What are 'courts of common reason'?

‘Courts of Common Reason’ is the title of a book by Howard DeLong (Belcrest Press, second edition, 2011). The book has the subtitle: ‘Awakening the Spirit of 1776 to Form a More Perfect Union’.  DeLong argues that America’s political system falls short of the revolutionary democratic ideals of its founding fathers and suggests how current political practices could be revised to be consistent with those ideals.

The author proposes that a court of common reason be established to determine the ‘common reason of society’ - a phrase used by Thomas Jefferson. The term ‘court’ is used because the proposal involves establishing an advisory jury system, functioning in ‘a controlled setting typical of a court room with unbiased rules governing the presentation of evidence and arguments’ (p 172).

DeLong seems to me to do a good job of establishing that America’s founding fathers viewed democracy as involving more than just representative government. James Madison argued that ‘the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers’. He also asserted, however, that those to whom the people ‘intrust the management of their affairs’ should not be responsive ‘to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests’. Madison would presumably be unimpressed by the tendency for modern politicians to pander to the breezes of passion reflected in public opinion polls.

DeLong’s main source of inspiration, however, is a proposal by Thomas Jefferson (in a letter to John Adams) for simultaneous meetings of wards (small political units within each county responsible for schools, police, roads etc.) to determine the common reason of society:

‘A general call of ward-meetings by their Wardens on the same day thro' the state would at any time produce the genuine sense of the people on any required point, and would enable the state to act in mass, as your people have so often done, and with so much effect, by their town meetings’.

The method which DeLong suggests for identifying the common reason of society would involve random selection of an advisory jury (comprising possibly 0.1% of the adult population) using methodology to mirror important population characteristics as accurately as possible. He envisages that the advisory jury would be divided into sub-juries, each consisting of 12 people, before listening to argument and deliberating. He suggests that the common reason of society would be revealed by the decisions of those sub-juries that achieve unanimity.

DeLong’s reason for proposing sub-juries of 12 people is to reduce the danger of groupthink or mob decision that he considers likely to pose a greater problem in large gatherings. His suggestion that sub-juries should be required to achieve unanimity for their view to be counted is intended to promote considered judgement. I can see merit in sub-juries small enough to enable all members to participate in the discussion, but it seems to me that the requirement for unanimity is too strong. As I see it, if 80% of sub-juries had 10 or more members in support of a proposition that would imply strong support, even if, say, only 50% of sub-juries were unanimous in their support. It would be unfortunate, however, to get bogged down at this point in the detail of how the proposal might be implemented, particularly since the author presents his proposals as a thought experiment.

The author bases his argument for institutional change on the view that the philosophy that common reason should have dominance is presupposed by the Declaration of Independence and the U.S. Constitution (including the Bill of Rights).  He suggests that readers ‘suppose, at least provisionally’ that that philosophy is ‘correct’ and asks: ‘What, then, ought we do to better embody that philosophy in our political practice?’

I am not entirely comfortable with that line of reasoning. What does ‘correct’ mean in this context? If it means that the people place high value on having governments serve the ‘common reason’ of society, then we should be asking what evidence there is that current practice falls short of that requirement. Relevant evidence could take two different forms: dissatisfaction with the extent to which democratic governments take account of public opinion in their decision-making processes; or the existence of a gap between public opinion and ‘common reason’ or ‘the cool and deliberate sense’ of the community.  It seems to me there is more evidence of a problem of the latter kind. If that is right, it means that the educative role of the courts of common reason would probably be more important than their role in bringing together information about the views of citizens.

DeLong seems to acknowledge that point when he writes:

‘ordinary polls hardly reveal the “cool and deliberate sense of the community” that should “ultimately prevail over the views of its rulers.” Most citizens have not even thought about many of the issues, much less reflected long and hard to determine their best judgement. What government officials need to know is: What would the American people think if they had the information, interest, time, and ability to consider political issues in a truly deliberative fashion’ (p 166).

I think the opportunity to participate in an advisory jury system that has a good chance of influencing the future directions of public policy would provide participants with incentives that would help overcome rational ignorance and the tendency for people to obtain their opinions from the 'tribes' they identify with. (See this article by Tom Harris for a discussion in the context of climate change policy). Payment for jury service would also help, but could make the exercise costly. DeLong leaves open the question of the length of jury service. There would be trade-offs involved in terms of acquisition of skills in deliberation on public policy issues, allowing participation by a larger proportion of the population and avoiding unnecessary disruption to lives and careers of citizens.

DeLong suggests that the questions and problems that might be put to advisory juries ‘are almost endless’. Examples he suggests include tax policy, medical malpractice liability, misleading advertising, pay rates for politicians, safety and environmental regulation, penalties for criminal offences, immigration policy and eminent domain policy. Towards the end of his book he also suggests that advisory juries could have a role in revision of the American constitution.

In my view Howard DeLong’s proposal for courts of common reason deserves serious consideration as a possible means of helping democracies to work better. It is obvious that the proposal requires more thought before it could be implemented, but it seems to me that people who are concerned about the current performance of democratic governments should be giving a great deal of thought to proposals such as this one.