Rewriting the Constitution, Part 1: The House of Representatives

What is a legislature for? To frame laws. Who should have that responsibility? Most of us accept that political sovereignty lies in the people as a whole, and that the people as a whole therefore has the primary right to legislate. How then are we to express our collective will?

There is first, democracy. We citizens sit in a room or assemble in a field and consider questions and vote on them and thereby promulgate laws. There is a practical problem with that. There are about three hundred million of us. We obviously can't fit in a hall or sit down on the side of a hill. Even with our cyber resources an assembly of the whole citizenry would be impracticably unwieldy. So we go next to the representative principle.

How do we choose representatives? Some few with time and influence and resources put themselves forward in one of two stereotyped parties, in oddly-shaped districts, spending most of the enormous amounts of money they must raise on advertising. We don't know them, and learn very little about them. Most of us don't vote. And, once in, our representatives develop a remarkable talent for re-election, based, not skill at framing laws, but in two primary areas: "bringing home the bacon" and constituent service. The first is the counterpart of the role of private money: here federal money is brought back into play in the district, to the benefit of those who invested in the candidate. The second seems innocent enough, helping citizens with the intricacies and occasional stupidities of the bureaucracy--but such help is obviously not equally available to all. And why, after all, should such help be such a major function of a legislator?

How might we set up a representative assembly differently? I would suggest using an ancient device now much neglected (except with jury service): the lottery. Why not simply choose at random our House of Representatives from the people at large? It seems to me that there would be many advantages to such a system.

First, the assembly would be a real demographic picture of the population as a whole, roughly half women and half men, reflecting our ethnic make-up, our social and economic classes, our regional differences and concentrations, our professions and problems.

At first I had thought that, well, of course, there must be conditions. Surely our representatives must understand English. But then I reflected, why should our non-English speaking population be unrepresented? We have translators at the UN; what's the big deal about having then in our House?

Then I thought, OK, but surely there must be some educational minimum, at least literacy. If X% of our population is illiterate, then X% of our assembly will be as well. But again, how better to raise our educational problems, and who better to demand that they be addressed, than a minority of our assembly who suffer the consequences of our neglect?

The assembly, in short, would be representative. It would contain the poor as well as the rich, the foreclosed-on as well as the bankers, the failures as well as the successes, the day-laborers as well as the lawyers

.Nevertheless, if the lottery is truly representative, there will undoubtedly be some incarcerated felons in our House. There we may perhaps make an exception to our demand for pure representation, not as a rule excluding all felons or all the incarcerated (guards can be supplied as well as translators and readers), but as a House committee constituted to determine on a case-by-case whether persons falling in such category should be passed over. Past felony convictions, for example, should not absolutely disquality; our drug laws have ensured that many more people than we imagine have such records, and I don't see why such persons should, for that reason alone, be disqualified--for they too are representative. Of course our population has its share of vicious, pathological souls who should certainly be excluded, and I don't think their being singled out and excluded should be too very controversial.

Once we choose and seat our representative House, there appear some interesting consequences. This House will of course need to be organized, and will, like the present one, elect a Speaker. But there will be no need of majority and minority leaders, as the process of choosing Representatives makes parties superfluous. Our first representatives under this scheme might indeed still think of themselves as Republicans or Democrats, but they will not be expected to adhere to any party line, or be subject to party discipline.

One of the great illusions of our current system is that all political ideas fall on either a "liberal" or "conservative" side, and that one who is "liberal" on, say, foreign policy, will also be liberal on the minimum wage, education, national defense, etc. Our current party platforms define reasonably accurately how one is to think on most issues, if one is to be a loyal Democrat or Republican, and, if our leading politicians seem to accept the stereotyped positions of their parties, it's easy enough to explain: they could not succeed without doing so.

An example: Suppose one opposes abortion and the death penalty. The first position would prevent going very far in the Democratic Party (the late Pennsylvania governor is perhaps the exception that proves the rule). Similarly, so far as I know, no ambitious Republican has ever dared breathe a word against capital punishment; it would be the kiss of death in any primary. In other words, on this issue, the "issue alignment" of the parties freezes out anyone holding opinions consistent with what has been called the "seamless garment." And why should that be?In an assembly put together by lot, each issue stands on its own. No representative has a platform to conform to, a "constituancy" to answer to, or a backer to repay. That's not to say that factions won't form--but they will be shorter term than our present parties. And that's not to say that needed, costly projects won't result in "horsetrading." But surely the distribution of federal largess can in this context be addressed more dispassionately than under the present system.

What about the chosen but unwilling? No one, I think, should serve in this capacity involuntarily. So the lottery would need to have alternatives in the wing. In order to encourage those of modest means to serve, there should be a decent, but not excessive salary, and free housing in Washington so that they may keep their current homes or apartments, to return to at the end of their term. Needless to say, there must be no trading on the position, no gifts, no speaking fees, no other income. Perhaps there can be some limited protection of existing jobs, like we do for state militias, to disrupt ordinary people's lives as little as possible.

But is this really possible? Can ordinary people really legislate? It's a fair question. And part of the answer is that some experience can be built in with staggered terms. Suppose each representative chosen served a single three year term. By staggering terms, one third of the House at the beginning of each term would be new to the job, one-third would have a year's experience, and one-third would have two year's experience.

But the larger answer to this question lies in the fact that our legislative branch, the Congress of the United States, consists, not in a single House, but in two. And it is in the Senate, I would suggest, that political experience counterweigh the popular and amateur character of our reconstituted House of Representatives.