Is America a republic or a democracy?, part 2: ‘Republic’ can include direct democratic lawmaking

An illustration depicting life in ancient Rome is projected on the walls of the Forum of Augustus in Rome in 2014. (Alessandro Bianchi/Reuters)

Sometimes the words “republic” and “democracy” are used to describe two different forms of government — “republic” to refer to representative government, and “democracy” to refer to direct democracy. But the words have historically been more capacious (or perhaps more ambiguous) than that. As I’ve written before, for instance, “democracy” and “democratic” can include representative democracy, which is to say a republic in which most people are entitled to vote.

But “republic” has historically also been ambiguous, including during the Framing era. Sometimes, as in Madison’s Federalist No. 10, it was used to mean government by representatives:

[A] pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction …. A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking…. The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.

But sometimes it was used to include governments in which laws were made by direct popular vote (though the executive branch may have been elected). One way to get at this is to ask: What is the first nation that you think about when you hear the word “Republic” today, and that the Framers likely thought about? What is the most famous historical Republic, indeed the one that gave us the word “Republic”?

Why, the Roman Republic, of course, which The Federalist and many others discussed. And yet in the Roman Republic, there was no representative legislature.

The Senate (which wasn’t elected or representative) did have considerable interpretive and advisory authority, and the elected praetors could interpret the law in important ways. But the laws themselves were made by direct vote of the citizens (or just by the plebeians), in the comitia centuriata, the comitia tributa or the concilium plebis.

This was direct lawmaking, though with a voting system that heavily favored the rich, not representative lawmaking. The laws had to be proposed by a magistrate, such as a consul or a tribune of the plebs, so it wasn’t precisely like an American initiative. But the laws didn’t have to first be passed by some elected legislative body first (again, remember that there were no elective legislative bodies); in principle, they just had to be proposed by one elected magistrate — such as one of the 10 tribunes of the plebs — and enacted by popular vote in the assembly. You can think of it as something between the modern American referendum and the modern American initiative. But it was direct popular lawmaking, not representative lawmaking.

And the Framers routinely called Rome a republic — indeed, they labeled Athens a republic, even though Golden Age Athens famously involved direct democracy. Hamilton in Federalist No. 6 states that “Sparta, Athens, Rome, and Carthage were all republics.” Hamilton in Federalist No. 34 specifically talked about the Roman legislative assemblies, yet called Rome a republic. Federalist No. 63, generally attributed to Madison, labeled Rome as an example of a “long-lived republic.”

Prof. Rob Natelson’s “A Republic, Not A Democracy? Initiative, Referendum, and the Constitution’s Guarantee Clause” discusses the Framers’ broad use of the term “republic” in detail. (Akhil Reed Amar’s “The Central Meaning of Republican Government: Popular Sovereignty, Majority Rule, and the Denominator Problem,” 65 U. Colo. L. Rev. 749 (1994), also talks about this, though with less focus on the ancient antecedents.) Here’s an excerpt, but if you’re interested, you should read the whole thing:

The historical record is flooded with statements in which participants implicitly assume that republics may employ direct citizen lawmaking. As already noted, many in the founding generation followed the taxonomy of Montesquieu, in which both aristocracies and democracies — expressly including those with citizen lawmaking — constituted subspecies of republics. At least as significant are the writings and speeches of participants who identified particular governments with citizen lawmaking as “republics.” Although Federalists and Anti-Federalists disagreed about the Constitution, they did not differ materially (for this purpose) about the governments they deemed to be republics.

Thus, at the Constitutional Convention, both George Mason and Alexander Hamilton referred to the ancient “Grecian republics.” In Federalist Number 6, Hamilton stated that “Sparta, Athens, Rome, and Carthage were all republics….” In Federalist Number 63, Madison listed five republics: Sparta, Carthage, Rome, Athens, and Crete. In his Anti-Federalist writings, “Brutus” — probably Robert Yates, a convention delegate from New York — stated that “the various Greek polities” and Rome were republics. Anti-Federalist author “Agrippa” (John Winthrop of Massachusetts) identified Carthage, Rome, and the ancient Greek states as republics. The Anti-Federalist “Federal Farmer” spoke of the “republics of Greece,” and Anti-Federalists “A Farmer” and “An Old Whig” discussed the Roman Republic. An anonymous Anti-Federalist writer, lacking even a pseudonym, spoke of the “Grecian republics.” (This list is not exhaustive as to either Federalist or Anti-Federalist authors.) Similarly, in the state ratifying conventions, the participants of all political stripes made numerous references to these and other ancient governments as “republics.”

The participants well knew that all of these republics prominently featured citizen lawmaking — more citizen lawmaking than even the most fervent modern advocate could desire. For example, all laws adopted in Sparta had to be approved by an assembly of citizens — in other words, all laws, not just a few, were subject to a form of referendum, while in Athens an assembly of all citizens over eighteen years of age both approved and initiated laws. In Carthage, as John Adams noted, the people initiated laws when their magistrates were not unanimous.

In the founding generation, pre-imperial Rome was on everyone’s list of republics, and its ideals and constitution were uniquely influential among the participants. As they understood, the sovereign power of the Roman state — the Res Publica Populi Romani — was in the populus Romanus. This was the whole body of citizens, acting without representation, through their popular assemblies. Major legislation was enacted on the recom-mendation of either the presiding magistrate or the senate. The assemblies also possessed the power to declare war; additionally, one assembly, the comitia centuriata, could hear certain judicial appeals. Citizens elected magistrates to exercise the executive power (such as consuls and aediles), magistrates to represent the people’s interest against the senate (tribunes), treasury officials (quaestors), and judges (praetors).

Each of the assemblies had different — although sometimes overlapping — jurisdiction, and different voting rules. In 287 b.c., the concilium plebis, an assembly consisting exclusively of the commons (plebs) and excluding the nobles (patricians), was granted coextensive lawmaking power with other assemblies. One of the annually elected “tribunes of the people” presided over this body, and its decisions were called plebis scita — roughly, Acts of the People.

The modern plebis scitum is, of course, the plebiscite. It is one of the delicious oddities of legal literature, born clearly of historical ignorance, that some legal writers continue to contend earnestly that all or certain plebiscites are not “republican.” Yet plebiscites originated in the state that the Founders viewed as the grandest republic of all! One might as well contend that pizza is not Italian.

This does strongly suggest, I think, that the Constitution’s provision that states should have a “republican form of government” is quite consistent with states having direct democracy — “republican” here was likely used to mean “not monarchical or despotic” (plus perhaps a few related elements), rather than “not including direct citizen lawmaking.” And beyond that, it’s a reminder that we shouldn’t assume that the Framers consistently used “republic” and “democracy” as antitheses, even though at one point Madison did use “republic” and “pure democracy” that way. America could be described as both a republic and a democracy in 1787; it can be so described today.

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/12/16/is-america-a-republic-or-a-democracy-part-2-republic-can-include-direct-democratic-lawmaking/

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