Andrew Allard '25
Executive Editor
For the American public, it is a truism that ours is a government “of the people, by the people, for the people.” But how well does our democracy succeed in meeting this high standard? Today, Americans deeply disagree over whether our elections produce results that accurately reflect the public’s wishes. The tragic events of January 6 made this especially clear, but America’s democratic woes long predate that unfortunate day. Voters’ concerns about elections are wide-ranging, including debate over Voter ID requirements, absentee voting, and ballot collection. These concerns reflect disagreements about the balance between election security and access to the ballot box. But such disagreement also extends to more fundamental structural issues, such as how we should draw voting districts and whether the electoral college’s occasionally counter-majoritarian results are desirable in a modern democracy.
Pictured: Hélène Landemore
Photo Credit: helenelandemore.com
Lawyers have an especially important role to play in answering these questions. Because in the American tradition, the law itself is legitimated by the consent of the governed,[1] protecting democracy is tantamount to protecting the rule of law. Recent Supreme Court decisions—such as those interpreting the Voting Rights Act and addressing partisan gerrymandering—illustrate the importance of lawyers’ role in shaping democracy. Similarly, Congress cautiously stepped into the role of protecting democracy when, in the wake of efforts to overturn the results of the 2020 election, it passed the Electoral Count Reform Act.[2]
But the gravity of democratic decline requires more from us than a reactive posture. We must consider how democracy can be revitalized, and we must remain open to innovative and experimental alternatives to the existing paradigm. We must, like the Founders, look to nascent ideas rooted in the principles of self-government for inspiration. As lawyers, we should familiarize ourselves with these ideas, vigorously debate their utility, and determine how they can be adapted to our existing legal framework.
In that spirit, Hélène Landemore’s Open Democracy[3] is an excellent place to start. Landemore is a professor of political science at Yale University who specializes in democratic theory. In Open Democracy, Landemore argues that traditional legislatures often fail to meet the ideals of self-government. “Modern parliaments themselves are intimidating buildings that are hard to access for the vast majority of citizens. They are typically gated and guarded. It also feels to many as if only certain types of people—those with the right suit, the right accent, bank account, connections, or even last names—are welcome to enter them.”[4] To supplement traditional legislatures, Landemore proposes, among other things, a system of “open mini-publics”: randomly-selected assemblies of citizens, gathered for the purpose of lawmaking. Such a system, Landemore argues, allows the citizenry to participate directly in governing when representative authorities have failed to enact popular legislation.
Landemore’s ideas are admittedly radical. But American lawyers should appreciate them for many reasons; I will offer three. Firstly, Landemore’s ideas are rooted in history. As Landemore explains, modern democracy looks very little like its historical predecessors. As examples, Landemore cites the use of democracy by lot in Athens, the Icelandic Vikings’ practice of gathering in a field each summer to form a parliament,[5]and New England’s historical use of town hall meetings. Contrary to popular belief, early democracies did not generally engage exclusively in direct democracy. They, too, were representative, but representation was decided by lot or self-selection, rather than by competitive elections. These historic systems—though not without their flaws—emphasize openness and participation.
Secondly, Landemore’s ideas build on an existing American legal practice: the jury. Landemore compares the mini-public to “a supersized version of the criminal jury in the American system.”[6] Landemore points out that juries are too small to offer an accurate sample of the population. But they are nonetheless rooted in the ideals of community wisdom and participatory democracy.
Lastly, Landemore’s ideas, like the legal system itself, rely on deliberation and pluralism. As lawyers, we understand that truth can be frustratingly elusive. For that reason, we have the adversarial system, which searches for truth through zealous argumentation between parties with opposing interests. As Justice Kagan once eloquently put it, “No one has a monopoly on truth or wisdom. We make progress by listening to each other.”[7] Landemore’s open democracy ensures that we listen to each other, and not just those with the skills, capital, and connections necessary to win elections.
Of course, reasonable people can disagree with Landemore’s proposals. But no American should reject them as too extreme. The United States is an experiment in self-government. To advocate for innovative and even radical approaches to self-government is deeply rooted in our nation’s history. In the face of new challenges to our democracy, perhaps that history is the answer.
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tya2us@virginia.edu
[1] The Declaration of Independence para. 2 (U.S. 1776) (“Governments are instituted among Men, deriving their just powers from the consent of the governed . . . .”).
[2] H.R. 2617, 107th Cong. (2022) (clarifying that the Vice President’s role in presiding over vote counting in Congress is “solely ministerial” and raising the number of objections required in each house of Congress to challenge a state’s slate of electors).
[3] Hélène Landemore, Open Democracy: Reinventing Popular Rule for the Twenty-First Century (2020).
[4] Id. at 2.
[5] The Icelandic “Althing,” founded in 930 A.D., is one of the world’s oldest national parliaments. https://www.britannica.com/topic/Althing.
[6] Landemore at 13.
[7] Excerpts of Elena Kagan's Opening Statement Before the Senate Judiciary Committee, The White House Off. of the Press Sec’y (June 28, 2010), https://obamawhitehouse.archives.gov/the-press-office/excerpts-elena-kagans-opening-statement-senate-judiciary-committee.