Citizens’ juries: Some cautionary measures

The ‘counter-majoritarian difficulty’ has led to an endless debate on the legitimacy of judicial review. Some scholars have challenged the authority of judges to interpret bills of rights, and proposed solutions based on the institutional design of judicial review. In his work, Ghosh has addressed this issue and come up with a design in which citizens exercise an eminently active role. He seeks to implement republican devices—such as sortition and citizens’ juries—that are likely to alleviate the current problems of constitutionalism. However, while random samples can be a very attractive choice for institutionalizing a deliberative societal mechanism of constitutional interpretation, the egalitarian appeal of these mechanisms wanes in the absence of corrective methods for the selection process (e.g., quotas). Without these cautionary measures, no sampling method can be completely representative of the entire population, especially in highly heterogeneous societies.