism of selection for the simple reason that it would have put in charge normal people – rather than “men who possess most wisdom to discern, and most virtue to pursue, the common good of the society”, such as their own humble selves.

25 Responses

  1. Agreed. That the consent of the governed came to be synonymous with elections is a highly dubious proposition. Don’t say this to my fellow citizens though or they’ll hurt you.

    Americans love voting and they love Vegas. In both cases the house always wins but still we come back. However, about half my countrymen generally neglect to participate so there’s hope there I guess.

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  2. Paul,

    In my opinion it quite clear that any regime which is sincere in its aspirations and claims about being a democracy would run regular polls to find out whether its citizens do indeed “consent” to the existing regime, and would score itself accordingly.

    The fact that none of the so-called “Western democracies” makes such an effort tells one more-or-less all that one needs to know about the commitment of Western political elites to democracy. (But maybe there is such a virtuous country and I am unaware of this?)

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  3. Well Yoram I’m attempting to remedy that. Have printed up a flyer to post in my neighborhood coffee shops and markets. Will attempt to acquire some direct, unscripted, unfiltered feedback straight from “the people”. Assuming of course that the people will speak with me. It may be that apathy & alienation are the dominant condition here. But, fingers crossed, we shall see.

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  4. I co-founded the Center for Election Science, which has brought approval voting to Fargo and St Louis via ballot initiative. It seems to me that you need a similar effort to enact sortition. You could blunt the perceived radicalism of the idea by, say, adding a few sortition seats to an elected city council. There are lots of variants worth trying, but the key is to use the power of the ballot initiative to make it a reality rather than just an idea that people talk about on the internet. This doesn’t even require that much money. CES brought approval voting to Fargo for something like 100k.

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  5. I agree that the ballot initiative is a critical tool. Probably the only way that anything useful gets done. Can’t say I have much of a budget at the moment however. I’m offering to buy people coffee in exchange for their opinions. That the limit for me right now.

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  6. > Probably the only way that any useful gets done

    That seems impossible because the ballot initiative process itself was created by a system in which it did not exist. I am not saying that ballot initiatives cannot be used for good, but in general they suffer much the same problems that elections do. Most importantly, in a large political unit it takes a great amount of resources (of one kind or another) to get an initiative on the ballot, just like it takes a great amount of resources to become a credible electoral candidate.

    In any case, I think we are still pretty far from a situation where a worthwhile sortition-based system can win majority support. We are still in the phase where sortition needs to become a well-known notion that cannot be dismissed as an absurd novelty.

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  7. The difference is that a ballot initiative is a one-time deal for a given municipality, and then it affects *everything* (every “election”) going forward. CES got approval voting in Fargo for something like 60k in donations, plus staff time/salary. St Louis was about 170k. Incredibly cost effective compared to anything else remotely in the realm of possibility. Plus, the idea with powerful popular innovations (like legalizing marijuana or same sex marriage) is that once demonstrated, it can catch on and grow organically.

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  8. > I think we are still pretty far from a situation where a worthwhile sortition-based system can win majority support.

    How do you know until you try a ballot initiative campaign somewhere and see what happens? Even as a trial balloon.

    And what about incremental baby steps that direction? Suppose we do an initiative where every city council member gets one opportunity per year to convene a jury for any proposed piece of legislation. And then it passes if a majority of the jury (e.g. 7 of 12) members approve it. This may require lots of deliberation and revision to get to majority support, which is a good thing.

    Now, you’ve actually *empowered* the existing players in a sense. There’s game theory at work. Even tho individual council members might get excited about this idea because it gives each of them a shot at passing his or her big agenda item, the collective impact might be to serve the public interest over their collective Machine Politician interests. It also further legitimizes the solution.

    With climate change where it is, we really don’t have time to try to convince people. What I’ve seen in voting reform is that by far the best way to advertise the idea is just to run a ballot initiative and try to get it adopted. The effort itself is the public awareness campaign. Even if it fails, it helps to spread the idea more effectively than just talking about it.

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  9. Well certainly the ballot initiative requires resources but at least it allows one to do an end run around the political establishment. And as Clay says, even if you “fail” you’ve still increased public awareness. I don’t really think there’s any way around the fact that changing our political system will cost money.

    It may be ironic or counter intuitive but I don’t think it very likely that our system will be improved unless there are at least a few establishment players willing to accept a role. I may be a “radical” but even I don’t see social class and economic stratification going away anytime soon. My hope would be to persuade some practical members of the elite that the system is no longer tenable in its current configuration and reforms are essential. But the elite still maintains some privilege.

    In my “manifesto” I propose a sortitionist House in opposition to a Senate where the seats are unabashedly auctioned to the highest bidder. The two bodies are mediated by a court using alloted justices.

    I had once hoped to start a social movement on a shoe string but generally speaking I think that nothing in life is free. Creating a social movement and generating votes will surely cost money. I do believe good things can be done with the ballot initiative but yes it will cost money.

    My history’s pretty shaky but wasn’t the French Revolution largely a product of the “elite” educated class? They met on a tennis court right? Can’t say that I’ve had any offers lately but these are still the folks I’d hope to entice.

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  10. Manin’s claim is:

    Whatever its other merits and properties, selection by lot has [one] incontestable characteristic – it does not involve the human will – and [therefore] cannot possibly be an expression of consent.

    I presented a paper to Manin at the 2014 SciencesPo Tirage au Sort conference in Paris in which I attempted to refute his claim. The paper was published in an Italian journal and is available here: https://www.academia.edu/36303387/The_Triumph_of_Election_A_Pyrrhic_Victory My argument is that Manin’s claim is wrong, both historically and logically (the original French ne peut pas passer pour une expression du consentement is a strong claim). It is true that natural right theory was more concerned with foundation myths, and I agree with Yoram that ongoing consent is what really counts, and argue that sortition is a better tool than election for gauging ongoing consent.

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  11. Manin is certainly wrong. There’s no such thing as “consent” in group decision-making. Consent makes sense when you’re making an individual choice as a “dictator” of your own private affairs. I can consent, or not consent, to having you come on my property. But if the property is communal, some members of the commune may want you on the property, and some may prefer you stay away. No matter which decision holds, some members of the group haven’t “consented” to it. That’s just life. The goal is the same either way: to maximize the expected utility of members of the group.

    Some voting methods can be much better than others at this.
    http://scorevoting.net/BayRegsFig

    But taking a vote on each individual issue by a random sample of the population can plausibly be even better still. The key is to view social choice in terms of utility maximization (the whole thing genes are trying to get their host organisms to accomplish in the first place), not in terms of arbitrary philosophical abstractions like “consent” that have no meaning in group decisions.

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  12. Clay,

    I agree that voting by a random sample is better than the whole population, but it presupposes a majority/plurality rule. In my paper I claim that this can be an indication of consent, in that the losing members of the sample would be deemed to consent to the outcome. As to whether the vote of the sample can be taken to signify the consent of the target population presupposes certain constraints (broadly speaking that the outcome should be invariant over different samples of the same population), which I detail in the paper. If you don’t have an academia.edu login the original paper (open access) is at http://www.intrasformazione.com/index.php/intrasformazione/article/view/311/pdf

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  13. Here’s the abstract:

    The Triumph of Election: A Pyrrhic Victory

    Keith Sutherland

    This paper takes issue with Bernard Manin’s claim that the ‘triumph of election’ and demise of sortition (the random selection of persons for public office) was on account of the ‘natural rights’ theory of consent that was dominant at the time of the birth of modern representative government. The paper considers a number of alternative explanations, including institutional path-dependency, geography, the influence of Roman republicanism, class interests, and religion but concludes that the primary reason for the triumph of election was meritocracy. The paper goes on to develop James Fishkin’s argument that sortition can establish a form of ‘consent by proxy’ which is in many respects an improvement on the approximate, tacit and manipulated forms of consent instituted by competitive elections.

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  14. Paul,

    Yes, the French revolution was instigated by an elite group. But it was not only by the elite, but also for the elite. So what’s the use of such a revolution? It just replaces one ruling elite by another. We are aiming for something very different, I think.

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  15. I suspect that the most practical arrangement is a hybrid approach, where you use good modern voting methods like STAR voting or approval voting (and perhaps even proportional variants of those for legislatures), and that is coupled with a Citizen Assembly of equal size.

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  16. Clay, what do we need to do to organize a campaign like you did for CES? Do you think sortition is sufficiently popular to be able to organize such a campaign?

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  17. Yoram

    I think labels have their limits and I can’t write off every person with a bank balance. Many people (despite the dirt under my nails) would probably describe ME as a member of the “elite”. I think that Clay is probably right about the political potential of even relatively “small” amounts of money. I’ll organize anyone I’m able to regardless of the labels which may potentially be applied.

    Of course I seek coherent institutional reform and not simply regime change. But I see no definitive proof that income and intellect have any relation to one another. If a person backs democratizing reforms then they are my ally.

    I don’t see this as a zero sum game. The oppressed won’t succeed with guillotines and firing squads. Society will (hopefully) evolve as our institutions incrementally change in a more Democratic direction. I do however suspect (as stated elsewhere) that there is probably a window or timeline for such change. If I’m right about this that’s all the more reason to be pragmatic and try to work with progressive members of the Establishment.

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  18. You can read about how CES did their campaigns, but it’s basically a case of filing a ballot initiative and collecting signatures. It also helps to have money. CES got a few million from the Open Philanthropy Foundation. I’m currently working on a new non-profit entity I’m tentatively calling “Climate Democracy” which would marry sortition and advanced voting methods (e.g. STAR voting, approval voting), with a specific focus on climate change—which I’m coming to see as The One Big Issue of Our Time. So if you have any interesting in helping, please DM me on Twitter.

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  19. Paul: >I think labels have their limits and I can’t write off every person with a bank balance. Many people (despite the dirt under my nails) would probably describe ME as a member of the “elite”.

    Yes, I imagine that’s true for most commentators on this blog. There may even be the conceit that the kleroterian vanguard elite is some kind of exception to the antiquated Pareto/Mosca/Michels sociology.

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  20. Sortition is of course part of the US Constitution, specifically in the form of trial by jury in the 6th and 7th Amendments, and in the form of the grand jury in the 5th Amendment.

    Only one body at the federal level is chosen by popular election in the early US Constitution, namely the House of Representatives.

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  21. That’s interesting Simon. I believe in the UK that selection by lot evolved over time from the principle of trial by one’s peers. Is it the case in the US that selection by lot is a (constitutional) requirement?

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  22. I think that selection of juries by lot is constitutionally required, but that is not explicitly stated in the said amendments.

    Of the the three amendments, the 6th amendment says the most about how juries are to be chosen. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law …”

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  23. Madrid has sortition now, sort of.

    https://oidp.net/en/content.php?id=1539

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  24. While Madrid in 2919 did adopt a sortition model that I worked with local activists in designing, The next elected government with a different party majority abandoned it. Here is a bit about that

    Click to access Did%20you%20win.pdf

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  25. Sorry, I didn’t know the URL would “go live” like that.

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