Democracy or a Constitutional Republic?

February 1st, 2022

By Peter Hill

Words are important.

They tell us things. Sometimes they tell us things that perhaps were not intended to be communicated. That is, the choice of words can be very significant, especially in revealing a political philosophy or orientation.

Consider how progressives (usually Democrats) almost always refer to our nation as a “democracy.” Consider how conservatives (usually Republicans) more frequently refer to our nation as a “republic”, or even a “constitutional republic.” Which is more accurate? And if one term is more accurate than the other, why does the other party insist on using a historically incorrect word? In describing our system of government, common options include democracy, democratic republic, constitutional republic, republic, and constitutional democracy. Are some of these choices better than others? Why do so many choose “democracy”?

These words are important because they indicate, perhaps subtly, the differences between progressives and conservatives in their perceptions of the nature of our federal government, and therefore the expectations of our federal government.

One could find many examples, but President Biden’s January 11, 2022 speech in Atlanta in favor of the progressive new federal voting rights bills is illustrative. As recorded by the Washington Post and found on YouTube, in his 30-minute speech (found here Watch Biden’s full speech on voting rights – YouTube). This is how often President Biden used these terms:

Democracy – 20

Justice – 4

Freedom – 2

Damn – 2

Democratic – 2

Liberty – 1

Hell – 1

Republic – 0

Constitutional republic – 0

Democratic republic -0

Constitution – 0

Constitutional democracy – 0

The point of this essay is not to evaluate whether these proposed bills (as of this writing passed in the House but not in the Senate) are good policy or bad policy. I merely intend to use this speech to illustrate how language is used. President Biden obviously thinks the U.S. is a democracy, and has a distinct preference for the use of that word.

“A democracy was, according to the first political theorist, Aristotle, one of three bad forms of government, along with tyranny and oligarchy. It has been rehabilitated since then. In popular parlance it means government by the people. The people decide what to do. There is no higher authority than the people. The people directly vote on matters, and the majority rules, regardless of the (in)justice of the act, or the consequences for the minority. I demonstrate democracy in action in my college classes by having a majority select – by voting – a minority (of one or many) to buy ice cream for the entire class. Democracy tends to lose its appeal for those who must buy ice cream for everyone else. (However, just as most democracies end in tyranny, so I assume benevolent dictatorial powers, granting a dispensation and releasing the minority from the ice cream obligation at the end of class.) In real life democracies, however, the many tend to have the few “share” more and more things with the many until there is no longer any ice cream. But that does not matter too much because by that time there are no funds left to purchase ice cream anyway.”

Democracy can enslave a minority, impoverish a minority, imprison a minority. It can be as tyrannical as the rule of a dictator. That is what democracy means, and what democracy leads to. But for progressives, “democracy” generally means, well, what? Humpty Dumpty explained to Alice in Lewis Carroll’s Through the Looking Glass, ‘“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean – neither more nor less.”’ Progressives use the word “democracy” in the same way. It means exactly what they want it to mean. At that moment.

The word “democracy” is not to be found in the Constitution. The first authoritative commentary on and explanation of the Constitution, the Federalist Papers, mention “democracy”, but always negatively, as something to be avoided. The Framers preferred the term “republic” because the newly proposed government of the U.S. was, well, a republic. That is, people voted for representatives to represent their interests. A republic is representative government, rather than direct government by the people.

James Madison compared democracies with republics in his Federalist 10, written in 1787.

[A] pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole… and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths…

A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking.

Nonetheless, there are democratic elements in the Constitution. People vote, and that may well be the strongest mark of a democracy. But, as originally written, our Constitution only provided for one direct, democratic vote. That was when people voted for representatives of the House of Representatives. That was “one person, one vote.” But members of the Senate were not democratically elected. (They are, now, after a Constitutional amendment.) They were elected by members of the state legislatures. When Abraham Lincoln lost the 1858 Senate election in Illinois to Stephen A. Douglas, he lost not because he received fewer votes from the people, but because he received fewer votes from a Democratic Illinois legislature. When Henry Clay was elected to the U.S. Senate from Kentucky, he was elected, not by the direct vote of the people, but by the Kentucky legislature. The President is not elected directly by the people. Instead, the people vote for electors, and the Electoral College votes for a President. Members of the Supreme Court are not elected directly by the people, but the President nominates and the Senate must confirm a nominee.

The Constitution provides for many votes, but only one direct vote by the people. Most votes are cast by the people’s representatives.

So, why do progressives call the U.S. a “democracy?” rather than a “constitutional republic” or “constitutional democracy” or some other more accurate term? It is because progressives cannot abide the constitutional restraints on governmental power, and desire a much stronger government not constrained by the constitution. As seen above, there is no limitation on political power in a pure democracy. But, as we will see when we cover the Constitution in more detail, there are significant limits to federal governmental power under our Constitution.

The conservative measures the desirability of a government policy by two criteria. First, will it provide a good public policy outcome? Second, is it permitted by the Constitution? For the conservative, the measure of legitimacy of a governmental act is whether it is consistent with or permitted by the constitution. For the progressive, the measure of the legitimacy of a governmental act is not whether it is consistent with the Constitution, but whether it is “democratic.” Progressives do not want to live in or operate under a constitution that limits governmental power. That is why progressives frequently complain about the federal constitution and many would be quite willing to get rid of it so that they can implement their public policy choices without a constitutional limitation.

The fact that President Biden referred to “democracy” 20 times, and never mentioned the constitution, is more than suggestive. It is indicative of his perspective, and a general progressive perspective, on democratic power (good) and the constitution (often seen as a mere obstruction to democratic power, and therefore bad). It is why progressives prefer to speak of the Constitution as a “living document” which changes meaning over time, resulting in more “democratic” interpretations of the Constitution. Progressive Humpty Dumpty is invited to interpret the language of the Constitution, which may be different tomorrow from what it means today.

And how would you like to be subjected to either conservative or progressive policy decisions with no limit by, e.g., the Bill of Rights? How would you like to be subjected to conservative or progressive policy unilaterally imposed by a President, without Congressional action, and without judicial review by a court to determine its constitutionality? For the progressive, these are desirable outcomes if and because they are “democratic” or progressive outcomes. The policy outcome is all that matters. For the conservative, on the other hand, these are undesirable outcomes because they are progressive, and they are objectionable outcomes because they are unconstitutional. The constitutional conservative objects even to conservative policy outcomes imposed unilaterally by a conservative President. The policy outcome may be good, but it is illegitimate and unconstitutional because it was not promulgated consistent with the Constitution.

Consider President Biden’s speech again. His repetition of the word “democracy” and complete lack of reference to a constitutional republic or even the constitution, indicate he has adopted the progressive standard promoting “democracy” against the limits on government as found in the Constitution. What constitutional provision would he not sacrifice if he could just have his next progressive regulation, law, or executive order? And the next. And the next. And the next…

© Peter Hill, 21 Jan 22