In the following pages I wish to make a case for America not being a democracy. Rather, I contend we have a firmly based republic which relies on limited and enumerated democratic tools to serve our Republic. I will point out the significant differences between the two forms of government, and point to evidential materials that support my theory of incompatibility.
What form of government did the people of early America wish for? The following excerpt from Doren will give you some insight:
“To you,” the orator said, “your country looks with anxious expectations, on your decisions she rests, convinced that men who cut the cords of foreign legislation are competent to framing a system of government which will embrace all interests, call forth our interests, and establish our credit. But in every plan for improvement or reformation, may an attachment to the principles of our present Government be the characteristic of an American, and may every proposition to add kingly power to our federal system be regarded as treason to the liberties of our country” (108).
The above words were spoken by James Campbell, an orator, addressing, the “Illustrious Senate.” They were there to either participate in or watch the spectacle which was planned to mark the beginning of an important day for the members of the 2nd Constitutional Convention. Just before the delegates entered the hallowed halls to continue their work on establishing a free and independent nation under one cover, a member of the Society of the Cincinnati, called for a toast to “The Grand Convention—may they form a Constitution for an eternal republic” (qtd. in Doren 109). A republic? He meant a democratic republic, right? No. Perhaps he meant to say a republican democracy? Actually, what he said was again echoed by Ben Franklin as he and the other delegates were leaving the Hall a few hours later; a young woman asked Franklin what kind of government they had given us. His reply was, “A republic, if you can keep it” (Kurowski).
Republicanism has nothing to do with party politics. Rather, it is a form of government, a form which is guaranteed to all States in our Constitution : “The United States shall guarantee to every state in this union a republican form of government, …” (Take care to differentiate between our democratic process and our so-called democracy as you read this paper; likewise, be careful to discern between Republican (party) roots and our republican roots. Further, do not assume that “democratic” constitutes or verifies a democracy.)
In Webster’s 1828 dictionary we find that a republic is, “A commonwealth; a state in which the exercise of the sovereign power is lodged in representatives elected by the people. In modern usage, it differs from a democracy or democratic state, in which the people exercise the powers of sovereignty in person.” Thus, republican would be, “Pertaining to a republic; consisting of a commonwealth; as a republican constitution or government.” and, “Consonant to the principles of a republic; as republican sentiments or opinions; republican manners” (Webster’s). So a republican would be “(o)ne who favors or prefers a republican form of government” (Webster’s). Thus, it follows that republicanism is “a republican form or system of government” and not necessarily tied to any type of party or socio politics. Though there are pervading theories on republicanism, James Madison’s (often referred to as the Father of our Constitution) theory is the one most relevant to America’s founding, as well as to this paper. His philosophy is closely conjoined with that of polity and Aristotle (Kearns).
What do we mean by democracy? The word itself is a combination of two Greek words: “demos”—people; and “chrateow”—to govern. A democracy, then, is a government “for the people, by the people.” It is further defined in Webster’s 1828 Dictionary thus: “(A) form of government in which the supreme power is lodged in the hands of the people collectively, or in which people exercise the power of legislation. Such was the government of Athens.” Thus, a democracy, i.e., a true democracy, cannot have elected officials acting on behalf of the people. Rather, the people themselves enforce the laws; this is government by the people, and for the people. So, what are we saying when we call America a democracy? Someone may say, “What we have is a democracy, but not a pure democracy.” Or, perhaps one may follow-up with some modification by claiming we have a “constitutional democracy.” Do we not then have something other than a democracy? The difference between a democracy and a “whatever” democracy is likened to that of a car and a side car, a small change in wording and we have a significant change in meaning as well as application.
Both Republics and Democracies have well-documented pasts to draw from and extrapolate their efficiencies in public as well as private domains. However, as Hall points out, democracies mostly grew out of republics, and they had the “experience” of republican dogma to benefit from. He goes into depth about republicanism being rooted in theistic (religious based) beliefs, tracing this line of thought even to biblical events.
There are many forms of ideology in intellectual circles trying to blame the “institution” of republicanism for their hardship. Notwithstanding, even their rhetoric demonstrates America is in fact a republic. Feminist dogma (at its best), for instance, does not attempt to deny or even hyphenate republicanism (Nelson). I do agree with questioning republican fundamentalism; those that are fair and honest in their quest for a better world can only embolden the best of whatever is available. If a republican foundation is not what is best for America, then let’s come to that conclusion and make the necessary changes, above board. If, “(o)ur Constitution was made only for a moral and religious people,” as declared by John Adams, and, if that parameter no longer applies, then let’s declare that notion, and work on another foundation (Gowdy). The slow and demoralizing act of sliding a liberalized agenda into and under our republican base is only making life accumulatively more complicated, evidenced by the ever-increasing need for more “band aid” legislation Thus, we have the “wagon wheel” affect: more legislation we get, the more we need. Hall reminds us of an old adage from the biblical character, Solomon: “There is nothing new under the sun,” and he makes the case that “all political ideas have precursors.” If this is the case, and I think it is in the big picture, then we need to review the past for some real wisdom.
Part of the quandary I see is in the philosophical differences and the contrasting incompatibility between a republic such as ours, and a democracy; our republic is founded in theistic Sovereign beliefs from which the people have unalienable rights under the common (natural) law , and our democratic idealisms are rooted in a usurped form of man’s law (Honeycutt). The commonly understood philosophy of republicanism governs by way of internal morality , i.e., “of” the people -- and democratic idealisms govern through external means, i.e., “by” and “for” the people. American republicanism requires (demands) self-motivation and individual accountability by way of godly ethics and moral conduct—democracy allows for group control and group sharing in responsibility, through man’s legislation, to regulate conduct. Republicanism demonstrates character, industrious behavior, and promotes the importance of individual sovereignty. It presupposes that rights are natural to Man, flowing from the Sovereign, then delegated by enumeration to a republican form of government. Democratic theory demonstrates collusiveness: a collective responsibility promoting a class-based society where the majority rules, guided by the needs of the moment.
With these two theories of governance, Congress finds itself in overtime continually throwing “band-aid” legislation into the mix. The very nature of this process requires Congress to identify groups and classes of citizens, ensuring a befuddled and divided citizenry, as well as sending confusing messages to our posterity. Thus, we are accustomed to hearing legislators brag about the number of bills they sign, as is noted by Brian Bissonette. He also explains that this process “poses a direct and immediate threat to Americans’ liberty as guaranteed in the Constitution.”
There are many examples of the confusion we the people experience as these two systems collide: a recent case in point is the insurance initiative placed on the ballet a few years ago in California. The voters approved this particular measure, but the Courts later overturned what the voters wanted (Judge Strikes Down). This effectively turned off many dismayed (and uninformed) citizens, many of which have not exercised their right to vote since. The problems can also be seen within our civil body as well: ex. Johnny is told to be responsible (republican theory), but when he falters, liberalism (democratic theory) rushes in to say Johnny was abused.
A “direct democracy, ” which is becoming the norm among the several states, is the normal progressive path for democratic idealisms. This “path” clearly leads us away from the constitutional standard of being governed by laws to being governed by Men. Said another way-- “While it (the Federal doctrine of popular sovereignty) gave legitimacy to the new regime, the political institutions created under the Constitution precluded that the public would directly operate the government” (Kearns).
From our beginnings until the late 19th century, America understood its republican roots—Tocqueville describes the instability of dual political systems fighting for control, but he made this “astonishing” observation in 1835 America.: “(T)he republican principle is as dominant in America as that of monarchy was in the France of Louis XIV. … they accepted it as one accepts the sun’s course and the succession of the seasons” (398). And Tocqueville continues with his uncanny observations, made prior to any hint of socialized government interference, saying, “In America the republic is in just that position, existing without contention, opposition, argument, or proof, …” (398). Then, a few paragraphs later, he warns, “… the present tendency of American society seems to me to be towards ever-increasing democracy” (399). We were forewarned nearly 170 years ago, and yet, we march on to what Tocqueville believes will eventually lead to an aristocracy (399).
Abraham Lincoln made mention of "of, by, and for" as a description of America. His famous speech that we now call the Gettysburg Address, given in Gettysburg, Pa., on November 19, 1863, concluded by stating, “… that this nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people shall not perish from the earth” (USHDA).
Historically, there are references to by and for, but nothing specifically stating government of the people in such a definitive manner. Was this admonition of of proclaimed for the mere flow of words in a speech, or perhaps, was President Lincoln on to something? When we speak of of the people, we are furthering the understanding of American politics beyond the democratic elements of by and for. Of, or rather, from among, alludes to some sort of representation, a representative form of government. Having, then, chosen a representative form of government, we have added a new dimension to the understanding of American constitutionalism, and the element of of must be understood, in my opinion, for true American liberty to continue unto our posterity.
Our founders specifically and intentionally did not create a democracy. Rather, they created a republic. Then, and only then, in order to integrate a form of regulatory government, they came up with a brilliant plan (to read: separation of powers, etc.) to insert an encumbered and limited democratic public process within our republic: a “democratic public process,” and not a democracy. But since its inception, coupled with an evolution of legal (and other) terms, an ambiguity has arisen that has our now dual-system of government co-mingling and distorting the perfection of our republic, not to mention its’ people. Michael Novak puts it this way:
In displacing the action of human charity, in other words, the Social Assistance State displaces the “little platoons” that give life its properly human scale, and generates a “mass society,” impersonal, ineffectual, counter-productive, and suffocating of the human spirit. In displacing the vitalities of a thick and self-governing civil society, the Social Assistance State diminishes the realm of responsible personal action (99).
This lack of understanding among the people has been helped along, in part, due to an evolutionary process which our language is constantly susceptible to. This process causes problems because we tend to use modern-day definitions when we scrutinize legal documents from our past, including our still current founding documents. In fact, our judicial officers have taken it upon themselves to create a whole new language by mandating definitions of specific words contrary to their standard use/definition. For instance, the word include is an all-encompassing word meaning to take in, or compromise; this is the normal way we read this word. However, at law, include can be exclusive, meaning the exact opposite. The meaning in, for instance, a statute of the Internal Revenue Code (IRC), can have an exclusive meaning, the exact opposite. When you read a passage of the IRC, in which a particular set of references are addressed to include other matters, it is likely to mean that only those persons, places, or things listed are relevant—Huh? Ex. The flight of the chicken includes the erratic flapping of wings— from this example, we would assume the word includes tells us that there is more, besides “erratic flapping,” involved in a chicken’s attempt to master the air. But if we use the likely definition at law for includes, it means that only the erratic flapping is involved. As we all know, our Legislature is our law making body. But, if I had the power to interpret, and that power included defining the words within our (legislated) laws, would I not also have the power to “make” law? The California Vehicle Code clearly states that “(s)hall is mandatory, and may is permissive” (Motor Vehicles, Section 15). What this means is that the State Legislature has set a standard for these two words, a standard they adhere to when they create legislation (law). However, to get around this standard, our courts have come up with their own definition: It is well settled (case) law that shall is mandatory, UNLESS a more permissive interpretation is necessary to meet the needs of the Legislature (see O’Rourke). Apparently the Courts are saying that they know what the Legislature means better than the Legislature itself. To codify the law, and nullify the common law, the wording had to seem specific but be ambiguous, thus, requiring an unnatural amount of authority and latitude on behalf of our Courts. Modifications in the original philosophy that legitimized our republican roots had to be implemented, and legal definitions had to become infinitely definable, to wit, judicial activism. Former Chief Justice Roger Taney put it this way in the infamous Dredd Scott case:
It (the Constitution) speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, … Any other rule of construction would abrogate the judicial character of this Court and make it the mere reflex of the popular opinion or passion of the day” (30).
This sentiment is again echoed 140+ years later by the few who understand, including Supreme Court Justice Scalia. Kertscher reported on a speech given by Justice Scalia in which the Supreme Court Justice said, The Constitution is not an organism. It is a legal document.” Kertscher goes on to say that Scalia explained that “(j)udges who don’t adopt an originalist or “textualist” approach … have no judicial philosophy and issue rulings based on majority view of society at a given time.” This effectively means that judges who buy into this “living document” idea, have set aside their requirement to practice republicanism based on the constitution, and have opted for a “no rules” philosophy in which they can act far beyond their intended powers only acting on democratic and other whimsical concerns.
I think I can briefly demonstrate a technical parallax caused by this dual system by saying this: These two separate and unequal (common law being the superior) systems have actual, as well as technical, compatibility problems. Statute (civil) law’s unitary system of obligations allows for a similar means of enforcement, its obligation and performance notwithstanding, while the common law is generally unwilling to award certain types of non-injurious tort damages (Tetley). Consequently, the courts have had to comparatively view their own interpretations, sometimes by “stretching” the meaning of a pivotal word or legal term, and effectively remove themselves from direct constitutional law, i.e. the stare decisis doctrine: a binding tenet in which the court can rely on previous rulings [case law] and have total immunity (Perell). Their obvious lack of willingness to be responsible is a part of the “cancer” we encountered when socialized idealisms (democracy) entered the American political arena.
Further, though most, if not all, jurisdictions have now successfully legislated the common law’s usage to mere patronizing levels (and even instituting codified Sections addressing the nullification of the common law), this philosophy is at a stand still; such idealisms have worked their way all the way up the edge of our United States Supreme Court, effectively encountering an estoppel, for our most direct constitutionally created Court is, and can only be, a common law court. This Honorable High Court exists only because of the Constitution, a common law document for which there is no higher (legal) authority (Weller). This “stoppage” clearly shows the imperfection of juridic/statute law as well as its incompatibility with the common law.
Why/how did this happen? We the people have forgotten our republican principles, i.e. the “of” in “of the people.” These principles are based on natural rights which come from a source that is untappable, untransferable, i.e., unalienable, as is clearly noted in our Declaration of Independence (Weller). Republican dogma is a philosophy contradictive to a democracy, for you and I have individual and unalienable rights which cannot be voted away by the whim of the people’s will collectively, a profound fact that nullifies any idea that America is a democracy.
The Honorable James Madison spoke extensively on the subject of unalienable rights. Judge Story, and many others since, has continually reiterated Madison’s words that, “a delegated is not a surrendered power.” (Upsher vii) This means the states did not give up any powers of its’ citizenry when the Constitution was ratified. And, likewise, we can retrace our political steps back to the states and uniformly apply this delegation (as opposed to transferring) of power: no private individual (as opposed to a person) gave up any right when we declared “to a candid world” that “all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”
We need to revisit this idea of American democracy. Novak tells us that not until some time after 1969 was there any professional historical analysis of The Federalist Papers. Up to that time, one could easily find a complete analysis of Marxism. But “to locate a Madisonian, Jeffersonian, or Hamiltonian historical analysis was a difficult task indeed” (108). The negative impact of democratization, though quite clear in the minds of our founders, is an idea that became virtually lost within a generation of their passing. And, though today’s democracy is filled with far more freedoms than yesterday’s republic, today’s democracy affords a contemptible amount of Liberty.
Works Cited
Bissonette, Brian. “Defeating Legislative Mountains.” The Cavalier Daily 2 Feb. 1996. The Cavalier Daily. 2 Jul. 2002
.
Black, Henry C. Black’s Law Dictionary. 6th ed. St. Paul: West Publishing, 1993.
Code of Civil Procedures, California. California: West Publishing, 1994.
Conner, Ken. “Fighting for a Virtuous Nation.” Immigrants For America. 23 Sep. 2001. Immigrants For America. 2 Aug. 2002 .
Gerston, Larry, and Terry Christensen. California Politics and Government. 6th ed. Orlando: Harcourt College Publishers, 2001
Hall, David W. “The Reformation Roots of Social Contract.” Center for the Advancement of Paleo Orthodoxy. Oct. 1997. The Covenant Foundation. 26 July 2002 .
Holmes Jr., Oliver, W. The Common Law. Ashland: Blackstone Audiobooks, 1994
Honeycutt, Patricia P. “State of North Carolina vs. Respondent’s Second Memorandum.” North-Carolina, American Republic. Mar. 2001. North Carolina Republic Org. 1 Aug. 2002 .
Hunt, Gaillard, “The Writings of James Madison” New York: G.P. Putnam’s Son, 1906.
Internal Revenue Code (IRC). Chicago: CCH Incorporated: 1994.
"Judge Strikes Down Zip Code-Based Auto Insurance Rates." Consumers Report 24 June 1998. Consumer Union. 24 Jul. 2002 .
Kearns, John. “James Madison on the Relationship Between Democratic Theory and Federalism.” Welcome to Dr. Kearns Homepage. 9 Mar. 2001. Armstrong Atlantic State University. 21 Jul. 2002 .
Kertscher, Tom. “Scalia Slams ‘Living’ Document Philosophy.” JSOnline 13 Mar. 2001. Milwaukee Journal Sentinel. 21 Jul. 2002 .
Kurowski, John. “A Republic if You Can Keep It.” GeoffMetcalf.com. 17 Aug. 2001. CalNews.com. 1 Aug. 2002 .
Lincoln, Abraham. “The Gettysburg Address.” Liberty Online. 1999. Liberty Online. 23 Jul. 2002 .
Motor Vehicles, California Dept. of. Calif. 1998 Vehicle Code. State of California: 1998.
Nelson, Anna L.; John S. Nelson. “Institutions in Feminist and Republican Science Fiction.” Tarlton Law Library. 1998. University of Texas School of Law. 18 Jul. 2002 .
Oxford Desk Dictionary. Berkley Books, New York: 1997.
People v O’Rourke, 124 Cal.App. 752, 13 P.2d 989, 992
Perell, Paul. Stare Decisis and techniques of Legal Reasoning and Legal Argument. 1995-2000. Canadian Legal Research. 18 Jul. 2002 .
Tetley, William. "Mixed Jurisdictions: Common Law v. Civil Law." International Institute for the Unification of Private Law (UNIDROIT). 17 Mar. 2000. 18 Jul. 2002 .
Tocqueville, Alexis de. “Democracy in America.” Exploring Democracy in America. 2000. C-SPAN. 21 Jul 2002 .
Upsher, Abel. "A Brief Enquiry into the True Nature and Character of Our Federal Government." Welcome to the Constitution Society. 25 Sep. 1995. Constitution Society. 22 Jul. 2002. .
Webster’s 1828 Dictionary of the English Language. 12th Ed., F.A.C.E. San. Fran., Ca. 2000
Weller, Mathew. U.S. Historical Documents Archives. 1995-2002. USHDA. 15 Jul. 2002 .
Wood, Gordon. Creation of the American Republic. Chapel Hill, N.C.: University of North Caroline Press, 1998.
Notes:
1. Article IV, Section 4
2. The Declaration of Independence clearly states that we have inalienable rights endowed by our Creator. Further, this same document gives rise to the idea that these rights are common and natural by way of “… nature and nature’s God …”
3. The following online article will briefly give some insight into the basics of republican philosophy: (Wood).
4. Internal morality is distinguished from external morality- Internal morality denotes one’s infinity to please God and is thereby controlled by a theistic sense of right and wrong; external morality denotes the use of legislation (law) to control behavior. I am surmising internal morality is necessitated and thusly perpetrated by republicanism based on a quote by John Adams, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other” (Conner).
5. “Direct democracy” was introduced to California by the Progressives in the early 20th century, in part, as a way to fight the railroad’s political machine. It is defined by the people’s elevated power to exercise a variety of democratized authorities such as the power to recall and the ability to utilize initiatives and referendums as a direct way to react to what elected officials do. More on this subject can be found in “California Politics and Government,” by Larry Gerston and Terry Christensen.
6. Internal Revenue Code, Section 7343, for instance. However, there are many such examples in a variety of Codes and legal writings. Oxford’s dictionary defines include as, (to) “comprise or reckon in as part of a whole; place in a class or category.” But Black’s Law Dictionary (based on case law) gives a far longer, far more ambiguous, inclusive and exclusive, definition: “To confine within, hold as in an inclosure, take in, attain, shut up, contain, inclose, comprise, comprehend, embrace, involve. Term may, according to context, express an enlargement and have the meaning of and or in addition to, or merely specify a particular thing already included within general words theretofore used. “Including” within statute is interpreted as a word of enlargement or of illustrative application as well as a word of limitation.”
01/05/05-- UPDATE: Interestingly, Walter E. Williams -one of my political heroes- posted an article on January 5th (2005) covering this same subject: go to < www.townhall.com/columnists/WalterEWilliams > and search his archive for date of article. It's entitled "Are we a republic or a democracy."