I have always thought of myself as a Constitution lover. When the country seemed to veer off-track, when difficult hurdles seemed too high to overcome, when blatant injustices blocked my sight, it never occurred to me to abandon the Constitution. This was our rock, our North Star. Work within it, I thought. Understand it rightly, dig deep, attend closely to what the Founders thought and said and wanted.
I’m not there anymore. The Constitutional structure has a number of terrible flaws.
- It imposes a Presidential system with a powerful executive separate from the legislature, a structure that experience around the world shows is prone to gridlock and tyranny. Parliamentary systems are better.
- It has two co-equal legislative branches, one of which—the Senate—is ridiculously un-democratic, complicating and slowing government action. The lopsided influence of small rural states exercised via the Senate is a great cause of our polarization. One dominant branch close to the people is better.
- It has a Supreme Court with lifetime appointments and a monopoly on Constitutional interpretation, an invitation to arrogance and politicization. Judges with limited tenures and powers are better.
- It has the Electoral College, a relic of slavery and an open invitation to gaining political power without majority approval. Direct election of the executive is better.
- It has an ambiguous and poorly constructed Bill of Rights that has hardened into a jackhammer used to thwart the will of the people and, in the case of the 2nd Amendment, to undermine the government’s most fundamental obligation, providing for peace and security. A more flexible understanding of rights would be better.
Further, it has become almost impossible to fix . Clever, power-hungry people have learned to exploit the flaws. They don’t want changes, so they have built barriers to prevent amendments or interpretations that might make this old document workable. To make their schemes palatable, they have fostered a cult—originalism and its brethren—around this document that would amaze and terrify its authors.
I am tired of debating vital issues like abortion, or gerrymandering, or guns, not on their merits, but on whether some direction can be deciphered from ambiguous old words designed to fit a world that no longer exists. Supreme Court originalists make vital decisions affecting millions of people’s lives and the health of American democracy based on their interpretation of 18th century dictionaries. Enough.
The Constitution as we all know was designed to create a strong central government and rectify the fatal weakness of the Articles of Confederation. Partly for this reason it was skeptical of simple majoritarianism. State governments under the Articles had often come under the sway of populists advancing the interests of the poor. Too much popular power seemed dangerous, it had (sometimes) historically been a source of radicalism or anarchy, and there were few good examples of success. Federalist #9, written by Alexander Hamilton, is scathing about the shortcomings of past republics: “It is impossible to read the history of the petty Republics of Greece and Italy, without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions, by which they were kept in a state of perpetual vibration, between the extremes of tyranny and anarchy.” This is the dystopia Hamilton and his colleagues wanted to avoid. Better to err on the side of caution.
The innovation that allowed America to have popular input, without the risks of too much say by the people, was representation via election. The framers of the Constitution famously argued that the right rules governing elections would lead to choosing the right kind of people, with more education and good sense and public-spiritedness.
The best argument in favor of the current system is that it has worked well enough for 240 years. We have had a long lasting country with some great successes. We have become very rich and very strong. We have moved to include many more as citizens and tried, if with only partial success, to rectify terrible historic wrongs.
A second argument is that whatever flaws the Constitution has, it provides an agreed framework for all Americans of whatever political or ideological stripe. Better to have something that unites us, even if imperfect. Americans are not one people because of common blood, soil, and religion, but because of commitment to a set of ideas and institutions, the Constitution first and foremost.
But turning the Constitution into a secular version of the Bible, an inerrant document that cannot be questioned, only genuflected before, gives excessive power to conservatives and those who oppose change. The Constitutional processes designed to elect the “best and brightest” have brought us Civil War, inequality, monopoly, Jim Crow, the military-industrial complex, a ravaged environment, Vietnam, Iraq, financial crises and Donald Trump. We have managed to work around the flaws, but our luck is running out.
Americans are understandably tired of their elected officials. We are tired of the clever ways they come up with to do the bidding of special interests, tired of mindless partisanship, tired of insulting appeals to our worst passions and fears, and tired of listening to explanations of why the things the majority clearly wants can’t be done, or will take years to accomplish, or can only be implemented in some watered down version. A recent New York Times/Siena poll found that 50% of Americans think the country’s system of government should have “major reforms.”
There are two ways we might think about improving our system. One is to keep elections but make them better. The other, more radical, is to scrap elections as our main method of choosing decisionmakers, and instead use groups of citizens chosen by lot.
Better Elections. We could certainly make improvements to the way we elect people. Some of them can be done without amending or scrapping the Constitution. The most immediately valuable would probably be to implement ranked-choice-voting and open top 4 primaries, like Alaska did in 2020. Other steps would be to make voting mandatory, adopt the National Popular Vote proposal to sidestep the Electoral College, expand the size of the House of Representatives, require non-partisan commissions for redistricting, and create multi-member districts for the US House and state legislatures. Restrictions on political donations and funding, reversing Citizen’s United and related decisions, would also make a huge difference.
These changes might well lead to electing better representatives and greater trust in those elected. But it is hard to see how many of these could be implemented in our current condition, even short of changing the Constitution. They would require action in many states that have no interest in making elections more open and fair, a large Democratic majority in both houses of Congress to either abolish or overcome the filibuster, and a radically different Supreme Court.
Lottocracy. Representation via election is, for most of us, synonymous with democracy and good government. It is pretty much the only way we think modern mass societies, in large countries with millions or hundreds of millions of citizens, can be democratic. We assume only very small polities, like ancient Athens or New England towns, can try to have direct democracy where every citizen rules and is ruled in turn.
But elections are not the the only way for all citizens to be represented. In fact, it is clear that elections do a rather poor job of reflecting the views of all citizens. The people we end up electing via our systems of primaries and campaigns and elections are not very representative. They don’t mirror the population in terms of gender or race—they are much more white and male. They don’t mirror it in terms of class—they are much richer. There are far more lawyers and millionaires and children of politicians, and far fewer small businessmen and laborers and schoolteachers and baristas than in the actual population.
Now, some would say this is the point, that we don’t want average people, we want above-average ones, people with exceptional talents and virtues. This was a key Madisonian argument for the Constitution. Elections, with the appropriate filters—the Electoral College and property requirements— would attract the wiser, more sober, more educated class rather than the lower-class types that Madison and other founders thought were having their way in the new independent states after the Revolution.
But it is hard to look at today’s political class and agree that we are getting wise and public-spirited people. We are instead getting people with exceptional ambition and wealth and hunger for publicity. In fact, it seems to me that for the most part the people most likely to seek high office are exactly the sort of people who should be kept as far away from power as possible.
Most of us have the intuition that if, somehow, we could get citizens to interact without the intervention of elections, however reformed, we might be better off. What we need are ways to hear directly from the people.
The possible solution is to pick representatives randomly, by lot. This has been tried with Citizen Assemblies. A Citizen’s Assembly is a representative group of citizens tasked with considering an issue of public policy and making recommendations. It is chosen to reflect the composition of the city, state, or country in question—the same ethnic, religious, regional, economic, gender balance as the whole. The members are picked via lot, a process called sortition, similarly to the way we pick juries.
Assemblies can be constituted from above, by legislatures or executives; or from below, by citizen’s groups or referenda. Assemblies in current conditions work with and alongside elected bodies, which have the final say on legislation.
An Assembly is not a group of ‘volunteers,’ because the people who volunteer for these kinds of commissions are not your average citizen; they are always older and better-educated and often strongly opinionated. Instead, a Citizen’s Assembly includes minorities and youth and all those quiet, I-don’t-care-about-politics people who need to be heard from.
Successful Assemblies are supported by moderators and facilitators with experience at running open discussions, and by a team that helps the Assembly get expert advice from a variety of sources on their chosen topic. Say the Assembly is tasked with considering “What should our state do to deal with a warming climate?” It might have a number of sessions with experts on different issues related to the task: scientists, economists, businesspeople, sociologists, political scientists. It might hear from people and communities impacted by climate change: farmers, sportsmen, tribes, immigrants, minorities, investors. Once the Assembly gathers and discusses information, it deliberates about what to do and makes recommendations by a voting process designed to make sure only the proposals with strong support get approved.
So what, you might be thinking. There are endless commissions and study groups that don’t make any difference. Of course that might happen. But a Citizen’s Assembly has legitimacy because it mirrors the actual population. It turns passive citizens into informed, active citizens and makes them listen to one another. It gives cover to cautious political leaders to take action. Where this has been done, in the US and around the world, the results can be dramatic. A Citizen’s Assembly in Ireland in 2017 met for over a year and was key to liberalizing laws on abortion. One in Washington State in 2020 helped push new legislation on climate change.
Even where the recommendations don’t make it into law, they galvanize public discussion and push change that reflects what the people want. Participants and observers inevitably discover that people with very different backgrounds and opinions are able to work together constructively, and come up with sensible proposals, given the right conditions.
Other, similar efforts can move us in the same direction. The “America in One Room” project in 2019/20 brought a group of representative Americans together for four days to deliberate on big issues facing the country. It didn’t make policy recommendations, but before and after surveys showed major shifts in opinion, mostly towards more moderation and realism.
The United States is suffering from extreme lack of trust in its government and elected officials. We won’t turn this around with business-as-usual politics. Serious reforms to make elections fairer and more likely to reflect the will of the majority would help. But these will be stopped and slowed by the forces that already are gnawing at our body politic. Citizen’s Assemblies have the potential to catalyze action and give citizens a sense that what they think matters, by offering examples of serious, thoughtful participation in democratic decision making.
Lottocracy can be instituted in many organizations and at any level of government—from your church board or high school student government, right up to cities and states. The next time you have a chance to suggest it, at whatever level, try it. Most will find the idea odd or scary. But some will be intrigued. (As an introduction, you can recommend Malcolm Gladwell’s podcast about sortition, The Powerball Revolution.) Let’s start in our towns and cities and states. Once Americans get used to the idea of getting useful and meaningful input outside the election system, once hundreds of examples are available, it will be time to scale up to the national level.
Citizen’s Assemblies can for now only complement, not replace, elected bodies. That would indeed take a new Constitution and a radical rethinking of what we mean by ‘democracy.’ Helene Landemore raises the question in her book, Open Democracy: Rethinking Popular Rule for the 21st Century: “It is puzzling to consider why, in the eighteenth century, the original non-electoral model of Classical Athens was not taken up again when democracy was reinvented in the eighteenth century in the West, especially given the concerns over “factions” held by theorists like Jean-Jacques Rousseau in France or the American Founding Fathers…” One reason was perhaps that the necessary tools had not yet been discovered: “In particular, the idea of a “random sample” was not available just yet (it would become available only in the late nineteenth century, with the rise of statistics as a science) and, as a result, the polling techniques that would have rendered selection based on sortition feasible were also unavailable.”
But more widespread use could widen the aperture for citizen participation and put helpful pressure on elected officials. Perhaps the realization that there is an alternative would force them to shape up.