A Republic, If You Can Keep It

Benjamin Franklin’s answer to the question of what sort of government the authors of the Constitution had created—“A republic, if you can keep it”—has become a kind of mantra for conservatives.  Whenever there is widespread public support for something conservatives don’t like, they fall back on the claim that the US is a republic, not a democracy.  But what does this mean, exactly?

          The modern notion of a republic that is often invoked against democracy is not really very substantial.  It usually amounts to no more than the claim that the US has a constitution which grants legal status to certain “natural” or “God-given” rights, and thus limits the power of the majority.  But this falls far short of the concept of a republic that guided the founders in the writing of the Constitution.  There are at least two features of a republic, as the founders understood it, that are far more substantial than the mere possession of a constitution.  (After all, most democracies have a constitution.). And when this notion is properly understood, it does very little to support modern conservative ideas.

          First, a republic is a combination of the three primary forms of government—democracy, aristocracy, and monarchy. This concept of a republic is found in the writings of Cicero, and it has shaped the development of republican doctrines for 2000 years.  Many of the authors of the Constitution were classically educated; they were directly familiar with the Ciceronian concept of a republic.  Equally important were the writings of Montesquieu and John Adams, who conveyed these classical ideas to the modern world.  These and other republican thinkers argued that only this blend of types of government could ensure balance and avoid the evils attendant on any one of these forms alone.  So, although a republic is not a democracy, nonetheless democracy is an essential component of republics.

          It is easy to see how the original Constitution (including the first 10 Amendments, but not the others) incorporated these three types of government.  The House of Representatives, elected directly by the people, represented democracy; and the short terms helped to protect against the evils of democracy identified by Plato long ago.  The Senate was elected by representatives of the people and served six-year terms.  This mode of selection and the longer terms removed the Senators somewhat from the pressures of democratic politics, and, it was surmised, facilitated the emergence of a “natural aristocracy.”  The President was even more insulated from the political fray, and the power of veto granted a bit of the independence from the legislature that monarchs enjoy.  (These ideas are developed in detail in such works as John Adams’ Thoughts on Government and The Federalist Papers of Madison, Hamilton, and Jay.)

          Second, a republic is possible only if the citizenry is willing to hold itself to a very high moral standard.  James Madison captures the urgency of this matter quite nicely:

As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form.

James Madison, Federalist 55

The nature of these human qualities that underlie republican government is characterized more explicitly by Montesquieu, a political philosopher who had considerable influence on the founders’ thinking:

This virtue may be defined [as] the love of the laws and of our country. As such love requires a constant preference of public to private interest, it is the source of all private virtues; for they are nothing more than this very preference itself.

Baron de Montesquieu, The Spirit of the Laws, Book IV,  

                       Chapter V [1748]

And John Adams embraces this notion of republican virtue in his public writings and in his correspondence with other theorists of the American Revolution:

Public virtue cannot exist in a nation without private, and public virtue is the only foundation of republics. There must be a positive passion for the public good, the public interest, honour, power and glory, established in the minds of the people, or there can be no republican government, nor any real liberty: and this public passion must be superior to all private passions.

John Adams: letter to Mercy Warren, April 16, 1776

This is the republic that Franklin challenged us to keep—a carefully designed set of political institutions, undergirded by a citizenry that places public interest above private interest.

          I am sure it is abundantly clear to the discerning reader that the US is not, by these standards, any sort of republic anymore.  Amendments to the Constitution concerning the election of Senators and the President have thrown both these branches as deep into the political fray as the House.  Gridlock in the legislative branch has allowed the Presidents to liberate themselves from Congress and to govern with increasingly monarchical powers.  The insanity of our electoral system has allowed the entirety of government—the executive, the legislature, and the judiciary—to fall under the control of a corporate oligarchy.  

          And there is hardly even a memory of republican virtue to be found in contemporary US political culture.  Certainly not in the most corrupt presidential administration in my lifetime (and perhaps in the history of the country).  And certainly not in the Senate, which has found in the current medical crisis just one more opportunity to engineer another massive wealth transfer from the working and middle classes to the rich.  And not amongst the members of the government who use their privileged positions and knowledge to enrich themselves through insider trading.  And certainly not among the rich, who are in a tizzy about all the profits they are not making because of the quarantine.  And certainly not among the white supremacists and fascists who march around waving guns and threatening people.  And certainly not among the citizenry who insist that putting off a haircut, wearing a mask, or practicing social distancing are just too much to ask to mitigate a public crisis.  

          Our current president is a veritable role-model for this toxic devotion to one’s own interests at the expense of everyone and everything else.  It is toxic because we are intrinsically social creatures.  Our well-being and our very humanity depend on a healthy social environment.  As the current unrest about police racism and violence illustrates, such an environment must be maintained, often at some personal cost.  To say the least, we are not doing a very good job of this.  I think Franklin would say we’ve lost it.

The Original Con

It looks like Neil Gorsuch is going to sail through the confirmation process with little difficulty, despite Al Franken’s best efforts.  This is at least partly because no one seems to know quite what to say in response to claims that he is an “originalist.”  That is, he supposedly will interpret the Constitution in accordance with the meaning of the text, rather than to accommodate his (or society’s) political/moral convictions.  

     On the face of it, this seems like an unassailable approach; I have argued elsewhere that it is the correct approach to Constitutional (and statutory) interpretation.  What else, after all, really could ground an interpretation?  If it is not the meaning of the Constitution that is supposed to guide judicial decisions, what is?  If it is the convictions of judges, or the winds of politics, or some vague notion about the Constitution being a “living” document, then our law is likely to lack all consistency and stability, because all these things are ephemeral and constantly in flux.  But consistency and stability rank high among the virtues of a legal system that a Constitution—a written document with a determinate meaning—is supposed to ensure.  

     But often originalism is just a con to avoid acknowledging the clear meaning of the Constitution.  This works by moving subtly from the claim that it is the meaning of the text that we must discern to the claim that this meaning is revealed by the practices of the founders.  Thus, what was permitted then must be permitted now.  What was prohibited then may be prohibited now.  And, what is perhaps most important in contemporary political culture, what was not protected then cannot be Constitutionally protected now.  

     So, for example, since capital punishment was common at the time of the founding, it cannot be unconstitutional now.  Since gay marriage was not recognized then, it cannot be a requirement of the Constitution that the law recognize it now.  Since the Constitution does not explicitly mention privacy, it cannot be the basis of other rights, such as the right to abortion or birth control, or the right to engage in homosexual practices.  And so on.

     This is a thoroughly wrong-headed way of understanding the meaning of the Constitution.  There are many reasons why this is so; here are three that I think are particularly important.

     First, this is a really silly way to think about the meaning of a constitution, whether ours of that of another nation.  Most constitutions, and certainly that of the United States, are not written to codify the way things are; they are written to articulate a moral vision of a society and to design a government that can realize that vision.  This is the meaning of Ben Franklin’s characterization of the founders’ work as “A republic, if you can keep it.”  A republic is a form of government grounded on certain values, and the realization of this ideal is a difficult and ongoing effort.  

     Second, this way of thinking has implications that might prove troubling to the very people who praise it.  What, we might ask, do the practices of the founders’ era tell us about the meaning of the 2nd Amendment?  Militia calls represented something very like registration of gun ownership.  Laws that prohibited carrying concealed weapons or carrying weapons in public places were common.  And it was not until the 1970s that anyone thought to question the constitutionality of this.  (I discuss this in more detail here.)  I doubt that there are very many self-styled “originalists” who would favor the return of such laws.

     Third, this approach is not faithful to the text of the Constitution; it is not even useful for determining the meaning of much of the Constitution.  Much of the Constitution is written in very abstract language, invoking concepts—freedom of speech, religion, and association, equality, due process—that are thoroughly contestable.  The people of the founders’ era did not agree on their meaning, and the practices of the various state and local governments were not consistent regarding many matters regulated by the Constitution.  The only way that we can discern the meaning of these concepts, and the Constitutional clauses that invoke them, is to engage in moral discourse ourselves.  We must inquire what constitutes freedom, equality, due process, and so forth.

     It is this feature of the Constitution that has enabled the United States to make whatever moral progress it has made.  A constitution written by and mostly for white Christian men invoked moral concepts that clearly apply to other people as well.  The inevitable political pressure by these other people has been a crucial driver of moral progress.  One unrecognized group after another—women, blacks, homosexuals, to name just a few—have stepped forward to demand the legal protections necessary to make the Constitution’s promises a reality for them.  And to the extent that these demands have been met, it is not because we have ignored or abandoned the Constitution.  It is because we have come to understand that the Constitution requires it.

     There are plenty more groups waiting in the wings for their turn.  It is only the recognition that the Constitution is a moral document, one that requires moral discourse amongst the citizenry, that will give our political institutions flexibility to navigate this future.

     I have not done enough research to say with certainty that Gorsuch is one of these narrow and crabbed originalists who believes that the Constitution froze things in time.  But what I have read, and what I have heard during his confirmation hearings suggests that he is.  And if he is, he is not going to be much use in crafting a political culture that can accommodate the diversity of this country.