The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Team Libertarian Report from National Constitution Center "Restoring the Guardrails of Democracy" Project Now Available on SSRN
I coauthored the report with Clark Neily and Walter Olson, both of the Cato Institute.
The Team Libertarian Report from the National Constitution Center's "Restoring the Guardrails of Democracy" is now available for free download on SSRN. I coauthored the report with Clark Neily and Walter Olson (both of the Cato Institute). Here is the abstract:
American democracy faces multiple serious challenges. In the immediate future, we must establish institutional safeguards to prevent the kind of negation of election results attempted by Donald Trump in the aftermath of the 2020 presidential election. In the medium-to-long run, more must be done to empower people to be able to make meaningful choices about the policies they live under. Ballot-box voting has great value. But it is not enough to ensure genuine political freedom. The latter requires enhancements to both "voice" and "exit" rights. We need to simultaneously increase citizens' ability to exercise voice within political institutions, and give them more and better exit options.
This report takes on all three challenges. We propose a variety of reforms that can address immediate short-term threats to democracy, while also increasing citizen empowerment in the long run.
Part I outlines reforms that can safeguard the electoral process against attempts at reversal, while also curbing presidential powers that could be abused in ways that undermine democracy. Among the most urgently needed reforms are new constraints on presidential powers under vaguely worded emergency statutes. These can too easily be manipulated by an unscrupulous administration in ways that could hobble democracy. It is also essential to reform the Electoral Count Act of 1887 in order to definitively preclude the sort of effort to overturn an election that then-President Trump engaged in after his defeat in 2020. In addition, we propose ways to incentivize electoral losers to concede defeat, rather than engage in bogus accusations of fraud and voter suppression, and to gradually restore public trust in the electoral system.
Part II describes how a number of serious flaws in the democratic process can be alleviated by expanding people's opportunities to "vote with their feet." Under conventional ballot-box voting, individual citizens usually have almost no chance of influencing the outcome. They also have strong perverse incentives to be "rationally ignorant" about the issues they vote on, and to process political information in a highly biased way.
Expanded foot voting rights can help alleviate these problems. People can vote with their feet, choosing what jurisdiction to live in within a federal system, and also through making decisions in the private sector. Relative to ballot box voters, foot voters have a much higher chance of making a decisive choice, and therefore much stronger incentives to become well-informed. Expanded foot voting can also help alleviate the dangerous polarization that has gradually poisoned our political system. Much can be done to expand foot voting opportunities in both the public and private sector by breaking down barriers to migration, such as exclusionary zoning. Foot voting can also be facilitated through greater decentralization of political power, which would reduce the incidence of one-size-fits-all federal policies from which there is no exit, short of leaving the country entirely.
Finally, Part III outlines ways in which ordinary citizens can be empowered to exercise greater "voice" in their dealings with the criminal justice system, particularly through reviving the institution of the citizen jury. Since the Founding and before, jury trials have been understood as an important tool of popular participation in government. Sadly, in the modern criminal justice system, the constitutionally prescribed role of juries in resolving criminal charges has been almost entirely displaced by so-called plea bargaining. As a result, citizen-jurors no longer exercise influence over those powers of government that directly impact the lives and liberty of the people more than most others. We propose multiple reforms that can help restore juries to their proper role in the criminal justice system.
Even if adopted in combination, our proposed reforms would not cure all the ills that afflict American democracy. But they can do much to shore it up against threats, and empower Americans to exercise greater control over the government policies they live under.
The NCC project also includes a Team Conservative report (coauthored by team leader Sarah Isgur, David French, and Jonah Goldberg, all affiliated with The Dispatch), and a Team Progressive report (coauthored by prominent election law scholars Edward Foley and Franita Tolson). I offered some thoughts in the similarities and differences between the three reports here.
To get the Volokh Conspiracy Daily e-mail, please sign up here.
Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Comments may only be edited within 5 minutes of posting. Report abuses.
Please
to post comments
“Finally, Part III outlines ways in which ordinary citizens can be empowered to exercise greater “voice” in their dealings with the criminal justice system, particularly through reviving the institution of the citizen jury. ”
Forbid plea bargaining and guilty pleas. Assure that there are no convictions except by jury trial.
Since that many jury trials would bring the system to its knees, something else.
Re: elections. I think the problem is the American flavor of democracy with a two party system, and winner take all. Andrew Yang claims that the solution is ranked choice voting. You should have included Andrew Yang in the report study group.
This report is shameful and just lies. It is a Democrat hit piece, garbage, and dismissed. It is not worth rebutting. The authors are deniers. They do not argue in good faith. There is only proper response to denier lying.
Team Conservative attended Harvard Law and appear on MSNBC. Scumbags.
No arguing with denier scumbags.
Tell us your suggestions for respectable members for one of these Teams?
Perhaps they could add a “Team Trump” with members like Sidney Powell, Steve Bannon, Dinesh D’Souza, and Marjorie Taylor Greene?
Or perhaps you reject the idea of scholarly academic papers entirely, and prefer reality tv style conflict instead?
Doug. In scholarship, in education, one reviews all aspects of a subject. Eugene wanted to know if religious people should review atheism, or astronomers the theory that the sun revolves around the earth. The answer is, yes. It will be very educational and scholarly to address atheism in religion, and Ptolemaic theory in astronomy.
In this case, the denier part, is that Trump supporters are the people. They are fed up with the tyranny of a failed elite, making gigantic mistakes after more. Yet, they are arrogant enough and confident enough to tell the rest of us how to live. This anger is so great, they will overlook all the flaws of Trump being nitpicked by the Swamp.
The Swamp is also protecting its $trillion heist. Their lack of moral authority needs to be addressed by them.
This is all self evident to people on the bus and at the diner. These Harvard indoctrinated, big government scumbags are idiots. I also do not appreciate Ilya’s pretending to be a libertarian, small government person. He is just lying. He is a Democrat Party attack dog in a bad disguise. Everyone can see who he really is.
To what do you refer with your use of “This report”?
The Team Libertarian Report authored by Clark Neily, Walter Olson and Ilyaq Somin?
It might be understandable if you called The Team Progressive Report a “Democrat hit piece, garbage”.
But those Cato guys and Somin have no incentive to write a “hit piece” conforming with “democrat” party interests.
None may overcome local culture. Move to Iran, you become Iranian rather quickly, even if you hate them. We imitate. Those people live in Washington and are irretrievable. They need to move to open their eyes and to change their values. Scalia led the charge against mandatory sentencing guidelines after they dropped crime 40% and cause massive lawyer unemployment. He lived and worked in Washington. I lived in Washington for 3 years. I felt it.
You’d vaguely hope that “Team Libertarian”, addressing problems with our electoral system, (That was the goal here, right?) would have mentioned the way it’s been rigged against third parties.
This is, after all, part of the problem: Having foreclosed viable third parties, the ‘major’ parties no longer have to fear that if they become sufficiently unpleasant they might be replaced. Now they only have to be less awful than the only permitted alternative, not actually good.
But, no, Team Libertarian spent most of their word count on foot voting. Which, while it can be a good thing, hardly puts guardrails on democracy. It’s more of a response to the guardrails being missing, actually.
I have nothing against foot voting, but I’ve never understood how it could work at scale. States that have tried to prepare, years in advance, for an influx of new residents have usually also eventually imported the major problems that the residents left the other states over.
https://www.nytimes.com/2021/02/12/business/economy/california-housing-crisis.html
If someone primarily cares about being able to carry a permitless gun, or not getting an abortion, foot voting can work. But cheap living just doesn’t hold when the population increases. Once an area is desirable, living gets more complex and expensive. Even with liberal housing policies that allow building in a flood basin.
I agree entirely that all of this has nothing to do with guarding democracy.
Yes, that’s the aspect of foot voting that he typically ignores. Immigrants frequently recreate what they fled from, due to not understanding that their own views were the cause of it. Only now, the place where they fled to suffers the problem, too.
So many people have fled the nuthouse California has become, that the neighboring states are becoming just as bad.
You keep saying this, but it makes no sense.
People leave state or country A and move to B because they don’t like A’s policies, and you think the first thing they are going to do is try to get those policies adopted in B?
It’s funny how team “libertarian” only has contempt for protest on one side and can’t give a shit when the hackasses pull the same attempts at nullification or engage in riots and sedition 100x worse. Sorry but I have no interest on the opinions of elitist leftists and their controlled opposition mouthpieces.
Imagine a ballot like this:
SENATOR (VOTE FOR ONE)
1) Bob Smith (Democrat)
2) Write-In ______________
or
GOVERNOR (VOTE FOR ONE)
1) Susan Brown (Republican)
2) Write-In _______________
I bet the duopolists would howl like stuck pigs if that’s the way their candidates were treated, assuming write-in votes were allowed at all.
REPRESENTATIVE (VOTE FOR ONE)
[ ] Ziggy Stardust (Rent is Too Damn High Party)
[ ] Write-In ___________
STATE LEGISLATOR (VOTE FOR ONE)
[ ] Lysander Spooner (Libertarian Party)
[ ] Write-In __________
CITY COUNCIL (VOTE FOR THREE)
[ ] Kumbayah Treehugger (Green Party)
[ ] Don Tredonme (Constitution Party)
[ ] Vladimir Che Jones (Socialist Revolutionary Party)
[ ] Write-In ___________
Why would they have to imagine it? California has arranged worse: Elections where the two choices are both Democrats, and write in votes aren’t permitted.
My own position is that the right to vote, at the time this country was founded, was the right to vote for anybody you damned well pleased, and that restrictive ballot access, and particularly refusal to count write-ins, is a voting rights violation.
One of the traditional conservative arguments is that people need to have something of a common culture in order to be able to run a country together. If they look upon fellow citizens as foreigners, civil war will tend to result. And this sense of common culture isn’t just an intellectual exercise; for non-intellectuals, at least, it needs to be rooted in elements of daily life such as a common language, manner of dressing, religion, cuisine, bed time stories, ideas, personal appearance, race, and so forth.
This obviously isn’t an idea that people like, and Professor Somin especially. But might there be some truth to it? Just the fact that we really wished an idea wasn’t so doesn’t necessarily make it false. After all, we now seem divided between two Americas. We may have reached or passed the point where each side regards the other as a greater theat than foreign powers, and we may be headed towards civil war. It may be that a breakdown of commonality, so that people now occupy totally different social and cultural worlds, has contributed in no small part to that.
Having people occupy a common world of discourse doesn’t necessarily mean that they all have the same race or religion or all think the same. But there may nonetheless need to be commonalities large and small, the cultural equivalent of a common secret handshake, so that when people meet each other they feel at a visceral level that they are somehow members of the same club, are part of a common fraternity. Can a Republic be sustained without this? Can it avoid either civil war or despotism?
It strikes me as by no means clear that it’s the case.
Again, wishing it wasn’t so doesn’t make it not so. Strong feelings of rage against people who bring it up doesn’t make it so either.
One of the limitations of 19th, 20th, -and 21st century intellectuals has been a belief that people are a complete tabula rasa, they can do anything. People can perhaps live without the rigid traditional total hierarchy in which everybody knows their exact status on the social pecking order (and everybody has one instantly recognizable by everybody else), although the Left’s efforts to eradicate hierarchies strikes me as not merely failures bit as continually creating new ones. But it’s not clear at all that people can form a society without any common culture. When culture fragments, people seem to tend to feel anxious and start getting hostile towards each other.
We’d be better off at least discussing it than simply insisting it isn’t so. People may have needs that contradict what both free-marketers and leftists would like to believe. We may not be quite as free and unconstrained as we think we are. We have to be able to talk about those needs openly and see what we can do about them if we want to hope to make progress.