If you are exposed to enough politics, sooner or later you’ll hear the old saw that the U.S. is “a republic and not a democracy.” Along with that saying goes the following claim: Allowing voter initiatives and referenda is unconstitutional: If a state lets voters enact laws or veto tax hikes, the state is too democratic to meet the Constitution’s mandate that it have a “republican form of government.”
A new Independence Institute Issue Paper, which I authored, examines those assertions in detail. The Paper shows that both are essentially myths.
The nation’s best-known measure requiring voter approval of most tax hikes is Colorado’s Taxpayer Bill of Rights (TABOR), adopted by the voters in 1992. This Issue Paper is published in response to a legal attack on TABOR: A group of government apologists has sued in federal court claiming that by limiting legislative control over fiscal measures, Colorado has violated the U.S. Constitution.
In a nutshell, the new Issue Paper finds:
* The American Founders did not firmly distinguish between a “republic” and a “democracy.” Some used the two words as if they were synonymous. Some adopted the view of Montesquieu that there were two kinds of republics: (1) Those controlled by a few (aristocracies) and (2) those controlled by the many (democracies).
* Dictionaries of the time defined “republic” as merely a popular government, as opposed to a monarchy. One encyclopedia-type dictionary included an article tracking Montesquieu’s definitions.
* In drafting and debating the Constitution, the Founders talked a lot about republics. In most of the governments they identified as republics (like the Athenian and Roman), citizens voted on all laws.
* Various Founders stated explicitly that in republics the people could make laws directly as well as through representatives.
* The only kind of democracy the Founders thought “unrepublican” was what Madison (following Aristotle) labeled “pure democracy.” This was a theoretical form of government without officials, and where the mob ran everything in defiance of the rule of law. Other terms for the same thing are “mob rule,” “mobocracy” and “ochlocracy.”
* The dominant purpose of the Constitution’s mandate that states have republican forms of government was not to prevent popular votes at the state and local level. (In fact, referenda already were being used in some states.) The dominant purpose was to prevent any state from becoming a monarchy.
* The twin myths—that the Founders drew a sharp line between “republics” and “democracies” and that citizen lawmaking is unrepublican—did not arise until the 1840s, when conservatives invented and promoted them in response to disturbances in Rhode Island. In fact, until about 40 years ago, it was mostly conservatives who made such arguments. Beginning in the 1970s, liberals adopted them while opposing measures that give the voters “a say in what they pay.”
EXECUTIVE SUMMARY OF THE PAPER
Opponents of popular participation in government have long argued that when a state constitution or legislature permits the people to vote on revenue measures and other laws, this puts the state out of compliance with the U.S. Constitution’s Guarantee Clause: the requirement at all states have a “Republican Form of Government.”
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Traditionally, their argument has been that the Constitution draws a sharp distinction between a republic and a democracy, and that citizen initiatives and referenda are too democratic to be republican. Recently, a group of plaintiffs sued in federal court, challenging Colorado’s Taxpayer Bill of Rights (TABOR) relying on a variation of this theory.
In this Issue Paper, Professor Rob Natelson, Senior Fellow in Constitutional Jurisprudence and the author of the most important scholarly article on the Guarantee Clause, sets the record straight.
Marshaling evidence from Founding-Era sources and from the words of the Founders themselves, he shows that the phrase “Republican Form of Government” permits citizen lawmaking—and that, in fact, most of the governments on the Founders’ list of republics included far more citizen lawmaking than is permitted in Colorado or any other American state. He further shows that the principal purpose of the Guarantee Clause was not to restrict popular government, but to protect popular government by forestalling monarchy
DOWNLOAD THE FULL PAPER HERE (.pdf)
Arguably, what many mean by the modern understanding of the word “Democracy” is precisely what the founders would have called a “Mobocracy” – meaning that by means of a vote democracies may determine the scope of the subjects and objects of their powers.
The founders had some tolerance for democracies determining their own subjects by vote. The landowner rule is an example. Non-landowners would be subject to the democratic votes of the landowners by virtue of the landowners vote that it was so.
The founders had little tolerance for the idea that the objects of democracy can be justly determined by majority vote. They conceived two devices to prevent simple majority vote from determining the objects of power: Charter and Threshold.
By charter, of course, I am referring to a legalistic compact. By Threshold I am referring to the concept that increasing levels – or intrusiveness – of authority require increasing majorities…perhaps devolving to ultimate majorities -meaning unanimity.
Of course, the Thresholds would be themselves determined by compact. So, in practice, it is the compact that matters.
It seems to me that this ancient conception of “Rule of Law” rests on compact. It further seems to me that the modern conception of “Rule Of Law” concerns the inviolability of judgements and appeals as determined by procedures defined and implemented by members of a Legal Cartel – which is to say ultimately defined and implemented by means of privilege.
The two conceptions of “Rule Of Law” are at odds.
The ancient conception of “Rule of Law” rests still on compact. The modern conception of “Rule Of Law” rests on privilege.
Thus the modern interpretation of “Democracy” is unlimited in its objects, bounded only by privileged decisions called “Rule of Law”. And when the “Democracy” part and the “Rule of Law” part are in conflict, “Rule Of Law” that must give way because it relies on a Cartel – a privilege – granted by the “Democracy”. In this way legitimacy, in the modern view, springs from Democracy. The greater the Democracy, the greater the legitimacy. And the further from the Greatest Democratic body a given law or power lies, the less legitimate. In this way the “Democracy” may alter or abolish the Legal Cartel’s rules and decisions as well as compacts created by smaller or constituent majorities. And the Legal Cartel can strike down compacts made by lesser Democracies.
This is the modern legacy of John Marshall – though arguably not as he actually asserted it – in the Marbury decision. The modern legacy being that the Court can rule what is or is not outside the compact.
Meanwhile the ancient conception of a “Democracy” requires compacts to determine its objects. And it is this series of compacts that is called “Rule Of Law”. In this conception legitimacy is determined by the intimacy of the compact. Thus in this conception individual and local compacts “The People” are prime compacts that lend authority to greater and greater aggregations. In this way, the more intimate compacts -”The People” – may alter or abolish the decisions or existence of their accustomed forms of government – the greater compacts – with the least legitimacy devolving to the greatest compact. This is why The Constitution required a referendum rather than a vote of Congress, or of the Legislatures.
And with regard to the modern conception of Marbury – the compact itself specifies that powers outside the compact lie with the Parties to the compact – the States and the People – and not with ANY department, branch, or body subject to the compact.
The founders would have thought thought the proper words for the modern conception of the words “Democracy” and “Rule of Law” to be “Mobocracy” and “Tyranny”.
The modern conceptions stand the ancient ones on their head.
I actually think that democracy as defined by classical liberal thought is much broader than just a democratic body. Locke thought that they only logical thing that can determine a common rule for everyone to live by is when it is determined by at least a majority of the people. Anything less wold be a dictatorship since a very few can impose their will on the rest. If everyone has an equal say in what laws are to be created then only a majority would suffice but the basis of this idea assumes everyone has a basic natural right to power as anyone else. No one single individual can do this and neither can a minority. Having 100% agree is not practical so it has to be somewhere between a majority and 100% agreement. Democracy, in Washington’s time, had to include much more than just method of how laws are to be passed. It had to include the idea that everyone is equal in the eyes of the law which means everyone has equal rights as well. This is why I think democracy might have been much more than a process but included a lot of other ideas.
@onetenther
I agree that the classical view was different than the modern view…and that is the whole point.
Moreover, Locke and others (probably as a result of the Magna Carta) did not share the view that the objects of democracy – and by objects I mean the topics that were subject to democratic review, vote and control – were unlimited. They came under the sway of democratic review only with the consent of the governed.
Or in his words:
“…and thus everyman, by consenting with the others to make one body politick under one government, puts himself under an obligation to everyone of that society to submit to the determination of the majority and to be concluded by it.’
And Locke’s view when the legislature exceeds the consent for powers delegated to them the subject has the right to withdraw consent,
“…the legislature being only a Fiduciary power to act for certain ends, there remains in the people a supreme power to remove or alter the legislature, when they find it act contrary to the trust reposed in them.”
Locke construed democracy this way because, in his view, Men were compelled to form governments for the purpose of preserving the freedoms they already had in a state of nature from the invasions of other men.
Therefore:
- The ultimate seat of authority is the individual.
- Government is a limited union for the purpose of the mutual preservation of freedom.
- Government, by its very nature, is a compact, an agreement between two or more people.
- Government authority is subject to individual consent and not the other way around. The alternative to consent to government is to face possible predation alone. Notably this does not LEGITIMIZE the predation, particularly on the part of a government, because predation does not preserve freedom.
This is in contrast to the modern view. The modern view can be summed up with the words, “The greatest good for the greatest number, as determined by the greatest number.”
- This view totally dispenses with individuals and assigns value only in relation to the greatest number of voters. Both the subjects (the people to be governed by) and the objects (the objects to be governed by) of a democratic vote are determined by majority vote.
- In this view, freedom is totally unnecessary and, in fact, impossible, since any two people can vote to take any action whatsoever with regard to a third person, whether that third person recognizes himself as subject of a vote or not. For example: A vote by China or India could LEGITIMATELY declare every US citizen as CHATTEL PROPERTY, and that the real property and capital of the US was now part of China/India. The fact that US citizens do not recognize themselves as subject to Chinese votes would be irrelevant because the Chinese/Indian votes would be more numerous.
So:
-Predation by government is wholly legitimate so long as those voting for predation outnumber those who oppose it.
The Lockean view would have been what the founders meant by “Democracy”.
The modern view of “Democracy” fits nearly to a tee with the founder’s view of Mob-Rule.
@GordonJohnson Me and you think alike. When classical democracy changed to the modern form it did so by dropping property rights. Property in classical democracy was untouchable which channeled its legislative efforts towards protecting existing property and an individual’s right to obtain property through contracts. Modern democracy through that away so now it does the opposite and doesn’t respect the individual whatsoever. The key was the role of property in both versions of democracy.
@GordonJohnson The point I was making was that just to think the people should be in control of the government and the laws implies that you also think that each person is a political equal to the other which gives them equal rights.
A Republic is a Rule of the People by Law!
A Democracy is a Rule of the People by the Majority.
Our Constitution Decalres that we are a Republic.
Yes! We have Democratic Elections, but a Republican Rule of law,
ie. the people make the laws through petetion to their elected Representatives.
If the People don’t like the laws that are made in their name, they can void them
via the Nullification Process. This is why our form of government is unique in
all history and why consepts of all other forms of government from Europe are
not valid in America. It is these forign heathen ideas that are tearing our nation
away from our Heratage and our God, and why God cannot bless us anymore.
The Remedy is in II Chron, 7:14.
The standard for all laws is set and is immutable by our founding document, the
Declaration of Independance, which is a Covenent (legal contract) with God. This is
why George Washington was sworn into office with his hand upon a Holy Bible
opened to Deut. Chapter 28. Everyone needs to read this. It is a mandate to all
government employees, elected or otherwise. It is the context in which our Liberty
and Constitution protect us.
What is the standard given in our Founding Document, the Declaration of Independance?
It’s in the first paragraph. ……”the Laws of Nature and Natures God”…… The God of
Abraham, Issac, and Jacob, aka Torah, the first five books of the Bible. This is why
we are called a “Christian Common Law Republic”. Common law is God’s law.
You want to know where we messed up and got us into this rat hole? See Deut, 28.
The Churches in America have failed us. They are supposed to be a foundation to the
“Light of the World”. Our National Conscience.
In discussing the inclusion of a Bill of Rights to the proposed federal constitution, the Federal Farmer wrote in 1787, “There are certain unalienable and fundamental rights, which in forming the social compact, ought to be explicitly ascertained and fixed …. and if the people be so situated, or have such different opinions that they cannot agree in ascertaining and fixing them, it is a very strong argument against their attempting to form one entire society, to live under one system of laws only.”
Enter our founders paradigm of federalism. As an independent voter, my national vote goes to conservative representation which happens to be majority republican. With local affairs, I tend to choose democrats. My message being that in our founders’ equation of federalism, both a republic and a democracy are necessary. While the prior variable is mostly based on constitutional law, the latter variable is used to balance the result. Our Union will surely fail if these factors become more corrupted and are unable to maintain this stabilizing relationship.