Virtual Democracy is better than no democracy at all
President Donald Trump was asked about Congress allowing remote voting given the various Senators who are now in quarantine. He thought that it was a good idea but that there may be constitutional barriers. The greatest barriers, particularly for the Supreme Court, remain cultural not constitutional. ~JonathanTurley
With most Americans sheltering in place, critical government parts are shutting down as well, though the cause may be an aversion to virtual rather than viral transmissions. Both Congress and the Supreme Court have stopped meeting out of fear of physical contact, even though the technology exists to allow officials to continue working in virtual spaces. Legal barriers could be removed to allow such a shift to a type of virtual democracy, but the main barrier seems to be conceptual and cultural.
We must not allow a constitutional system to wither like a starving man staring at an apple tree but incapable of imagining a stick. I previously criticized “remote learning” educational platforms that are supplanting traditional universities. Yet I support the rapid shifting of universities to remote learning technology to continue classes at the moment. Much might be lost in terms of the direct interaction between students and faculty, but the priority is to meet an educational mission for students.
The priority is obviously far greater for Congress and the Supreme Court. Current technology can easily accommodate the need to transmit online debates and voting, with access not just by officials but also the public. Ironically, the Framers would have been least offended by such a notion. James Madison and others were fascinated with novel theories and new technology. They wanted public sessions for Congress and the Supreme Court, and they undoubtedly would have been enthralled by technology that allows millions of citizens to be virtually present for such sessions.
For Congress, there is no clear requirement that its chambers must meet in person to carry out mandated functions. The Framers had no concept of remote communications or distance voting of course. Semaphore and smoke signals notwithstanding, remote communications back then were limited to written letters that took weeks, if not months, to be delivered.
Yet nothing in the Constitution expressly requires physical presence by lawmakers. Article One states that “each house may determine the rules of its proceedings,” and the Constitution refers to “meeting” and phrases like “at the desire” of “those present.” The Framers had clearly used such terms in the physical sense, and that certainly could support a restrictive interpretation today. But a compelling argument can be made that each chamber can define what “present” means, including a virtual presence.
The dangers of distance voting are mitigated by the fact that legislative voting by Congress is a public act in which confidentiality is not required. Any security violation regarding individual votes would then immediately be known by lawmakers themselves, like a manipulation of the electronic voting systems already used on the House floor. The concept of distance voting was indeed discussed as an eventuality following the 9/11 attacks.
While current rules require physical presence to vote in Congress, those could be amended to allow a virtual presence in an emergency. As with remote learning, it might not be the optimal approach, but necessity is the mother of invention. Congress needs to approve virtual debates and votes during this crisis. Ideally, this would not be used much, if at all, but it is important for our representatives to be heard during a time of crisis.
For decades, I have advocated for using cameras in federal courtrooms. While the Framers did not imagine, let alone discuss, a virtual presence, they did expressly address one of the most important aspects of a court system in a free nation, which as we know it now is public access. Public proceedings are mandated by the Sixth Amendment, and the Supreme Court has noted that by “immemorial usage, wherever the common law prevails, all trials are in open court, to which spectators are admitted.”
Despite the notable role of public access, the Supreme Court opposes cameras in its chambers. Instead, it demands an absurd demonstration every week of a small number of people standing for hours or even days to grab one of the few seats inside. It is infuriating to watch as people pay “line sitters” to reserve seats in cases impacting the lives of all Americans. When national issues like same sex marriage or health care were resting in the balance, for instance, most Americans across the country had to hear second hand what arguments were made and what questions were asked.
This archaic system is neither quaint nor compelled. It is simply absurd and is now also dangerous. Rather than holding televised arguments with only counsel and the justices present during this crisis, Chief Justice John Roberts has chosen to suspend all further arguments. On the docket are cases with enormous national importance, from health care to gun rights to immigration. Yet because justices oppose cameras in its chambers, the business of the Supreme Court has now largely come to a grinding halt.
The problem has actually been the justices themselves. In 2007, former Justice Anthony Kennedy had objected that if “you introduce cameras, it is human nature for me to suspect that one of my colleagues is saying something for a sound bite.” It is a rather bizarre notion that millions of citizens are being prevented from seeing these arguments because the justices may not be able to control themselves from any grandstanding.
Barring cameras in the Supreme Court may prevent grandstanding, but it also may hide more serious problems. Indeed, some justices remained on the bench when they were present solely in a physical sense. Legal icons like Justice Thurgood Marshall and Justice William Douglas resigned only after the public was shocked by their diminished capabilities in national interviews. Courtroom cameras also may expose those like former Chief Justice William Rehnquist, who was addicted to prescription drugs, and past justices who suffered from physical or psychological impairments.
This crisis should force the Supreme Court, albeit kicking and screaming, into the 21st century. The optimal approach is for the justices to meet with lawyers alone in the chamber for televised arguments. If those nine chairs are simply too close for comfort, then there is no logical reason to pause oral arguments or other critical work of the Supreme Court. Technology is available to allow both arguments and conferencing to happen remotely.
The founders of our country were amazing fonts of inventive thinking and new technology. From Benjamin Franklin and his lightning rod to Thomas Jefferson and his better moldboard plow, these were men who had been enamored with new technology as solutions to contemporary problems. They gave us a constitutional system with the flexibility and endurance to survive more than 200 years of economic, military, and social disorder. No one needs to like this virtual democratic system, however, it is far better for our government to function from a distance than to not function at all.
(This article recently appeared in The Hill newspaper.)
(TLB) published this article from Jonathan Turley with our appreciation for this perspective.
Professor Jonathan Turley is a nationally recognized legal scholar who has written extensively in areas ranging from constitutional law to legal theory to tort law. He has written over three dozen academic articles that have appeared in a variety of leading law journals at Cornell, Duke, Georgetown, Harvard, Northwestern, University of Chicago, and other schools.
After a stint at Tulane Law School, Professor Turley joined the George Washington faculty in 1990 and, in 1998, was given the prestigious Shapiro Chair for Public Interest Law, the youngest chaired professor in the school’s history. In addition to his extensive publications, Professor Turley has served as counsel in some of the most notable cases in the last two decades including the representation of whistleblowers, military personnel, judges, members of Congress, and a wide range of other clients.
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