Rights theory has traditionally focused on individual rights and liberties. We think of the rights we cherish the most—freedoms of speech, assembly, and religion, protection from unreasonable government intrusion, and property, among others—apply exclusively on an individual basis. Many rights are properly understood this way. Can you imagine allowing only certain people speak or own property? (Ok, ok, don’t answer that) Even if we distributed such rights at random we would consider it wrong. Fairness isn’t the issue—truly random distribution is inherently fair. The issue is that each individual has a basic right to experience free speech and benefit from owning property; that is, these rights must be experienced to be of any value.
The same is not true for community rights. The right to vote in not an experiential right. If it were, there would be no point in counting the votes. I mean, as long as you go to your polling station, push a few buttons and get a sticker, you’ve voted in an experiential sense. This sounds silly, but it is precisely what is happening today. The postal service is failing to deliver ballots, and many of these ballots will never be counted or even opened. What is this but voting as an experiential right? Each of these voters received a ballot, filled it out, and dropped it in the mail…therefore they had the experience of voting.
Of course that’s not right. Voting is a community right, not an individual right. No one would waste time with voting just for the experience. It is only meaningful to the extent that in influences the final count. Community rights are, therefore, fundamentally distributional rights, in which access to the activity must be distributed evenly in practice for the right to be validated. That is not the case with property, for example. Property rights are perfectly compatible with maldistribution in practice.
The Bill of Rights contains at least one true community right. Unfortunately, it’s not voting. It is, in fact, the second amendment, which as Warren Berger has argued has nothing to do with personal protection and everything to do with national (and state) defense. In other words, in guarantees that states can organize their militaries as citizen militias under the control of the state governor, rather than maintaining a standing army. The perversion of the second amendment into an experiential right is due to our deepening cultural assumption that rights can only be individual and experiential in nature.
Basically, an experiential right should apply to everyone but can be maldistributed, whereas a community right does not have to include everyone at a practical level, but must be well-distributed. This makes community rights ripe for the use of random selection. Military service is regularly randomized through a draft (an obligation rather than a right, but the distinction is less meaningful in the community context), and in this vein it is easy to see how the second amendment could be made stochastic: just pick some people at random to maintain weapons at home (or at a local warehouse) in order to be on call in case of invasion. Not practical in the 21st century, but eminently practical in the 18th.
Community rights should therefore be viewed as stochastic rights, even if the selection rate is 100%. It is important to recognize this today (03-Nov-2020, voting day in the U.S.) when access to voting is deliberately biased. It also points to the fact that we can view random selection and traditional voting as existing on a continuum, where a selection factor (percentage of the population chosen) of nearly 100% corresponds to traditional voting, and much lower selection factors (<1%) correspond to sortition. What’s missing now is the distributional requirement for traditional voting.
So what would get us to a place where voting and selection were compatible? Simple: the burden of action must be reversed. Electoral authorities must have the obligation to obtain a valid vote from every eligible voter. This, of course, requires them to identify every eligible voter, and which jurisdiction they reside in. And what a coincidence—these are exactly the conditions required to call true citizen juries. This is the first practical step to a jury-based democracy.