What is a Republic?
by David Bryant
This column was first published in the
Colorado Freedom Report on Christmas Day, 2000
The words are so familiar that they slip through our minds leaving scarcely a ripple:
Every weekday morning at school started with these familiar words, recited carefully as we stood at attention, our hands held over our hearts. No doubt you recited it, too. Perhaps the words still reverberate in your memory, as they do in mine. But have you ever stopped to think just what, precisely, a Republic is, or ought to be?
Section 4 of Article IV of the federal Constitution says:
What is the national government guaranteeing here? This clause has been part of our basic charter of government for centuries. But the courts rarely invoke it, not even for the sake of argument. And when they do, as in the recent lawsuit Bush v Gore, which turned upon the lawful separation of powers under a Republican Form of Government, the action is widely misunderstood, and is even loudly denounced in certain quarters.
What has happened to that simple word? It means less to us today, somehow, than it meant to the men who framed the Constitution two hundred and thirteen years ago. Back then it was a robust term, a bright new vision for human society, bristling with notions of independence and freedom. Today it's a humdrum commonplace -- a cliche -- almost meaningless because it is so familiar.
In the eleventh chapter of The Road to Serfdom, his classic critique of socialism, Friedrich Hayek tells us how the basic meaning of words can be subtly twisted through a process of continuous misuse:
Sadly, that beautiful word Republic has suffered the fate that Hayek describes so powerfully. Yes, it still conveys an emotion. And most people think they know what it means. But when we speak of the United States, and say it is still a Republic, very few of us stop to think just how hollow that affirmation would sound to the men who founded our nation -- if they were still alive.
What the dictionary says
Webster's Third New International Dictionary defines a republic as
This definition corresponds with the popular notion of American government as it exists today. It is still true that we live in a Representative Democracy. In theory, at least, supreme political power is vested in the people of America. Governmental power is most commonly exercised by elected officers and their deputies who are, again in theory, answerable to the electorate. And it appears as if the powers of government are generally used legally, in accordance with the law.
The casual observer, then, would say that we are living under a Republican Form of Government today, and that all is as it should be. But if we scratch this veneer, and peer a bit more closely at the common notions which prevailed when the federal Constitution was written, we will soon see how superficial and incomplete Webster's definition really is.
James Madison's Definition
In The Federalist #39, James Madison offered the following definition of a Republic:
Even here, in Madison's fairly brief description of a republic, we see several features not included in the dictionary definition quoted above. Close consideration shows that Madison thought there ought to be some
To proceed in this manner, and illustrate by direct quotation the several ideas bound up in the original American conception of a Republic, would require considerable scholarship. It would also occupy more space and consume more time than I have at my disposal today. So here, in summary form, is my understanding of the principle features of the Republican ideal as it existed in the framers' minds -- without the elaborate framework of supporting quotations that could be adduced in a work of more ample dimensions, and contrasted, briefly, with the actual operations of the "republic" in which Coloradans live today.
Characteristics of a True Republic
(1) A true republic is a form of representative government in which governmental power is strictly circumscribed so that it does not trespass on the natural rights of persons within its jurisdiction. A true republic, then, can never devolve into a tyranny of the majority, for the rights of the individual are inviolable.
In theory, at least, American governments still honor this ideal. For example, the third section of Colorado's Bill of Rights says that -
But what has become of this concept in actual practice? Peaceful drug users who have never harmed a soul and who are simply seeking their own happiness are imprisoned for "the good of society." Honest merchants who have never cheated a single customer are hunted down and driven out of business for failing to comply with any one of a host of bothersome regulations, or for lack of a license. "Asset forfeiture" laws are used to deprive innocent people of their lawful property -- and the victims of those seizures have no real chance to protect their property from the government's agents who, ironically, have sworn to protect the very same individual rights they so blithely and routinely disregard.
(2) In a true republic, power is not concentrated in a few hands, but is distributed into several departments, each of which acts as a check upon the others. We have all heard of the doctrine of separation of powers, and the system of checks and balances. Indeed, the Colorado constitution contains an explicit provision, Article 3, which says
So in theory, at least, the power of making the laws is strictly separated from the power of enforcing them; and neither the legislature nor the executive may interpret the laws for the people, nor may they adjudicate disputes. Similarly, the officers of the judicial department may not make laws, nor enforce them, but must limit their activity to the actual trial of cases.
But what has happened in practice? The legislature has delegated its law-making authority to several executive agencies as, for example, the Division of Insurance, which issues regulations purporting to have the force of law. And this was not done "as in this constitution expressly directed" -- it was done with a simple legislative enactment. Similarly, several executive agencies have established their own rules of adjudication, thus usurping the authority lawfully reserved to the judiciary. Twenty-five years ago, when I first moved to Colorado, these kangaroo courts were usually called "hearings," and the people presiding over them were known as "hearing officers." Today the same people are called "administrative law judges," and the rooms in which the hearings
Even the judicial department has assumed unlawful legislative powers. While there is a specific grant of rule-making authority to the supreme court of Colorado (constitution, Article 6, Section 21), such authority is restricted to "administration of all courts," and to "practice and procedure in civil and criminal cases." But in Colorado, the judiciary has defined an offense ("contempt") for which a punishment is prescribed, and against which the right of trial by jury may not be asserted -- all in direct violation of Colorado's fundamental law.
Indeed, the petit jury -- which is, or ought to be, the most important check upon the power of Colorado government -- has been attacked by the judges (in collusion with the district attorneys) and has now been so completely undermined that criminal defendants rarely obtain the "trial by jury" to which they are entitled. Yes, there are twelve persons in the jury box. Yes, they weigh the evidence and return a "verdict." But are they really a jury? No -- because the judicial department has prescribed procedures to keep independent thinkers off the panel, and routinely forces prospective jurors to take an oath which prevents them from serving in their proper capacity: as a final check on the government's power to mete out punishment. [see Jury Nullification page]
(3) A true republic is a government of laws, and not of men. We've all heard this old saw, which is directly tied to the concept of equal protection. Once again, in theory, this restriction is still in place, for the Colorado Constitution (Bill of Rights, Section 6) declares that
And once again, in practice, everyone can see how empty this promise really is. Think about the tragic death of Ismael Mena. Armed with a warrant (obtained unlawfully) and dozens of firearms, officers from the Denver police department broke into Sr. Mena's residence. When he attempted to defend himself (his "natural, essential and inalienable right"), they pumped his body full of bullets. What happened to the government agents who murdered Ismael Mena? All but one of them were totally exonerated. And Joseph Bini, the only one to face a criminal charge, eventually pled guilty to a single misdemeanor count of filing a false report.
Is this the Liberty and Justice for All we learned about in school? If you and a gang of your buddies had burst into Mena's bedroom with guns blazing, would you expect to get off on a misdemeanor charge? Why should police officers face lesser penalties than anyone else would when they violate the law?
(4) A true republic is instituted for the benefit of every peaceful person, and does not provide benefits to the members of a special class at the expense of everyone else. This vital principle is enshrined in the very first section of Colorado's Bill of Rights, which reads
Obviously, government must pursue the end for which it was instituted, and it should pursue no other ends. In Colorado, the constitution says that government is instituted for the good of the whole. Knowing, as we do, that values are subjective, it is apparent that legislation which advances the interests of some persons at the expense of others cannot reliably advance the good of the whole. Who among us can declare the proper balance between one man's loss and another's gain?
In theory, then, this important restraint upon the exercise of governmental power is firmly in place. But everyone knows that modern government is, in practice, a war among special interests. Lobbyists pursue the members of the general assembly even when the legislature is not in session. Why would they expend great sums of money to alter the course of legislation unless there were some gain in it for them?
Amazingly enough, the single largest group of lobbyists in Colorado today represents the various counties, municipalities, school districts, and special districts into which state government is subdivided. In other words, the most influential special interests in the state are public entities which use the tax money they collect directly to entreat state government for even more money which they hope will be passed through to them indirectly. A more egregious violation of this fundamental principle underlying true republican government can scarcely be imagined!
(5) In a truly republican society, there is no professional class of political persons. Elected officials should be drawn from the ranks of the common people, they should serve their country for a limited period of time, and then they should return to private life. A few appointed officials (eg, judges) might indeed enjoy a lifetime tenure, but even these few would, ideally, choose to resign after some reasonable interval of time. In this way the persons making and administering the laws would be continuously exposed to the direct effects those laws were having on society at large, and the laws themselves would tend to redound to "the good of the whole."
In practice, of course, there is a great chasm between the professional politicians and career bureaucrats and the rest of the population. The pros have their own special (and publicly funded) retirement plans and medical insurance -- everyone else gets social security and medicare. They get free gasoline, chauffeurs, and generous expense allowances -- we get to pay more taxes.
The recent movement toward term limits has cut into the tenure of particular politicians in particular offices. But as the game of house-to-senate musical chairs was played out in Colorado this year, it became obvious that longevity in some public office or another is still possible. Many of the term-limited reps ("Republicans," of course) sought and obtained positions in Bill Owens' executive department. And tenure in the civil service is still a very desireable thing -- in the eyes of those who hold it.
The fears of the anti-federalists -- that a privileged class might one day arise to rule over the common people in a monarchical manner while retaining the republican forms -- have in large measure materialized. In less than a month George the Third will ascend to the Presidency, and a magnificent pageant of imperial pomp and circumstance will mark that regal occasion. Very few Americans will view the spectacle with clear unblinking eyes and see how deep a wound is thus inflicted on our longsuffering republic.
(6) In a true republic, the citizens themselves are virtuous, and the government must be good, for the people will not allow it to degenerate. This concept of "republican virtue" is not easily explained to many modern observers, for virtue itself has become unpopular. Perhaps a few examples of things the framers and their contemporaries talked about will serve to illustrate this point.
Writing in Philadelphia in October, 1787, Samuel Bryan, a Pennsylvania anti-federalist who styled himself "Centinel," made these remarks:
And in The Federalist #57, James Madison offered this advice:
If this spirit shall ever be so far debased as to tolerate a law not obligatory on the legislature, as well as on the people, the people will be prepared to tolerate anything but liberty.
A great American city bears the name of a hero, widely regarded as a model of this "republican virtue" when the Constitution was first written. Most people probably think that Cincinatti, Ohio is an Indian name. It is not. That city is named after Cincinattus, a Roman farmer who, the story goes, left his horse and plow at home and assumed dictatorial powers when an internal cabal threatened the continued existence of the ancient Roman republic. Within thirty days he dispatched Rome's enemies, restored the Senate to its proper position of authority, and resigned his office to become a farmer once again.
For many years after the Revolution the Order of the Cincinatti, a club composed of men who served as officers under George Washington during the war, was a respected American institution. Its members thought of themselves as having been cast in the mold of Cincinattus. When danger threatened, they left their farms to become soldiers and, when the danger was past, they laid down their arms and returned to a bucolic existence once again. A remnant of that semi-secret society still exists today. But very few Americans remember the story of Cincinattus, or the "republican virtue" that was the hallmark of his brief but brilliant public career.
That the words "republic" and "virtue" are no longer closely associated in the popular imagination is the saddest commentary on our country's history one could possibly imagine. Yes, there are still plenty of people who realize that prosperity and happiness are each individual's private responsibility. But in actual practice far, far too many Americans are willing and even eager to look at the government as some sort of glorified candy factory. Like children, we look to Uncle Sam as the source of all good things, and call upon the government to solve our purely personal problems.
Hope for the Future
Can the republican ideals which animated the framers ever be rekindled? Is there still a spark of that "vigilant and manly spirit which actuates the people of America" left alive in our country today? Or is the living essence of free republican government lost to us forever? And are we therefore doomed to live in a "representative democracy" for the rest of our days?
Time alone will tell the tale. One thing is certain. We will never live in a real Republic until the vast majority of our compatriots come to understand what self-government is really all about.
At this Christmas season, standing on the cusp of a new millennium, those of us who still cherish the ideal of true republican government -- based on the concepts of limited authority, individual liberty, and personal responsibility -- ought fervently to hope and pray that this beautiful word, Republic, will soon be restored to its former luster. May our daily lives shine as vibrant examples of the republican virtue which is the necessary ground for Liberty -- and may our neighbors learn from those examples what that tarnished and neglected term, Republic, really ought to mean.
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