Essays
Beyond the Reach of the Vote
There is a slogan war over one word, and both sides of it are usually wrong. One camp says, with feeling, that we are a democracy, and that anything standing in the majority’s way is an offense against it. The other camp fires back that we are a republic, not a democracy, as though the second word were a trump card that ends the conversation. The rejoinder is closer to the truth than the applause line it answers, but the people who reach for it rarely know why, and in their hands it curdles into an excuse for whatever minority they happen to favor. The distinction is real, it is important, and it deserves better than a bumper sticker on either car.
A democracy, in the oldest and strictest sense, is rule by the majority with nothing above it. Whatever a majority wills is, by that fact alone, legitimate. There is no higher law to appeal to, because the majority is the highest law. A republic differs in one decisive way. In a republic the supreme authority is not the majority but a fundamental law, a constitution, by which the majority itself is bound. The people are still sovereign; a republic is not the rule of a king or a class. But their sovereignty runs through settled forms and against fixed limits, so that certain things cannot be done to a citizen no matter how many of his neighbors want them done. A democracy asks one question: what does the majority want? A republic asks a prior question: what is the majority permitted to do?
This is what the founders said in the plainest terms they had. Madison, in the tenth Federalist, drew the line himself. Pure democracies, he wrote, “have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.” Against them he set “a republic, by which I mean a government in which the scheme of representation takes place,” and he argued that representation and structure and sheer size were the cure for the sickness democracies died of, which was faction, and worst of all the faction that is a majority. John Adams put it with less delicacy: “democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide.” When Franklin was asked, as the story goes, what the convention had produced, he did not answer a democracy. He answered a republic, if you can keep it.
Strip the history away and the reason stands on its own, and it is the reason this whole project keeps returning to. If a person owns himself, and if his basic rights are real and precede the government rather than being issued by it, then those rights cannot be legitimately erased by a vote, because a vote is only a count of other people, and no number of other people acquires a claim over you that none of them held alone. Fifty-one of your neighbors have no more right to your conscience or your property than one of them does. That is the entire moral case for setting a constitution above the majority: some things are simply not the majority’s to decide. A democracy in the strict sense has no way to say that. It has no floor beneath the individual, because there the majority is floor and ceiling both. A republic lays the floor first and then lets the majority govern above it. That is not a limit on self-government. It is what makes self-government safe to keep.
The trouble in our own moment is that “democracy” has swollen into a sacred word that means everything and therefore nothing. Like liberty, which I have written about as a word that flatters everyone who says it and commits him to nothing, democracy has become an applause light. When people speak of “our democracy” they almost always mean the whole apparatus of a free constitutional order: elections, yes, but also courts, rights, the rule of law, the peaceful handing over of power. I will defend that apparatus. But the word smuggles in a second meaning as it travels, the strict one, in which democracy means the majority ought simply to get its way, and the smuggling is where the harm is done. A citizen taught that democracy is the highest good, and that democracy means majority rule, has been quietly handed the premise that any check on the majority is an assault on the sacred thing. A court that strikes down a popular law, a Senate that will not move, a constitution that forbids what a large majority wants, all of it begins to look like betrayal rather than design. The design was the point. Those checks are the republic doing what it was built to do.
The argument gets abused in both directions, and I want no part of the abuse. The charge from the left is that “we’re a republic, not a democracy” is a line people reach for to justify minority rule, to wave off election results they dislike and defend arrangements that let a smaller group govern a larger one. Sometimes that charge lands, and when it lands it is correct. A republic is not a machine for letting the side with fewer people win. Majorities govern in a republic. They win elections, pass laws, and fill the legislature, and a system in which they routinely lost to minorities would be a broken republic, not a healthy one. The limit a republic sets is a limit on what the majority may do to the individual and the minority, not a standing veto handed to whoever gets outvoted. Anyone using “we’re a republic” to mean “my faction should rule regardless of the count” has taken the real principle and turned it inside out. Reject that as firmly as you reject unchecked majority rule, because it is the same disease in the other team’s colors.
The overcorrection is to hear all of this and conclude that democracy is nothing but mob rule and the less of it the better, that the people are dangerous and belong at arm’s length from power, safely under the management of their betters. The founders did not hold that view, and I do not hold it. The people are sovereign. Elections are not a grudging concession to the rabble; they are the engine that gives the whole structure its legitimacy, the way the governed actually consent to be governed. A republic drained of popular control is an oligarchy with a flag. The vote is essential, and the aim is never to shrink it but to channel it, to run the people’s sovereign will through forms that make it deliberate and durable rather than hot and momentary. The engine is popular. The track is constitutional. Remove either and the thing will not run.
The clean line between the two words is muddier in practice than on the page. Every working republic today is democratic in the broad sense, and when a modern person says “democracy” he almost never means the pure Athenian article. He means a constitutional democracy, which is a republic. So the pedant who corrects “democracy” to “republic” at every opportunity is often winning a point his opponent never disputed. The words have bled into one another, and the fight over the labels is frequently a proxy for some other fight. What actually matters is not the noun you pick. It is the question underneath it: is there a higher law that binds the majority, or is there not? Answer yes and you have a republic whatever you call it. Answer no and you have a democracy in the dangerous sense whatever you call it. The label is cheap. The principle is the whole of it.
All of this stops being abstract the instant you look at the machinery, because the features people attack as undemocratic are almost always the republic showing through. The Senate, where Wyoming and California send the same two members. The supermajority it takes to amend the Constitution or ratify a treaty. A court that can strike down a law a majority just passed. The division of power between the states and the center. Each of these is a defining feature of a federal republic, a place where the majority’s momentary will is made to pass through more than one gate before it hardens into law. And the sharpest, most attacked, most misunderstood of them all is the way this republic picks its president. That is the subject of the companion to this essay, The States Choose the President, because the case for the Electoral College is the republic, drawn in miniature.