Equality by lot

In a paper in The Yale Law Journal, Bernadette Meyler, professor of law at Stanford, makes the case for having sortition as part of the American democratic (sic) system. In the abstract she writes that she aims at

highlighting the ways in which the Constitution celebrates aspects of democracy that do not fit neatly within the model of majoritarian elections. Focusing in particular on the jury system, the protections for petition and assembly, and the references to the general welfare, this Response opens space for nonelectoral democratic defenses of the administrative state, including agonism.

In the article itself Meyler writes:

While democracy today is often seen as synonymous with majoritarian elections, that was not always the case. Another form of democracy, practiced in ancient Athens and elsewhere, entailed selecting officials by lot, or sortition.32 Although the U.S. Constitution never explicitly mentions this procedure, it was not foreign to the Founders, who arguably incorporated it into our constitutional scheme through the jury. Sortition represents a significant democratic alternative to the mechanism of election, and systems that rely on sortition tend to emphasize different aspects of democracy than those implementing majoritarianism.

[S]election by lot could permit an equal distribution of the “probability of achieving power” and “could promote equality in the distribution of offices.”

Meyler wonders why the U.S. revolutionaries did not consider introducing sortition into the system they were designing, and with Bernard Manin suggests that this has to do with their reliance on the idea of consent. (See here for why this idea is not convincing.)

In any case, despite the lack of explicit deliberation about the selection of governmental officials by lot in the drafting and ratification of the Constitution, the document does enshrine one mechanism for the allocation of political actors at least partly by chance: the jury system. Article III as well as the Fifth, Sixth, and Seventh Amendments constitutionalize the grand and petit juries. At the time of the Founding, some states—including New Hampshire, South Carolina, Georgia, Massachusetts, and Connecticut—did, in fact, draw jurors by lot from “a panel previously selected by ‘some impartial means.’” Furthermore, jury selection prompted deliberation about democratic practices. Thomas Jefferson, in particular, wrote several letters on the selection of juries by lot or by election; he even drafted a legislative proposal that combined the two methods. Several decades ago, in a student note, Akhil Reed Amar advocated choosing legislators by lottery and drew an analogy to the jury system. There, he suggested that the general historical practice had been to allow “local selectmen . . . to handpick jurors of exemplary moderation and wisdom,” and he located relatively recent twentieth-century roots for the selection of jurors by lot. Subsequent scholarship, however, has demonstrated that this historical account is inaccurate; the roots of jury selection by lot are even deeper. These recent findings, even as they undercut Amar’s historical analysis, only bolster his normative argument for increasing the use of sortition in a manner consistent with our constitutional scheme. Many have observed that the jury was designed not solely for the benefit of the criminal defendant or civil processes but also to ensure broad democratic participation. Since juries were constituted partly by chance from among the members of the polity at least in certain jurisdictions, their incorporation into the U.S. Constitution brought with it another, nonelectoral model of democracy.

Filed under: Academia, Press, Sortition | Tagged: Law |