By Rob Natelson | SOURCE: COMPLETE COLORADO PAGE TWO
In 2011, a group of politicians and special interests sued in federal court to void Colorado’s Taxpayer’s Bill of Rights (TABOR). The case was Kerr v. Hickenlooper.
The plaintiffs’ primary argument was that TABOR violated the U.S. Constitution’s Guarantee Clause (Article IV, Section 4), which says in part, “The United States shall guarantee to every State in this Union a Republican Form of Government.”
The plaintiffs contended that to be a “republic,” a state must make taxing and spending decisions through elected representatives only. They based this on a misreading of James Madison’s Federalist No. 10 essay—while ignoring everything else Madison and other Founders said about republican and democratic governance.
The plaintiffs pointed out that because TABOR allows the people to vote on some tax and spending issues, it had converted Colorado from a “republic” to a “democracy.” This, they said, caused Colorado to violate the U.S. Constitution.
The Kerr v. Hickenlooper lawsuit was entirely without merit. After it had wasted judicial time and taxpayer resources for more than a decade, a federal appeals court mercifully dismissed it.
Yet Kerr v. Hickenlooper was only one example of the persistent—and false—claim that there is a sharp distinction between a republic and a democracy.
As the TABOR suit illustrates, liberals sometimes raise this claim against popular initiatives they don’t like. But the claim is even more common among conservatives. A good example is the Jan. 22 Complete Colorado article entitled “Democracy is Safe, but Biden Threatens the Republic.” The author was the inestimable Mike Rosen.
Rosen is right 99.9 percent of the time. But as if to illustrate the maxim that even the best of us is not perfect, on this occasion—and on this point—he is wrong.
Historically, the purported inconsistency between republics and democracies does not exist. As explained below, it was invented during the 1840s by lawyers as a litigation argument. Later in the 19th century, opponents of initiative and referendum adopted the argument, and it thereby entered American mythology.
This article will explain what “republic” and “democracy’ really mean. It shows that whether you call the United States (or Colorado) a republic or a democracy, you are equally correct.
Etymology
The terms “democracy” and “republic” emerged as rough equivalents. The former is Greek, the latter is Latin. Democracy literally means “rule by the people.” Republic literally means “the people’s affair.”
So it is not surprising that the American Founders—most of whom were classically educated—usually employed the terms as synonyms. For example: Most of the Founders thought ancient Athens carried democracy too far. But they still referred to it as a republic.
Again: During the debates at the convention by which Virginia ratified the Constitution, both supporters and opponents of the document repeatedly referred to the American republican-style of government as “democracy.”
Some writers were a little more precise. Baron Montesquieu—on whose political writings the founding generation relied heavily—asserted that a democracy was just one kind of republic. (The other kind was an aristocratic republic.) Thus, according to Montesquieu’s more refined terminology, the United States is both a democracy and a republic.
Definitions in 18th century dictionaries reflect the same overlap. Some defined “republic” and “republican” as referring to a commonwealth or a government of “more than one”—that is, any government (including a democracy) that is not a monarchy. Other dictionaries defined republic or republican as “placing the government in the people,” or “popular government.”
No 18th century dictionary drew a sharp line between a democracy and a republic.
More on the Founders
Most of the Founders did believe that a republic—such as that of ancient Athens—could be too democratic. They wanted a republic that was also a democracy, but with effective checks and balances.
In Federalist No. 10, Madison (unlike any other Founder) distinguished between democracies and republics. But the context shows that he used the word “democracy” to refer specifically to a form of governance that Aristotle called “pure democracy” or “ultimate democracy.” In pure democracy there was no law, there were no officers, and the mob made all decisions directly.
Madison argued that pure democracy was inconsistent with republicanism. But pure democracy was more theoretical than real, and the Founders never seriously considered it.
Instead, they favored a form of democracy that followed the rule of law and that included checks and balances designed to preserve self-government in the long run.
Rise of the “republic v. democracy” distinction
From the forgoing, you can see that “republic” and “democracy,” if not exactly synonyms, are overlapping terms. So how did the story get started that they are mutually exclusive?
After Independence was declared in 1776, most of the newly-independent states adopted new state constitutions. But Connecticut and Rhode Island simply modified their colonial charters. It was not until 1818 that Connecticut finally ratified a new constitution.
Many Rhode Islanders wanted a constitution, too, but the state’s political establishment blocked all efforts at reform. In 1842, a popular leader named Thomas Dorr arranged for elections and created a new, more democratic, government paralleling the old one.
The issue of which state government was legitimate was fought out in the courts. Lawyers representing the old charter government (including Daniel Webster) came up with the argument that (1) there was a sharp distinction between a democracy and a republic and (2) Dorr’s government was a democracy and therefore not a republic.
The case eventually landed in the U.S. Supreme Court. It was called Luther v. Borden. The justices ruled that the issue of whether a state had a republican government was for Congress, not the courts, to decide.
The “democracy vs. republic” distinction invented by Webster and his colleagues relied chiefly on a misinterpretation of Madison’s Federalist No. 10. They claimed Madison believed that no democracies were republics and that republican government required that all decisions be made through representative assemblies, rather than directly by the people. This was much the same argument the anti-TABOR plaintiffs made in Kerr v. Hickenlooper.
But Madison’s other writings show he did not believe those things. As he indirectly acknowledged in Federalist No. 64, nearly all republics before his time featured ways for the people to vote directly on key government decisions, including (in some cases) taxes and spending. As explained above, what Madison did in Federalist No. 10 was draw a line between republican government and Aristotle’s chaotic “pure democracy”—not democracy in general.
Summary
In a widely-cited academic investigation published in 2001, I showed that nearly all the Founders would have agreed that a republic was a government (1) with no monarch, (2) answerable to the citizenry, and (3) following the rule of law.
The Founders also agreed that if the franchise is wide enough, a republic is also a democracy. Like the United States today.
Robert G. Natelson, is a former constitutional law professor and senior fellow in constitutional jurisprudence at the Independence Institute in Denver. He is the author of “The Original Constitution: What It Actually Said and Meant” (3rd ed., 2015), and a contributor to the Heritage Foundation’s “Heritage Guide to the Constitution.”