Is America a republic or a democracy?, part 2: 'Republic' can include direct democratic lawmaking

|The Volokh Conspiracy |

An illustration depicting life in ancient Rome is projected on the walls of the Forum of Augustus in Rome in 2014. (Alessandro Bianchi/Reuters)

Sometimes the words "republic" and "democracy" are used to describe two different forms of government—"republic" to refer to representative government, and "democracy" to refer to direct democracy. But the words have historically been more capacious (or perhaps more ambiguous) than that. As I've written before, for instance, "democracy" and "democratic" can include representative democracy, which is to say a republic in which most people are entitled to vote.

But "republic" has historically also been ambiguous, including during the Framing era. Sometimes, as in Madison's Federalist No. 10, it was used to mean government by representatives:

[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 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…. The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.

But sometimes it was used to include governments in which laws were made by direct popular vote (though the executive branch may have been elected). One way to get at this is to ask: What is the first nation that you think about when you hear the word "Republic" today, and that the Framers likely thought about? What is the most famous historical Republic, indeed the one that gave us the word "Republic"?

Why, the Roman Republic, of course, which The Federalist and many others discussed. And yet in the Roman Republic, there was no representative legislature.

The Senate (which wasn't elected or representative) did have considerable interpretive and advisory authority, and the elected praetors could interpret the law in important ways. But the laws themselves were made by direct vote of the citizens (or just by the plebeians), in the comitia centuriata, the comitia tributa or the concilium plebis.

This was direct lawmaking, though with a voting system that heavily favored the rich, not representative lawmaking. The laws had to be proposed by a magistrate, such as a consul or a tribune of the plebs, so it wasn't precisely like an American initiative. But the laws didn't have to first be passed by some elected legislative body first (again, remember that there were no elective legislative bodies); in principle, they just had to be proposed by one elected magistrate—such as one of the 10 tribunes of the plebs—and enacted by popular vote in the assembly. You can think of it as something between the modern American referendum and the modern American initiative. But it was direct popular lawmaking, not representative lawmaking.

And the Framers routinely called Rome a republic—indeed, they labeled Athens a republic, even though Golden Age Athens famously involved direct democracy. Hamilton in Federalist No. 6 states that "Sparta, Athens, Rome, and Carthage were all republics." Hamilton in Federalist No. 34 specifically talked about the Roman legislative assemblies, yet called Rome a republic. Federalist No. 63, generally attributed to Madison, labeled Rome as an example of a "long-lived republic."

Prof. Rob Natelson's "A Republic, Not A Democracy? Initiative, Referendum, and the Constitution's Guarantee Clause" discusses the Framers' broad use of the term "republic" in detail. (Akhil Reed Amar's "The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem," 65 U. Colo. L. Rev. 749 (1994), also talks about this, though with less focus on the ancient antecedents.) Here's an excerpt, but if you're interested, you should read the whole thing:

The historical record is flooded with statements in which participants implicitly assume that republics may employ direct citizen lawmaking. As already noted, many in the founding generation followed the taxonomy of Montesquieu, in which both aristocracies and democracies—expressly including those with citizen lawmaking—constituted subspecies of republics. At least as significant are the writings and speeches of participants who identified particular governments with citizen lawmaking as "republics." Although Federalists and Anti-Federalists disagreed about the Constitution, they did not differ materially (for this purpose) about the governments they deemed to be republics.

Thus, at the Constitutional Convention, both George Mason and Alexander Hamilton referred to the ancient "Grecian republics." In Federalist Number 6, Hamilton stated that "Sparta, Athens, Rome, and Carthage were all republics…." In Federalist Number 63, Madison listed five republics: Sparta, Carthage, Rome, Athens, and Crete. In his Anti-Federalist writings, "Brutus"—probably Robert Yates, a convention delegate from New York—stated that "the various Greek polities" and Rome were republics. Anti-Federalist author "Agrippa" (John Winthrop of Massachusetts) identified Carthage, Rome, and the ancient Greek states as republics. The Anti-Federalist "Federal Farmer" spoke of the "republics of Greece," and Anti-Federalists "A Farmer" and "An Old Whig" discussed the Roman Republic. An anonymous Anti-Federalist writer, lacking even a pseudonym, spoke of the "Grecian republics." (This list is not exhaustive as to either Federalist or Anti-Federalist authors.) Similarly, in the state ratifying conventions, the participants of all political stripes made numerous references to these and other ancient governments as "republics."

The participants well knew that all of these republics prominently featured citizen lawmaking—more citizen lawmaking than even the most fervent modern advocate could desire. For example, all laws adopted in Sparta had to be approved by an assembly of citizens—in other words, all laws, not just a few, were subject to a form of referendum, while in Athens an assembly of all citizens over eighteen years of age both approved and initiated laws. In Carthage, as John Adams noted, the people initiated laws when their magistrates were not unanimous.

In the founding generation, pre-imperial Rome was on everyone's list of republics, and its ideals and constitution were uniquely influential among the participants. As they understood, the sovereign power of the Roman state—the Res Publica Populi Romani—was in the populus Romanus. This was the whole body of citizens, acting without representation, through their popular assemblies. Major legislation was enacted on the recom-mendation of either the presiding magistrate or the senate. The assemblies also possessed the power to declare war; additionally, one assembly, the comitia centuriata, could hear certain judicial appeals. Citizens elected magistrates to exercise the executive power (such as consuls and aediles), magistrates to represent the people's interest against the senate (tribunes), treasury officials (quaestors), and judges (praetors).

Each of the assemblies had different—although sometimes overlapping—jurisdiction, and different voting rules. In 287 b.c., the concilium plebis, an assembly consisting exclusively of the commons (plebs) and excluding the nobles (patricians), was granted coextensive lawmaking power with other assemblies. One of the annually elected "tribunes of the people" presided over this body, and its decisions were called plebis scita—roughly, Acts of the People.

The modern plebis scitum is, of course, the plebiscite. It is one of the delicious oddities of legal literature, born clearly of historical ignorance, that some legal writers continue to contend earnestly that all or certain plebiscites are not "republican." Yet plebiscites originated in the state that the Founders viewed as the grandest republic of all! One might as well contend that pizza is not Italian.

This does strongly suggest, I think, that the Constitution's provision that states should have a "republican form of government" is quite consistent with states having direct democracy—"republican" here was likely used to mean "not monarchical or despotic" (plus perhaps a few related elements), rather than "not including direct citizen lawmaking." And beyond that, it's a reminder that we shouldn't assume that the Framers consistently used "republic" and "democracy" as antitheses, even though at one point Madison did use "republic" and "pure democracy" that way. America could be described as both a republic and a democracy in 1787; it can be so described today.

UPDATE: Here is another excellent passage on the subject, from Akhil Amar's America's Constitution: A Biography (2005):

Well-educated twenty-first-century Americans have been taught that the Constitution established a "republican" form of government in emphatic contradistinction to a "democratic" one; that the framing generation invariably associated a republic with the idea of filtered, representative government, as opposed to more direct modes of popular participation; and that the Founders loathed the label and reality of direct democracy. All these well-learned lessons need to be unlearned if we are to understand the Constitution in general and the Article IV republican-form-of-government clause in particular. Under this clause, "[t]he United States shall guarantee to every State in this Union a Republican Form of Government."

Modern-day misinterpretations typically take Madison's Federalist No. 10 as their point of departure: "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. Let us examine the points in which it varies from pure democracy…. [A] great point[] of difference between a democracy and a republic [is] the delegation of the government, in the latter, to a small number of citizens elected by the rest." Madison reiterated his distinction between "a republic and a democracy" in The Federalist No. 14 and also criticized the ancient Greek brand of direct democracy in No. 63.

Yet Madison himself, in these very passages, admitted that he was swimming against the tide of standard eighteenth-century usage. Thus, in No. 10 he stipulated his own definition: "A republic, by which I mean… " (as opposed to "a republic, by which is generally meant …"). In No. 14, he confessed that the "prevalen[t]" understanding "confound[s] a republic with a democracy." Sure enough, Madison's contemporaries often referred casually to England's House of Commons and state lower houses—all of which were based on principles of representation—as particularly "democratic" or "democratical" elements of their respective constitutions. Conversely, late eighteenth-century "republics" could indeed make use of certain forms of direct political participation—as had, for example, Massachusetts in ratifying its state constitution and in its general tradition of town meetings. Ancient Greek governments, which had practiced various forms of direct democracy, were also commonly described as "republics." In fact, such a description appears in no less than three of the four Federalist essays immediately preceding Madison's stipulated definition in No. 10.

Of course, if Madison's definition did in fact sway large numbers of would-be ratifiers, then its new-minted linguistic distinction might deserve to carry some weight in sound constitutional interpretation. But The Federalist No. 10 went largely unnoticed at the Founding. And nowhere in that essay did Publius purport to explain the meaning of the specific Article IV clause featuring the word "Republican." When Publius did turn to Article IV, he offered a very different and less idiosyncratic account of republicanism.

At the same time that Madison was drawing his fine linguistic distinction, other leading Federalists were obliterating it, proclaiming that a "republican" government could be either directly or indirectly democratic. Explicitly equating a "republic" with a "democracy" in the Pennsylvania ratifying convention, Wilson repeatedly pronounced the Constitution "democratic" and "democratical." For Wilson, the crucial distinction was not between a "republic" and a "democracy," but rather between a democracy/republic on the one side and "monarchy" or "aristocracy" on the other. In a proper republic/democracy, "the people at large retain the supreme power, and act either collectively or by representation." The Constitution met this test, Wilson declared. "[A]ll authority, of every kind, is derived by REPRESENTATION from the PEOPLE, and the DEMOCRATIC principle is carried into every part of the government." Similarly, South Carolina's Charles Pinckney described a republican government as one in which "the people at large, either collectively or by representation, form the legislature."

Repeatedly, Federalists explained the central meaning of republican government—especially in discussing the meaning of Article IV's use of the word "republican"—by defining republics not in contradistinction to democracies but rather in opposition to monarchies and aristocracies. Thus, Iredell in North Carolina read Article IV to mean that "no state should have a right to establish an aristocracy or a monarchy." Similarly, an early Federalist essay, "Plain Truth," explained that the clause would guarantee against "monarchical or aristocratical encroachments" and Tench Coxe, in another essay, read the clause to mean that state constitutions "cannot be royal forms, cannot be aristocratical, but must be republican." When Madison/Publius himself turned to expound Article IV in The Federalist No. 43, he declared that "in a confederacy founded on republican principles, and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchial innovations." Later, in No. 84, Publius pointed to the Constitution's ban on titles of nobility as "truly … the corner-stone of republican government"—a passage that called to mind Jefferson's celebrated 1784 plan for western territories, which had provided that territorial governments "shall be in republican forms, and shall admit no person to be a citizen who holds any hereditary title."

The Federalist essays, when read as whole, painted a very different picture of the central meaning of republican government than the one that has been peddled to many modern Americans. Time and again, Publius linked "republican" government with various aspects of popular sovereignty. For instance, moments before its stilted definition, The Federalist No. 10 casually linked republicanism with majority rule ("the republican principle")—a linkage that recurred in Hamilton/Publius's Nos. 21 and 78. When discussing the most fundamental attributes of republican government, Publius associated the idea with "the capacity of mankind for self-government" and with "the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness." A true republican government "derives all its powers directly or indirectly from the great body of the people." The "genius of republican liberty … demand[s] … that all power should be derived from the people." Thus, as Publius took pains to remind his audience, the Constitution itself was being founded "on republican principles"—founded, that is, "on the assent and ratification of the people of America, given by deputies elected for the special purpose."

This, indeed, was the general understanding of republicanism across America. Samuel Johnson's 1786 dictionary defined "Republican" as "Placing the government in the people." Ratification pamphlets and speeches described republican government as one where "the people are sovereign;" where "the people are consequently the fountain of all power;" where "all authority should flow from the people;" where "all laws are derived from the consent of the people;" where power resides in "the hands of the people at large;" and where "the majority govern."

When the word "democracy" appeared in the Founding era, it was often associated with, rather than defined against, republicanism—even by Madison himself. Madison's preferred system of filtered representation over an extended geographic sphere, which The Federalist No. 10 proudly labeled "the republican remedy for the disease most incident to republican government," had earlier been described by Madison at Philadelphia as "the only defence agst. the inconveniences of democracy consistent with the democratic form of Govt." In the 1790's, when various political groups sprang up in sympathy with the outlook of men such as Madison and Jefferson, some local groups called themselves "Republican Societies," others "Democratic Societies," and still others "Democratic-Republican Societies." The political party that Madison and Jefferson created in this decade was variously described as the "Republican" party and the "Democratic-Republican" party. (Today's Democratic Party claims the "Republican" Jefferson as one of its founders.)

Thus, the essence of the Article IV guarantee of each state's "republican" form of government was not to prohibit town meetings or initiatives or referenda or juries or any other form of direct popular participation. Rather, the big idea was to shore up popular sovereignty. The electorate of a given state, acting by "a majority of the people in a legal and peaceable mode" would of course retain the right to "alter or abolish" their state constitutions (subject to the overriding dictate of federal supremacy), but the United States would protect against "changes to be effected by violence"—usurpations, military coups, and so on.

Three complementary visions inspired this guarantee. First, the Constitution would offer a kind of democratic insurance policy. If any individual state system of self-government fell sick and needed help, sister republics would come to its aid. In so doing—and here were the second and third ideas—sister republics would also be protecting themselves, both individually and collectively. A monarch or tyrant in any one state would pose a geostrategic threat to each and every neighboring state. Thus Article IV not only guaranteed that each state would honor the basics of republican government, but also promised to protect each state from any "Invasion" or "domestic Violence" instigated by a neighbor state or otherwise. In addition, an unrepublican state government might tend to undermine the republican character of the federal government, whose own institutions would rest largely on state-law pillars. For example, a warped state government might corrupt the integrity of that state's elections to the federal House, Senate, and electoral college.

In the North Carolina ratification debates, Iredell explained that "If a monarchy was established in any one state, it would endeavor to subvert the freedom of the others, and would, probably by degrees succeed in it. This must strike the mind of every person here, who recollects the history of Greece, when she had confederated governments. The king of Macedon, by his arts and intrigues, got himself admitted a member of the Amphictyonic council, which was the superintending government of the Grecian republics; and in a short time he became master of them all." In The Federalist No. 43's discussion of the Article IV guarantee, Madison had said much the same thing, quoting Montesquieu as follows: "Greece was undone … as soon as the king of Macedon obtained a seat among the Amphictyons."