essay about constitutional democracy

‘America Is a Republic, Not a Democracy’ Is a Dangerous—And Wrong—Argument

Enabling sustained minority rule at the national level is not a feature of our constitutional design, but a perversion of it.

Dependent on a minority of the population to hold national power, Republicans such as Senator Mike Lee of Utah have taken to reminding the public that “we’re not a democracy.” It is quaint that so many Republicans, embracing a president who routinely tramples constitutional norms, have suddenly found their voice in pointing out that, formally, the country is a republic. There is some truth to this insistence. But it is mostly disingenuous. The Constitution was meant to foster a complex form of majority rule, not enable minority rule.

The founding generation was deeply skeptical of what it called “pure” democracy and defended the American experiment as “wholly republican.” To take this as a rejection of democracy misses how the idea of government by the people, including both a democracy and a republic, was understood when the Constitution was drafted and ratified. It misses, too, how we understand the idea of democracy today.

George Packer: Republicans are suddenly afraid of democracy

When founding thinkers such as James Madison spoke of democracy, they were usually referring to direct democracy, what Madison frequently labeled “pure” democracy. Madison made the distinction between a republic and a direct democracy exquisitely clear in “ Federalist No. 14 ”: “In a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents. A democracy, consequently, will be confined to a small spot. A republic may be extended over a large region.” Both a democracy and a republic were popular forms of government: Each drew its legitimacy from the people and depended on rule by the people. The crucial difference was that a republic relied on representation, while in a “pure” democracy, the people represented themselves.

At the time of the founding, a narrow vision of the people prevailed. Black people were largely excluded from the terms of citizenship, and slavery was a reality, even when frowned upon, that existed alongside an insistence on self-government. What this generation considered either a democracy or a republic is troublesome to us insofar as it largely granted only white men the full rights of citizens, albeit with some exceptions. America could not be considered a truly popular government until the passage of the Civil Rights Act of 1964 and the Voting Rights Act of 1965, which commanded equal citizenship for Black Americans. Yet this triumph was rooted in the founding generation’s insistence on what we would come to call democracy.

The history of democracy as grasped by the Founders, drawn largely from the ancient world, revealed that overbearing majorities could all too easily lend themselves to mob rule, dominating minorities and trampling individual rights. Democracy was also susceptible to demagogues—men of “factious tempers” and “sinister designs,” as Madison put it in “Federalist No. 10”—who relied on “vicious arts” to betray the interests of the people. Madison nevertheless sought to defend popular government—the rule of the many—rather than retreat to the rule of the few.

American constitutional design can best be understood as an effort to establish a sober form of democracy. It did so by embracing representation, the separation of powers, checks and balances, and the protection of individual rights—all concepts that were unknown in the ancient world where democracy had earned its poor reputation.

In “Federalist No. 10” and “Federalist No. 51,” the seminal papers, Madison argued that a large republic with a diversity of interests capped by the separation of powers and checks and balances would help provide the solution to the ills of popular government. In a large and diverse society, populist passions are likely to dissipate, as no single group can easily dominate. If such intemperate passions come from a minority of the population, the “ republican principle ,” by which Madison meant majority rule , will allow the defeat of “ sinister views by regular vote .” More problematic are passionate groups that come together as a majority. The large republic with a diversity of interests makes this unlikely, particularly when its separation of powers works to filter and tame such passions by incentivizing the development of complex democratic majorities : “In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good.” Madison had previewed this argument at the Constitutional Convention in 1787 using the term democracy , arguing that a diversity of interests was “the only defense against the inconveniences of democracy consistent with the democratic form of government.”

Jeffrey Rosen: America is living James Madison’s nightmare

Yet while dependent on the people, the Constitution did not embrace simple majoritarian democracy. The states, with unequal populations, got equal representation in the Senate. The Electoral College also gave the states weight as states in selecting the president. But the centrality of states, a concession to political reality, was balanced by the House of Representatives, where the principle of representation by population prevailed, and which would make up the overwhelming number of electoral votes when selecting a president.

But none of this justified minority rule, which was at odds with the “republican principle.” Madison’s design remained one of popular government precisely because it would require the building of political majorities over time. As Madison argued in “ Federalist No. 63, ” “The cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers.”

Alexander Hamilton, one of Madison’s co-authors of The Federalist Papers , echoed this argument. Hamilton made the case for popular government and even called it democracy: “A representative democracy, where the right of election is well secured and regulated & the exercise of the legislative, executive and judiciary authorities, is vested in select persons, chosen really and not nominally by the people, will in my opinion be most likely to be happy, regular and durable.”

The American experiment, as advanced by Hamilton and Madison, sought to redeem the cause of popular government against its checkered history. Given the success of the experiment by the standards of the late 18th and early 19th centuries, we would come to use the term democracy as a stand-in for representative democracy, as distinct from direct democracy.

Consider that President Abraham Lincoln, facing a civil war, which he termed the great test of popular government, used constitutional republic and democracy synonymously, eloquently casting the American experiment as government of the people, by the people, and for the people. And whatever the complexities of American constitutional design, Lincoln insisted , “the rule of a minority, as a permanent arrangement, is wholly inadmissible.” Indeed, Lincoln offered a definition of popular government that can guide our understanding of a democracy—or a republic—today: “A majority, held in restraint by constitutional checks, and limitations, and always changing easily, with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people.”

The greatest shortcoming of the American experiment was its limited vision of the people, which excluded Black people, women, and others from meaningful citizenship, diminishing popular government’s cause. According to Lincoln, extending meaningful citizenship so that “all should have an equal chance” was the basis on which the country could be “saved.” The expansion of we the people was behind the Fourteenth and Fifteenth Amendments ratified in the wake of the Civil War. The Fourteenth recognized that all persons born in the U.S. were citizens of the country and entitled to the privileges and immunities of citizenship. The Fifteenth secured the vote for Black men. Subsequent amendments, the Nineteenth, Twenty-Fourth, and Twenty-Sixth, granted women the right to vote, prohibited poll taxes in national elections, and lowered the voting age to 18. Progress has been slow— and s ometimes halted, as is evident from current efforts to limit voting rights —and the country has struggled to become the democratic republic first set in motion two centuries ago. At the same time, it has also sought to find the right republican constraints on the evolving body of citizens, so that majority rule—but not factious tempers—can prevail.

Adam Serwer: The Supreme Court is helping Republicans rig elections

Perhaps the most significant stumbling block has been the states themselves. In the 1790 census, taken shortly after the Constitution was ratified, America’s largest state, Virginia, was roughly 13 times larger than its smallest state, Delaware. Today, California is roughly 78 times larger than Wyoming. This sort of disparity has deeply shaped the Senate, which gives a minority of the population a disproportionate influence on national policy choices. Similarly, in the Electoral College, small states get a disproportionate say on who becomes president. Each of California’s electoral votes is estimated to represent 700,000-plus people, while one of Wyoming’s speaks for just under 200,000 people.

Subsequent to 1988, the Republican presidential candidate has prevailed in the Electoral College in three out of seven elections, but won the popular vote only once (2004). If President Trump is reelected, it will almost certainly be because he once again prevailed in the Electoral College while losing the popular vote. If this were to occur, he would be the only two-term president to never win a plurality of the popular vote. In 2020, Trump is the first candidate in American history to campaign for the presidency without making any effort to win the popular vote, appealing only to the people who will deliver him an Electoral College win. If the polls are any indication, more Americans may vote for Vice President Biden than have ever voted for a presidential candidate, and he could still lose the presidency. In the past, losing the popular vote while winning the Electoral College was rare. Given current trends, minority rule could become routine. Many Republicans are actively embracing this position with the insistence that we are, after all, a republic, not a democracy.

They have also dispensed with the notion of building democratic majorities to govern, making no effort on health care, immigration, or a crucial second round of economic relief in the face of COVID-19. Instead, revealing contempt for the democratic norms they insisted on when President Barack Obama sought to fill a vacant Supreme Court seat, Republicans in the Senate have brazenly wielded their power to entrench a Republican majority on the Supreme Court by rushing to confirm Justice Amy Coney Barrett. The Senate Judiciary Committee vote to approve Barrett also illuminates the disparity in popular representation: The 12 Republican senators who voted to approve of Barrett’s nomination represented 9 million fewer people than the 10 Democratic senators who chose not to vote. Similarly, the 52 Republican senators who voted to confirm Barrett represented 17 million fewer people than the 48 senators who voted against her. And the Court Barrett is joining, made up of six Republican appointees (half of whom were appointed by a president who lost the popular vote) to three Democratic appointees, has been quite skeptical of voting rights—a severe blow to the “democracy” part of a democratic republic.  In 2013’s Shelby County v. Holder , the Court struck down a section of the Voting Rights Act of 1965 that allowed the federal government to preempt changes in voting regulations from states with a history of racial discrimination.

As Adam Serwer recently wrote in these pages , “ Shelby County ushered in a new era of experimentation among Republican politicians in restricting the electorate, often along racial lines.” Republicans are eager to shrink the electorate. Ostensibly seeking to prevent voting fraud, which studies have continually shown is a nonexistent problem, Republicans support efforts to make voting more difficult—especially for minorities, who do not tend to vote Republican. The Republican governor of Texas, in the midst of a pandemic when more people are voting by mail, limited the number of drop-off locations for absentee ballots to one per county. Loving, with a population of 169, has one drop-off location; Harris, with a population of 4.7 million (majority nonwhite), also has one drop-off location. States controlled by Republicans, such as Georgia, Louisiana, and Texas, have also closed polling places, making voters in predominantly minority communities stand in line for hours to cast their ballot.

Who counts as a full and equal citizen—as part of we the people —has shrunk in the Republican vision. Arguing against statehood for the District of Columbia, which has 200,000 more people than the state of Wyoming, Senator Tom Cotton from Arkansas said Wyoming is entitled to representation because it is “a well-rounded working-class state.” It is also overwhelmingly white. In contrast, D.C. is 50 percent nonwhite.

High-minded claims that we are not a democracy surreptitiously fuse republic with minority rule rather than popular government. Enabling sustained minority rule at the national level is not a feature of our constitutional design, but a perversion of it. Routine minority rule is neither desirable nor sustainable, and makes it difficult to characterize the country as either a democracy or a republic. We should see this as a constitutional failure demanding constitutional reform.

This story is part of the project “ The Battle for the Constitution ,” in partnership with the National Constitution Center .

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US government and civics

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Democratic ideals in the Declaration of Independence and the Constitution

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“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.

— That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,

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The first amendment, democratic constitutionalism.

by Robert Post and Reva Siegel

The Constitution is the law of lawmaking. It structures and limits the powers of government. Sometimes the Constitution speaks in precise and unambiguous terms. It provides, for example, that the “Senate of the United States shall be composed of two Senators from each State.” Constitutional controversies are relatively rare when the Constitution speaks in this concrete, rule-bound way.

But often constitutional provisions are elliptical and incomplete, filled with grand abstractions. The Constitution gives Congress the power “to regulate Commerce . . . among the several States,” and it forbids Congress from making any “law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech.” The Constitution provides that “No State shall make or enforce any law” that denies “to any person within its jurisdiction the equal protection of the laws” or that deprives “any person of life, liberty, or property, without due process of law.” Terms like “commerce,” or “the freedom of speech,” or “equal protection,” or “due process of law” are not precise or self-defining.

Over the centuries the meaning of these essential but obscure constitutional provisions has been subject to fierce debate. Our interpretation of these provisions has evolved dramatically as the nation has developed. In the 19 th Century, congressional commerce power did not include the right to regulate manufacturing or to protect the rights of employees; these were conceived as matters that states alone could control. But by the end of the 20 th Century, congressional commerce power had expanded beyond anything the Framers foresaw or imagined. Congress now routinely enacts laws establishing social security, enforcing fair labor standards, and prohibiting discrimination in employment.

Constitutional change of this kind is commonplace. For over 120 years, the First Amendment’s reach was quite limited. Government could use criminal law to punish persons who published seditious libel, which is speech that challenges public authority. But through cases decided in the last eighty years, we have come to understand that the primary purpose of the First Amendment is to protect from criminal sanctions speech that criticizes the government. Similarly, the Equal Protection Clause was originally interpreted to authorize racial segregation that was “separate but equal.” But in 1954 the Clause was reinterpreted in the famous case of Brown v. Board of Education to prohibit racial segregation.

Although the literal text of these important constitutional provisions has remained unaltered, the meaning of these texts has dramatically evolved. All historians agree that the interpretation of important constitutional texts has constantly changed over the life of the nation. What is the significance of this fact? 

For some, change of this kind is a problem. They look to the Constitution to stand outside of politics and fix the structure of our government. They believe that the chief function of constitutional law is to offer permanence and stability. On this account, the Constitution’s authority flows from consent, from the fact that “We, the People” have ratified the document in 1789. If change is necessary, we must pursue the arduous amendment procedures of Article V to obtain the authority necessary to alter the text of the Constitution. The Constitution’s authority thus flows solely from formal acts of ratification; the Constitution can change only through the rigorous amendment procedures specified in Article V. 

This view of the Constitution is well illustrated by Justice Scalia’s dissent in the recent case of Obergefell v. Hodges (2015) in which the Court held that the Due Process Clause and the Equal Protection Clause prevent states from refusing to marry same-sex couples. Objecting to the Court’s opinion, Justice Scalia asserted:

When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as ‘due process of law’ or ‘equal protection of the laws’—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.  

In this passage Justice Scalia adopts a view of constitutional interpretation that is called “originalism.” Originalism holds that the Constitution should be interpreted as a contract whose meaning is fixed at the moment of ratification.

Some aspects of the Constitution do seem to conform to this account. There are certain parts of the Constitution which we do not experience as ambiguous. These portions of the Constitution in fact seem to stand outside politics and to structure the “rules of the road” for our political life. Good examples are the constitutional rules establishing a bicameral Congress or providing that a presidential veto can be overruled only by a two-thirds vote of the Senate and the House. These aspects of the Constitution can be changed, if at all, only through the arduous process of constitutional amendment.

But this account does not well describe other, more ambiguous parts of the Constitution. The Court has not bound its interpretation of the Constitution’s more abstract clauses, the clauses that set forth fundamental rights, by the understandings of those who ratified these clauses. The Court’s interpretation of “freedom of speech” or “equal protection of the laws” or “due process” has evolved continuously since the ratification of these constitutional texts. 

A good example is how the Equal Protection Clause came to be interpreted to prohibit sex discrimination. For more than 130 years after the ratification of the Constitution, states treated women unequally to men. State laws prevented women from becoming lawyers and obtaining many other forms of employment, and even denied women the right to vote. But women organized, first to obtain the right to vote, and then to secure legislation guaranteeing equality of treatment by government and employers. Although an attempt to amend the Constitution to prohibit sex discrimination failed, the Court nevertheless in 1973 signaled that the Equal Protection Clause would henceforth be interpreted to require the equal treatment of women. Writing a plurality opinion for the Court, Justice Brennan in Frontiero v. Richardson (1973) explicitly noted that the Court would change its interpretation of the Equal Protection Clause in part because “over the past decade, Congress has itself manifested an increasing sensitivity to sex-based classifications.” The Court adjusted its interpretation of the Equal Protection Clause to incorporate the new national ideal of gender equality, which had emerged through decades of political contestation and mobilization.

The Court’s canonical decision in Brown v. Board of Education (1954), which interpreted the Equal Protection Clause to forbid racial segregation, reflects exactly this kind of sensitivity to altered popular values. Those who ratified the Fourteenth Amendment did not understand the Amendment to require desegregated public schools. But racial discrimination had become unacceptable to most Americans in the years after our struggle against Nazism in World War II. In our own time, Justice Kennedy’s opinion for the Court in Obergefell struck down prohibitions on same-sex marriage in part because of the extensive national “deliberation” that the Court believed had caused the country to change its views regarding the justice of same-sex marriage.

Political scientists have shown time after time that judicial review regularly and unavoidably translates deeply-held popular convictions into positive constitutional law. In this way both liberal and conservative understandings have come to shape our interpretation of the Constitution. It is plain, for example, that the Court’s recent creation of individual Second Amendment rights owes far more to the values of mobilized gun advocates of the 1980s and 1990s than to 18 th century ideas. The Court’s recent efforts to restrict affirmative action, or to limit the reach of federal power to regulate interstate commerce, or to limit Congress’s authority to enact legislation enforcing the Fourteenth Amendment, are all responsive to contemporary conservative political mobilization. 

Throughout American history, in contexts both liberal and conservative, the Court has consistently interpreted the Constitution to reflect fundamental contemporary values. The Court has rarely regarded the Constitution as a petrified contract, fixed by terms ratified in the distant past. It has instead appealed to a Constitution whose authority must be earned in each generation. Seen from this angle, the Constitution by which we are governed is plainly not outside of politics. Its authority depends, in part, on its historical lineage and, in part, on its capacity to express living Americans’ understanding of their deepest ideals.

Of course in a large and heterogeneous nation there is bound to be disagreement about the meaning of the Constitution’s commitments to fundamental rights. For this reason, some fear that if the Court were to interpret the Constitution in ways that respond to contemporary ideals, our constitutional order might be undermined by instability and insecurity. This is the fear that underlies originalism as a theory of constitutional interpretation. The hope is that by limiting the Constitution’s interpretation to its original meaning, we can avoid conflict. In the name of this fear, originalists would bind constitutional meaning to the views of those who first consented to the Constitution in 1789, or to the Bill of Rights in 1791, or to the Fourteenth Amendment in 1868. 

This theory has a superficial plausibility. Its attractiveness, however, dissolves on closer inspection. No American alive today was involved in the ratification of these constitutional texts. How, we may ask, are contemporary Americans bound to a contract they did not make? Is it reasonable to ask living Americans to identify with the Framers’ agreement when many—for example, women and African Americans—would not have been permitted to vote had they been alive at the time of the Founding or even when the Fourteenth Amendment was ratified? The prospect of being bound to a document whose meaning was completely fixed by strangers would likely be most alienating. Nor would the infinitesimal possibility of amending the Constitution substitute for the lack of consent by living Americans. Unlike the Constitution of the State of California or the Constitution of India, it is almost impossible to amend the Constitution of the United States. Since 1789, the nation has used the procedures of Article V to ratify only 27 amendments. Instead we have relied on other provisions of the Constitution to enable constitutional change, including those authorizing the democratically elected Congress and President to create federal courts and to appoint federal judges. 

Originalists like Justice Scalia claim to reject change that occurs through judicial interpretation. They argue that judges should instead be bound to the Constitution’s original meaning because this will create a neutral and mechanical way to settle disputes over the Constitution’s meaning. The argument may be appealing, but its logic does not hold. Original meaning is not a simple fact waiting to be uncovered. If it were, the relevant experts would surely be historians who know far more about the facts of the past than judges. But historians rarely understand legal texts to have one meaning for all who ratify them. Uncovering “original meaning” requires interpretive judgment. That is why originalists frequently disagree among themselves. There were originalists arguing on both sides of the Obergefell case—some claiming that bans on same-sex marriage were not prohibited by the original meaning of the Constitution, and some claiming that they were. Because there are many ways to determine the “original meaning” of the Constitution, originalists often seem to “discover” original meanings of the Constitution that are consonant with their own values and ideals.

If it appears strange to interpret the Constitution in light of contemporary “deliberation,” consider that constitutional interpretation has proceeded in this way since the beginning of the Republic when the country debated the constitutionality of a national bank. Judges interpreting the Constitution regularly look to the nation’s history, to the Constitution’s text, to the structure of American government, to judicial precedent, to practical reason, and to the nation’s ideals as they decide the Constitution’s meaning. Judicial interpretations of the Constitution typically embody the stability and predictability that characterize all judge-made law, of which our own common law is a conspicuous example. If the end result of this complex process of decision-making were not consonant with the fundamental values of the American people, the authority of the Constitution would diminish. 

The point is well illustrated by the case of Bolling v. Sharpe (1954). Bolling was a companion case of Brown ; it decided whether Washington, D.C. could operate a school system that was racially segregated. Brown had interpreted the Equal Protection Clause of the Fourteenth Amendment, which applies only to states, to prohibit school segregation in the states. But Washington D.C. is not a state; it is instead a federal territory. The Fifth Amendment, which applies to the federal government and was ratified in 1791, contains a Due Process Clause, but not an Equal Protection Clause. In Bolling the Court interpreted the Due Process Clause of the Fifth Amendment to prohibit racially segregated schools. This conclusion could not possibly be explained in terms of the original meaning of the Fifth Amendment, because in 1791 slavery was an accepted fact of American life, woven into the very fabric of the Constitution. 

Critics of Bolling who espoused an originalist theory of constitutional interpretation objected to this anomaly. Yet the Court did not find differences in the text or history of the Fifth and Fourteenth Amendments sufficient to exempt the federal government from the prohibition against racial segregation that Brown had announced. Because there was no realistic possibility of amending either the Fifth or Fourteenth Amendments to reflect this conclusion, the Court chose in Bolling to use the process of interpretation to align the Constitution with deeply-held American values. If the Constitution had not been interpreted to constrain the federal government as it constrained the states, its authority would have been undermined.

Bolling illustrates that when the Court interprets the Constitution in dialogue with the nation’s fundamental values, it helps sustain the Constitution’s authority. It is because the Court interprets the Constitution in this way that Americans struggle to persuade each other—and the Court—about the Constitution’s meaning. This struggle creates community. Even Americans who disagree about fundamental values are united in their belief that the Constitution is central in American life. This makes our Constitution vibrant and important, in a way that is unique among nations of the world. In other countries, constitutions are the concern chiefly of legal professionals; in the United States, the Constitution matters for the people. This is what President Woodrow Wilson meant when he proclaimed that “the Constitution of the United States is not a mere lawyers’document: it is a vehicle of life, and its spirit is always the spirit of the age.” Woodrow Wilson, Constitutional Government In The United States 69 (1908).

Consider the recent controversy over whether the First Amendment prohibits campaign finance reform. If this issue were truly settled by the meaning of the First Amendment in 1791, there would be no reason for millions of Americans to debate what First Amendment protections now require; As the country debates this question, current generations of Americans argue about the meaning of the Constitution’s commitment to liberty and to democracy. Many, outraged by the Court’s decisions striking down laws limiting donations to political campaigns, question the Court’s authority to restrict campaign finance legislation—just as other Americans question the Court’s authority constitutionally to restrict the regulation of health care, affirmative action, or abortion. Persistent debate of this kind reaffirms the centrality of the Constitution to American life; it also informs the Court about how living Americans understand constitutional meaning.

Some fear that courts interpreting the Constitution in this fashion converts the United States into a juristocracy, in which—to use Justice Scalia’s vivid phrase—“a black-robed supremacy” ( United States v. Windsor (2013) (Scalia, J., dissenting)) can strangle the democratically-elected branches. This is a danger with which the nation has lived since its Founding.

The power of judicial review has in fact been abused, at times egregiously so. Unwise judges can thwart democracy whether they adopt an originalist theory of interpretation, as they did in the infamous case of Dred Scott v. Sandford (1857), which held that African slaves and their descendants could not be citizens of the United States; or whether they adopt some other theory of constitutional interpretation, as they did in the equally infamous case of Lochner v. New York (1905), which struck down a statute limiting the number of hours bakers could work each week. 

The important thing to remember, however, is that the Court never has the last word. When the Court pronounces its view of the Constitution, it is as likely to spark controversy as to end it. This point was made in a pithy and amusing way by the comedian Jon Stewart in his book entitled America (The Book): A Citizen’s Guide to Democracy Inaction . Stewart reports in his discussion of Roe v. Wade (1973) that “[t]he Court rules that the right to privacy protects a woman’s decision to have an abortion and the fetus is not a person with constitutional rights, thus ending all debate on this once-controversial issue.” Jon Stewart, et al., America (The Book): A Citizen's Guide to Democracy Inaction 90 (2004). Stewart’s irony implies what any historian would affirm: although Supreme Court decisions exert immense authority, constitutional interpretations are truly and finally settled only when the people accept their wisdom, not simply when the Supreme Court speaks. 

If the Court interprets the Constitution in ways that mistake the actual commitments of Americans, Americans will oppose its decisions. In the end, Alexis de Tocqueville, as in so many things, correctly perceived the nature of our constitutional polity when he observed that the “power” of Supreme Court justices:

Is immense, but it is power springing from opinion. [Justices] are all-powerful so long as the people consent to obey the law; they can do nothing when they scorn it. Now, of all powers, that of opinion is the hardest to use, for it is impossible to say exactly where its limits come. Often it is as dangerous to lag behind as to outstrip it. The federal judges therefore must not only be good citizens and men of education and integrity, qualities necessary for all magistrates, but must also be statesmen; they must know how to understand the spirit of the age, to confront those obstacles that can be overcome, and to steer out of the current when the tide threatens to carry them away, and with them the sovereignty of the Union and obedience to its laws.

Alexis De Tocqueville, Democracy In America 150-51  (J.P. Mayer ed., George Lawrence Trans., 1969).

De Tocqueville’s vision of judicial review is profoundly democratic. He affirms that courts can lead and should guide public opinion, but that in the long run courts are tethered to public opinion. The question is always whether the Court has interpreted the Constitution in a way that truly expresses American convictions. For this reason, we may call this understanding of judicial review “democratic constitutionalism.”

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Part one: essential elements, part two: indices.

PRELIMINARY DRAFT FOR REVIEW AND COMMENT

These outlines are works in progress that have been developed by staff of the Center for Civic Education. They have not been widely reviewed by scholars and practitioners in the United States or other nations. The Center invites critical comments and suggestions for improvement addressed to:

CONSTITUTIONAL DEMOCRACY: AN OUTLINE OF ESSENTIAL ELEMENTS

This outline attempts to set forth the essential elements or characteristics of constitutional democracy. Democracy is government of, by, and for the people. It is government of a community in which all citizens, rather than favored individuals or groups, have the right and opportunity to participate. In a democracy, the people are sovereign. The people are the ultimate source of authority.

In a CONSTITUTIONAL DEMOCRACY the authority of the majority is limited by legal and institutional means so that the rights of individuals and minorities are respected. This is the form of democracy practiced in Germany, Israel, Japan, the United States, and other countries.

This framework is intended to assist interested persons in various nations in establishing or improving curricular programs which foster an understanding of and support for constitutional democracy. The outline must be adapted to fit the circumstances and needs of individual political communities.

I. WHAT ARE THE ESSENTIAL CHARACTERISTICS AND PRINCIPLES OF CONSTITUTIONAL DEMOCRACY?

CONSTITUTIONAL DEMOCRACY is the antithesis of arbitrary rule. It is democracy characterized by:

A. POPULAR SOVEREIGNTY . The people are the ultimate source of the authority of the government which derives its right to govern from their consent.

B. MAJORITY RULE AND MINORITY RIGHTS . Although "the majority rules," the fundamental rights of individuals in the minority are protected.

C. LIMITED GOVERNMENT . The powers of government are limited by law and a written or unwritten constitution which those in power obey.

D. INSTITUTIONAL AND PROCEDURAL LIMITATIONS ON POWERS . There are certain institutional and procedural devices which limit the powers of government. These may include:

1. SEPARATED AND SHARED POWERS . Powers are separated among different agencies or branches of government. Each agency or branch has primary responsibility for certain functions such as legislative, executive, and judicial functions. However, each branch also shares these functions with the other branches.

2. CHECKS AND BALANCES . Different agencies or branches of government have adequate power to check the powers of other branches. Checks and balances may include the power of judicial review—the power of courts to declare actions of other branches of government to be contrary to the constitution and therefore null and void.

3. DUE PROCESS OF LAW . Individual rights to life, liberty, and property are protected by the guarantee of due process of law.

4. LEADERSHIP SUCCESSION THROUGH ELECTIONS . Elections insure that key positions in government will be contested at periodic intervals and that the transfer of governmental authority is accomplished in a peaceful and orderly process.

The fundamental values of constitutional democracy reflect a paramount concern with human dignity and the worth and value of each individual.

A. BASIC RIGHTS . Protection of certain basic or fundamental rights is the primary goal of government. These rights may be limited to life, liberty, and property, or they may be extended to include such economic and social rights as employment, health care and education. Documents such as the Universal Declaration of Human Rights, the United Nations Convention on the Rights of the Child, and the African Charter on Human and People's Rights enumerate and explain these rights.

B. FREEDOM OF CONSCIENCE AND EXPRESSION . A constitutional democracy includes among its highest purposes the protection of freedom of conscience and freedom of expression. These freedoms have value both for the healthy functioning and preservation of constitutional democracy and for the full development of the human personality.

C. PRIVACY AND CIVIL SOCIETY . Constitutional democracies recognize and protect the integrity of a private and social realm comprised of family, personal, religious, and other associations and activities. This space of uncoerced human association is the basis of a civil society free from unfair and unreasonable intrusions by government.

D. JUSTICE . A constitutional democracy promotes

• DISTRIBUTIVE JUSTICE . The fair distribution of the benefits and burdens of society.
• CORRECTIVE JUSTICE . Fair and proper responses to wrongs and injuries.
• PROCEDURAL JUSTICE . The use of fair procedures in the gathering of information and the making of decisions by all agencies of government and, most particularly, by law enforcement agencies and the courts.

E. EQUALITY . A constitutional democracy promotes

• POLITICAL EQUALITY . All citizens are equally entitled to participate in the political system.
• EQUALITY BEFORE THE LAW . The law does not discriminate on the basis of unreasonable and unfair criteria such as gender, age, race, ethnicity, religious or political beliefs and affiliations, class or economic status. The law applies to the governors as well as the governed.
• ECONOMIC EQUALITY . Constitutional democracies have differing conceptions of the meaning and importance of economic equality. At the very least, they agree that all citizens should have the right to an equal opportunity to improve their material wellbeing. Some constitutional democracies also attempt to eliminate gross disparities in wealth through such means as progressive taxation and social welfare programs.

F. OPENNESS . Constitutional democracies are based on a political philosophy of openness or the free marketplace of ideas, the availability of information through a free press, and free expression in all fields of human endeavor.

A. UNITARY, FEDERAL AND CONFEDERATE SYSTEMS . Unitary and federal systems are the most common ways of organizing constitutional democracies. There also are associations of states called confederations.

1. UNITARY SYSTEMS . In a unitary system central government has full power, which it may delegate to subordinate governments.

2. FEDERAL SYSTEMS . In a federal system power is shared between a central government which has full power over some matters and a set of subordinate provincial or state governments that have power over other matters.

3. CONFEDERATIONS . In a confederation, a league of independent states, which retain full sovereignty, agrees to allow a central government to perform certain functions, but the central government may not make laws applicable to individuals without the approval of the member states.

B. CHECKS AND BALANCES . These are constitutional mechanisms by which each branch of government shares power with the other branches so that no branch can become absolute. Each branch "checks" the others, because it is balanced against another source of power.

C. SEPARATION OF AND SHARING OF POWERS . All constitutional democracies use separation of powers as an important means of limiting the exercise of political power. This separation is typically among legislative, executive, and judicial functions. Although primary responsibility for each of these powers may be placed with one or more specific agencies or branches of government, other agencies and branches share the powers. For example, although one branch may have primary responsibility for creating laws, other branches may draft proposed laws, interpret their meaning, or manage disputes over them.

D. PARLIAMENTARY AND PRESIDENTIAL SYSTEMS . Governments can be organized as parliamentary or as presidential systems. In a few countries, the two systems are combined and called a "dual executive" system.

1. In PARLIAMENTARY SYSTEMS the chief executive, usually called the prime minister, is chosen from among the members of the legislature. While law fixes the maximum interval between elections, parliamentary governments may end sooner. If a majority of parliament votes for a motion of "no confidence" in a government, it is obliged to resign. In this case, the government is said to "fall" and new elections are held.

Parliamentary systems require that members of the prime minister's cabinet be members of the legislature (parliament). The prime minister is the head of government but not the head of state. A separate office holder, either a constitutional monarch or "president," is head of state.

2. In PRESIDENTIAL SYSTEMS or SYSTEMS OF SHARED POWERS , executive power is separated from the legislative power. The chief executive or head of government is not a member of the legislature. He or she serves a term fixed by the constitution and can be removed only in extraordinary circumstances such as impeachment and trial proceedings. The president also is chief of state and represents the policy on ceremonial occasions.

In presidential systems, the separation of legislative and executive powers may be incomplete. The executive may exercise some power over the legislature, and vice versa. Thus, the executive may be able to veto legislation passed by the legislature while the legislature may be able to curtail actions of the executive by cutting off funds for specific executive activities.

Although the political system of the United States and other constitutional democracies have been called presidential systems, this term does not reflect the reality of these complex systems with their dispersed and shared powers. Contemporary scholars have increasingly referred to such nations as possessing systems of SHARED POWERS , a more accurate description.

A. CITIZENSHIP IN A CONSTITUTIONAL DEMOCRACY . There is a difference between being a citizen in a constitutional democracy and being a subject in an authoritarian or totalitarian regime. In a democracy, each citizen is a full and equal member of a self-governing community endowed with certain fundamental rights, as well as with certain responsibilities. A subject, in contrast to a citizen, is obliged to obey the commands of others. The relation of the subject to the state is not dependent upon consent.

B. KNOWLEDGE AND SKILLS . Constitutional democracy requires informed and effective participation by citizens who understand and have a reasoned commitment to its fundamental principles and values, as well as a familiarity with its political processes.

1. CIVIC KNOWLEDGE . Citizens, of course, cannot know everything they would or should in an ideal democracy, but they should have some understanding of the following:

• HISTORY . Citizens should be familiar with the political, economic, and social history of their own country, how the modern world came to be, including how constitutional democracy developed, and the major events, issues and ideas of others of the contemporary world.
• GEOGRAPHY . Citizens should be familiar with the geography of their own country and of the world in order to be able to incorporate geographical factors into their thinking about political, social, and economic events.
• BASIC POLITICAL IDEAS . Citizens should be familiar with such fundamental concepts as popular sovereignty, constitutionalism, individual rights, and the common good.
• POLITICAL SYSTEM . Citizens should be familiar with both formal political institutions and with civil society, and they should understand the influence of the one upon the other. They also should be familiar with the purposes of government and with the principal individual and organizational actors in the political life of their country.
• LEGAL SYSTEM . Citizens should be familiar with the operation of the legal system and the rights and obligations of citizens under it.
• BASIC ECONOMIC IDEAS . Citizens should be familiar with basic concepts and principles of economics, the economic policies of their own country, and its economic relations with the rest of the world.
• HOW NATIONS INTERACT . Citizens need to know how the world is organized politically, as well as the role of international governmental and non-governmental organizations.
• SOURCES OF INFORMATION . Citizens should understand the significance of the mass media in a free society and the ways in which the media influences public opinion.

B. CIVIC SKILLS . Competent and responsible citizenship requires not only knowledge and understanding, but the development of intellectual and participatory skills essential to civic life.

1. INTELLECTUAL SKILLS include the capacity to

• think critically about information, arguments, and commentaries on public affairs
• make thoughtful judgments about government and public policy
• read, write, and speak effectively in forums appropriate to civic life and public affairs

2. PARTICIPATORY SKILLS include the capacity to

• MONITOR  the manner in which issues are dealt with in the political process and by government
• clearly articulating interests and making them known to key decision and policy makers
• building coalitions, negotiating, deliberating, compromising, and seeking consensus

C. TRAITS OF CIVIC CHARACTER . Certain traits of public and private character help constitutional democracy to flourish. While there is no universally agreed upon list of traits of civic character essential to constitutional democracy, the following traits are commonly accepted.

1. CIVILITY which means treating others with respect as individuals inherently worthy of consideration regardless of their positions on political issues. Civility means adhering to commonly accepted standards of discourse while taking part in public debate, refraining from vituperation and personal attacks, and respecting the right of others to be heard.

2. INDIVIDUAL RESPONSIBILITY which means that citizens understand the importance for themselves and for society of fulfilling their personal responsibilities. These responsibilities include taking care of one's self, supporting one's family, friends, and community; adhering to one's moral principles and considering the rights and interests of others.

3. SELF-DISCIPLINE  which means that citizens freely adhere to the fundamental values and principles of constitutional democracy without requiring the imposition of external authority.

4. CIVIC-MINDEDNESS which means that citizens are concerned about the common good and not just their own private affairs. Tensions between private interests, including the interests of the extended family, and the common good are bound to occur. Citizens need to understand how to reconcile their personal interests with the needs of the larger community.

5. OPEN-MINDEDNESS which means that citizens are receptive to different ideas and arguments. They consider opposing positions, but reject unsupported generalizations and dogmatism.

6. COMPROMISE which means that citizens sometimes must make accommodations or concessions in the political process. Compromise may be appropriate when the alternative is political stalemate, indecision, or, in extreme cases, violence.

7. TOLERATION OF DIVERSITY which means that citizens should respect the right of others to differ about ideas, ways of life, customs, and beliefs. Citizens should appreciate the benefits of having people of diverse beliefs and ethnic and racial backgrounds as a part of their community, as well as an understanding of how and why diversity can exacerbate tensions.

8. PATIENCE AND PERSISTENCE which means that citizens understand that developing or changing public policy usually require time and persistent effort. Delays or failure to immediately attain goals appropriate to constitutional democracy should not lead them to abandon their efforts.

9. COMPASSION which means that citizens empathize with others and demonstrate concern for their welfare.

10. GENEROSITY which means that citizens should be willing to expend their time, effort, and resources for the benefit of others and the community at large.

11. LOYALTY to principles and ideals which means that citizens act in accord with the fundamental principles of constitutional democracy. Citizens also should be committed to working toward narrowing the gap between democratic ideals and reality.

CONSTITUTIONAL DEMOCRACY: AN OUTLINE OF INDICES

The following are some of the essential indices that may be used to determine the degree to which a society reflects the fundamental characteristics, principles, and values of constitutional democracy. How would you rate the progress of your country on each indicator below? Use the following scale for your ratings:

5 = Excellent 4 = Good 3 = Adequate 2 = Poor 1 = Unsatisfactory

A. CONSTITUTIONAL GOVERNMENT

1. POPULAR SOVEREIGNTY . The people are the ultimate source of authority of the government and their sovereignty is reflected in the daily realities of the political system.

2. MAJORITY RULE AND MINORITY RIGHTS . People agree to abide by decisions of the majority, but there are effective protections for the rights of minorities. Protection of minority right s assures the legitimacy of government.

3. LIMITED GOVERNMENT . There are limits on the powers of government which elected and appointed officials obey.

4. INSTITUTIONAL AND PROCEDURAL LIMITATION ON POWERS . There are institutional and procedural devices which effectively limit the powers of government to serving its proper ends.

a. SEPARATION AND SHARING OF POWERS . The powers of government are separated and shared among different agencies or branches such as those responsible for legislative, executive, and judicial functions.

b. CHECKS AND BALANCES . Each agency or branch of government has adequate power to check the powers of other branches.

c. DUE PROCESS OF LAW . Individual rights to life, liberty, and property are protected by the guarantee of due process of law.

d. LEADERSHIP SUCCESSION THROUGH ELECTIONS . Key positions in government are contested at regular intervals. The transfer of power is accomplished through orderly and peaceful means.

B. PROTECTION OF INDIVIDUAL FREEDOMS

1. PERSONAL FREEDOM

a. FREEDOM OF RELIGION . Freedom of conscience and of worship are protected and individuals are free to profess no religious beliefs.

b. FREEDOM OF OPINION AND EXPRESSION . Everyone has the right to freedom of opinion and expression and the right to seek, receive, and impart information and ideas throughany media.

c. FREEDOM OF ASSOCIATION . Individuals are free to associate with other individuals and groups free from government interference or intimidation. Individuals are free from mandated membership in government-sponsored organizations.

d. RIGHT OF PRIVACY . The government recognizes that there is a private realm into which it may not unreasonably and unfairly intrude.

e. FREEDOM OF MOVEMENT . Individuals have the right to freedom of movement and residence in their own country. They have the right to travel abroad and the freedom to emigrate.

f. POLITICAL, ECONOMIC, AND LEGAL EQUALITY FOR WOMEN . Women are accorded the same political, economic, and legal protections as those accorded to men.

g. THE RIGHTS OF THE CHILD . Parents, men and women as individuals, voluntary organizations, local authorities, and national government recognize the rights of the child and strive for their observance by legislative and other measures in accord with the principles of the United Nations Declaration of the Rights of the Child.

2. POLITICAL FREEDOM

a. FREEDOM OF SPEECH . Citizens are free not only to debate the actions and policies of their elected officials but to express their thoughts about politics, art, religion or any other topic without fear of recrimination.

b. FREEDOM OF THE PRESS . Individuals have access to information from independent publishers, radio, television, and other means of communication which is free from censorship by government.

c. RIGHT OF PEACEFUL ASSEMBLY . The right to peaceful assembly is free from restrictions, except those necessary for the protection of the rights and freedoms of others.

3. ECONOMIC FREEDOM

a. FREEDOM FROM SLAVERY AND SERFDOM . Individuals are protected from all forms of forced labor, and children and young persons are protected from social and economic exploitation.

b. RIGHT TO ACQUIRE AND OWN PROPERTY . Individuals have the right to acquire and own property. Government is required to pay fair market value for property it takes for public use.

c. FREEDOM TO CHOOSE ONE'S WORK . Individuals are free to choose their own work and to establish private businesses free from unfair or unreasonable government regulation.

d. RIGHT TO JOIN LABOR UNION . Individuals have the right to strike and the right to persuade others to join unions without fear of intimidation.

C. LEGAL AND JUDICIAL PROTECTIONS

1. EQUALITY BEFORE THE LAW . All persons are entitled to the equal protection of the law. They are free from discrimination based on gender, age, race, ethnicity, religious beliefs, class or socio-economic status.

2. DUE PROCESS OF LAW . All branches and agencies of government (legislative, executive, and judicial) use fair procedures in the gathering of information and the making of decisions. Fair procedures provide for:

a. COMPREHENSIVENESS . The procedure increases the likelihood that all information necessary for making a wise and just decision is obtained.

b. PUBLIC OBSERVATION . The procedure allows interested members of the public to observe how information is gathered and used in making decisions.

c. EFFECTIVE PRESENTATION . The procedure allows interested persons to present information they wish to have considered in the decision-making process.

d. IMPARTIALITY . The gathering of information and the making of decisions is conducted without bias.

e. RELIABILITY . The procedure ensures that information which has been gathered is reliable.

f. NOTICE . Enough notice is given of when, where, and why information is to be gathered or decisions are to be made, so those concerned can prepare adequately.

g. PREDICTABILITY AND FLEXIBILITY . The procedure is predictable and flexible enough to promote justice.

h. DETECTION AND CORRECTION OF ERRORS . There is an established process to detect and correct errors in procedures used in the gathering of information and the making of decisions.

3. CRIMINAL DUE PROCESS . Persons suspected or accused of crimes are protected by fair procedures.

a. Law-enforcement agencies are required to use procedures that protect the rights of those suspected of crimes.

1) Individuals are free from arbitrary arrest and detention.

2) Persons are secure in their homes and property from arbitrary search and seizure.

3) Arrested individuals are informed of their rights and brought promptly before a judge to be informed of charges against them.

4) Individuals have the right to have a court or other impartial body determine the legality of their arrest and detention.

5) Individuals are protected against being forced to confess to crimes.

b. The courts are required to use procedures that protect the rights of the accused.

1) Accused persons are informed of the specific charges against them.

2) The accused are brought to trial only after there has been a fair hearing to determine if there is enough evidence to justify a trial.

3) The accused are given a speedy and public trial.

4) The accused have the right to a trial by a jury.

5) The accused have the right to counsel for assistance in their defense. Government is required to provide counsel for those who cannot pay for legal assistance.

6) The accused have the right to cross-examine and challenge witnesses against them.

7) The accused have the right to compel witnesses on their behalf to appear in court and to testify.

8) The accused have the right to refrain from testifying against themselves.

1. DISTRIBUTIVE JUSTICE . The benefits and burdens of society are distributed fairly. The political system protects and promotes

a. equality of political, economic, and social opportunity.

b. reduction of gross disparities of wealth.

c. equality before the law.

2. CORRECTIVE JUSTICE . Fair and proper responses are used to correct wrongs and injuries. Individuals are protected against cruel or excessive punishment.

3. PROCEDURAL JUSTICE . All agencies of the government use fair procedures when gathering information and making decisions. Civil and criminal procedures adequately protect the rights of individuals and the interests of the society.

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Is the Constitution Obstructing American Democracy?

More from our inbox:, let’s get books to prisoners, the ‘bold courage’ of parkland activists, thank you, philip galanes.

To the Editor:

Re “ Liberals Need to Change the Rules ,” by Ryan D. Doerfler and Samuel Moyn (Opinion guest essay, Aug. 21):

Mr. Doerfler and Mr. Moyn are right that we need to change the structure of Congress to remove the right-wing bias that infects it in order to make it fairly represent the American people. Their suggestion that Congress is itself the institution that might implement that change, through a “Congress Act,” however, is puzzling. Exactly the structural flaws that must be removed also make any such legislation a nonstarter.

To make Congress democratic — as well as to eliminate the Electoral College — we must appeal to the people directly, through a national referendum. Congress will not change itself.

David Gold New York The writer is a lawyer and the executive director of Democratism, a nonprofit that promotes the abolition of the Electoral College and proportional representation in Congress.

The problem is not that the Constitution is broken, but rather that the Supreme Court has been allowed to usurp powers not granted to it by the Constitution. Nowhere does the Constitution provide a method for the judicial branch to overturn decisions made by the other two branches. That power was assumed through the decision of the Supreme Court written by Chief Justice John Marshall in the case of Marbury v. Madison.

The legislative and executive branches could agree upon a method to review significant Supreme Court decisions that overturn laws passed by them and offer an evaluation of the court’s reasoning that either agrees or disagrees with the court’s decision. This would ensure that all critical constitutional issues would be resolved by agreement between at least two of the three equal branches of government.

J. Raby San Ramon, Calif.

Not to take issue with Harvard and Yale faculty, but were the filibuster (a Senate rule, not a constitutional provision) to be trash-binned and politically motivated gerrymandering declared a 14th Amendment violation, the Constitution, as is, would permit outcomes that reflect majority opinion and our evolving sense of what is just.

The framers made amending the Constitution difficult precisely so that shifting winds of political opinion, or the rise of a demagogue — e.g., Donald Trump — would not upend the democratic process. We have subverted that objective by requiring 60 votes in the Senate to pass most legislation, and permitting state legislatures to tip the scale to their preferred political party by redrawing district lines.

The applicable adage in defense of the Constitution is not “If it ain’t broke, don’t fix it,” but rather, “You break it, you own it.” We, not Alexander Hamilton and James Madison, made this mess, and it is up to us to fix it.

Rita C. Tobin Chappaqua, N.Y.

Re “ Reading Books in Prison Saved Me. Why Ban Them? ,” by Christopher Blackwell (Opinion guest essay, Aug. 18):

One of the biggest surprises when I became a bookstore owner in 2015 was the number of books we wanted to donate (slightly damaged ones we couldn’t sell, books that could no longer be returned, and more) and the lack of places that would accept donations.

Locally we have a few places we work with, but prisons seemed important places to donate books to. Finding ones that accepted them was complex, and none were local. Once we’ve weeded out what’s not allowed (romance, true crime, among others), packed all in boxes and paid for shipping, there was never a way to know if the books made it to the incarcerated. Based on Mr. Blackwell’s essay, I fear not.

Bookstore owners are a powerful group. We would love to partner with institutions to get books in the hands of those who might not have access or funds. Let this be a call for the powers that be (start with a task force?) to begin working together. We can start with donations and move toward group reads and other worthy book-based experiences.

Kira Wizner Millbrook, N.Y.

Christopher Blackwell is correct that prison officials impose arbitrary restrictions on what books may be read behind bars. He is also correct that these restrictions — which keep incarcerated individuals from accessing materials they need for education and personal growth — conflict with the purported rehabilitative aims of our prison system.

Another barrier to access is money. Books are expensive, and many incarcerated people are indigent. In prison, even unbanned books can be hard to come by. (The prison “library” is sometimes just a pushcart with paperback fiction.)

Readers should be aware of the many books-to-prisoners organizations, staffed by volunteers, that accept letter requests from incarcerated people and send them free books by mail. These nonprofit groups are invariably underfunded, and they are constantly overwhelmed with demand from a population that is heartbreakingly desperate for access to information.

While we should fight bans that keep books out of prisons, we should also support the organizations that are trying hard to get books in.

Ben A. Schatz Brooklyn The writer, a public defender, is a co-founder of Books Beyond Bars.

Re: “ 4 Years Later, Parkland Survivors Still Speaking Out ” (news article, Aug. 18):

I must respectfully disagree with Ryan Petty, the grieving Parkland parent, who criticized the strident tactics of the young March for Our Lives organizers — particularly for their “barging into lawmakers offices and demanding an assault weapons ban.”

As the founder of the Million Mom March — the largest protest against gun violence in U.S. history until the March for Our Lives held 18 years later — I regret that we adults did not encourage more “barging into lawmakers offices” to demand reforms. I am proud that many of us mothers from the 2000 march returned to Capitol Hill in 2004 to beg Congress to extend the 10-year ban on assault weapons. But begging was not enough to save the ban or the life of Mr. Petty’s daughter.

If only more adults had the bold courage of the student activists from March for Our Lives, perhaps the slaughtered children and educators in Newtown, Parkland and Uvalde might still be alive today.

Donna Dees-Thomases New Orleans The writer is the author of “Looking for a Few Good Moms: How One Mother Rallied a Million Others Against the Gun Lobby.”

Re “ An Advice Writer in a Shifting World ” (Inside The Times, Aug. 21):

Your tribute to Philip Galanes reminds me of a rewarding conversation I once had. Flying home in a middle seat, I found myself with a seatmate who was indifferent, at best, and annoyed, more likely, to have me sitting next to her. Undeterred, I opened my Sunday New York Times to my favorite column and proceeded to ask my fellow traveler each of that week’s four questions. It wasn’t Passover, but each question led to a lively discussion that helped us painlessly pass our flight time.

As we were landing, my still unnamed companion said to me that this was the most enjoyable flight she’d ever had. Philip Galanes makes my every Sunday wiser and more enjoyable.

(Rabbi) Jonathan H. Gerard Durham, N.C.

The Limits of Constitutional Democracy

Jeffrey K. Tulis

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Political Science

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Constitutional democracy is at once a flourishing idea filled with optimism and promise—and an enterprise fraught with limitations. Uncovering the reasons for this ambivalence, this book looks at the difficulties of constitutional democracy, and reexamines fundamental questions: What is constitutional democracy? When does it succeed or fail? Can constitutional democracies conduct war? Can they preserve their values and institutions while addressing new forms of global interdependence? The authors gathered here interrogate constitutional democracy’s meaning in order to illuminate its future. The book examines key themes—the issues of constitutional failure; the problem of emergency power and whether constitutions should be suspended when emergencies arise; the dilemmas faced when constitutions provide and restrict executive power during wartime; and whether constitutions can adapt to such globalization challenges as immigration, religious resurgence, and nuclear arms proliferation. In addition to the editors, the contributors are Sotirios Barber, Joseph Bessette, Mark Brandon, Daniel Deudney, Christopher Eisgruber, James Fleming, William Harris II, Ran Hirschl, Gary Jacobsohn, Benjamin Kleinerman, Jan-Werner Müller, Kim Scheppele, Rogers Smith, Adrian Vermeule, and Mariah Zeisberg.

"In the face of emergency, war, and globalization, even the most enduring and successful constitution in history still confronts the possibility of constitutional failure. Focusing on this central theme, the authoritative essays contained in this book offer cogent arguments, a range of subjects, and a genuine diversity of opinion."—Harvey Mansfield, Harvard University

"Provocative and insightful, these essays offer a badly needed tutorial on how to think about the fate of constitutional democracy in the twenty-first century. The volume as a whole demonstrates that the best friends of constitutionalism are those who are unafraid to explore its limits."—Bryan Garsten, Yale University

"In this book, some of our most subtle thinkers about the constitutional order discuss its fundamental aspects. These challenging and provocative essays should lead us to think more deeply about problems of constitutionalism in a twenty-first century world of seemingly permanent war and emergency, executive power, religious conflict, and globalization."—Mark Tushnet, Harvard Law School

"I cannot remember reading another collection of essays that is so strong and compelling. There could hardly be a more important topic than the limits of constitutional democracy in this day and age, and I found every single essay extremely interesting."—Sanford Levinson, University of Texas Law School

"This unique collection—of original, thoughtful, and stimulating essays by many of the country's top constitutional scholars—looks into the nature of constitutional democracy and its capacity to achieve benign ends. The essays provide illuminating and provocative answers and reflect a wide variety of views on the meaning of constitutional success and failure."—Donald P. Kommers, Notre Dame Law School

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Federalist 10: Democratic Republic vs. Pure Democracy

 by natalie bolton and gordon lloyd, introduction:.

To assist teachers in teaching the ratification of the U.S. Constitution, Professor Gordon Lloyd  has created a website in collaboration with the Ashbrook Center at Ashland University on the Federalist and Antifederalist Debates . Professor Lloyd organizes the content of the debates in various ways on the website. Two lesson plans have been created to align with two of the most noted essays high school students are encouraged to read, Federalist 10 and Federalist 51 . Within each lesson students will use a Federalist Paper as their primary source for acquiring content.

Guiding Question:

Why can a republic protect liberties better than a democracy?

Learning Objectives:

After completing this lesson, students should be able to: Define faction in Federalist 10 . Analyze present day issues and determine if they qualify as a faction as defined in Federalist 10 . Explain why Madison advocated for a democratic republic form of government over a pure democracy in Federalist 10 .

Background Information for the Teacher:

The years were 1787 and 1788. Along with the debate over the Constitution that was taking place in the state legislatures, an “out-of-doors” debate raged in newspapers and pamphlets throughout America’s thirteen states following the Constitutional Convention over the Constitution that had been proposed. Origin of The Federalist The eighty-five essays appeared in one or more of the following four New York newspapers: 1) The New York Journal , edited by Thomas Greenleaf, 2) Independent Journal , edited by John McLean, 3) New York Advertiser , edited by Samuel and John Loudon, and 4) Daily Advertiser , edited by Francis Childs. Initially, they were intended to be a twenty essay response to the Antifederalist attacks on the Constitution that were flooding the New York newspapers right after the Constitution had been signed in Philadelphia on September 17, 1787. The Cato letters started to appear on September 27, George Mason’s objections were in circulation and the Brutus essays were launched on October 18. The number of essays in The Federalist was extended in response to the relentless, and effective, Antifederalist criticism of the proposed Constitution. McLean bundled the first 36 essays together—they appeared in the newspapers between October 27, 1787 and January 8, 1788—and published them as Volume 1 on March 22, 1788. Essays 37 through 77 of The Federalist appeared between January 11, and April 2, 1788. On May 28, McLean took Federalist 37-77 as well as the yet to be published Federalist 78-85 and issued them all as Volume 2 of The Federalist . Between June 14 and August 16, these eight remaining essays—Federalist 78-85—appeared in the Independent Journal and New York Packet . The Status of The Federalist One of the persistent questions concerning the status of The Federalist is this: is it a propaganda tract written to secure ratification of the Constitution and thus of no enduring relevance or is it the authoritative expositor of the meaning of the Constitution having a privileged position in constitutional interpretation? It is tempting to adopt the former position because 1) the essays originated in the rough and tumble of the ratification struggle. It is also tempting to 2) see The Federalist as incoherent; didn’t Hamilton and Madison disagree with each other within five years of co-authoring the essays? Surely the seeds of their disagreement are sown in the very essays! 3) The essays sometimes appeared at a rate of about three per week and, according to Madison, there were occasions when the last part of an essay was being written as the first part was being typed. 1) One should not confuse self-serving propaganda with advocating a political position in a persuasive manner. After all, rhetorical skills are a vital part of the democratic electoral process and something a free people have to handle. These are op-ed pieces of the highest quality addressing the most pressing issues of the day. 2) Moreover, because Hamilton and Madison parted ways doesn’t mean that they weren’t in fundamental agreement in 1787-1788 about the need for a more energetic form of government. And just because they were written with certain haste doesn’t mean that they were unreflective and not well written. Federalist 10, the most famous of all the essays, is actually the final draft of an essay that originated in Madison’s Vices in 1787, matured at the Constitutional Convention in June 1787, and was refined in a letter to Jefferson in October 1787. All of Jay’s essays focus on foreign policy, the heart of the Madisonian essays are Federalist 37-51 on the great difficulty of founding, and Hamilton tends to focus on the institutional features of federalism and the separation of powers. I suggest, furthermore, that the moment these essays were available in book form, they acquired a status that went beyond the more narrowly conceived objective of trying to influence the ratification of the Constitution. The Federalist now acquired a “timeless” and higher purpose, a sort of icon status equal to the very Constitution that it was defending and interpreting. And we can see this switch in tone in Federalist 37 when Madison invites his readers to contemplate the great difficulty of founding. Federalist 38 , echoing Federalist 1 , points to the uniqueness of the America Founding: never before had a nation been founded by the reflection and choice of multiple founders who sat down and deliberated over creating the best form of government consistent with the genius of the American people. Thomas Jefferson referred to the Constitution as the work of “demigods,” and The Federalist “the best commentary on the principles of government, which ever was written.” There is a coherent teaching on the constitutional aspects of a new republicanism and a new federalism in The Federalist that makes the essays attractive to readers of every generation. Authorship of The Federalist A second question about The Federalist is how many essays did each person write? James Madison—at the time a resident of New York since he was a Virginia delegate to the Confederation Congress that met in New York—John Jay, and Alexander Hamilton—both of New York—wrote these essays under the pseudonym, “Publius.” So one answer to the question is that how many essays each person wrote doesn’t matter since everyone signed off under the same pseudonym, “Publius.” But given the iconic status of The Federalist , there has been an enduring curiosity about the authorship of the essays. Although it is virtually agreed that Jay wrote only five essays, there have been several disputes over the decades concerning the distribution of the essays between Hamilton and Madison. Suffice it to note, that Madison’s last contribution was Federalist 63 , leaving Hamilton as the exclusive author of the nineteen Executive and Judiciary essays. Madison left New York in order to comply with the residence law in Virginia concerning eligibility for the Virginia ratifying convention . There is also widespread agreement that Madison wrote the first thirteen essays on the great difficulty of founding. There is still dispute over the authorship of Federalist 50-58, but these have persuasively been resolved in favor of Madison. Outline of The Federalist A third question concerns how to “outline” the essays into its component parts. We get some natural help from the authors themselves. Federalist 1 outlines the six topics to be discussed in the essays without providing an exact table of contents. The authors didn’t know in October 1787 how many essays would be devoted to each topic. Nevertheless, if one sticks with the “formal division of the subject” outlined in the first essay, it is possible to work out the actual division of essays into the six topic areas or “points” after the fact so to speak. Martin Diamond was one of the earliest scholars to break The Federalist into its component parts. He identified Union as the subject matter of the first thirty-six Federalist essays and Republicanism as the subject matter of last forty-nine essays. There is certain neatness to this breakdown, and accuracy to the Union essays. The first three topics outlined in Federalist 1 are 1) the utility of the union, 2) the insufficiency of the present confederation under the Articles of Confederation , and 3) the need for a government at least as energetic as the one proposed. The opening paragraph of Federalist 15 summarizes the previous fourteen essays and says: “in pursuance of the plan which I have laid down for the pursuance of the subject, the point next in order to be examined is the ‘insufficiency of the present confederation.'” So we can say with confidence that Federalist 1-14 is devoted to the utility of the union. Similarly, Federalist 23 opens with the following observation: “the necessity of a Constitution, at least equally energetic as the one proposed… is the point at the examination of which we are now arrived.” Thus Federalist 15-22 covered the second point dealing with union or federalism. Finally, Federalist 37 makes it clear that coverage of the third point has come to an end and new beginning has arrived. And since McLean bundled the first thirty-six essays into Volume 1, we have confidence in declaring a conclusion to the coverage of the first three points all having to do with union and federalism. The difficulty with the Diamond project is that it becomes messy with respect to topics 4, 5, and 6 listed in Federalist 1 : 4) the Constitution conforms to the true principles of republicanism , 5) the analogy of the Constitution to state governments, and 6) the added benefits from adopting the Constitution. Let’s work our way backward. In Federalist 85 , we learn that “according to the formal division of the subject of these papers announced in my first number, there would appear still to remain for discussion two points,” namely, the fifth and sixth points. That leaves, “republicanism,” the fourth point, as the topic for Federalist 37-84, or virtually the entire Part II of The Federalist . I propose that we substitute the word Constitutionalism for Republicanism as the subject matter for essays 37-51, reserving the appellation Republicanism for essays 52-84. This substitution is similar to the “Merits of the Constitution” designation offered by Charles Kesler in his new introduction to the Rossiter edition; the advantage of this Constitutional approach is that it helps explain why issues other than Republicanism strictly speaking are covered in Federalist 37-46. Kesler carries the Constitutional designation through to the end; I suggest we return to Republicanism with Federalist 52 . Taken from the Introduction to The Federalist .

Preparing to Teach this Lesson:

Prior to teaching this lesson the teacher should cover content related to the Articles of Confederation and its weaknesses. The teacher should familiarize her/himself with Madison’s Notes on the Constitutional Convention of 1787 on the following days outlined below. Gordon Lloyd has presented the content of the Constitutional Convention of 1787 as a Four Act Drama . Additionally, the teacher should cover content related to Federalist and Antifederalist debates that occurred prior to Federalist 10 being published. Three activities are outlined below and should be implemented in order. Activity 1: Define faction in Federalist 10 . Activity 2: Analyze present day issues and determine if they qualify as a faction as defined in Federalist 10 . Activity 3: Analyzing Federalist 10 using APPARTS. For all activities, students will use Federalist 10 . To assist students in reading Federalist 10 , a paragraph-by-paragraph summary has been provided by Gordon Lloyd.

Analyzing Primary Sources:

If your students lack experience in dealing with primary sources, you might use one or more preliminary exercises to help them develop these skills. The Learning Page at the American Memory Project of the Library of Congress includes a set of such activities. Another useful resource is the Digital Classroom of the National Archives, which features a set of Document Analysis Worksheets . Finally, History Matters offers pages on “ Making Sense of Maps ” and “ Making Sense of Oral History ” which give helpful advice to teachers in getting their students to use such sources effectively.

Suggested Activities:

Activity 1: Define faction in Federalist 10

Time required for activity: In class activity 20 minutes.

The teacher will open day one of the lesson by sharing that Federalist 10 is one of 85 essays advocating for the ratification of the United States Constitution. Federalist 10 was written by James Madison and published on November 22, 1787 under the pseudonym Publius. In this essay, Madison addresses the question of how to guard against “factions,” or groups of citizens, with interests that are contrary to the rights of others or the interests of the community as a whole. Madison defined factions as groups of citizens with opinions, passions, or interests contrary to the interests of others or the well-being of others. These groups of citizens saw factions as irreconcilable differences that could not be negotiated or compromised (i.e. war, divorce).

This activity serves as an introduction to the lesson focusing on student understanding of the word faction. The teacher will ask students to move to a designated corner of the room based on their interest in completing one of the following products: illustration/drawing, mime/monument, Public Service Announcement (PSA), and written flyer. Each corner of the classroom will represent a product.

The teacher will tell students they have 10 minutes to create their designated product. All students will respond to the same question, “What is a faction?” Students will answer the question as an individual, in a small group, or whole group based on their interests and readiness. Students should use any resources they have available to assist in completing the activity. Students will then be asked to share their products with the class.

The teacher will then debrief the activity with students as they complete a verbal and visual word association on faction as a reflection activity ( see handout ). The teacher can use this completed task as a formative assessment for student understanding of the meaning of faction.

Activity 2: Factions and Current Issues

Time required for activity: 20 minutes To assist students in understanding factions that are present today, students will evaluate and discuss eight present day issues and determine if they qualify as a faction, as defined by Madison in Federalist 10 . Students will be asked to rate each issue on a three point scale with the anchors agree and disagree. The midpoint of the scale will read, don’t know. Teachers should give students the Current Issues Spectrum handout and ask them to read and rate the eight issues followed by an explanation. The teacher should make a poster for each of the current issues and have students place a mark and determine if the current issue is or is not a faction. Students can mark with a dot, post-it note, or marker. After students make their decisions, the class should discuss why they believe the issue is or is not a faction. The teacher should wrap-up the class discussion by asking students, “If the government has to make decisions on how to address the current issue, is it better to have every individuals voice be heard on every current event issue or is it better to have a representative from each of the anchors on the scale of each issue share their opinion? Are voices more powerful if they come from a large group of people together or from people who share the same ideas but live far apart from one another?

Activity 3: Interpreting and Evaluating Federalist 10

Time required for activity: In class reading assignment and completing an APPARTS graphic organizer, one 45 minute class period. Students may complete individually or in small groups. The teacher should remind students that Federalist 10 is one of 85 essays advocating for the ratification of the United States Constitution. Federalist 10 was written by James Madison and published on November 22, 1787 under the pseudonym Publius. In this essay, Madison addresses the question of how to guard against “factions,” or groups of citizens, with interests that are contrary to the rights of others or the interests of the community as a whole.

APPARTS Graphic Organizer

To help students understand the main ideas that emerged from Federalist 10, ask students to read Federalist 10 and complete the APPARTS graphic organizer handout . Students will use the APPARTS strategy to explain why James Madison advocated for a democratic republic form of government over a pure democracy in Federalist 10. Students may complete this task individually or in small groups.

Note: APPARTS is a strategy often used in Advanced Placement courses to analyze primary sources.

USING APPARTS TO ANALYZE PRIMARY SOURCE DOCUMENTS

To understand history or politics it is essential that you learn to critically examine significant primary source documents.

APPARTS is an “easy to remember” acronym for the following:

AUTHOR Who created the source? What do you know about the author? What is the author’s point of view?

PLACE AND TIME Where and when was the source produced? How might this affect the meaning of the source?

PRIOR KNOWLEDGE Beyond information about the author and the context of its creation, what do you know that would help you further understand the primary source? For example, do you recognize any symbols and recall what they represent?

AUDIENCE For whom was the source created and how might this affect the reliability of the source?

REASON Why was this source produced at the time it was produced?

THE MAIN IDEA What main point is the source trying to convey? What is the central message of the document?

SIGNIFICANCE Why is this source important? What inferences can you draw from this document? Ask yourself, “So what?” What should a student of history or politics take away from the analysis of this document?

Students may read the full-text of Federalist 10 or they can read a paragraph-by-paragraph summary written by Gordon Lloyd.

Depending on student content vocabulary readiness the teacher may need to review vocabulary used in Federalist 10. A teacher resource has been created using the Federalist 10 summary to review vocabulary using a word wall. The teacher will tell students that the class will be adding several words to the word wall today. Word walls are a literacy strategy that may be used before reading (explicit teaching and modeling, during reading (guided practice) and after reading (guided practice).

Assessment:

In 4-5 paragraphs, using your APPARTS analysis, write a reply to James Madison explaining if you agree or disagree with his perspective on the best form of government for the United States to protect individual liberties.

Extending the Lesson:

Extension 1: Compare how Madison discusses factions in Madison’s Vices , his June 6th speech during the Constitutional Convention of 1787, and Federalist 10. Extension 2: Do you think that our government today effectively guards against factions? Why or why not? Explain. Extension 3: Do you think that if a government official went about gaining public support using the methods Madison did to ratify the Constitution, would they work into today’s society? Why or why not? Do you think this is good or bad? Why or why not?

Related EDSITEment Lesson Plans:

• The Federalist Debates: Balancing Power between State and Federal Governments

Selected Websites:

• James Madison, Federalist 10
• James Madison, Federalist 51

Standards Alignment:

• CIVICED (9-12) I What are Civic Life, Politics, and Government?
• CIVICED (9-12) II What are the Foundations of the American Political System?
• CIVICED (9-12) III How Does the Government Established by the Constitution Embody the Purposes, Values, and Principles of American Democracy?
• CIVICED (9-12) V What are the Roles of the Citizen in American Democracy?
• NCSS-10 Civic ideals and practices. Citizenship in a democratic republic.
• NCSS-4 Individual development and identity.
• NCSS-5 Individuals, groups, and institutions.
• NCSS-6 Power, authority, and governance.

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Federalist Papers

By: History.com Editors

Updated: June 22, 2023 | Original: November 9, 2009

The Federalist Papers are a collection of essays written in the 1780s in support of the proposed U.S. Constitution and the strong federal government it advocated. In October 1787, the first in a series of 85 essays arguing for ratification of the Constitution appeared in the Independent Journal , under the pseudonym “Publius.” Addressed to “The People of the State of New York,” the essays were actually written by the statesmen Alexander Hamilton , James Madison and John Jay . They would be published serially from 1787-88 in several New York newspapers. The first 77 essays, including Madison’s famous Federalist 10 and Federalist 51 , appeared in book form in 1788. Titled The Federalist , it has been hailed as one of the most important political documents in U.S. history.

Articles of Confederation

As the first written constitution of the newly independent United States, the Articles of Confederation nominally granted Congress the power to conduct foreign policy, maintain armed forces and coin money.

But in practice, this centralized government body had little authority over the individual states, including no power to levy taxes or regulate commerce, which hampered the new nation’s ability to pay its outstanding debts from the Revolutionary War .

In May 1787, 55 delegates gathered in Philadelphia to address the deficiencies of the Articles of Confederation and the problems that had arisen from this weakened central government.

A New Constitution

The document that emerged from the Constitutional Convention went far beyond amending the Articles, however. Instead, it established an entirely new system, including a robust central government divided into legislative , executive and judicial branches.

As soon as 39 delegates signed the proposed Constitution in September 1787, the document went to the states for ratification, igniting a furious debate between “Federalists,” who favored ratification of the Constitution as written, and “Antifederalists,” who opposed the Constitution and resisted giving stronger powers to the national government.

The Rise of Publius

In New York, opposition to the Constitution was particularly strong, and ratification was seen as particularly important. Immediately after the document was adopted, Antifederalists began publishing articles in the press criticizing it.

They argued that the document gave Congress excessive powers and that it could lead to the American people losing the hard-won liberties they had fought for and won in the Revolution.

In response to such critiques, the New York lawyer and statesman Alexander Hamilton, who had served as a delegate to the Constitutional Convention, decided to write a comprehensive series of essays defending the Constitution, and promoting its ratification.

Who Wrote the Federalist Papers?

As a collaborator, Hamilton recruited his fellow New Yorker John Jay, who had helped negotiate the treaty ending the war with Britain and served as secretary of foreign affairs under the Articles of Confederation. The two later enlisted the help of James Madison, another delegate to the Constitutional Convention who was in New York at the time serving in the Confederation Congress.

To avoid opening himself and Madison to charges of betraying the Convention’s confidentiality, Hamilton chose the pen name “Publius,” after a general who had helped found the Roman Republic. He wrote the first essay, which appeared in the Independent Journal, on October 27, 1787.

In it, Hamilton argued that the debate facing the nation was not only over ratification of the proposed Constitution, but over the question of “whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

After writing the next four essays on the failures of the Articles of Confederation in the realm of foreign affairs, Jay had to drop out of the project due to an attack of rheumatism; he would write only one more essay in the series. Madison wrote a total of 29 essays, while Hamilton wrote a staggering 51.

Federalist Papers Summary

In the Federalist Papers, Hamilton, Jay and Madison argued that the decentralization of power that existed under the Articles of Confederation prevented the new nation from becoming strong enough to compete on the world stage or to quell internal insurrections such as Shays’s Rebellion .

In addition to laying out the many ways in which they believed the Articles of Confederation didn’t work, Hamilton, Jay and Madison used the Federalist essays to explain key provisions of the proposed Constitution, as well as the nature of the republican form of government.

'Federalist 10'

In Federalist 10 , which became the most influential of all the essays, Madison argued against the French political philosopher Montesquieu ’s assertion that true democracy—including Montesquieu’s concept of the separation of powers—was feasible only for small states.

A larger republic, Madison suggested, could more easily balance the competing interests of the different factions or groups (or political parties ) within it. “Extend the sphere, and you take in a greater variety of parties and interests,” he wrote. “[Y]ou make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens[.]”

After emphasizing the central government’s weakness in law enforcement under the Articles of Confederation in Federalist 21-22 , Hamilton dove into a comprehensive defense of the proposed Constitution in the next 14 essays, devoting seven of them to the importance of the government’s power of taxation.

Madison followed with 20 essays devoted to the structure of the new government, including the need for checks and balances between the different powers.

'Federalist 51'

“If men were angels, no government would be necessary,” Madison wrote memorably in Federalist 51 . “If angels were to govern men, neither external nor internal controls on government would be necessary.”

After Jay contributed one more essay on the powers of the Senate , Hamilton concluded the Federalist essays with 21 installments exploring the powers held by the three branches of government—legislative, executive and judiciary.

Impact of the Federalist Papers

Despite their outsized influence in the years to come, and their importance today as touchstones for understanding the Constitution and the founding principles of the U.S. government, the essays published as The Federalist in 1788 saw limited circulation outside of New York at the time they were written. They also fell short of convincing many New York voters, who sent far more Antifederalists than Federalists to the state ratification convention.

Still, in July 1788, a slim majority of New York delegates voted in favor of the Constitution, on the condition that amendments would be added securing certain additional rights. Though Hamilton had opposed this (writing in Federalist 84 that such a bill was unnecessary and could even be harmful) Madison himself would draft the Bill of Rights in 1789, while serving as a representative in the nation’s first Congress.

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Ron Chernow, Hamilton (Penguin, 2004). Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788 (Simon & Schuster, 2010). “If Men Were Angels: Teaching the Constitution with the Federalist Papers.” Constitutional Rights Foundation . Dan T. Coenen, “Fifteen Curious Facts About the Federalist Papers.” University of Georgia School of Law , April 1, 2007. 

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Is America a democracy or a republic? Yes, it is

Silhouettes of people are seen on an American flag as President Joe Biden speaks on July 6, 2022, in Cleveland. Evan Vucci/AP hide caption

Silhouettes of people are seen on an American flag as President Joe Biden speaks on July 6, 2022, in Cleveland.

What do we call the system of government in the U.S.? Are we a democracy or a republic?

The conundrum is, well, as the common expression goes, "as old as the republic itself."

But it's not just a question for scholars and semanticists any more.

Since the election of 2020, supporters of former President Donald Trump have become notably more willing to assert their belief that voting in America is suspect. That Trump won an election he lost. That "millions of ballots" were uncounted or miscounted. That voting by mail was fraught with abuse.

Despite the lack of evidence, and the judgments of election officials from both parties and judges appointed by presidents from both parties, election denialism has become not only a thing, but a movement. And when critics call this an attack on democracy, some election deniers respond by saying the U.S. is not a democracy, it is a republic.

Robert Draper of The New York Times published a piece on Republicans who say this in August. He cited a GOP candidate for the Arizona state legislature, Selina Bliss, saying: "We are not a democracy. Nowhere in the Constitution does it use the word 'democracy.' I think of the Democratic Republic of the Congo. That's not us."

But a democratic republic is us. Exactly.

Throughout our history we have functioned as both. Put another way, we have utilized characteristics of both. The people decide, but they do so through elected representatives working in pre-established, rule-bound and intentionally balky institutions such as Congress and the courts.

The government seated in Washington, D.C., represents a democratic republic, which governs a federated union of states, each of which in turn has its own democratic-republican government for its jurisdiction.

The relationship between the democratic and republican elements of this equation has been a dynamic and essential part of our history. But it has not always been easy, and in our time the friction between them has become yet another flashpoint in our partisan wars.

Going to war over weaponized words

We regularly hear people on the left speak of conservatives destroying democracy, and just as regularly we hear conservatives say Democrats have no respect for the Constitution. To add to the confusion, the two camps often swap their lines of attack and defense. Republicans call Democrats enemies of democracy, Democrats rail against what they see as Republican disrespect for the Constitution.

And that also makes sense, in a way, as both sides want to be the champions of both democracy and the Constitution, and to advertise themselves as such to the voters.

Yes, as a polity, we think we are and can be both. We aspire to be both. But in practice that can prove difficult. And in our time, when so much of the public discourse happens on Twitter and cable TV news, the terms have become increasingly weaponized.

"Equality and democracy are under assault," said President Biden on the steps of Independence Hall last week . "We do ourselves no favor to pretend otherwise."

Biden at Independence Hall used the word democracy 31 times, including three times in one sentence. He used the word republic just twice.

Biden attacks Trump, saying his wing of the Republican party is a threat to democracy

Republicans, by contrast, have seemed of late to be stressing the role of the republic and its restraint on democracy. Sen. Mike Lee of Utah, an outspoken Republican but hardly an outlier, got considerable attention for saying bluntly on Twitter in October 2020: "We are not a democracy."

Lee then posted online an explanation of what he meant . It said, in part: "Our system is best described as a constitutional republic [where] power is not found in mere majorities, but in carefully balanced power."

Lee went on to catalog how difficult it was for majorities in Congress to pass legislation, get it signed by a president and watch it undergo judicial review. Lee's point was that he was OK with all that. It was the intent of the founders.

"In the absence of consensus," Lee wrote, "there isn't supposed to be federal law."

Writing in 2020 in The Atlantic, George Thomas, the Wohlford Professor of American Political Institutions at Claremont McKenna College, found "some truth to this insistence" on calling the U.S. a republic but added: "It is mostly disingenuous. The Constitution was meant to foster a complex form of majority rule, not enable minority rule."

This is not just a quibble over terms. It is a fundamental battle over what American government aspires to be. Are we a democracy where the voice of the people is, like it says in Latin on some of our official buildings ( Vox Populi, Vox Dei ), the voice of God?

Or are we a republic? That is to say, a government of laws not of men, deriving its authority not by divine right of inheritance or strength of arms but by reason and by adherence to the mechanisms of the Constitution.

Calling things by their proper names

It's also not a coincidence that those names tend to suggest which end of the democratic-republican bargain they favor. Our current parties trace their roots to a common ancestor in a party begun by Thomas Jefferson and James Madison in the early decades of nationhood.

That party formed in opposition to the original party of George Washington and John Adams, known as the Federalists because they emphasized the central authority of the combined 13 states (the original 13 colonies that had rebelled against the crown of England).

Jefferson and others who rose in opposition were called, naturally enough, anti-Federalists. Jefferson liked the word republican and used it a lot, in part for the anti-monarchist emphasis.

Others thought the term had less meaning because so many different kinds of viewpoints claimed it. The party eventually took on the label of Democratic-Republicans. That moniker might have been too much of a mouthful to enunciate, and its coalition may have been too wide to sustain.

At the time, there were also voters and candidates who preferred calling themselves National Republicans, especially in New England. That element morphed into the Whigs, while the Democratic-Republicans dominated in the South and eventually became simply Democrats — the preference of President Andrew Jackson.

In the 1850s, exhausted by the North-South tensions that were leading to the Civil War, the Whigs gave way to a new party originating in the Great Lakes region. The new party's biggest issue was abolition, but they adopted (perhaps at the suggestion of journalist Horace Greeley) the previously orphaned half of the old Democratic-Republican Party name. They have since been known simply as Republicans.

But both terms have far deeper origins in the ancient world

The Athenian democracy in Greece around 500 BCE denoted the right of the people ( demos) to personify power ( kratos ) and meant it to include an entire polity – or at least its males. Something like 5,000 citizens were enfranchised to participate, and when they chose to delegate some of the governing task to a smaller body they still had 500 members of that council ( boule).

Thomas says "the founding generation" in the U.S. never considered the Greek model workable beyond a limited area (idealized perhaps by the New England town hall). Thomas says that generation was "deeply skeptical of what it called 'pure democracy' and defended the American experiment as 'wholly republican."

That is, it was a government of the people not of royalty. It also incorporated some of the inspiration referenced in the Latin word republic, a hearkening back to the Romans who established the first Senate around 750 BCE.

Thomas says the American experiment has been about harmonizing democratic and republican models, two "popular forms of government," each of which "drew its legitimacy from the people and depended on rule by the people."

The essential difference was the role of representatives to substitute for the gathering of all the people at one point in time and space.

"To take this as a rejection of democracy misses how the idea of government by the people, including both a democracy and a republic, was understood when the Constitution was drafted and ratified," Thomas said. "It misses, too, how we understand the idea of democracy today."

One way to understand that idea was articulated by Jefferson himself way back in 1816, when he wrote: "We may say with truth and meaning, that governments are more or less republican as they have more or less of the element of popular election and control in their composition." [emphasis added]

It is hard to imagine a better statement of the two concepts as they may be comingled and act in concert.

It falls to our generation to renew that understanding in the context of our own time, two full centuries later.

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Civics Literacy Study & Resource Guide

• Introduction
• Civic Life, Politics, and Government
• Foundations of American Political System
• The Constitution

Branches of the Federal Government

State and local government, government publications, political parties.

• Role of Citizens in American Democracy
• Individuals & Events in U.S. History

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How the Government Established by the Constitution Embodies the Purposes, Values, and Principles of American Democracy

The u.s. constitution.

The Constitution of the United States contains a preamble and seven articles that describe the way the government is structured and how it operates. The first three articles establish the three branches of government and their powers: Legislative (Congress), Executive (Office of the President,) and Judicial (Federal Court System). A system of checks and balances prevents any one of these separate powers from becoming dominant. Articles four through seven describe the relationship of the states to the Federal Government, establish the Constitution as the supreme law of the land, and define the amendment and ratification processes.

Source: The Constitution: What does it Say? National Archives

• The Constitution of the United States (NARA) History, context, transcript, and digitized copy of the Constitution of the United States. Provided by the National Archives.
• Constitution Annotated Provides a legal analysis and interpretation of the United States Constitution based on a comprehensive review of Supreme Court case law and, where relevant, historical practices that have defined the text of the Constitution.
• National Constitution Center: Interactive Constitution Learn about the text, history, and meaning of the U.S. Constitution from leading scholars of diverse legal and philosophical perspectives.
• The Constitutional Amendment Process Description of the constitutional amendment process provided by the Federal Register and National Archives.
• Amendment 1.3.1 Freedom of Press Overview of the Freedom of Press provided by Constitution Annotated.

Branches of Federal Government

The Constitution of the United States divides the federal government into three branches:

• Legislative branch that makes laws
• Executive branch that carries out the laws
• Judicial branch that interprets laws

Background on the Federal Government Branches

• Branches of the U.S. Government (USA.gov) Descriptions on the executive, legislative, and judicial branches of the U.S. Federal government.
• United States Government Manual The United States Government Manual is the "official handbook" of the Federal Government. Includes resources for Legislative, Executive, and Judicial branches.

Federal Government Branch Websites

• Executive Branch (President)
• Executive Branch (Executive Departments)
• Legislative Branch (U.S. House of Representatives)
• Legislative Branch (U.S. Senate)
• Judicial Branch (Supreme Court)
• Judicial Branch (Federal Courts)

United States Laws, Regulations, and Judicial Opinions

• Congress.gov
• Electronic Code of Federal Regulations
• Supreme Court Opinions
• Executive Orders

Powers not granted to the Federal government are reserved for states and the people, which are divided between State and local government. All State governments are modeled after the Federal Government and consist of three branches: executive, legislative, and judicial. The U.S. Constitution mandates that all States uphold a “republican form” of government, although the three-branch structure is not required.

Local governments generally include two tiers: counties, also known as boroughs in Alaska and parishes in Louisiana, and municipalities, or cities/towns. In some States, counties are divided into townships. Municipalities can be structured in many ways, as defined by State constitutions, and are called, variously, townships, villages, boroughs, cities, or towns. Various kinds of districts also provide functions in local government outside county or municipal boundaries, such as school districts or fire protection districts.

Source: "State and Local Government" The White House

State & Local Government Directories

• State Government Search (USA.gov) Search for state government websites and contact information by state or territory.
• Local Government Search (USA.gov) Search for local government websites information by state or territory.

Indiana State and Local Government

• Executive Branch (Governor's Website)
• Executive Branch (Members of Indiana Governor's Cabinet)
• Executive Branch (Government Agencies in Indiana)
• Legislative Branch (Indiana General Assembly)
• Judicial Branch (Indiana Supreme Court)
• Judicial Branch (Indiana Court of Appeals)
• Judicial Branch (Indiana Trial Courts)
• Indiana Local Government Search (My Local)

Indiana Laws, Codes, and Register

• Current Indiana Constitution
• Indiana Code
• Indiana Administrative Code
• Indiana Register

Government publications consist of documents produced by local, regional or national governments. The basis for providing open and reliable access to government information is that it allows Americans to become informed citizens. Government publications can be found for free through government portals, and are also searchable through library resources as well.

Library Resources

• HeinOnline Academic This link opens in a new window Government, Politics & Law on the HeinOnline platform is a fully searchable, image-based government document and legal research database. It contains comprehensive coverage from inception of both U.S. statutory materials, U.S. Congressional Documents and more than 2,400 scholarly journals, all of the world's constitutions, all U.S. treaties, collections of classic treatises and presidential documents, and access to the full text of state and federal case law powered by Fastcase. HeinOnline’s Government, Politics and Law also includes special topical collections on topics like Religion and the Law, Women and the Law, History of International Law, and Criminal Justice.
• ProQuest Congressional Publications Provides access to historic and recent U.S. Government publications from 1789-1969 on including U.S. Congressional Serial Set documents, federal agency reports, congressional committee publications including reports on legislation, statistics, maps, and congressional debates. Coverage includes Congressional Record and predecessor publication debates from 1789-1997 and Executive branch agency publications not included in the U.S. Congressional Serial Set from 1789-1932.

Open Government Portals

• USA.gov The mission of USA.gov is to create and organize timely, needed government information and services and make them accessible anytime, anywhere, via your channel of choice.
• Govinfo.gov Govinfo is a service of the United States Government Publishing Office (GPO), which is a Federal agency in the legislative branch. The site provides free public access to official publications from all three branches of the Federal Government.
• Federal Register The Office of the Federal Register (OFR) of the National Archives and Records Administration (NARA), and the U.S. Government Publishing Office (GPO) jointly administer the FederalRegister.gov website. The website was developed to make it easier for citizens and communities to understand the regulatory process and to participate in Government decision-making.
• Catalog of U.S. Government Publications (CGP) The CGP is the finding tool for federal publications that includes descriptive information for historical and current publications as well as direct links to the full document, when available.

History of Political Parties

• History of Political Parties (LOC) Summary of the history of political parties provided by the Library of Congress.
• Development of Political Factions and Parties Opponents (Anti-Federalists) and supporters (Federalists) of the new constitution began to coalesce into political factions. In Virginia, Anti-Federalists led by Patrick Henry (1736–1799) defeated James Madisons election to the Senate and forced him into a campaign for the House of Representatives against a strong Anti-Federalist, James Monroe (1758–1831), later the fifth president. The rapid evolution of political parties from factions was an inventive American response to political conflict.

Political Party Websites

• Democratic National Committee
• Republican National Committee
• Green Party of the United States
• Libertarian National Committee
• Reform Party of National Committee

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What Is Democracy? Definition and Examples

• B.S., Texas A&M University

A democracy is a form of government that empowers the people to exercise political control, limits the power of the head of state, provides for the separation of powers between governmental entities, and ensures the protection of natural rights and civil liberties . In practice, democracy takes many different forms. Along with the two most common types of democracies—direct and representative—variants such as participatory, liberal, parliamentary, pluralist, constitutional, and socialist democracies can be found in use today.

Key Takeaways: Democracy

• Democracy, literally meaning “rule by the people,” empowers individuals to exercise political control over the form and functions of their government.
• While democracies come in several forms, they all feature competitive elections, freedom of expression , and protection of individual civil liberties and human rights.
• In most democracies, the needs and wishes of the people are represented by elected lawmakers who are charged with writing and voting on laws and setting policy.
• When creating laws and policies, the elected representatives in a democracy strive to balance conflicting demands and obligations to maximize freedom and protect individual rights.

Despite the prominence in the headlines of non-democratic, authoritarian states like China, Russia, North Korea, and Iran, democracy remains the world’s most commonly practiced form of government. In 2018, for example, a total of 96 out of 167 countries (57%) with populations of at least 500,000 were democracies of some type. Statics show that the percentage of democracies among the world’s governments has been increasing since the mid-1970s, currently standing just short of its post- World War II high of 58% in 2016.

Democracy Definition

Meaning “rule by the people,” democracy is a system of government that not only allows but requires the participation of the people in the political process to function properly. U.S. President Abraham Lincoln , in his famed 1863 Gettysburg Address may have best-defined democracy as a “…government of the people, by the people, for the people…”

Semantically, the term democracy comes from the Greek words for “people” (dēmos) and “rule” (karatos). However, achieving and preserving a government by the people—a “popular” government—is far more complicated than the concept’s semantic simplicity might imply. In creating the legal framework under which the democracy will function, typically a constitution, several crucial political and practical questions must be answered.

Is “rule by the people” even appropriate for the given state? Do the inherent freedoms of a democracy justify dealing with its complex bureaucracy and electoral processes, or would the streamlined predictability of a monarchy , for example, be preferable?

Assuming a preference for democracy, which residents of the country, state, or town should enjoy the political status of full citizenship? Simply stated, who are the “people” in the “government by the people” equation? In the United States, for example, the constitutionally established doctrine of birthright citizenship provides that any person born on U.S. soil automatically becomes a U.S. citizen. Other democracies are more restrictive in bestowing full citizenship.

Which people within the democracy should be empowered to participate in it? Assuming that only adults are allowed to fully participate in the political process, should all adults be included? For example, until the enactment of the 19th Amendment in 1920, women in the United States were not allowed to vote in national elections. A democracy that excludes too many of the governed from taking part in what is supposed to be their government runs the risk of becoming an aristocracy—government by a small, privileged ruling class—or an oligarchy —government by an elite, typically wealthy, few.

If, as one of the foundational principles of democracy holds, the majority rules, what will a “proper” majority be? A majority of all citizens or a majority of citizens who vote only? When issues, as they inevitably will, divide the people, should the wishes of the majority always prevail, or should, as in the case of the American Civil Rights Movement , minorities be empowered to overcome majority rule? Most importantly, what legal or legislative mechanisms should be created to prevent the democracy from becoming a victim of what one of America’s Founding Fathers , James Madison , called “the tyranny of the majority?”

Finally, how likely is it that a majority of the people will continue to believe that democracy is the best form of government for them? For a democracy to survive it must retain the substantial support of both the people and the leaders they choose. History has shown that democracy is a particularly fragile institution. In fact, of the 120 new democracies that have emerged around the world since 1960, nearly half have resulted in failed states or have been replaced by other, typically more authoritarian forms of government. It is therefore essential that democracies be designed to respond quickly and appropriately to the internal and external factors that will inevitably threaten them.

Democratic Principles

While their opinions vary, a consensus of political scientists agree that most democracies are based on six foundational elements:

• Popular sovereignty: The principle that the government is created and maintained by the consent of the people through their elected representatives.
• An Electoral System: Since according to the principle of popular sovereignty, the people are the source of all political power, a clearly defined system of conducting free and fair elections is essential.
• Public Participation: Democracies rarely survive without the active participation of the people. Health democracies enable and encourage the people to take part in their political and civic processes. 
• Separation of Powers: Based on a suspicion of power concentrated in a single individual—like a king—or group, the constitutions of most democracies provide that political powers be separated and shared among the various governmental entities.
• Human Rights: Along with their constitutionally enumerated rights freedoms, democracies protect the human rights of all citizens. In this context, human rights are those rights considered inherent to all human beings, regardless of nationality, sex, national or ethnic origin, color, religion, language, or any other considerations.
• A Rule of Law: Also called due process of law , the rule of law is the principle that all citizens are accountable to laws that are publicly created and equitably enforced in a manner consistent with human rights by an independent judicial system.

Types of Democracy

Throughout history, more types of democracy have been identified than there are countries in the world. According to social and political philosopher Jean-Paul Gagnon, more than 2,234 adjectives have been used to describe democracy. While many scholars refer to direct and representative as the most common of these, several other types of democracies can be found around the world today. While direct democracy is unique, most other recognized types of democracy are variants of representative democracy. These various types of democracy are generally descriptive of the particular values emphasized by the representative democracies that employ them.

Originated in Ancient Greece during the 5th century BCE, direct democracy , sometimes called “pure democracy,” is considered the oldest non-authoritarian form of government. In a direct democracy, all laws and public policy decisions are made directly by a majority vote of the people, rather than by the votes of their elected representatives.

Functionally possible only in small states, Switzerland is the only example of a direct democracy applied on a national level today. While Switzerland is no longer a true direct democracy, any law passed by the popularly elected national parliament can be vetoed by a direct vote of the public. Citizens can also change the constitution through direct votes on amendments. In the United States, examples of direct democracy can be found in state-level recall elections and lawmaking ballot initiatives .

Representative

Also called indirect democracy, representative democracy is a system of government in which all eligible citizens elect officials to pass laws and formulate public policy on their behalf. These elected officials are expected to represent the needs and viewpoints of the people in deciding the best course of action for the nation, state, or other jurisdiction as a whole.

As the most commonly found type of democracy in use today, almost 60% of all countries employ some form of representative democracy including the United States, the United Kingdom, and France.

Participatory

In a participatory democracy, the people vote directly on policy while their elected representatives are responsible for implementing those policies. Participatory democracies rely on the citizens in setting the direction of the state and the operation of its political systems. While the two forms of government share similar ideals, participatory democracies tend to encourage a higher, more direct form of citizen participation than traditional representative democracies.

While there are no countries specifically classified as participatory democracies, most representative democracies employ citizen participation as a tool for social and political reform. In the United States, for example, so-called “grassroots” citizen participation causes such as the Civil Rights Movement of the 1960s have led elected officials to enact laws implementing sweeping social, legal, and political policy changes.

Liberal democracy is loosely defined as a form of representative democracy that emphasizes the principles of classical liberalism —an ideology advocating the protection of individual civil liberties and economic freedom by limiting the power of the government. Liberal democracies employ a constitution, either statutorily codified, as in the United States or uncodified, as in the United Kingdom, to define the powers of the government, provide for a separation of those powers, and enshrine the social contract .

Liberal democracies may take the form of a constitutional republic , like the United States, or a constitutional monarchy , such as the United Kingdom, Canada, and Australia.

Parliamentary

In a parliamentary democracy, the people directly elect representatives to a legislative parliament . Similar to the U.S. Congress , the parliament directly represents the people in making necessary laws and policy decisions for the country.

In parliamentary democracies such as the United Kingdom, Canada, and Japan, the head of government is a prime minister, who is first elected to parliament by the people, then elected prime minister by a vote of the parliament. However, the prime minister remains a member of the parliament and thus plays an active role in the legislative process of creating and passing laws. Parliamentary democracies are typically a feature of a constitutional monarch, a system of government in which the head of state is a queen or king whose power is limited by a constitution.

In a pluralist democracy, no single group dominates politics. Instead, organized groups within the people compete to influence public policy. In political science, the term pluralism expresses the ideology that influence should be spread among different interest groups, rather than held by a single elite group as in an aristocracy. Compared to participatory democracies, in which individuals take part in influencing political decisions, in a pluralist democracy, individuals work through groups formed around common causes hoping to win the support of elected leaders.

In this context, the pluralist democracy assumes that the government and the society as a whole benefit from a diversity of viewpoints. Examples of pluralist democracy can be seen in the impact special interest groups, such as the National Organization for Women , have had on American politics.

Constitutional

While the exact definition continues to be debated by political scientists, constitutional democracy is generally defined as a system of government based on popular sovereignty and a rule of law in which the structures, powers, and limits of government are established by a constitution. Constitutions are intended to restrict the power of the government, typically by separating those powers between the various branches of government, as in the United States’ constitution’s system of federalism . In a constitutional democracy, the constitution is considered to be the “ supreme law of the land .”

Democratic socialism is broadly defined as a system of government based on a socialist economy , in which most property and means of production are collectively, rather than individually, controlled by a constitutionally established political hierarchy—the government. Social democracy embraces government regulation of business and industry as a means of furthering economic growth while preventing income inequality .

While there are no purely socialist governments in the world today, elements of democratic socialism can be seen in Sweden’s provision of free universal health care, education, and sweeping social welfare programs. 

Is America a Democracy

While the word “democracy” does not appear in the United States Constitution, the document provides the basic elements of representative democracy: an electoral system based on majority rule, separation of powers, and a dependence on a rule of law. Also, America’s Founding Fathers used the word often when debating the form and function of the Constitution.  

However, a long-running debate over whether the United States is a democracy or a republic continues today. According to a growing number of political scientists and constitutional scholars, it is both—a “democratic republic.”

Similar to democracy, a republic is a form of government in which the country is governed by the elected representatives of the people. However, since the people do not govern the state themselves, but do so through their representatives, a republic is distinguished from direct democracy.

Professor Eugene Volokh of the UCLA School of Law argues that the governments of democratic republics embrace the principles shared by both republics and democracies. To illustrate his point, Volokh notes that in the United States, many decisions on local and state levels are made by the people through the process of direct democracy, while as in a republic, most decisions at the national level are made by democratically elected representatives.

Brief History

Archeological evidence suggests that disorganized practices at least resembling democracy existed in some parts of the world during prehistoric times, However, the concept of democracy as a form of populist civic engagement emerged during the 5th century BCE in the form of the political system used in some of the city-states of Ancient Greece , most notably Athens . At that time, and for the next several centuries, tribes or city-states remained small enough that if democracy was practiced at all, it took the form of direct democracy. As city-states grew into larger, more heavily populated sovereign nation-states or countries, direct democracy became unwieldy and slowly gave way to representative democracy. This massive change necessitated an entirely new set of political institutions such as legislatures, parliaments, and political parties all designed according to the size and cultural character of the city or country to be governed.

Until the 17th century, most legislatures consisted only of the entire body of citizens, as in Greece, or representatives selected from among a tiny oligarchy or an elite hereditary aristocracy. This began to change during the English Civil Wars from 1642 to 1651 when members of the radical Puritan reformation movement demanded expanded representation in Parliament and the universal right to vote for all male citizens. By the middle 1700s, as the power of the British Parliament grew, the first political parties—the Whigs and Tories—emerged. It soon became obvious that laws could not be passed or taxes levied without the support of the Whig or Tory party representatives in Parliament.

While the developments in the British Parliament showed the feasibility of a representative form of government, the first truly representative democracies emerged during the 1780s in the British colonies of North America and took its modern form with the formal adoption of the Constitution of the United States of America on March 4, 1789.

Sources and Further Reference

• Desilver, Drew. “Despite global concerns about democracy, more than half of countries are democratic.” Pew Research Center , May 14, 2019, https://www.pewresearch.org/fact-tank/2019/05/14/more-than-half-of-countries-are-democratic/.
• Kapstein, Ethan B., and Converse, Nathan. “The Fate of Young Democracies.” Cambridge University Press, 2008, ISBN 9780511817809.
• Diamond, Larry. “Democracy in Decline?” Johns Hopkins University Press, October 1, 2015, ISBN-10 1421418185.
• Gagnon, Jean-Paul. “2,234 Descriptions of Democracy: An Update to Democracy's Ontological Pluralism.” Democratic Theory, vol. 5, no. 1, 2018.
• Volokh, Eugene. “Is the United States of America a republic or a democracy?” The Washington Post , May 13, 2015, https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/05/13/is-the-united-states-of-america-a-republic-or-a-democracy/. 
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Essay on the constitutional promises of democracy and republic

Ensaio sobre as promessas constitucionais de democracia e república

Revista de Investigações Constitucionais , vol. 4 , no. 3 , pp. 85-100 , 2017

Universidade Federal do Paraná

Received: 07 August 2017

Accepted: 20 August 2017

DOI: https://doi.org/10.5380/rinc.v4i2.52523

Abstract: This essay aims at explaining what the democratic and republican principles declared in the Brazilian Constitution represent - or could represent. First, the work considers the notion of a Constitution and its models, combined with the concept of rule of law. The author goes further and examines the idea of freedom, as it changes depending on the constitutional model followed, be it derived from the French or the American Revolution. Presenting the preoccupations of different experts regarding a constitutional system, the essay compares their arguments before considering the elements of the Brazilian Constitution and its preamble. In this context, it is made clear the influence of Brazilian History in the understanding of the meaning of democracy and republic in the country. Furthermore, concepts such as "individual", "citizen", "citizenship", "government", "equality", "communitarianism", "solidarity", "common good", "vote", among others, are all presented and understood through the lenses of the Brazilian Constitution and constitutional doctrine to build a wide-ranging yet comprehensible notion of democracy and republic in Brazil.

Keywords: Brazilian constitutionalism, democracy, republic, rule of law, freedom.

Resumo: Este ensaio busca explicar o que os princípios de democracia e república declarados na Constituição Brasileira representam - ou podem representar. Primeiro, o trabalho considera a ideia de Constituição e seus modelos, combinados com o conceito de Estado de Direito. A autora também examina o preceito de liberdade, que se altera dependendo do modelo constitucional seguido, seja derivado da Revolução Francesa ou dos Estados Unidos da América. Ao apresentar as construções de diferentes especialistas com respeito a um sistema constitucional, o ensaio compara seus argumentos antes de considerar os elementos da Constituição Brasileira e seu preâmbulo. Neste contexto, resta evidente a influência da História Brasileira na compreensão do significado de democracia e república no país. Ainda, conceitos como "indivíduo", "cidadão", "direitos e deveres do cidadão", "governo", "igualdade", "comunitarismo", "solidariedade", "bem comum", "voto", entre outros, são trabalhados e entendidos através das lentes da Constituição Brasileira e da doutrina constitucional para construir uma ampla e compreensível noção de democracia e república no Brasil.

Palavras-chave: Constitucionalismo brasileiro, democracia, república, Estado de Direito, liberdade.

The Brazilian Constitution of 1988 establishes a democratic and republican rule of law as a fundamental political decision 1 and as a legal norm of supreme hierarchy 2 .

According to constituent power theory and its legal fictions, the constitution establishes the state from the beginning, ab ovo, configuring a political framework based on the structure of power and its limitation. This configuration is determined by the guarantee of rights, by the organization of sovereignty among government institutions and by the determination of ends to be pursued by both state authorities and society. 3

The notion of constitution is inextricably linked to the notion of freedom and liberties. Its formulation in a formal document, written and protected against daily changes, reveals the intention to protect a set of rights and guarantees, as well as demonstrates the establishment of the organization and functioning of the state.

Maurizio Fioravanti presents different theoretical models adapted to constitutions derived from the French and the American Revolution and, later, the development of the concept of rule of law in Europe. While in the French Revolution the doctrine assumed freedom as individualist, statist and anti-historicist, in the American Revolution it combined individualistic, historicist, and anti-statist elements. The rule of law, developed from the nineteenth century on, eliminates the individualist element and keeps the combination of statist and historicist theories. 4

Historicism assumes a perspective about freedoms that is originated out of the imperative force of rights, which has been confirmed over time in history, and goes beyond the contingent political will. The purpose of the combination with politics is to protect historically acquired positions, so that initial legal positions are not established based on an agreement of wills, which ignores historical rights. This conception does not fit in with the full notion of constituent power. According to the author, the individualistic model places the individual as the holder of rights, in a way that they have the constitutions as instruments to guarantee these rights and individual freedoms. The state law originates from the contractualism and is the only recognized authority. The limitation of individual rights arises from other individual rights and not from a social demand. The constituent power is primary and fundamental. Finally, the statist approach sees the state as a condition for the birth of rights and freedoms. The pact, derived from the contractualist theory, substitutes the contract in a way that the state, which originates from this pact, is taken as absolutely necessary for the existence of the political structure. Power and freedom are born together, they are not opposed. 5

The combinations of these elements reflect the conception of freedom and rights, the notion of state, and the notion of constitution. The content of different constitutions shows evidences of these models and their incorporation. Contemporary constitutionalism, a concept that arose from the American Revolution, adopts a normative text of superior hierarchy in a formal document. Its primary content encompasses aspects related to limitation and organization of power and related to institutions of sovereignty, with the creation of a state whose action is linked to the law. 6

Eduardo García de Enterría stresses that the notion of constitution originated in the French Revolution and in the American Revolution with a defined content out of certain assumptions. Its existence, according to article 16 of the Declaration of the Rights of Man and of the Citizen 7 , relates to the protection of individual rights and to the separation of powers in three branches, and its birth must come from popular or community will. 8

This notion of constitution was lost during most of the nineteenth century. 9 Hence, its origin and content no longer characterize the constitution, which became "a mere logical demand of the unity of system of laws", in any state, at any time, and in any regime. This concept becomes formalized and abstract. 10 The indispensability of certain contents, however, seems to reappear in the second decade of the twentieth century, with the idea of state tasks imposed by the constitutional text.

Maurice Hauriou lists three elements of constitutional matter. First, the moral, political and social ideas. Second, the law of the constitution. And third, the constitutional organization of powers. In addition, the author mentions three moral, political and constitutional beliefs that are the power of the constitutional system. Such beliefs include: 1) The individualist order, which limits the sovereignty of the state and has as principle the idea that "everyone lives their lives, taking responsibility of the risks and dangers"; 2) The doctrine of power, divided into minority power and majority power. The first is related to the political elite and to the institutions, whereas the second is legitimized by popular election; and 3) Political freedom, conceived as the participation of each citizen as individual, instead of the nation as product of a collective development. 11

The constitution, for Karl Loewenstein, must contain distributions of functions into different government institutions, mechanisms of cooperation between the holders of power, mechanisms to resolve impasses between them (related to sovereignty of the people in democratic constitutionalism) and methods of adaptation to social changes. In the author's view, the constitution also covers a recognized sphere of self-determination with guarantees that ensure it. 12 On the other hand, Georges Burdeau gives emphasis to the part of the constitutional text which designates the rulers, establishing their legitimacy, their authority, and determining their responsibility. 13

The models of state that aim at reducing social inequalities begin to incorporate other elements related to the guarantee of rights of equality in their constitutions. 14 From this perspective, it is likely impossible to dissociate the terms "welfare state" from "democratic state" and "rule law", says Manuel Aragón 15 , because the elements of this defining formula are interrelated and mutually defined. 16

The Brazilian Constitution brings in its set of fundamental political decisions the design of state and of democracy. It establishes the distribution of functions among the government institutions, provides individual rights and guarantees, determines legal provision for its modification within certain limits and settles rules for the legitimacy of the exercise of political power. Moreover, the constitutional text in the preamble 17 and in Article 1 18 presents the constitutive political positions 19 , which frames the design of state and of the conception of democracy and republic.

Thus, the Brazilian Constitution establishes the rule of law as the foundation of contemporary citizenship, as well as a sense of democracy, a conception of political representation (indicating the framework of that relationship), and a republican ideal, based on a strong notion of freedom and equality, with the assumption of rights and duties of citizenship. For Paulo Bonavides, the Constitution is "the home of justice, freedom, legitimate powers, and it is also the palace of fundamental rights. It is therefore the house of principles, the seat of sovereignty" 20 .

It is a qualified rule of law, which does not harmonize with any legal content. Public authorities and individuals are subject to the law regularly elaborated, as long as the constitutional values and principles have been observed and substantially considered. 21 As Luigi Ferrajoli argues, this qualified dimension of the rule of law also implies a change in the nature of democracy, which is now limited and supplemented by fundamental rights. 22

According to Jürgen Habermas, the democratic constitutional state is framed as an order desired by the people and legitimized by free opinion formation and will, which allows the recipients of the legal system to see themselves as its authors. The state performance in the fulfillment of its constitutional tasks, relying on the law to handle factual inequality, makes the realization of equal rights possible. Thus, the breadth of this action expands the possibility of democratic self-legislation, intensifying society's capacity of self-conduction. 23

The constitution begins to incorporate a political, social and legal project, which is not neutral nor does it require obedience towards its form, but acts "directly due to the statement of a framework of values that interprets the deep fabric of society" 24 . However, it is neither a matter of forming, in the constitutional text, an ideal of a good life, nor imposing it on citizens. From a republican perspective, there is the choice of objective values, which allows individuals to carry out their projects and their lives, as long as it does not prevent the others from doing so. 25

The constitution must ensure the protection of the fundamental rights of any person, going beyond the representation of a pretended general will or a segment of it. 26 As Luigi Ferrajoli states, the constitution guarantees the right of everyone, even regarding popular will, to ensure the coexistence of various interests in a heterogeneous society.

These constitutional promises of recognition, belonging and participation conflict with the national mentality, which is strongly individualistic.

The lack of popular participation in the proclamation of the Brazilian republic is evidenced by historians. José Murilo de Carvalho, for instance, presents different views on the republican model to be adopted, on the republican "traditions" in dispute and on the struggle to create the "myth of origin", through stories, heroes and symbols. The author uses the term of Aristides Lobo to claim that the people were "petrified" and surprised while witnessing the birth of the Republic. 27

Maria Garcia claims that during the insurrections and uprisings of the end of the eighteenth century and the first half of the nineteenth century in Brazil - such as Inconfidência Mineira , Inconfidência Baiana ( Revolta dos Alfaiates ), Revolução Pernambucana , Confederação do Equador , Cabanada , Revolução dos Farrapos and Sabinada - it was possible to identify republican demands 28 . Nonetheless, the author states that after the proclamation of the Republic of Brazil, the "different Brazilian republics" demonstrated "the discontinuity of the democratic process, its gaps and shortcomings and, at the same time, the untying between institutions established in the name of republican regime, in its popular bases and roots." 29

Nevertheless, it is possible to affirm that the constitutional democratic movement that culminates in the Brazilian Constitution of 1988 promotes the foundation of a republic. 30 From the new constitutional framework, Brazilian society, which suddenly and by chance became republican, has a normative substrate through which it is possible to affirm that the Brazilian state is founded on a republican ideal and it enables the development of an idem sentire de republica 31 .

The notion of republic is not opposed to monarchy. In an eighteenth-century writing, Edmund Burke argues that the English monarchy is not only ensured by non-violation of the law by the prince, but requires that the monarch's discretionary powers "should all be exercised upon public principles and national grounds, and not on the likings or prejudices, the intrigues or policies, of a court". Burke emphasizes that everyone - parliamentarians, judges and the king - is "trustee of the people", "because no power is given for the sole sake of the holder". 32 The notion of public principles as a criterion for legitimacy of political action is linked to the republican ideal. Their enemies are not confused with the king.

Philip Pettit argues that the republican thinking about citizenship and government is based on a notion of trust and also maintains that the role of government is to promote citizen's freedom. Trust in authorities derives from a conviction on their acting according to the legal rules and with a cooperative arrangement, which is seen as a civic virtue, thus impersonal and personal at the same time. Although impersonal trust is ensured by some mechanisms such as limited terms, separation of power in three branches, and democratic control, the republican relationship between rulers and the rest of the population always assumes virtue and trustworthiness on both citizens and rulers. To the citizens, claims the author, there is an eternal vigilance: without it, there is no hope for public virtue; 33 for there to be freedom, a civic virtue is necessary, and it requires availability to participate in government and determination for the exercising of an eternal vigilance in relation to rulers 34 .

It is possible to relate the republican ideal as a sharing of values to the concept of Verfassung . It is understood as a historical-existential condition and as a community of people who articulate themselves allowing the construction of a political community, and, therefore, of the state. Verfassung assumes a set of values that informs the legal system and the actions of the public authorities.

However, these values, as António Manuel Hespanha asserts, are neither dense nor thick. There is an agreement among the thin and minimum values: all of them agree with the democratic idea, but not with its content. According to Antonio D'Atena, the fundamental common value of all rules is the equality of citizens.

For Zygmunt Bauman, the republican idea does not impose a correct model of life, but promotes "the empowerment of citizens to freely discuss the models of life of their preference and execute them. The republic is a broadening, not a reduction of options - its goal is to increase, not to limit individual freedoms" 35 . Aristotle states that the best government is "the government in which every individual finds the best way to live happily" 36 . This aspect of the republican ideal is supported by constitutions such as the Brazilian Constitution of 1988 37 .

The republican ideal reflects the value of equality. This value, a good to be pursued, is constitutionally based on a principle of equality, which is an initial good with normative content that guides actions and has a normative force. 38 Moreover, the requirement for equality is essential for the deliberative design of an epistemic theory of democracy: equal voice and equal voting are preconditions for the characterization of a substantive equality 39 .

This is not a liberal vision of equality which considers the subjects as equal owners of their own body, as equal towards the social contract, equal citizens in Rousseau and equal members of the nation, as Pietro Costa claims. The author emphasizes that, in this context, the defense of human rights against the power also means the defense of freedom against equality. Equality, for liberalism, is a formal and legal equality. It composes citizenship only to the extent that it allows everyone to become holders of rights. This is the only equality compatible with its notion of freedom. 40

Freedom, in republican thinking, is seen as non-domination. Non-domination does not exclude the interference. It only excludes arbitrary, substantial or procedural interference, even if it is a potential interference 41 , emphasizes Philip Pettit. The absence of domination allows everyone to be equal, without needing to show deference to or fear one another. The republican law does not restrict nor compromises freedom. It only conditions freedom. In addition to that, the meaning of the republican ideal implies a notion of distributive justice: the maximum distribution of freedom, considered as non-domination, requires a commitment to redistribution, averting factors that enable domination. 42

As stated by Sérgio Cardoso, the republican idea assumes "a common equalizer space, defined by the implication of all citizens into the system of political decisions", extrapolating the requirement of political democracy in order to achieve "economic, social and cultural democratization". 43

Roberto Gargarella dedicates his studies to the analysis of contemporary republicanism, which arises at the end of the twentieth century and ends up combining liberal and communitarian critiques. To the author, this current of thought defends civic values (such as gender equality, integrity, solidarity, commitment to others, among other values) and a strong idea of freedom - which requires a set of political and economic conditions in order to happen. The state, therefore, must act to ensure those conditions, but always under the effective control of citizens. Gargarella's concern with republicanism is the possibility of intervention at the individual sphere, from the requirement of certain moral posture, with an ideal of excellence that reaches individual autonomy. It is possible, however, to have a commitment without vigorous moral conception, assuming values "institutionally circumscribed" - it is a commitment to the public good, even though each individual could live as they wish. 44

The idea of equality assumed by the Brazilian Constitution indicates different readings, which extrapolate the notion of formal equality and adjust to the notion of freedom 45 . It is not possible, at any moment, to exhaust the requirement of an "equality before the law". The social setting of the state requires an effective action in order to foster equal conditions of life, of political participation and of personal achievement.

This is not a communitarian constitution 46 , but a republican constitution, which combines liberal and egalitarian elements. The state and the constitution are not axiological neutral, but they do not impose a closed content for values they elected through democratic deliberation. 47

The objectives of the Federative Republic of Brazil, expressed in article 3 of the Brazilian Constitution, are: to build a free, just and solidary society; to ensure national development; to eradicate poverty and marginalization; to reduce social and regional inequalities; and to promote the well-being of all, without discrimination of origin, race, sex, color, age, and others. These objectives can also be understood as a demand to treat all citizens with equal consideration and respect.

The adjective "solidary" refers to a relationship of belonging to a community and to the joint responsibility for acts and targets of society. The task of eradicating poverty and marginalization highlights the need to recognize everyone as citizens, which is justified by the improvement of democratic institutions. There seems to be no doubt in relation to the other objectives: none of them value or disvalue conceptions of life and of individual morality.

The common good 48 of Brazilian society is defined by article 3 and by other provisions of the Brazilian Constitution, which are measuring criterion of legitimacy and of legality of state actions. The common good does not interfere with individual freedom. Its demands relate to a notion of equality, but not to a total equality. It is through a notion of common good that the realization of political community is possible.

The republican model of democracy does not presuppose a moral objective truth once it is open to discussion of the purposes and the means of political society. This model, however, imposes the citizens' cooperation 49 . Also at the heart of the republican idea is the visibility of the political decision. According to Jônatas Machado, the republican government is characterized by the public statement, the right to vote and the freedom of speech 50 . It is still possible to perceive the connection between state agents and functions in the republican ideal. Such connection consists of an unsurpassed relationship between their competence and tasks, all constitutionally determined, in addition to individual self-determination. 51

Geraldo Ataliba claims that the republican principle is the most important in the constitutional framework. The republic is the synthesis of all institutions, and it implies the representation of people while exercising public functions. The republican principle requires commitment of the rulers to the institutions and to the function they exert. The republic still requires free expression of minorities and the existence of institutional opposition channels. Ataliba argues that there are three basic principles of the republican institutions: legality, equality and the intangibility of civil freedom. 52

Equal access to elective positions of power as an element of the republican principle is the emphasis of Gilmar Ferreira Mendes, Inocêncio Mártires Coelho and Paulo Gustavo Gonet Branco. A constitutional republic assumes equality of conditions, without any distinctions in the endowment and access to power and public office, provided that constitutional and legal conditions are fulfilled. 53

Celso Antonio Bandeira de Mello is concerned with the legal content of the equality principle, affirming the imposition of unequal treatment when there is relevant discriminant factor. Yet, this distinction must cohere with real difference, and be consistent with constitutional values and principles. 54

The notion of "constitution-project" or " constituzione-indirizzo " relates not only to the assignment of tasks to the state, but also to the imposition of duties upon citizens. From the understanding of the constitution as a system of values, not only the state has its power limited by the pursuit of certain purposes, but also society begins to be seen as universitas . In this perspective, each member of society plays a role on the execution of a collective enterprise. 55

One established aspect of the republican ideal in its relationship with the citizen is compulsory voting. Its acceptance, however, is not peaceful regarding the democratic principle and the idea of freedom. For Celso Antônio Bandeira de Mello, "the compulsory vote discredits both quality and effective representation of the elected rulers". It does so by devaluing the decision to vote and by making manipulation easier. 56

Maurizio Fioravanti refers to voting as function while explaining the statist model of freedom. In this perspective, the state appears as source of rights. Thus, the choice of representatives neither means the exercise of individual freedom nor constitutes a transfer of power. For the exercise of this function, "that [function] of designating, in the public interest and on the basis of state law, those who will have the task of expressing the sovereignty of the state in the law" 57 .

The republican ideal and the welfare state are demanding of citizens. They determine a more active attitude than the classic liberal position. Both the republican ideal and the welfare state require a sense of belonging and destiny sharing, a growing concern with the collectivity and economic and objective solidarity.

The individual, then, is required to choose candidates and their minimum surveillance. The periodic voting, which either approves or disapproves rulers or adheres to a particular application, is not enough for democracy. Active citizenship becomes a claim, a democracy that goes beyond the election, a democracy that generates public opinion past the results of polls and referenda.

The citizen is required to a take a leading role, not only in defense of their rights, but also "in the fulfillment of their duties and obligations" 58 , consisting of an effective action. In addition to citizen duties, the republican principle requires a constitutional sense 59 , a sharing of values that allows the setting of a legal community - even if the values are thin.

Contemporarily, the matter of citizenship is embedded in market logic. Theorists discuss users and rights against the state, but republican duties are excluded from general speech. Such exclusion is possibly due to either the emptying effect of politics or to the disbelief in democracy. 60

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Democracy in the Constitution, Essay Example

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Representatives must meet certain qualification for election. They must meet a minimum age requirement of 25 years, be a US citizen for the past seven years and be a resident of the state in which they seek election. “There are two divisions of the House of Representatives, the House which is the lower house and the upper house which is the United States Senate.”[1](Redroom 2009).  This composition of powers is established in Article I of the United States Constitution. Each state receives representation according to its population with a minimum of one Representative. Each Representative is elected and serves a two year term in office. To date, the total number of Representative’s is fixed at 435. The District of Columbia does not have any representation.

Political parties hold conventions to choose their candidate to run for President. The election for Presidency comes with a Vice-President attached to the ticket. “There is a general election held in each of the states to cast vote for a voter’s choice. Normally the [2](Common Craft 2009). candidate that receives the most votes gets the electoral votes.” If there is no electoral winner, the House of Representative will choose the President. Each state is represented by two Senators regardless of the state’s population. This is to ensure equal representation. Senators serve six year staggered terms in the upper chamber of the House. The qualifications for selection are to be of minimum age 30, be a US citizen and be a resident of the state of which the person wishes to represent. Senators are chosen by popular election. There is a primary election then a secondary election. In the primary election there is a challenge between the Republican and Democratic party. All Article III judges are appointed for life by the president with the advice and approval of the U.S. Senate, and can only be removed through impeachment. Article I judges (such as bankruptcy court and magistrates court judges) do not have the constitutional protections accorded to Article III judges, since they are appointed in a different process. The states, on the other hand, have a variety of procedures for filling judgeships. While the governor appoints some state judges for a term of a number of years, judges in many other states are required to run for election.

“Living in a democratic society affords a person the privilege to vote and choose the candidate they wish for with relation to the House, Senate, Presidency and Judge’s in State and Local Districts”[3](Kingdom 2009). With the Presidency election as stated above, normally the electoral votes will go with the popular vote of the state.  That is why it is very important to exercise the right to vote.  Citizens vote for electors and electors vote their choice for Presidency. This would be an example of an indirect election. In other elections such as the House, Senate and some levels of judgeships, the majority of the vote wins the election. Majority is 51%. “A well-regulated election, being necessary to the security of a free state, the right of the people to an audited, voter-verified, certified paper record of the vote, shall not be infringed.” Essentially, the amendment proposes four clear criteria that any electoral system must meet, whether state, municipal, or federal, in order to be constitutional. The criteria are:

Audited: We must be able to audit the election thoroughly.

Voter-verified: The voter must be able to verify that the permanent record of his or her vote reflects the voter’s intention.

Certified: The process must be certified at interim steps ahead of the results being known.

Paper: Records and ballots must be paper so as to enable all citizens to have access to the content and examination of those records, not just technical experts.

Any electoral system that does not meet these standards is unconstitutional, and the administering government would have to correct the problem.

If a member of the governing body holds another municipal office or position, they cannot be paid for anything other than their elected duties. This means that a governing body member could serve as city manager, chief of police, office manager, volunteer fire-fighter, etc., but only if they are paid nothing for the additional duties. Majority rule is when governance is done according to the expressed preferences of the majority. A majority is not the most votes, it is 51%. Plurality rule is when governance is done according to the expressed preferences of the prevailing group. For example, if there were three candidates running for office and the final vote count ended up as 40%, 35%, and 25%, the candidate won through plurality, because he or she ended up with the most votes and not a majority, which would be 51%. Most of these elected officials are elected through majority rule.

All registered voters are allowed to vote in officeholder elections; that is registered voters of the parish or county of which the officeholder is running for term. The minimum voting age at present is 18. There are no wealth discrimination factors placed on voters. They must be in good standing in the society without any felony convictions.

Most of our individual rights are protected in the Bill of Rights which is the first ten amendments of the US Constitution. The are as follows:

“1 st Amendment: Freedom of (or from) religion. Freedom of speech. Freedom to assemble. Freedom to petition the government.

2 nd Amendment: Right to bear arms.

3rd Amendment: Freedom from quartering soldiers.

4th Amendment: Freedom from unreasonable searches and seizures. Warrants must only be issued upon probable cause, and shall be specific.

5th Amendment: Criminal indictments must be by grand jury. Freedom from double jeopardy. Freedom from testifying against oneself. Right to face accusers. Right to due process. Right of just compensation for takings.

6th Amendment: Right to speedy trial. Right to impartial jury. Right to be informed of the charges upon which the accused is held. Right to face accusers. Right to produce witnesses for the accused. Right to legal counsel.

7th Amendment: Right to jury trial in civil cases. Facts found by a jury cannot be re-examined by another court.

8th Amendment: Freedom from excessive bail or fines. Freedom from cruel or unusual punishment.

9th Amendment: The listing of a right in any other part of the Constitution does not imply that other unlisted rights do not exist. Supreme Court decisions have found a handful of important rights that fall under the 9th Amendment, such as the right to privacy.” [4](Globalize 2009).

13th Amendment: Right to not be a slave.

14th Amendment: Right to citizenship of any person born in the United States. Right to equal protection of the national and state laws. Right to be free of any law that abridges the privileges or immunities of a citizen. Right to be free of any law that deprives a person of life, liberty, or property without due process.

15th Amendment: Right to vote regardless of race or colour.

17th Amendment: Right to vote for Senators.

19th Amendment: Right to vote regardless of gender.

23rd Amendment: Right to vote for presidential electors if a resident of Washington, D.C.

24th Amendment: Right to vote even if a poll tax or any other tax is unpaid.

26th Amendment: Right to vote guaranteed for any person at least 18 years old.

Not until the 13 th Amendment to the US Constitution was ‘slavery’ mentioned.  Only the Confederate States of America’s Constitution mentioned slavery, and it banned the future use of the slave trade. The US Constitution represents a representative democracy. It aims to secure the rights of individual citizens. In a direct democracy the will of the people prevails. We do have some constraints on our choices because of government has some ‘discretionary powers’ which prevent the US from having pure direct democracy.

[1]Redroom Electing a New Judge for Judging 09 August 2009. 31 August 2009. < http://www.redroom.com/blog/surchdg8/electing-a-new-judge-for-judging>.

[2] Commoncraft Electing a US President in Plain English 23 May 2009. 31 August 2009. < http://www.commoncraft.com/election>.

[3] Kingdom Direct v Representative Democracy23 May 2009. 31 August 2009.< http://ethicalpost.blogspot.com/2009/05/direct-v-representative-democracy.html.

[4] Globalize Constitution of the United States Bill of Rights 31 May 2009. 31 August 2009< http://www.ratical.org/co-globalize/BillOfRights.html>.

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