Volokh Conspiracy Symposium on the National Constitution Center "Restoring the Guardrails of Democracy" Project

The symposium will include representatives of all three teams that drafted reports for the project: conservative, libertarian, and progressive.

I am pleased to announce that, this week, the Volokh Conspiracy will host a symposium featuring participants in the National Constitution Center's "Restoring the Guardrails of Democracy" project. The NCC commissioned reports by three teams making recommendations on the topic outlined in the title: a Team Conservative Report (written by team leader Sarah Isgur, David French, and Jonah Goldberg, all affiliated with The Dispatch), a Team Libertarian Report (also available on SSRN) (authored by Clark Neily and Walter Olson of the Cato Institute, and myself), and a Team Progressive Report (coauthored by prominent election law scholars Edward Foley and Franita Tolson).

The VC symposium will include contributions by members of all three teams. David French will represent Team Conservative, Walter Olson is the Team Libertarian participant, and Edward "Ned" Foley will bat for Team Progressive.  There will also be an introductory post by Lana Ulrich of the National Constitution Center.

Each of the three team representatives will write an introductory post outlining their team's main points, and possibly some similarities and differences between their positions and those of the other teams. Each will then have the opportunity to respond to the initial posts of the others.

I myself have previously written about the Guardrails project and areas of agreement and disagreement between the different reports here and here. But, though I am a coauthor of of the Team Libertarian Report,  in this symposium, I am just going to serve as a facilitator and moderator.

I welcome the participants to the Volokh Conspiracy blog, and look forward to the discussion!

Comments

[Ben_]

The guardrails will be that the federal government can do more-or-less anything. And the people of the country are expected to, at most, offer mild disapproval.

As the FBI tries to sway elections and Democrats torture political prisoners, comfortable lawyers and professors will make sure to complain about both sides and make sure that the regime knows they’ll never be anything more than mild, balanced critics.

[Sarcastr0]

lawyer for several of the January 6 political prisoners says his clients are being “tortured” by a system of “anarcho-tyranny” that considers them to be a “subhuman, sub-constitutional class of people.”

Joseph D. McBride said he is building a case to sue the federal government for millions of dollars over the abuses his clients have suffered.

The devout Catholic told the Blaze‘s Daniel Horowitz on his “Conservative Review” podcast Monday that he has witnessed the “deepest part of evil” while representing the political prisoners.

LOL. Moreover, LMAO.

[Ben_]

You approve of holding political prisoners without a trial until they die from suicide or from their medication being withheld. That’s all anyone needs to know about you.

[Sarcastr0]

No, I am amused by your posting obvious hack-work as gospel truth.

But you will pretend I believe you, and love conservative torture. That's your whole deal!

[mulched]

The conservative group was ALL from the Dispatch/Bulwark wing? You might be missing out on some perspective.

[Brett Bellmore]

Is it really "missing" if they weren't aiming at perspective in the first place?

[legalizeshrooms]

It is truly wonderful that we have citizens that care enough to try and preserve our system of government.

[Stephen Lathrop]

Famously, the founders created a new political theory, government founded on popular sovereignty. But then, and increasingly infamously, when they propounded specific means to implement that theory by elections, the founders failed to follow through.

In practice, history and customs prevalent at the time proved overwhelmingly influential with regard to specifics about what processes structure government. A lot of the election trouble now vexing the nation owes its genesis to that originalist mismatch between theory and practice.

The Guardrails Project seems not to have delivered anything to address that. It instead has offered up rival agendas to advantage competing ideological schemes. The result is a renewal of the elections problem from scratch, without notable proposals for change of any premise which made the elections problem problematic in the first place.

Here are a few entrenched election-related premises which have become troublesome, proving themselves in need of review:

1. Government officials are rightly tasked to run elections.

2. Speech freedom empowers an election candidate to say anything at all about an election, before, during, and after its conclusion.

3. Election disputes are inherently open-ended, until they are decided by courts.

Let's examine those three propositions one by one, with an eye to checking how well they serve the originalist premises of this nation's constitutionalism—particularly the premise of a popular sovereign, actively in charge of everything. Which is to say, the premise behind Franklin's famous dictum, "A republic, if you can keep it."

1. — Government officials are empowered to run elections. That matches custom and practice from the get-go. But it is strikingly contrary to the theory that ours is a nation ruled by a joint popular sovereign which not only remains continuously active, but which also constitutes and constrains government at pleasure—partly through the agency of elections. It is a contradiction to suppose government officials constrained by the sovereign can legitimately be empowered to take actions which constrain the sovereign's election oversight of government officials.

2. — Speech freedom—the freedom of anyone to say anything about an election—is rightly protected in the case of members of the joint sovereignty. But election candidates and elected officials are a special class, which cannot be treated alike with the others. To do that would disrupt a major premise of the nation's founding. When an election has been completed according to agreed upon procedures, members of government—or election candidates—who resist publicly the outcome, thereby put themselves in defiance of a sovereign which in theory enjoys unlimited power to constrain government. The result of a completed election is a sovereign decree, constituting government. In effect, persistent election deniers enter into a contest for sovereignty, against the people themselves. That is no small thing in the public life of the nation. When those deniers are members of government or candidates for office, it injects a poison akin to treason into public discourse.

3. — Resort to the courts on questions about election outcomes. Many suppose that to be the only realistic prospect to settle disputes. That overlooks two points. First, that the courts themselves are politicized throughout the nation. Second, that the courts, as a branch of government, are like the other branches—subordinate to the sovereign people, not rulers over the joint sovereignty. That means the courts are no more empowered than the other branches to dictate to the people's joint authority, or to constrain them in any particular at all, not even with regard to elections.

Here are some alternative premises. As customary practices these could perhaps correct some of the nagging confusions and contradictions currently making election issues such a concerning focus of attention.

1. Elections are not government processes. They are sovereign processes. The sovereign people themselves—not governments or government officials—own the elections, and are free to dictate by whatever means the people choose how elections are conducted.

2. Elected office is never a right. It is always a gift of the sovereign people, who may bestow it or withhold it at pleasure.

3. The courts owe a duty to the sovereign not to encroach on sovereign prerogatives to decide elections, and thus constitute government at pleasure. That means that in many cases courts should refuse to hear cases involving elections. A frustrated candidate for office who brings a case to court after an election is completed—who seeks an alternative resolution according to law—should hear from the court that what sovereign processes have denied him as a gift he cannot contest as a right.

To remake election administration in the U.S. in accord with those observations and premises would be a difficult job. If it proves possible, then the nation will enjoy a more theoretically consistent basis for fair elections and properly constrained government. Popular sovereignty would thus be vindicated. Many of the present problems and agitations would cease.

I suggest discussion about how to do that kind of election restructuring in a practical way. My own initial suggestion to kick the discussion off would focus on a notion of ministerial responsibility, assigned to a special class of non-government officials, tasked only with administering elections on behalf of the sovereign people.

Define the bounds of ministerial action 3 ways. First, according to a standard of maximally empowering and facilitating voting. Second, according to a standard of avoiding every action which foreseeably has power to affect election outcomes. Ministerial responsibility treats elections only as processes, with substantive outcomes left entirely to the people themselves. Third, according to a standard of procedural impartiality and fairness, with an eye to protecting both voting privileges and accurate vote counts.

I suggest that a cadre of such election officials could be created by law or (much better) by constitutional amendment, with appropriate standards for their appointment, service, and tenure. Those standards should be devised to insulate that cadre, as non-government actors, from political interference, donations, and lobbying.

An organization thus established could be designated the official tribune of the sovereign people themselves, and otherwise be set outside of control by the elected branches. It could be empowered to sue in court to protect elections, but only with regard to protection of laws, rules, and procedures relating to the conduct of elections, not with regard to particular election outcomes. That would include a power to sue to strike down any law passed by the political branches which foreseeably might affect election outcomes—all such laws being presumed contrary to the government's duty to guard jealously the election powers owned and controlled only by the sovereign people themselves.