With the election of George
W. Bush, America has its first president in over 100 years
to be elected to office without having received a plurality
of the nationwide popular vote.
Taking advantage of his popular plurality, Al Gore
justified his fight for Florida’s 25 electoral votes as a
battle for “the integrity of our democracy [which] depends
upon the consent of the governed, freely expressed in an
election where every vote counts.”
Even after the Florida recounts under the extended timetable
fixed by the Florida Supreme Court yielded a Bush victory,
Gore’s supporters insisted that Gore had a “moral
right” to continue his contest “because he leads in the
national popular vote.”
Indeed, Gore’s more strident supporters claimed
that, even if Bush won Florida, his presidency would be
illegitimate for his having failed to win the “vote of the
Countering this claim, Bush defenders took advantage of a
nationally televised map showing that Bush had won 2,434
counties, while Gore had won only 677; that Bush’s
counties covered 2,427,039 square miles of the nation, while
Gore’s totaled only 580,134; and that the population in
Bush’s counties totaled 143 million while Gore’s
counties trailed at 127 million. Thus, the Republicans maintained a Bush presidency would enjoy
national support, whereas a Gore presidency would be rooted
primarily in a few densely populated regions of the country.
The Bush plea fell on many a deaf ear, however, as the Gore
forces trumpeted the Warren-era Supreme Court’s
“democratic ideal” of one person/one vote.
Finally, the conservative wing of the current U.S.
Supreme Court put an end to the seemingly endless Florida
it did so on the grounds that the Florida Supreme Court’s
recount order was not democratic enough, demonstrating that
they, too, have succumbed to the liberal siren song that in
modern America each voter’s vote must be weighed equally.
(Bush v. Gore, 531 U.S. ---, 148 L Ed 2nd
388, 398, 400-01 (2000))
Ironically, the court’s democratic solution catapulted the
“minority candidate” into the White House.
By resting its decision on the democratic ideal of
one person/one vote, however, the court has undermined the
very process by which President Bush, and all American
presidents before him, has been elected.
That process is governed by a constitutional formula
deliberately calibrated to give greater weight to the votes
of the small, less populated states, and thus, making it
possible that a president could be elected with less than a
nationwide majority of the popular vote.
Indeed, the process set forth in Article II, Section 1 of
the Constitution of the United States does not even
guarantee a popular vote for president.
As the U.S. Supreme Court in Bush v. Gore, supra,148
L Ed 2nd at 398, acknowledged, “[t]he
individual citizen has no federal constitutional right to
vote for the President of the United States unless and until
the state legislature chooses a statewide election as a
means to implement its power to appoint members of the
Electoral College.” That
decision – not to prescribe a popular, nationwide election
of the president – was no accident, but was an integral
part of the deliberate design of America’s founders to
create a federal republic, not a national democracy.
A Republic, If You Can
At the close of the
Constitutional Convention in Philadelphia on September 18,
1787, a Mrs. Powell, anxiously awaiting the results, pressed
Benjamin Franklin as he emerged from Independence Hall.
She asked, “Well doctor, what have we got, a
republic or a monarchy?”
Franklin quickly replied, “A republic, if you can
From anti-federalist John Taylor to federalist Fisher Ames;
from James Madison of Virginia to Noah Webster of
Massachusetts, Americans believed that they had founded a
republic, thereby charting a middle course between the
Scylla of a monarchy and the Charybdis of a democracy.
Taylor, the preeminent theorist of Jeffersonian Old
Republicanism, proclaimed that “[a] federal republic is
the best for maintaining a republican form of government
over a country so extensive as the United States,”
dividing power “between Federal and State departments to
restrain ambitious men in both.”
(J. Taylor, Tyranny Unmasked 263 (Liberty Fund:
1992)) In a series of essays on “Monarchical versus Republican
Government,” federalist Fisher Ames warned against appeals
to “the will of the people,” claiming them to be mere
camouflage for demagogues to seize tyrannical power without
regard for the rule of law.
(I Works of Fisher Ames 116-186 (Liberty Fund: 1983))
In Federalist numbers 10, 14, and 48, Madison insisted that
the new Constitution established a republic, not a
democracy, emphasizing in Federalist No. 10
that a “Republican” form of government protected the
people from the dangers of tyranny of the majority.
In his “Examination into the Leading Principles of
the Federal Constitution,” Noah Webster, writing as an
American citizen, extolled the virtues of the American
republic’s bicameral legislature; the very design of which
was to protect the people from rash and hasty laws passed by
a transient, passionate majority.
This unity among America’s founding statesmen remained
unbroken as late as 1945, 158 years after the ratification
of the Constitution, when the 79th Congress of
the United States unhesitatingly approved, by joint
resolution, the official pledge of allegiance to the flag of
the United States, containing the phrase “and to the
Republic for which it stands.”
Yet 60 years later, on the cusp of the 21st
century, this affirmation that America is a republic, like
the pledge itself, has fallen from favor.
In its place is a new declaration that America is,
and always has been, a democracy.
Indeed, there is hardly a voice left in Congress, much less
in the White House, Republican or Democrat, who refers to
our nation’s government as a republic.
Even President Bush declared that his election to the
presidency was a vindication of the integrity of “American
doing so, the new president was simply following suit.
For several decades, America’s political leaders
have been promoting the virtues of America’s “democratic
ideal” within, by shaping public policy according to the
latest opinion polls, and at the same time, exporting
democracy abroad, by employing American military power to
reshape other nations’ governments to conform more closely
to “the will of the people.”
Both goals stand, however, in direct contradiction to
America’s founding principles.
America Is Not A
Those who insist that
the United States of America is a democracy rest their claim
on the foundational principle in the nation’s charter, the
Declaration of Independence, “[t]hat governments are
instituted among men, deriving their just powers from the
consent of the governed.”
To support this claim, they point to the preamble of
the Constitution of the United States which begins “We,
the people of the United States…do ordain and establish
this Constitution of the United States.”
Additionally, they rely upon statements such as the
one that appears in Article I, Section1 of the Florida
constitution that “[a]ll political power is inherent in
the people,” a phrase that appears in one form or another
in every one of the 50 state constitutions.
Such statements do not, however, support the proposition
that the civil governments in America are democracies –
quite the contrary. Read in context, all of these statements support the
proposition that America’s governments are republican in
form, not democratic.
First, although the Declaration of Independence does affirm
that governments derive their just powers from the consent
of the governed, it does not, however, declare that
governments derive their purposes from the consent of the
the Declaration of Independence avers that those purposes
are derived from the nature of a created order, an order in
which all mankind are endowed with certain “inalienable
rights,” namely life, liberty, and the pursuit of
the Declaration of Independence concludes that governments
are instituted to secure these rights, not to enforce the
will of the governed.
Second, although the Constitution of the United States does
affirm that the people ordained and established the
government of the United States, they did so, not to promote
the will of the people, but to “establish justice, insure
domestic tranquility, provide for the common defense,
promote the general welfare, and secure the blessings of
liberty to ourselves and our posterity….”
Likewise, although the state constitutions affirm
that all power is inherent in the people, they did not
establish state governments to obey the will of the people,
but to ensure that all individuals enjoy their pre-existing
rights of life, liberty, and property with which they have
been naturally endowed.
To achieve these purposes, the people of the United States
and of the several states well knew that a government under
the direct control of the people was downright dangerous,
because, as James Madison put it in Federalist No. 10,
“there is nothing to check the inducements [of a majority]
to sacrifice the weaker party, or an obnoxious
Madison contended, that a major task for any people seeking
a government to protect life, liberty, and property was to
“prevent” the majority from imposing “injustice and
violence” on individuals who did not share the
majority’s “passion or interest.”
To that end, Madison and his constitutional colleagues chose
a republican, not a democratic form of government.
Republican Form of Government
At the heart of a
democratic form of government is the rule of the majority,
unhindered by law. As
the Florida Supreme Court, in support of its initial ruling
extending the statutory deadlines for recounting the votes
in the 2000 presidential elections, explained:
“[T]he will of the people, not a hyper-technical
reliance upon statutory provisions, should be our guiding
principle in election cases….”
By contrast, in Bush v. Gore, Chief Justice William
Rehnquist, writing for himself and two of his colleagues,
declared that the rule of the Constitution, in that case the
power of the Florida legislature, prevails over any judicial
attempt to vindicate the power of the people.
The foremost distinction between a democratic form of
government and a republican one, is the subordination of the
power of the majority to the rule of law.
To accomplish this, there must be rules of law that
prevent the majority from imposing their will through the
election process. The
Constitution of the United States is replete with such
only is the legislative power divided between the House of
Representatives and the Senate, but also the number of
senators is determined not in proportion to the population,
but equally state by state.
Even the U.S. House, the membership of which is
proportionate to the population, guarantees to each state,
regardless of population, at least one representative.
Additionally, a bill does not become law simply upon the
vote of a majority of the members of both chambers of
Congress. It is
subject to the veto of the president, which can only be
overridden by a two-thirds majority in both chambers.
In addition, as previously mentioned, the
state-by-state process by which the president is elected
does not guarantee to a nationwide majority of the people
the power to elect the president.
Not only do these political checks and balances exist, but
there is also the separation of powers among the three
branches of government.
Even if a majority of the people voted for the
president, the head of the executive branch, that same
majority cannot elect the members of the legislative branch,
thereby ensuring that the elected officials of the two
branches answers to different constituencies of the people.
As for the judicial branch, its members are not
elected, but appointed, and although the president has the
power of appointment of federal judges, that power is
subject to the advice and consent of the Senate.
Not only does the Constitution diffuse the powers of
government within the federal government, but also it
divides the powers of government between two independent and
sovereign entities, the federal and the 50 states.
As a government of enumerated powers, Congress, the
president and the courts are forbidden by the Tenth
Amendment from exercising the police power which belongs
exclusively to the states.
Finally, the constitutional provisions establishing the
system of checks and balances, separation of powers, and a
federal union may not be changed by a majority of the
people, but only by an amendment process requiring majority
votes of two-thirds to propose and three-fourths to ratify. In addition, even these supra majority requirements cannot be
exercised directly by the people, but only by their elected
All of these limits have been placed upon the federal
government by the people whose elected state representatives
proposed the adoption of the Constitution, and whose elected
representatives ratified the Constitution in conventions
assembled in each of the original states.
By so establishing these safeguards against the
absolute rule of a majority, the people of the United States
unquestionably created not a democracy, but a republic,
which John Adams succinctly defined as a government “bound
by fixed laws, which the people have a voice in making, and
a right to defend.” (J.
Adams, “Novanglus No. VII,” reprinted in The
Revolutionary Writings of John Adams 227 (Liberty Fund:
The 50 States’
Republican Form of Government
Not only does the
Constitution of the United States prescribe a republican
form of government for the nation, but also, by Article IV,
Section 4, commands the United States to “guarantee to
every State in this Union a Republican Form of
of the 13 original states entered the union, having already
formed governments which were republican in form, including
political checks and balances and separation of powers in
their respective constitutions.
Additionally, those same states came into the union
subject to the principles of the Declaration of
Independence, thereby committing each state to enact laws to
secure the inherent individual rights of life, liberty, and
property, not to implement the will of the people.
To ensure that future states admitted to the union were
subject in like manner to the republican principles of the
nation’s charter, Congress, even before the ratification
of the Constitution of the United States, resolved that new
states formed out of the Northwest Territories would be
“republican…with the same rights of sovereignty,
freedom, and independence as the other states.”
(Sources of Our Liberties 387-88 (R. Perry, ed.,
Amer. Bar. Found.: 1978))
Thus, the Northwest Ordinance, adopted by Congress,
prescribed that the newly formed states of Ohio, Indiana,
Illinois, Michigan, and Wisconsin would be admitted to the
Union on an “equal footing with the original States, in
all respects whatsoever….”
(Id. At 397 emphasis added)
Prior to the admission of these states, and thereafter, all
of the states of the Union have been admitted on the “same
footing” (Coyle v. Oklahoma, 221 U.S. 559 (1911)), thereby
fulfilling the obligation of the United States to guarantee
each state a republican form of government.
As to preserving that republican form, the United States
Supreme Court has consistently declined to impose a legal
definition of a republican form of government, leaving it to
Congress to enforce that guarantee by the exercise of
Congress’s power to admit to, or exclude from, that body a
state’s elected representatives and senators.
(See Coleman v. Miller, 307 U.S. 433,454-56 (1939)).
As for Congress, it has not seen fit to intervene in
the internal governmental affairs of the states, leaving it
to the people of those states to determine the specific
republican form of government by which they will be ruled.
It is certainly arguable that some states have approved some
democratic procedures that depart from the pure republican
example, the initiative and referendum, whereby the people
of some states, by constitutional amendment, have reserved
to themselves the power to propose and enact laws
independently of the legislative assembly, as well as to
approve or reject any act of that body, thereby making it
possible for public policy to be made directly by a majority
without the political accountability of a representative
Federalist No. 10.) Such
powers are, however, limited by law to “single subjects”
and to legislative and executive implementation.
To date, no state has substituted a system of direct
democracy in which the people “assemble and administer the
Government in person.” (Federalist 10)
under 200 years ago, Fisher Ames penned an essay warning the
people of America not to place confidence in the democratic
ideal whereby governments are structured to reflect the will
of the people. While
the “power of the people is their liberty,” he wrote,
the people “can have no liberty without
strong…restraints upon their power.”
(I Works of Fisher Ames, supra, at 5) America’s
founders knew this to be true because they had studied the
history of democracies and discovered that they inevitably
destroyed both the morals and liberties of the people.
If the modern-day drive for democracy in the nation
continues, the American people will experience a similar