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Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

Reforming Democracy

A new symposium outlines several ideas for improving our democratic system. All are worth considering. But none are likely to be as good as expanding opportunities for people to "vote with their feet."

Over the last few years, it has become increasingly clear that American democracy has a variety of serious flaws. Widespread public ignorance and partisan bias reduce the quality of decision-making. Growing polarization poisons public discourse and leads partisans to tolerate bad behavior by their own leaders in order to avoid giving an edge to the hated opposition. Interest group lobbies wield outsized power at the expense of the general public. And this list could easily be extended. Recently, the Newark Star Ledger held a symposium in which five leading scholars offered proposals to improve the functioning of American democracy. All are well worth considering. But, overall, I am not convinced any of them are likely to lead to major progress, and none hold as much promise as expanding opportunities for people to "vote with their feet" by limiting and decentralizing government power.

Political theorists Hélène Landemore (Yale) and Alexander Guerrero (Rutgers) argue for expanding the role of "sortition": delegating decision-making authority to small groups of randomly selected members of the general public (as is currently the case with juries). In theory, this could combine popular participation in government with greater knowledge and better deliberation than is possible in the current election process, where most voters have very little knowledge of the issues, and make little effort to consider opposing views in in an unbiased way. But i am skeptical that sortition can actually deliver on its promises, for reasons I summarized here, and more fully in Chapter 7 of my book Democracy and Political Ignorance:

Unfortunately, sortition is not nearly as good a solution to the problem of political ignorance as it might initially seem. Unless the participants study for an extremely long time, they are unlikely to become knowledgeable about more than a small fraction of the many issues addressed by the modern state. Currently, government spending accounts for almost 40% GDP, and the government also regulates a bewildering array of activities.

This problem might be alleviated by by having each body selected by sortition address only a narrow range of issues. But then there would be serious problems of coordination between them. Moreover, groups addressing one area of policy might neglect important trade-offs between that issue and others....

Another possible way to make the participants better-informed would be to have them serve for long periods of time, perhaps even years on end. But in that scenario, the participants would gradually become a kind of professional governing class and would no longer be just randomly selected ordinary people.

Juries in the civil and criminal justice systems often have difficulty understanding the points at issue in cases with broad policy implications or complex scientific evidence. These problems are likely to be even more severe if we use jury-like mechanisms to address a much wider range of policy issues.

Sortition systems are also vulnerable to manipulation in a variety of ways. The government could potentially skew the selection procedure in order to ensure that more of its supporters get selected. If, as in most proposals, the participants are expected to hear presentations about policy issues and engage in deliberation about them, there are many ways to bias the choice of presenters and the selection and framing of issues....

Even in the absence of such biases, sortition systems will face difficult trade-offs between representativeness and minimizing incentives for rational ignorance. If the group selected is small, rational ignorance is unlikely to be a problem, since each vote will have a high chance of decisiveness. But a small, randomly selected group can easily be unrepresentative...

I offered some additional criticisms of Landemore's relatively optimistic take on democracy in this article, which addresses her important book Democratic Reason.

Prominent constitutional law scholar Sanford Levinson (University of Texas) argues for making it easier to amend the Constitution, including by adopting a system of regular constitutional conventions (perhaps every 25 years), as exists in several states for revising their state constitutions. I agree with Levinson's view that the Constitution is too difficult to amend. But I would not want to make amendment too easy, either, as is the case in California and some other states, where the state constitution can be amended by a mere majority vote in a referendum. More importantly, I am less optimistic than he is that a new constitutional convention will result in an improved constitution rather than one that becomes worse than before. The same factors - ignorance, bias, polarization - that reduce the quality of ordinary political decisions, can easily infect the amendment process, especially if it becomes too easy to adopt amendments.

Derrick Darby (University of Michigan) advocates an unconditional basic income (UBI), which - as the name implies - would guarantee every American a minimal income, without any preconditions for eligibility. UBI has attracted a lot of support in recent years, including even from some libertarians, who contend that it is a superior alternative to the current welfare system. I remain skeptical, for reasons well summarized by economist Bryan Caplan. But even if UBI is a good way to combat poverty, I see little reason to believe that it would improve the quality of democratic decision-making.

Georgetown political philosopher Jason Brennan, author of the important book Against Democracy (which I reviewed here), argues for replacing our current system of "first past the post" elections with proportional representation. As he explains, PR would lead to a multiparty system in which voters would have a wider range of options than are available in the current two-party system. That, in turn, would reduce polarization by forcing supporters of opposing parties to cooperate more, as no one party would be able to dictate policy on its own. I have some sympathy with this idea, as do many others who believe both major parties have very serious flaws.

But it is important to recognize its limitations. PR systems have not prevented dangerous illiberal parties on both the right and the left from wielding a great deal of clout in various European countries, and in Israel. In some respects, PR may even make it easier for such parties to become influential, as they can make themselves vital coalition partners for more mainstream parties. In addition, a multiparty system might actually exacerbate the problem of political ignorance, by increasing the number of parties informed voters need to keep track of. It is much harder to assess five, six, or eight parties (and their potential coalitions) than two.

On balance, I think a PR system for the United States might be worth the risk. But it is not an easy call. Moreover, as Brennan recognizes, it will be extremely difficult to enact, given the near-certain opposition of the Democrats and Republicans.

All five contributions to the Star Ledger symposium are thoughtful, and well-worth reading (as are the accompanying critiques by three political scientists). But I continue to believe that the best way to mitigate the shortcomings of democracy is not by trying to reform how we vote at the ballot box, but by increasing opportunities for people to "vote with their feet" by choosing which jurisdictions they wish to live under, and making decisions in the private sector. Foot voting gives people much stronger incentives to make well-informed choices than ballot box voting does. And it also expands political freedom by enabling people to make choices that actually make a difference. We can expand foot voting opportunities by limiting and decentralizing government power, thereby increasing the range of issues left to state and local governments and to the private sector, where foot voting is feasible. There is also much we can do to reduce obstacles to mobility that artificially constrain foot voting, especially for the poor and disadvantaged.

In the near future, we are unlikely to expand foot voting as much as I would ideally like. But incremental increases in foot voting opportunities are both more feasible and more likely to work than any other reform proposals for democracy that I have seen so far.

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  • WJack||

    "Foot voting" assumes there are opportunities available in other jurisdictions and (setting aside family ties etc.) that the "voter" has the skill to take advantage of those opportunities. For the overwhelming majority of American citizen's foot voting is simply not a realistic, or for that matter a desirable option.

  • a ab abc abcd abcde abcdef ahf||

    Yes, the basic problem is that government is a monopoly. Imagine voting once every two or four years for one chain of stores for all your shopping -- clothes, cars, toothpaste, movies -- and your choices are the guy who wants jalapeños on everything and only fast sports cars, or the guy who favors bicycles and tofu yogurt.

    The problem is that government sticks its monopoly nose into way too many aspects of daily life. People do a lot better when they have choices. Government doe snot need to be controlling 40% of our lives.

    Until that is addressed, everything else is lipstick on a pig.

  • bernard11||

    Yes. And it also presumes that the "foot voters" will be knowledgeable about how other jurisdictions operate. Why assume that, when political ignorance is one of the motivating factors?

    Besides, most people aren't going to move because they like the politics of a different place better. In general, economic motivations are going to outweigh that.

  • Brett Bellmore||

    Foot voting lets people escape bad situations, but without the people understanding why the situation was bad, foot voting just spreads the bad around. They flee the bad economic situation, but bring with them the politics that made the economic situation bad in the first place.

    In the end, there's no answer but solving the problem where it occurs, though for any individual, foot voting is better because they can do that without convincing the majority.

  • Brett Bellmore||

    Even if that were moral, it wouldn't be a real solution, because,

    1) It would leave everybody else in a country that would engage in mass exterminations, and you really think they'd stop on a dime? That's a real "Destroy the village to save it" solution, and destroying it while you're in it.

    2) A generation later you'd have a new crop of Democrats, if you didn't do something about whey they showed up in the first place.

    We need to analyze why things when wrong, and fix the root cause.

    Or, more realistically, analyze why things went wrong, document it extensively, and hope somebody picking around in the rubble after the collapse learns from it.

  • mad_kalak||

    Human nature has utopianist leanings, thus there will always be Democrats. Brett's right.

  • bernard11||

    So your objection is that it wouldn't achieve your aims?

    Frankly, Brett, your failure to recoil in horror at ARWP's suggestion disqualifies you from any reasoned debate.

    Do you truly not understand his suggestion?

  • Eugene Volokh||

    I've blocked the commenter ActualRightWingPatriot, who wrote, "That's why the only real solution is mass extermination of Democrats." (That's the comment to which Brett Bellmore is responsing below.) I have a very broad definition of what's allowed in the comments; but people who want to call for mass extermination (even hyperbolically) are welcome to do this on their own blogs. This is very far from the first time that ActualRightWingPatriot said things very much like that, but I've just gotten fed up with it.

  • Jon_Roland||

    This just results in too many Californians moving to Texas and bringing their Marxism with them.

  • bevis the lumberjack||

    "Prominent constitutional law scholar Sanford Levinson (University of Texas) argues for making it easier to amend the Constitution, including by adopting a system of regular constitutional conventions (perhaps every 25 years), as exists in several states for revising their state constitutions"

    Nope, nope, nope, nope, nope, nope, nope.

    We've entered an era where the crazies at each end of the spectrum are disproportionately influencing policy. Maybe it's temporary, who knows. But giving those folks a crack at the Constitution every so often is going to end up in reduced liberty for a lot of somebodies. To the extent the Constitution still protects us, let's keep it hard to change.

  • WJack||

    Yep, the problem with many "scholars" is that they produce to much busy work.

  • Jon_Roland||

    Richard Feynman: "Science is belief in the ignorance of experts."

  • LiborCon||

    "But giving those folks a crack at the Constitution every so often is going to end up in reduced liberty for a lot of somebodies."

    Oh the possibilities.

    Congress shall make no law protecting religion but shall make laws prohibiting the free exercise thereof; abridging the freedom of speech, and of the press; and the right of hate groups to assemble.

    An unregulated Militia, being a threat to the power of the State, the right of the people to keep and bear Arms, shall be infringed.

    Or:

    Homosexuality, being a sin against our Lord and Savior Jesus Christ, is prohibited.

    Jesus loves the little babies so abortion is prohibited. But don't expect the government to help if you can't afford to feed them.

  • MatthewSlyfield||

    From the radical libertarian lobby: "Congress shall make no law[full stop]

  • Brett Bellmore||

    Sandy finds the Constitution we actually have quite embarrassing, and thinks that if amending it were easier, we'd soon have one he would like better.

  • Smooth Like a Rhapsody||

    And I bet he has never had dinner with anyone who voted for Trump. Even though Trump carried Texas.

  • Brett Bellmore||

    Yeah, I've tried talking to him about it, he's convinced that, if things weren't broken, of course the 2nd amendment would end up repealed.

  • Krayt||

    Presumably "broken" means "all states sit as equal partners at the round table of deciding the form of the federal government."

    Why are so many scholars enamored at the idea of charismatic demagogues being able to radically increase the power of government with transient bare majorities?

    That hasn't worked out so well for humanity.

  • NToJ||

    I'm sympathetic to foot voting but it doesn't bypass the fundamental problem. It's based on the premises that jurisdictions receiving foot voters will be rewarded by that, and act accordingly to enact more popular policies. That presumed feedback loop assumes away the entire problem, which is that the receiving jurisdiction is just as irrational as the one people are fleeing. If we had a machine that could detect the favorable differences between jurisdictions people move to and the ones they don't, we'd just use that rather than migration patterns as a proxy.

    If the problem with democracy is voters, no system that depends on voters will work.

  • ||

    Agreed, but personal mobility is important for things in addition to voting. Lack of labor mobility dooms low income areas and poorly trained and educated individual the inability to realize their full potential by relocating to an area better suited to their skills and preferences. The culprit, housing. Unless there is a strong comprehensive effort to provide affordable housing to those who wish to 'vote with their feet' the concept of foot voting is just that, a concept.

    Note that one of the most successful 'foot voting' took place in the mid 20th century when African Americans found more (not total) equality and economic opportunity in manufacturing cities of the north and midwest. And today a migration south has benefited for the migrants and the area they have relocated to. But for semi skilled, non-college educated population the opportunity to relocate is highly diminished. Fix that and the positive recommendation of this post might be realized.

  • ||

    Agreed, but personal mobility is important for things in addition to voting. Lack of labor mobility dooms low income areas and poorly trained and educated individual the inability to realize their full potential by relocating to an area better suited to their skills and preferences. The culprit, housing. Unless there is a strong comprehensive effort to provide affordable housing to those who wish to 'vote with their feet' the concept of foot voting is just that, a concept.

    Note that one of the most successful 'foot voting' took place in the mid 20th century when African Americans found more (not total) equality and economic opportunity in manufacturing cities of the north and midwest. And today a migration south has benefited for the migrants and the area they have relocated to. But for semi skilled, non-college educated population the opportunity to relocate is highly diminished. Fix that and the positive recommendation of this post might be realized.

  • A nerdy Fred||

    Alternatives to first past the post are not limited to simple PR.

    William Poundstone's book "Gaming the Vote" shows how each voting system has some bug that interferes with reflecting the will of the people and which ones are better at the job.

    However, it is the disconnect between the will of the people and the best for society that Professor Volokh is asking us to consider. So, not a direct answer, but well worth thinking about.

  • Jerry B.||

    Ah, yes. Prof. Somin pushing a meritocracy again, and one assumes he and his like-minded friends will get to choose what merit is.

  • Toranth||

    You don't understand - they lost an election! To some boor, at that. Not one of them.

    Therefore, all right-minded people must admit that democracy is broken, and needs to be 'fixed'.
    Much like a dog is 'fixed'.

  • Bob from Ohio||

    Dems had 60 senate seats a mere decade ago, GOP has not had 60 in over a century.

    Yet, now, having lost the majority, the senate is an affront to democracy.

    Its so transparently results driven, this "flawed" theory.

  • bernard11||

    It's always been an affront to democracy.

  • Bob from Ohio||

    "It's always been an affront to democracy."

    Sure, sure.

    That is why you complained about it in 2009.

  • bernard11||

    I probably did complain about it then.

    I've never liked the Senate. It's a foolish institution.

  • Grand Moff Tarkin||

    And, IIRC, the GOP has never had a filibuster proof majority in the Senate. The first rule creating cloture to end debate was not enacted until, IIRC, 1917. Since then, the only the Dems have had more than 2/3rds (and later 60%) majorities in the Senate.

    Of course, the filibuster is being defanged more and more.

  • Bob from Ohio||

    The filibuster is an actual affront to democracy. Its main use was to prevent the end of Jim Crow.

    Its just a rule though, not a foundation stone of the US system of government like the Senate.

  • Nigel Kearney||

    Proportional representation gives too much power to the parties (or usually one party) in the centre. Being in the centre does not mean they are 'centrist' in a political sense. They may just be a bunch of nut jobs with an agenda that doesn't happen to naturally align with any major party. Then they get to decide who governs, usually by auctioning their support to the highest bidder.We have a party like that in New Zealand and it's just a freak show. Don't go there.

  • chemjeff radical individualist||

    Thank you for discussions like these. We need more of them, and desperately.

    One option that may be considered, not quite as radical as the ones put above, is simply to increase the size of the House of Representatives. There is nothing magic about the number 435. It was set nearly 100 years ago by statute, when the country had far less population. It's time for an update, and since the number was set by statute, it can be changed by statute too, no Constitutional amendment required.

    Democrats should like it, because it would give more power to urban centers.
    Constitutional conservatives should like it, because it would be more faithful to the original Constitutional prescription of 1 representative per 30,000 residents.
    Populist conservatives should like it, because it would give more power to the people.
    Of course those latter two categories would probably find reasons to oppose it, because Democrats. But, one can hope anyway.

  • Smooth Like a Rhapsody||

    A lower house with 1100 members--and 1100 staffs?
    Imagine the stupid laws that group would come up with.

  • buddhastalin||

    The correlation between a big legislative chamber and number or stupidity of laws is not direct, if it exists at all. As of last month, the California Legislature, with 80 members in the lower house and 40 in the upper, had 1,115 bills introduced. Nevada, with 42 members in the lower house and 21 in the upper, had about 170 bills introduced. In the 2017-18 session, the California Legislature introduced 5,617 bills, of which 2,552 became law. It's the political bent of the legislature, not its size that determines the quantity or quality of laws.

  • Brett Bellmore||

    I'd rather see some basic reforms of legislative procedure, so that those representatives actually have some power.

    Abolish the enrolled bill doctrine.

    Abolish voice votes: Every single vote needs to be roll call.

    Mandate that the text of all bills be locked and publicly released in searchable form (Not scanned PDFs!) some fixed period before it's voted on, so there's time to find what's in them in advance of the votes, without last minute changes.

    Oh, and your proposal wouldn't necessarily increase the power of urban areas. In some states it would, in some states it wouldn't, because both parties gerrymander.

  • ducksalad||

    These are good ideas (seriously), but I would say they increase accountability rather than the power of representatives. The locked text and voice votes at least make it easier for the small proportion of voters who want to be non-ignorant.

  • Brett Bellmore||

    They increase the power of the average representative, because the enrolled bill doctrine, voice votes, and forced votes on bills without the opportunity to read them, all transfer effective power from the average representative to the leadership.

    The enrolled bill doctrine literally is the courts saying, "If the leadership of both chambers say this bill was enacted, we're not listening to anybody who claims they were lying. Oh, you say you have evidence? We don't care."

    Voice votes aren't actually votes, they're pretend votes, where the outcome is predetermined, and are usually held when there isn't a quorum present. I know of cases where they've been held with as few as three members actually in the chamber and voting.

    And, what good is the power to vote on legislation, if you can be lied to about what you're voting on?

  • ducksalad||

    OK, I see your point.

  • bernard11||

    Abolish the enrolled bill doctrine.

    I disagree. Do that and you have endless lawsuits over the procedures used in passing any bill. It's a recipe for chaos.

    Abolish voice votes: Every single vote needs to be roll call.

    Good idea. More accountability is better.

    Mandate that the text of all bills be locked and publicly released in searchable form (Not scanned PDFs!) some fixed period before it's voted on, so there's time to find what's in them in advance of the votes, without last minute changes.

    Excellent idea.

    I would also reduce the power of leaders to stifle legislation. Why exactly should the Speaker or the Majority Leader be able to essentially defeat a bill almost single-handedly? They were not chosen in a national election. One solution would be to make it easier for a large minority - say 40% - of each house call for a vote. Again, accountability.

  • Jimmy the Dane||

    A governing document is only good if the people it seeks to govern uphold the principles contained in it. You can amend a constitution adding whatever bells and whistles you like, but unless the people are aligned with the political philosophy behind their consent to be governed it is useless.

    Our system of limited government simply does not work when our society is packed full of liberals who think the role of government is there to serve their agenda. Hence why any "reform" must begin with deporting and banishing liberals from our society. Then maybe we can talk about real reforms.

  • Alpheus W Drinkwater||

    You started out so well, your first paragraph is beautiful! I couldn't agree more, and that is why I think strict originalism in constitutional interpretation is such a mistake. It doesn't let successive generations of Americans buy into and support the constitution.

    Your second paragraph is patent nonsense. Amusing that you believe the left thinks government should serve their agenda, but the right doesn't.

  • AmosArch||

    There is this tendency in modern day to equate democracy and liberty as the same thing. They are not. In fact at times democracy and individual liberty can be at odds with one another. Liberty is what humanity should truly strive for. Democracy's value is in its tendency to preserve individual liberty over alternative systems. In cases where it clearly does not do so, it should be discarded or curtailed with no sentimentality. There is nothing inherently noble about majoritarianism. Idiots who don't want to vote shouldn't be forced to. Expanding the vote (ie diluting the power of the vote) can be and has been used as an attack on opponents just as much as taking the vote away.

  • Kazinski||

    People voting with their feet is a terrible idea. They can never seem to figure out why they moved.

    While it might be unconstitutional to actually keep people from moving, maybe we should institute an exit tax. Say someone moves from Illinois to Texas, or California to Arizona, they should have to pony up their state of unfunded pension liabilities, and general obligation bond debt before they can go.

    I call my proposal Pension Peonage. If they have to fork over 40-50k to leave maybe they won't be so quick to vote for new taxes where they end up.

  • Sarcastr0||

    Some interesting analysis in the comments, along with the usual 'the real reform is to get rid of dissent' and the similar 'contract the franchise.'

    I listened to a podcast this week about Citizen Assemblies in Britain and Ireland. It painted a suspiciously rosy picture, but the idea did seem worth looking into:

    https://www.bbc.co.uk/programmes/m0002z9g

  • Smooth Like a Rhapsody||

    I will bring this up every time this topic is mentioned:
    What is the RBG/Living Constitutionalist argument AGAINST a UBI?
    If my lack of income is preventing me from fully participating in the process, why do I not have a RIGHT to a UBI?

  • Brett Bellmore||

    The only living constitutionalist argument against anything is "I think it's a bad idea". If they think the UBI is a bad idea, I guess I have some hope for them.

  • Sarcastr0||

    And because no answer will satisfy your narrativism I guess you'll just keep posting regardless of what anyone responds.

    The right to die case is a great example of a non-originalist discarding of a potential right.

    You went to law school, they covered the tests for fundamental rights, which logic would be congruent to SDP rights.
    Check out the many cases - rights to family integrity, marriage, travel, privacy, voting. None of them create the untrammeled discretion you posit towards all non-originalists.

    RGB is a cast-by-case incrementalist and always has been - maybe pick Breyer instead as the standard bearer for living constitutionalism.

  • Brett Bellmore||

    Yes, she's an incrementalist. But that's only to say she goes for what she thinks she can get away with, instead of trying for the whole loaf at once and losing. It doesn't go to how she picks which direction she wants to push things.

  • Sarcastr0||

    So Brett once again looks deep into a Democratic soul and sees bad faith.

    Shocker.

  • mad_kalak||

    You should use the old word, sodomite. I have found that the old words, not the polite euphemisms, have the intended effect. Assuming the intended effect is that you want to display your rejection of relativism and upset people who don't want to be judged.

    For instance, if a woman is loose woman, just call her a slut or harlot. If a man is gay, he's a sodomite.

    So, yea nowhere is there a right to sodomy in the 14th amendment.

  • Sarcastr0||

    Yes, talking about the harlots and sodomites is a sure way to be taken seriously.

  • mad_kalak||

    See, proof positive, via Sarcastro's remark, that the old words have the intended effect.

  • mad_kalak||

    Thanks, the idea is admittedly not my own. Control of the language is control of the way you think itself. What I find funny, is that because some concepts are so important, people create a new term for the concept every time one term becomes verboten.

    For example, Gen Z (my kids) use the word THOT, (That Ho Over There), in lieu of the word slut, because female promiscuity and sexualized behavior because the concept is so important to human relations that a word is needed to define the idea, even if "slut" is not t0o meanie pants of a word to use.

  • bernard11||

    In Brett's mind It is impossible to disagree with Brett in good faith.

  • Smooth Like a Rhapsody||

    The money quote from your hero's concurrence:
    "That is because, in my view, the avoidance of severe physical pain (connected with death) would have to comprise an essential part of any successful claim."

    Note: not "the Founders", or, "the drafters" or "most Americans throughout history"..., but ".MY"
    We are only 5 "MY"s away from a UBI.
    Just like it only took 5 MYs to find a right to gay marriage.

  • Sarcastr0||

    First, not my hero. I'm a Kagan man when it comes to current Justices. White's my GOAT. And my favorite wordsmith ever is Thomas.

    Second, your originalism seems tellingly talismanic.
    The failure to invoke the Magic Founders is not evidence of ignoring the Constitution. Indeed, invoking them doesn't prove you're hewing to the Constitution either. Originalists have proven no less radical than any other Justice.

    Everything you've posted would seem to indicate you're fine with being s 5 'Founders' intent' away from Constituionalizing whatever your policy preferences are.

  • Smooth Like a Rhapsody||

    It's not just "the Founders", as you so tellingly elide: it's any authority beyond what 75% of the faculty at Harvard favor.

    Second, no one's talking about what is "radical", which is a stupid word to use in this discussion. It would be radical to de-incorporate the 1st Amendment.
    It would be radical to re-institute Lochner.

    Third: Guilty as charged. The Constitution as drafted countenanced, inter alia, slavery and the death penalty. What I think of slavery and the death penalty have no bearing on their constitutionality.
    "If my fellow Americans wish to go to hell, it's my job to see that they get there consistent with the founding document."

  • Sarcastr0||

    So as expected, any answers to your question will be discarded because you know what's really going on, language in opinions bedamned.

    Your UBI hypo is specifically about there being nothing to prevent a radical unsupported change to our rights jurisprudence, isn't it?

    non-originalists and pre-Scalia folks are quite careful to explain the logic they use to support their conclusions. You wonder what if that logic is discarded. Does that logic not apply just as well to the morphable historical reasoning originalists use?

    The thing is the 'founding document' is not the steady loadstone your side says it is.
    So either, so long as it's invoked, you accept what is included,
    Or only the conclusions your yourself have reached are acceptable originalism, in which case you're really just angry at Justices disagreeing with your personal jurisprudence. Just like, say 75% of Harvard, and Ginsberg.

  • Smooth Like a Rhapsody||

    And White (who wrote Bowers vs Hardwick, and dissented in Roe, is your GOAT); or is there another White that I'm unaware of?

  • Sarcastr0||

    Yep, dissenter in Bowers and Roe, that's the guy!

    Almost as though my respect isn't tied to policy preferences. Whoa!

  • Bob from Ohio||

    "dissenter in Bowers "

    White wrote the majority opinion.

  • Sarcastr0||

    Mixed up Bowers and Lawrence. TY for the correction; I assure you I had it right in my head.

    White's clarity of reasoning and writing and general avoidance of sophistry means that even if I disagreed with him, I see where he's coming from and can follow it back to first principles (which are not always the Founders, btw).

    When I disagree with a White opinion I always know the nut of the disagreement pretty quickly, and it's usually about disagreeing with methods and agreeing about where we want to go.

  • Ridgeway||

    Ol' Whizzer most certainly did not dissent in Bowers.

    And a semi-amusing aside: as my con law professor was going through he facts of B v H, he noted that Mr. Hardwick had the "worst roommate ever"

  • Sarcastr0||

    I like how he was bitter that he was the only Justice to get regularly recognized when out in public, due to his previous foorball fame.

  • apedad||

    Why do we have to change anything?

    WE ARE THE STRONGEST, RICHEST, MOST-INFLUENCIAL COUNTRY EVER - and there's not even a close second.

    Sure we're not perfect, maybe need some tweaks here-or-there.

    But overall, we are the most successful nation on the planet.

    This sounds like a solution looking to create a problem.

  • Bob from Ohio||

    Agreed.

    The system is working perfectly fine, its self-correcting pretty well.

    Unpopular war and financial panic leads to change in control in 2006/2008, new majority overreaches so House switches in 2010 and then the Senate follows, unpopular Trump leads to another change of House control as a check.

  • Nigel Kearney||

    I agree too. If you're going to change anything it should be to strengthen the tenth amendment and/or limit the Commerce Clause to reduce the scope of federal power to what it was always originally intended to be. It's easier to limit what politicians can do than it is to elect better politicians.

  • Brett Bellmore||

    You seem to be treating a failure of democracy as the problem. But democracy isn't an alternative to being oppressed, it's just a way of selecting your oppressor.

    Sure, in a utilitarian sense it's better that the majority oppress the minority, than the other way around. But somebody is still being oppressed.

    We need to do several things:

    1) Just flat out reduce the scope of government. Too many things are decided by government that don't have to be.

    2) Take away from elected officials the power to manipulate the rules by which they are elected. To the extent they can game those rules, democracy stops being a constraint on government, and in the US those rules are VERY heavily gamed at this point, resulting in a distinct and self perpetuating ruling class with interests different from the general population.

    3) Set interest against interest. No man should be the judge in his own case, but is it better that a man get to nominate and confirm the judge in his own case? That the judges who rule on the constitutionality of federal actions are selected by federal officers is a HUGE flaw in the Constitution as modified by the 17th amendment.

    The problem is, all these things are working against the interest of the people running the federal government, and they've already gone a long way towards rendering elections ineffective. So, even if we know what to do, how do we do it?

  • apedad||

    Why do you guys think the government is some alien entity that imposes its will upon us without our consent or control?

    WE are the government!

    It's our neighbors, relatives, classmates, OURSELVES, etc. who are the politicians, aides, FBI agents, judges, DAs, inspectors, generals, etc.

  • Brett Bellmore||

    Yeah, and your neighbor might have been a gestapo agent if you lived in Nazi Germany. Did that mean you were beating yourself with that rubber hose?

    Look, ideally, democracy makes the people the government, erases that distinction. Ideally.

    Are we living in an ideal world? No. We are living in a world where we literally had Two President GEORGE Bush's in a generation, and they made a serious attempt at three. We are living in a world where we came within a hair's breadth of having two President Clintons. And there's talk of trying for a second President Obama.

    Our political class are now a distinct, self-perpetuating clique, pursuing their own interests, because they've gamed and rigged democracy to the point where not only do all the Presidents come from a tiny group of people who largely share an ideology distinct from the population, but if somebody from the margins of that clique manages to grab the ring, it's considered an existential emergency justifying removing him by any means necessary.

    Government, in theory, is what we do together. Government, in reality, is what some of us do to the rest of us.

  • Sarcastr0||

    Ah yes, the vaunted 'how can you have a democracy when people keep voting wrong?'

  • Brett Bellmore||

    Democracy isn't some kind of magic cure-all that guarantees things work fine. It's perfectly possible to have the formal mechanics of democracy in place, and none the less prevent democracy from accomplishing what it's supposed to accomplish in the way of forcing the government to represent the people.

    If access to the ballot is restricted, so that the people only have the ruling elite available to vote for.

    If access to campaign money is restricted, so that challengers are almost always under-funded.

    If access to candidate forums is restricted, so that insurgent parties can't get into them.

    If campaign coverage is restricted, so that you just don't hear about the challengers.

    You don't have to rig the actual vote counting, if you can rig everything that precedes it.

    Seriously, two President Bushes, nearly 3. Nearly two President Clintons. Talk of another President Obama. Does this sound like a healthy democracy to you, or an oligarchy that's camouflaged as a democracy?

  • Bob from Ohio||

    "Does this sound like a healthy democracy to you, or an oligarchy that's camouflaged as a democracy?"

    John and John Quincy Adams. W.H. and Benjamin Harrison. TR and FDR were cousins.

    Related people have been getting elected since the beginning, its nothing new.

  • Sarcastr0||

    All the stuff you're talking about is about the need to reform our existing system. A far cry from your earlier 'democracy isn't an alternative to being oppressed, it's just a way of selecting your oppressor.'

    Democracy isn't about the best policy outcomes, it's about recognizing that none of us actually has any idea of what the best policy outcomes are. Absent that, all we can do is make sure we get the outcomes we deserve.

    Plus, of course, the moral imperative of giving a voice to our citizens.

  • Smooth Like a Rhapsody||

    I will add the tidbit that Washington DC is now the wealthiest metro area in the US. And it produces NO wealth. Virtually every person doing well in DC/NoVa is a rent seeker, pure and simple.
    This is the formula for a banana republic.

  • Smooth Like a Rhapsody||

    And, also, Sarcastro, it's your side that hates the Electoral College and the Senate.

  • Sarcastr0||

    Federal employees are nothing but rent seekers, now? That's a simple worldview, if not a very carefully considered one.

    Neither the electoral college nor the Senate are vital to having a democratic government.
    Though FWIW, I think they should be kept as States still have a character to be respected in addition to individuals. That may not always be true, though.

  • Brett Bellmore||

    Sarcastro, it's a bad sign when the capital city and it's surrounds are by far the wealthiest part of the country, because they're NOT producing that wealth themselves.

  • Sarcastr0||

    I'm not going to gainsay you about the military industrial complex.

    But I do think your metric is a bit facile.
    The Manhattan project did not produce wealth, but that did not mean the wealth put into it was unhealthy.

    And while ymmv as to whether government succeeds, there is efficiency and thus wealth in creating good processes.

  • Bob from Ohio||

    "Federal employees are nothing but rent seekers, now?"

    Non military/safety services government employment generally attracts three kinds of people. Dump, lazy, dumb and lazy.

    We had a partial shutdown for a month and no bodies in the street. If we had privatized air traffic control and security like Canada, no one would have noticed anything.

  • Sarcastr0||

    Mixing up resilience with redundancy is easy if you try.

    I've mostly worked in the DoD, but I've brushed enough elbows elsewhere, and if you don't think there are diligent and dedicated fed workers all over the place, you're talking out of your hat.

  • Smooth Like a Rhapsody||

    There were diligent and dedicated people working for Hitler, Stalin, and, Mao. That's a stupid category.
    I'm not talking about how all fed workers are rent seekers, although a lot of them are. Indeed, I was sickened by the "what about the poor fed workers who aren't getting paid?" news stories during the shutdown.

    I'm talking about the PRIVATELY employed people who work in DC/NoVa who are nothing but rent seekers.

  • Sarcastr0||

    Smooth, I was replying to Bob from Ohio. Don't know why you're arguing feds can work for an evil dictator?

    A bunch of people in the DC area are feds. Also a bunch of defense contractors, who sure do produce stuff. And law firms, who...facilitate stuff? YMMV as to their specific value.

    From ze wiki looks like big pharma has a large presence. They make stuff, though their rent-seeking is at least at Pentagon levels.

    So DC wealth comes from the defense industry, law firms/lobbyists, and big pharma. You want to argue those guys are bad, go ahead - liberals won't stop you!

  • Bob from Ohio||

    If they were worth anything, they would be doing productive labor.

    You are right though, there is a 4th category, diligent and dedicated petty tyrants who like controlling people.

  • Sarcastr0||

    Knee-jerk prejudice to better hew to your good-or-bad narrative.

  • apedad||

    Conflating Nazi Germany with a democracy?

    Nice...

    Is democracy messy? Yup (and that's a feature not a bug).

    Are individuals lazy, greedy, (often) ignorant, and biased? Yup.

    Is it all (or almost always) about money regardless of political bent? Yup.

    And yet, as I noted above, we somehow have managed to become the Kings of the World.

  • Brett Bellmore||

    The Nazis were elected into power, even if they abolished elections afterwards. Democracy isn't rule by everybody, it's 'everybody' picking who rules, and in a process that can be rigged subtly, just as it can be rigged grossly.

    Anyway, we managed to become "Kings of the World" before our democracy was fully rigged, and in part because we were the only developed nation that didn't get trashed during WWII.

    We're coasting now, on the advantages that were bought in earlier times.

  • Bob from Ohio||

    "we literally had Two President GEORGE Bush's in a generation, and they made a serious attempt at three."

    So? We had two John Adams in a generation, we have done pretty well since.

    BTW, no George Bush ran in 2016.

  • Smooth Like a Rhapsody||

    We were damn close to having 2 Kennedys, 2 Bushes and 2 Clintons in about 2 generations.

  • Bob from Ohio||

    But it didn't happen.

    And if RFK had won, then who knows the trajectory of American politics.

    No Nixon, no GHWB getting multiple appointments, he would have just been a former one term congressman and never VP so never president and then his son would never have been either.

  • mad_kalak||

    I'm surprised that the symposium, and nobody else so far, has made the suggestion that if we need to make politicians and so-called experts live with the consequences of their own laws, this would stop the worst of their excesses. This could be done with term limits and some "revolving door" legislation to prevent politicians from going to work for the formerly regulated. These two items are a lot less disruptive.

    This is the benefit of the "sortition" solution. After your time on the jury, your happy ass has to go back to being a common citizen again. There were lots of other problems with Athenian democracy, but this was a huge benefit. But we can get the same benefit far easier.

  • Jimmy the Dane||

    No governmental scheme is going to work when we have about 1/3 of our society who will actively pervert any political mechanism to achieve its own ends and think that it is morally, ethically, and legally justified in doing so.

  • mad_kalak||

    Sure, nothing is perfect. But we can set up a system where even the unethical think it's in their own best interests to follow the rules because they get the best results if they do so, as the system is designed with the worst of human behavior in mind.

    I'm just saying that if people had to live ALSO under the rules that they make for others, that they would be more careful about the rules that they make.

  • Brett Bellmore||

    That's what Milton Friedman used to say: "I do not believe that the solution to our problem is simply to elect the right people. The important thing is to establish a political climate of opinion which will make it politically profitable for the wrong people to do the right thing. Unless it is politically profitable for the wrong people to do the right thing, the right people will not do the right thing either, or if they try, they will shortly be out of office."

    I've said that myself in regards to uncontrolled deficit spending: Once borrowing tomorrow's money to buy today's votes is admissible, deficits can't do anything but explode: Anybody who ran for office who'd do anything but borrow money would be outbid for those votes.

    But the real problem comes in when you're setting up the rules for the people who make the rules. The temptation to get rid of those incentives you put in is overwhelming.

    That's why I think the only answer is for the federal judiciary to be chosen by officers of state governments.

    The founders thought that, too, which is why Senators were to be chosen by state legislatures. But the 17th amendment screwed that up.

  • Jon_Roland||

    Most who criticize the 17th don't understand why it was passed, which was because state legislatures are also corrupt.

  • Bob from Ohio||

    "it has become increasingly clear that American democracy has a variety of serious flaws."

    Post gets off track in first sentence. The system is working fine, changes of power since 2006 acting to check errors and overreach.

  • mad_kalak||

    But, but....Trump?!?!

    My issue isn't that it isn't working fine, it sorta is. The problem is the Democrats are working to change the electorate because they don't like it, not to mention removing the Electoral Collage, because they don't like the results.

  • Krayt||

    Officials should not be using the investigative power of government to "get" at their opposition. This is what's behind the 4th and 5th amendments (to say nothing about equal protection and selective prosecution.)

    The Ds are having as much glee as the Rs did for Clinton, and neither is driven by concern over the reasons for the investigations, except facetiously.

    Then there was the Congressman who joyously and loudly stated they were going to do an investigation into everything Trump has ever done, to heck with just collusion.

    No, you don't get to use the power of government to filch through a political opponent's papers at will, looking for something...anything...to tag him with, even if there is an actual crime you might discover.

    How many powerful people with millions of dollars could survive sucb scrutiny? Not many.

    This isn't to defend criminality, but as with most of the Bill of Rights, to deny those in power many of the tools of tyrrany.

  • mad_kalak||

    Yes, I know, sorry to be as cliche as to quote the Federalist Papers, but it's ambition checking ambition. Only the rich and powerful are the ones able to (generally speaking) hold the rich and powerful accountable. It's when everyone is on the take together that we should be worried.

    I agree that it's bad, but no worse than, say, right after the election of 1876 when the country was torn apart.

  • Brett Bellmore||

    I don't like the Electoral Collage, either; The glue ran while they were making it, and who picked those pictures, anyway?

  • Smooth Like a Rhapsody||

    The problem was they hadn't discovered trompe l'oeil.

  • mad_kalak||

    I am a huge fan of the electoral collage, not so much because it helps give rural voters a voice (it is so-so at that) but because it localizes the effects of election fraud. Nobody ever seems to talk about that latter part. Can you imagine what the Dems would do if they there was just a national popular vote, and all that work didn't just get them Florida or WI?

  • Brett Bellmore||

    Perhaps you mean "electoral college?

  • mad_kalak||

    Meh, easy typo to make. Funny jokes in response, I admit.

  • apedad||

    The problem is the Democrats are working to change the electorate because they don't like it, not to mention removing the Electoral Collage [sic], because they don't like the results.

    And why is that a problem?

    Using constitutional means to make changes in our government is, um, constitutional.

    (FYI, I think the EC process is adequate.)

  • mad_kalak||

    Read again, I am saying they are trying to change the electorate, not the government. Given that this is a democratic republic (small d and r), you should see the problem right away. Sorry to be cliche, but they are trying to dissolve the people and elect another, and importing new client groups.

  • Grand Moff Tarkin||

    The problem with "foot voting" is that the people fleeing the old, poorly functional state often voted for the politicians who contributed to the state's condition. They move to a better functioning state and vote for people who propose the policies that caused the former state to fail. For example, people fleeing the northeast, mostly Democrats, move to the mostly Republican states in the southeast and vote for Democrats in their new states. When the Democrats start winning the statewide elections, they will enact policies that will make the southeastern states similar to the northeastern states.

  • FiftycalTX2||

    Why bother with all the hocus pocus and hand waving and just get down to the desired result? All you want is an all powerful dictator that can tell everyone what to do and how to live, a good "5 year plan" that will save the gay whales and gaia. IOW you want the whole world to have Venezuela, N. Korea style RULE. The Constitution is hard to change for a REASON. It is to keep the MOB RULE of 50%+1 from lording over the minority. Now if you desire to be told what to do, when to do it and have the good nanny state love you, move to Venezuela. They got lots of room since about 10% of the country has fled. But if you think that "from each according to their ability, to each according to their need as determined by some bureaucrat somewhere" is how you want to live, go for it. Unfortunately for most of the people of Venezuela, the good nanny state has determined you don't "need" to EAT!

  • jdgalt1||

    Here's a radical thought. Let's limit tax-funded spending to only those necessities which actually make it necessary (police, courts, and defense), and spin off all the other things government now spends our money on? That way, the decisions about all that other spending -- including on schools, parks, transportation, and health care -- will be made directly by the individuals most affected: the individuals who receive those services and will now have to pay for them themselves.

    Nobody cares as much about the wisdom of spending decisions when he gets to spend other people's money.

  • Jon_Roland||

    I advocate a variant on sortition I call fetura (breeding), which alternates random sortition phases with a merit-selection phase to weed out the less knowledgeable. Similar to the system used in Venice 1268-1797. Policy decisions would not be made by the results of the first sortition phase, and hopefully the wisest would bubble up to the top, without having to contend for office or seek donors. The process would dispel public-choice problems by not selecting those with the most financial backing. http://constitution.org/elec/sortition.htm

    Proportional voting would make sense for the House of Representatives, which might use a kind of proxy voting system. http://constitution.org/elec/elect000.htm which could be done through statute without an amendment.

    Main reform needed for amendment would be to remove Congress as the gatekeeper, so that amendments could be adopted tat would reduce their powers.

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