What's wrong with the 'constitutional republic' defense

“It’s not a democracy, it’s a constitutional republic.”

More and more, this is the defensive response of Republicans as Democratic voters increasingly begin to question the political system in ways that were unheard of just a year or two ago.

The reality of a gerrymandered system means that Democrats had to beat Republicans by 6 percent to 7 percent in the overall vote to take control of the House of Representatives in this last election and that the Senate is comfortably in the hands of Republicans, who have the advantage of dominating rural states, where voters count far more than those in urban coastal enclaves do.

Vox editor Ezra Klein pointed out in a recent article that “by 2040, 70 percent of Americans will live in the 15 largest states. That means 70 percent of America will be represented by only 30 senators, while the other 30 percent of America will be represented by 70 senators.”

The Electoral College has installed a president who received a minority of the vote in two of the past five elections. The Supreme Court is, in the words of Michael Tomasky, editor of the journal Democracy, facing a crisis of legitimacy as Republicans have consolidated a conservative and openly Republican majority against the will of American voters.

All three branches of the government are at this moment under the control of a party that, under a more democratic system, would be relegated to minority status.

Given the circumstances, numerous liberal commentators and scholars, such as David Faris of Roosevelt University, are calling for Americans to, in his words, “fight dirty” by enacting political changes that would in reality simply level the playing field. This is why Republicans are clinging to the defense that, in our constitutional republic, it is perfectly legitimate that that majority be subject to the will of the minority, as long as the rules are followed. They also consider it unproblematic, indeed desirable, that the minority (with an assist from a supine Supreme Court) further enshrine its rule through legalistic voter suppression, ever more precise gerrymandering and unrestricted rivers of money lubricating their policy objectives.

This argument ignores the history of constitutionalism, republicanism and democracy, however.

England was one of the earliest countries to institute a constitutional form of government with the Glorious Revolution of 1688 (some would point to its glimmerings in 1215 with Magna Carta). But no one would have interpreted England’s government as representing the will of the majority; it simply placed the king under the rule of law.

The relatively recently formed republic of the United States of America embarked on its great experiment in 1789 when its new Constitution came into force. While its franchise was wider than European countries, the U.S. Constitution allowed for the enslavement of black people and the denial of the vote to women.

The French Revolution of 1789 went further than its American counterpart, establishing a republican form of government in September of 1792, killing the French king, ending slavery throughout the empire and instituting universal manhood suffrage — for a time. Radicalization created a backlash, which led to a limited franchise and the re-imposition of slavery until 1848.

In general, though, the 19th century was one in which citizens would seek more democratic forms of government. Increasingly, the legitimacy of governments, at least in the western world, would be linked with the ability of citizens to have a voice.

And it is this history that we must consider when Republicans retort that the U.S. government is “a constitutional republic, not a democracy” to their fellow Americans’ complaint about the erosion of democratic norms in this country — as if that should be sufficient. A constitution is nothing but a framework that provides a structure for the government. Authoritarian governments also have constitutions. Russia and North Korea are both “republics” according to their constitutions. They have elections. They have institutions that their constitutions delineate. However, most Americans would not consider those governments legitimate. Only underlying democratic norms provide legitimacy to a constitutional republic.

Throughout history, we have seen republics transmute into dictatorships, maintaining the institutions of republicanism while changing their substance. Octavian Augustus presided over a Roman republic that had in reality become authoritarian. Napoleon argued that he was preserving the gains of the French Revolution while asserting despotic power. Mussolini and Hitler both came to power in legalistic fashion and then used their control over the legislature to end democracy.

We are in danger of a similar slide into autocracy, ruled by men who manipulate the structures of our system to consolidate their own power. A constitutional republic without the substance of democracy is illegitimate.

By taking back the House of Representatives, Democrats have overcome the kind of odds that should not exist in our — I will say it — democracy. It’s a start, but there is much work to be done.

Christine Adams is a professor of history at St. Mary's College of Maryland; her email is cmadams@smcm.edu.

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