constitutional democracy essay

‘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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Constitutional Democracy

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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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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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.

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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
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• 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.

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Constitutional Democracy in Crisis?

Edited by mark a. graber, sanford levinson, mark tushnet.

Are constitutional democracies around the world really experiencing a global crisis? Constitutional Democracies in Crisis? asks whether the apparent weakening of many constitutional democracies around the world is simply part of the normal ebb and flow of constitutional democracy, or whether complaints about the present state of constitutional democracy are largely from people on the political left upset to learn that many of their compatriots do not share their values on such matters as immigration, globalization, and the environment. The contributions include background material on the nature of constitutional crises, essays on the state of constitutional democracy in specific regimes or regions, essays on the influence of such global forces as climate change, religious fundamentalism, terrorism, economic inequality, globalization, immigration, populism, and racism/ethnocentrism, and observations about the contemporary state of constitutional democracy. The book provides a general guide to the state of constitutional democracy during the second decade of the twentieth century that should be useful for scholars, students, and general readers, providing frameworks and information for assessing the contemporary state of constitutional democracy. Finally, the essays diagnose the causes of the present afflictions of constitutional democracies in particular regimes, regions, and across the globe.

Bibliographic Information

Affiliations are at time of print publication..

Mark A. Graber, editor

Sanford Levinson, editor

Mark Tushnet, editor

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• Praise for: Constitutional Democracy in Crisis?
• (1) Trends Toward Constitutional Democracy have Stalled and may be Reversing.
• (2) The Conventional Foundations of Constitutional Democracy are Weakening.
• (3) Several Regimes Held up as Role Models of New Transformative Constitutional Democracies in the Recent Past are Now Facing Severe Tensions, While No New Model Constitutional Regime has Emerged During the Past Ten Years.
• (4) Threats to Constitutional Democracy are Increasingly Global Rather than Distinctive to Particular Regimes.
• (5) Constitutional Democracies must Perform more Tasks than Ever Before, with Higher, Potentially Catastrophic Costs for Policy Errors.
• (6) Constitutional Problems in the United States may be Fueling Concerns that Constitutional Democracy is in Trouble.
• What Is a Constitutional Crisis?
• Constitutional Rot
• Are We in a Period of Constitutional Crisis?
• Are We Experiencing Constitutional Rot?
• Introduction
• Defining Liberal Constitutional Democracy
• Country-Level Trends
• Survey Data
• Whither the Global Democratic Recession?
• We’ve Been Here Before
• A Crisis of What, Exactly?
• Measuring Democracy’s Components
• A Step Change in Democracy and Its Components?
• Democracies: Slow to Build, Quick to Break?
• Trouble Spots (and Some Not-So-Troubled Spots)
• Facing Up to the Heart of the Problem: Polarization
• Conclusions
• Law and Disorder: Article 48
• Article 48 at Weimar’s End
• Preliminary Material
• Mostly Sound and Fury?
• Cosmopolitan Versus Local: Undermining Democratic Governance.
• Hostility and Degradation: Challenging Liberal Governance.
• Crisis-as-Disruption
• Crisis-as-Dissatisfaction
• The Trump Administration
• Stagnation.
• Reasonable Reform.
• Degeneration.
• Amend the Constitution or the Country?
• Introduction—Institutional Design or Constitutional Values?
• Features of Constrained Parliamentary Systems
• Executive Accountability to the Legislature
• The Constraint of a Codified Constitution
• The Primacy of the Lower House
• The Judicial Constraint
• Fourth Branch in Theory and Practice
• Canada’s Fourth Branch of Government
• The Judicialization of Mega-politics
• The Role of the Supreme Court of Canada
• Conclusion—Challenges to Democratic Resilience
• Constitutional Culture
• Why Constitutional Culture Matters
• The Mexican Constitution as the Expression of Political Elites’ Culture
• The Last Threat to Constitutional Culture
• Amendment Procedure, Popular Interpretation, and Constitutional Culture
• Lessons from Latin-American Constitutionalism
• The Constituent Assembly of Hugo Chávez: The First Time as Tragedy
• The Chávez Regime and Competitive Authoritarianism
• Maduro and the Slide toward Full Authoritarianism
• The Constituent Assembly of Nicolas Maduro: The Second Time as Farce
• Imposition.
• Accumulation.
• Social Constitutionalism in the Twentieth Century
• Tensions between Rights
• Tensions in the Organization of Powers
• Unbalanced Constitutions and Hyper-presidentialism
• Tensions between the Organization of Powers and the Declaration of Rights
• The Constitution, Parliamentary Sovereignty, and British Democracy
• Accelerating Change and Party Fragmentation
• The Rise of Referendum Politics
• Calling the Referendum
• Preparing the Bill
• Running the Campaign
• The Opportunity for Constitutional Renewal
• 13 France and the Fifth Republic: Constitutional Crisis or Political Malaise?
• The Constitutional Framework
• The 2006 Statute of Autonomy of Catalonia
• The Rise of the Secessionist Movement: The Elections of November 2012, and the Popular Consultation of November 2014
• The Catalan Parliamentary Elections of September 2015 and the Referendum of October 2017
• The Proclamation of the Catalan Republic and the Spanish Government’s Reaction
• Catalan Secessionism as a Form of Populism
• The Difficult Way Forward
• The “Rule of Law Revolution” of 1989 and the “Constitutional Counter-Revolution” after 2010
• A Populist Illiberal System
• Paralyzing and Transforming the Constitutional Tribunal
• Subjecting the “Regular” Judiciary to the Ruling Party
• Delegitimizing the Opposition
• Right of Assembly
• Freedom of Speech
• Counterterrorism Measures and Police Act
• Electoral Law
• Civil Society
• Crisis of Constitutional Democracy
• Application to the European Union
• The Debt Crisis
• The “Migration Crisis”
• Right-Wing Politics and the Return of Populism
• Legitimacy Crisis as a Crisis of Constitutional Democracy?
• Corruption and Constitutional “Lawfare”
• The Undermining of Democratic and Constitutional Institutions
• The Role of the Courts in Defending Constitutional Institutions
• Conclusion: Political Change and Constitutional Resilience
• Constitutional Crisis Arising from Fundamental Disagreements That Result in Extraordinary Forms of Protest
• Constitutional Crisis Arising from Suspensions of the Constitution
• When Actors Believe Fidelity to the Constitution Requires Them to Act in Ways That Lead to Constitutional Crisis
• Free Speech
• Selective Prosecutions of Political Opponents for Nonpolitical Crimes
• Democratic Reforms and Rhetoric
• Formal Constitutional Changes
• Toward a Presidential System
• The July 2016 Coup d’État Attempt
• The April 2017 Referendum
• The “Constitutional Revolution”
• The Counterrevolution
• Fulfillment—Not Crisis—of Democracy
• “Cry Wolf” or a Natural Balance
• Constitutional Retrogression or Capture
• Concluding Remarks
• Secularism and the Indian Constitutional Framework
• The Rise of the BJP in National Politics and the Ayodhya Controversy
• The Political and Constitutional Response: The Supreme Court and Secularism
• Constitutional Erosion in Elections and Governance in the Post-Hindutva Cases Era
• The Current Challenge to Secularism in the Post-2014 Era
• The Erosion of Secularism in Governance
• The Erosion of Secularism in Elections and Campaigns
• The Australian Political and Electoral Landscape
• Democratic Non-Stability: The Rise of One Nation
• Compulsory Voting
• Preferential Voting and the Electoral System
• Policy Responsiveness
• Defeating (or Advancing) Populism?
• Conclusion: Comparative Lessons
• 1 The Contagion Hypothesis
• 2 The Constitutional Inertia Hypothesis
• Constitutional Democracy
• Bureaucratic Authoritarianism
• The Temporal Dimension of Democracy.
• Fractionated Power.
• Intermediary Organizations.
• Transparent Governance.
• Norms of Governance.
• Transformative Constitutionalism and the New Populisms
• Declining Responsiveness to Voters’ Preferences
• Building Differential Influence and Access
• Rising Inequality
• Redirection and Misdirection of Senses of Powerlessness and Grievance
• Persistent Discrimination Limiting the Economic Resources of Ethnocultural Minorities
• Weakening the Right to Vote, Especially for Ethnocultural Minorities
• Opposition to Judicial Independence in the Service of Rights of the Less Advantaged
• Constitutional Crisis?
• At the Founding
• Who Can Participate?
• Values Intrinsic to the (Particular) Constitutional Order
• Workers or Human Beings?
• How Migration Strengthens the State-Territory-Citizen Construct
• A (Provisional) Constitutional Settlement
• Flipping Normative Claims for Inclusion
• Securitization
• Demography as Destiny
• Economic Considerations
• Counterarguments
• Bleak Mirror
• Other Futures?
• Parties and the Political Tsunami: A Tale of Two Countries
• Politics Has Failed the People, Not the Other Way Around
• What Is to Be Done?
• Constitutionalism and Religion: Four Frontiers of Clash
• Who Belongs? Religious Talk and the Surge of Populist Nationalism
• A Global Gilded Age
• The Importance of Economic Equality for Constitutional Democracy
• Type 1: Class Warfare Constitutions.
• Type 2: Anti-poverty Constitutions.
• Type 3: Anti-oligarchy Constitutions.
• Type 4: Middle-class Constitutions.
• The Mismatch Problem and the Future of Constitutional Democracy
• Chastened States
• The Ties That Bind
• South Africa
• The Washington Post’s New Slogan
• La Suite Polonaise
• The End of History?
• Presidential Impeachment through the Comparative Looking Glass
• Back to America
• Origins: The State of Siege (État de Siege)
• The State of Emergency (État D’urgence)
• The State of Emergency Comes to France
• Back to the Future: November 2005
• The Exception
• Periodic Renewals of the State of Emergency
• The Exception Becomes the New Legal Norm
• The Political Challenge of the Climate Crisis
• Constitutions, the Judiciary, and the Climate Crisis
• Subnational Governments and the Climate Crisis
• Efforts to Overcome a Global “Tragedy of the Commons”
• The New Democratic Deficit
• The Hollowing of European Democracy
• Process Legitimacy.
• Result Legitimacy.
• Messianic Legitimacy.
• Developing Criteria for Evaluating Whether Populism Is Anti-liberal
• An Important Objection
• The Origins of Contemporary Populism
• Right-Wing and Left-Wing Populism Compared
• A Note on the Role of Political Leaders
• Populist Anti-cosmopolitanism
• “Deconstructing the Administrative State”
• “We the People” as the Singular Source of Legitimacy
• The Thickening of Constitutional Democracy
• The Right-Wing Populist Surge
• The Hollowing of Constitutional Democracy
• Executive Power
• More Politics, Less Law
• Woodrow Wilson’s Constitutional Democracy Revisited
• List of Contributors
• Acknowledgments
• [66.249.64.20|185.194.105.172]
• 185.194.105.172

U.S. Constitution.net

Republic vs Democracy

Defining a constitutional republic.

The United States operates as a constitutional republic , a form of government that involves representatives elected by the people, who execute their duties under the constraints of a prevailing constitution that specifies the powers and limits of government.

One fundamental principle of a constitutional republic is the protection of minority rights against the potential tyranny of the majority . This design counters direct democracy, where majority rules could potentially ride roughshod over minority interests. The U.S. Constitution outlines various checks and balances intended to prevent any single branch of government from gaining absolute power, thereby protecting individual rights from being infringed upon by majority vote.

Another key element of this governance style is the separation of powers among branches of the government, a system meant to foster a balance of power. The legislative branch makes laws, the executive branch enforces these laws, and the judiciary interprets them. Each branch operates independently from the others to prevent any accumulation of power, adhering to the principles laid out by the framers of the Constitution.

The electoral process distinctly forms the basis of the U.S. as a republic. Citizens do not vote directly for laws and policies but instead elect representatives who make these decisions on their behalf. This filter theoretically places an informed decision-making body between the populace's desire and the law, which aligns with the characteristics of a republic.

The rule of law also serves as a cornerstone in a constitutional republic. Unlike monarchies of the past where rulers were law unto themselves, in a constitutional republic such as the U.S., every citizen, irrespective of their status or authority, is subject to the law . This adherence to codified laws confirms the U.S.' attachment to the abstract principles of democracy and to a rational legal framework that governs society's functioning.

The continuous impact of these foundational elements helps ensure the function of the U.S. governance is not driven by transient popular sentiments but steered through established, systematic laws and practices. This tempers swaying populist whims and meshes well with democratic ideals—where every voice has a chance to be heard through elected representation. Herein lies the synthesis of republican principles with democratic values, helping shape policies that reflect both collective will and measured, constitutional guidelines.

The Role of Democracy in a Republic

In the United States, the role of democracy within the republic is crucial, embodying the very essence of the electoral process and the engagement of the citizenry in governmental decisions. Although the U.S. Constitution does not embody a pure form of democracy where laws and policies are directly decreed by citizen vote, it enshrines the democratic principle through the election of representatives who, in turn, influence legislation and governance.

The democratic process in the U.S. ensures that while representatives are elected to make decisions, these decisions are deeply influenced by public opinion. Citizens express their preferences through voting, which is a civic duty, emphasizing the democratic spirit within the framework of a constitutional republic. This process secures a pathway for public sentiment to guide the legislative agenda, thereby reinforcing the notion that government derives its power from the consent of the governed .

Public opinion in America often shapes legislative decisions through other mechanisms such as referendums, initiatives, and recalls which, although not universally available in all states, add a direct democratic dimension to the republican system. 1 These tools allow voters to propose or reject laws and policies directly, bypassing the representative filter when needed, which provides a direct check on elected officials and ensures that crucial matters can be addressed head-on by the populace.

These democratic mechanisms within the constitutional republic of the United States highlight how deeply interwoven democratic processes are in facilitating effective governance that is of, by, and for the people , albeit through the prism of constitutional constraints and representative governance. This blend ensures that the nation adheres to the desires of its citizens and to a larger, enduring legal and ethical framework designed by the founding fathers to guide generations toward a fair and just nation.

Photo by kommumikation on Unsplash

Historical Perspectives on U.S. Government

When the founding fathers convened at the Constitutional Convention in 1787, their aim was to establish a framework that would endure and stabilize a nascent nation. The atmosphere was saturated with a diversity of ideologies and experiences, mirroring the complexity of the endeavor they had undertaken. The deliberations, fraught with contention and compromise, drew heavily upon historical precedents and philosophical thought that dated back to classical antiquity, Enlightenment philosophy, and the recent experiences of the American and British governments.

Key figures such as James Madison, often referred to as the "Father of the Constitution," brought a wealth of knowledge about historical forms of government and their pitfalls. His preparation included a detailed study of ancient and modern confederacies, which was instrumental during debates and discussions. Madison, along with his contemporaries, was particularly influenced by the political instability they observed under the Articles of Confederation, where a lack of central authority led to inefficacy and interstate discord.

The philosophical motives driving the structure of the U.S. government owe much to Enlightenment thinkers like John Locke and Montesquieu. Locke's principles of life, liberty, and property found a strong echo in the American ethos of liberty and individual rights. Montesquieu's admiration for the separation of powers influenced the Constitution's architecture significantly; his idea that liberty depended on the balancing forces within government can distinctly be seen in the separation of powers among the legislative, executive, and judicial branches as defined in the Constitution. 2

The historical perspective on desiring a republic over a pure democracy was clear: the founding fathers feared the potential for tyranny in both majority rule and monarchy. They sought a form through which liberty could be preserved and prevented from descending into licentiousness—an unbridled freedom that tramples societal order. This apprehension is reflected in the Federalist Papers, a series of essays penned by Alexander Hamilton, James Madison, and John Jay under the pseudonym "Publius" to advocate for the ratification of the Constitution. Federalist No. 10, written by Madison, argued that a large republic could best guard against the dangers of factionalism and preserve individual freedoms against majority tyranny.

Reflections on historical antecedents like the Roman Republic were influential. The founders considered Rome's model concerning elected representatives and mechanisms averting tyranny. The system was not purely democratic as in ancient Athens, where all eligible citizens participated directly in legislative decisions. Every system they regarded offered insights into creating stability while ensuring that governance by consent was not compromised by transient popular pressures.

In drafting the Constitution, delegates knew they were preparing a document for future generations. Their acute awareness of history, coupled with a pragmatic understanding of current and future challenges, drove them to forge a balanced republic. They aspired for a system that safeguarded against rapid erosion through faction or tyranny while embodying Enlightenment ideals that assured progress and ethical governance.

Modern Misconceptions and Clarifications

In modern political discourse, misunderstandings surrounding the terms 'republic' and 'democracy' are prevalent and are often strategically wielded in debates. These terminological misconceptions can distort public understanding and contribute to broader misrepresentations of the foundational principles governing the United States.

The conflation of 'democracy' and 'republic' in contemporary usage often obscures their distinct historical and constitutional meanings. A democracy, in its purest form as practiced in ancient Athens, involves direct participation of the citizenry in legislative decisions. While democratic, this approach was deemed impractical and potentially volatile by the framers of the U.S. Constitution, leading them to form a constitutional republic. This system combines representative democracy with foundational laws that protect individual rights and minority opinions against the potential tyranny of the majority.

During recent political upheavals, some commentators and politicians have asserted that calling the United States a democracy is incorrect, preferring instead the term 'republic'. This assertion, seen in media portrayals and political rhetoric, often suggests that appreciating the United States as a republic exclusively helps safeguard against the flaws of a pure democracy. Senator Mike Lee's comments from October 2020 exemplify this stance as he described the American system as not one of mere majorities but rather as a "constitutional republic" where majority rule is tempered by statutory and constitutional boundaries. 3

This restrictive interpretation, however, misses a broader point: the terms are not mutually exclusive and are interwoven deeply in the fabric of the US governance system. The electorate's power to elect representatives who make and interpret laws is inherently democratic, while the constitutional framework that guides and limits governance embodies the republic notion. Ignoring this connection narrows the discourse and can polarize debates unnecessarily.

Some political figures selectively use these terms to energize bases or criticize opponents, framing the narrative to suggest incompatible differences between these government forms. This deepens political divides and shifts focus away from discussing the substantive functioning of our government. The debate over whether the founders intended a 'republic' over a 'democracy' sometimes serves specific agendas without enriching the understanding of how both elements are essential to the nation's structure.

Conversations around election integrity and the validity of electoral processes often draw on this 'republic vs. democracy' discourse. Allegations of election fraud and the undermining of voting processes are severe issues that require attention and resolution. However, using the definitions and interpretations of 'republic' and 'democracy' to frame such arguments risks muddying the objective understanding with political partisanship. It distracts from factual evidence and legal standards that are the true arbiters in such cases.

Resources committed to sharing knowledge and fostering understanding about the Constitution play a crucial role in clarifying these concepts. By providing accurate historical contexts and expert analyses, such platforms help demystify the rhetoric and encourage informed dialogue among the populace. Comprehending the complementary nature of democracy and republic in the constitutional framework of the United States enlightens citizens and helps maintain the principles of justice, liberty, and equality envisaged by the founding fathers and encapsulated in the document they crafted. This synergy between varying forms of governance underlines the adaptability and enduring longevity of the Constitution as a framework for our nation.

• Beramendi V, Ellis A, Kaufman B, et al. Direct Democracy: The International IDEA Handbook. Stockholm: International IDEA; 2008.
• Montesquieu, Charles de Secondat. The Spirit of Laws. Translated by Thomas Nugent. New York: P.F. Collier & Son, 1900.
• Congressional Record vol. 166, no. 171 (October 8, 2020) (statement of Sen. Mike Lee).

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/. 
• Republic vs. Democracy: What Is the Difference?
• List of Current Communist Countries in the World
• Direct Democracy: Definition, Examples, Pros and Cons
• Representative Democracy: Definition, Pros, and Cons
• Reasons to Keep the Electoral College
• Key Election Terms for Students
• What Is a Constitutional Monarchy? Definition and Examples
• What Is a Unitary State?
• The Definition and Purpose of Political Institutions
• What Is Political Participation? Definition and Examples
• Understanding Types of Government
• What Is Theocracy? Definition and Examples
• Democracy Promotion as Foreign Policy
• What Is a Constitutionally Limited Government?
• Major Parliamentary Governments and How They Work
• What Is Majoritarianism? Definition and Examples

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The first amendment, the constitutional convention of 1787: a revolution in government.

by Richard R. Beeman

The United States Constitution has become the primary text of America’s civil religion. As a nation lacking a common religion, “We the People” have come to worship our Constitution as the scripture that holds us together. In virtually all of the public opinion polls conducted on the subject, Americans not only express their reverence for the Constitution, but also their strong opinions about its meaning. Indeed, many Americans—whether Tea Party members, left-wing critics of growing inequality in America, Democrats or Republicans in Congress, and (with particular impact) justices of the United States Supreme Court—feel so passionately about our founding documents that they claim that they and they alone are the true defenders of the ideas expressed in them; and that their opponents are not only mistaken and misguided, but in some cases, downright “un-American.” But in fact, whatever their passion or reverence for America’s Constitution, most Americans lack even a minimal historical understanding of it. (In one recent survey, for example, 71 percent of Americans believed that the phrase “all men are created equal” appeared in the Constitution, not in the Declaration of the Independence. Even more amazing, in another poll, a third of American expressed the belief that the Declaration of Independence was written after the Civil War!)

This brief, introductory essay on the “Interactive Constitution” will focus on the efforts of the fifty-five men who gathered in Philadelphia in the Assembly Room of the Pennsylvania State House (much later to be known as Independence Hall) in the summer of 1787 to draft the four parchment pages of the original Constitution. But it is impossible to begin even a brief essay on the Constitution and the Founding Fathers of 1787 without saying a few words about the document, drafted eleven years earlier, without which Americans could not be engaged in defining the character of their new nation: the Declaration of Independence.     

The Beginning of an “American Identity.”

America’s Declaration of Independence, drafted by the young but rapidly-rising revolutionary leader Thomas Jefferson, and adopted by the revolutionary Continental Congress on July 4, 1776, marks the first attempt by the “united States” of America not only to justify their decision to separate themselves from the Empire of Great Britain, but also to define some of the “unalienable rights” on which their revolutionary action was based. Included in the opening paragraphs of the Declaration of Independence is perhaps the most important statement of American ideals ever articulated:

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 powers from the consent of the governed. That whenever any Form of Government becomes destructive of these ends, it is the Right of the People  to alter or abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.  

Those ideas of the equality of mankind; that governments are based on the consent of the governed; that it is the fundamental obligation of a government to serve the needs of the people it governs; and, indeed, that it is the right of the people to abolish a government that does not serve those ends, has formed the basis of American government and society from that time forward.

As a part of their decision for independence, the “united States” moved forward to create the first written constitutions in the world’s history. Most of those state constitutions, in addition to crafting specific outlines of the way in which their new state governments should function, included “declarations of rights.” These declarations articulated in specific fashion the nature of the “unalienable rights” referred to in the Declaration of Independence—rights such as freedom of speech, freedom of religion, the right of trial by jury, the right to bear arms in the context of a “citizens militia,” and many, many others. These state constitutions were bold revolutionary experiments, and in many cases, because they were the first time state political leaders sought to write down the way their governments should function, they were far from perfect. But they were an important step forward in the notion that the purpose of governments was to serve the public interest while at the same time protecting individual liberty.  

Shortly thereafter, the thirteen soon-to-be independent states created an “Articles of Confederation.” Although some regard it as America’s first “federal” constitution, in fact, it gave so few powers to the central American government that it was more like a treaty among the thirteen independent states than a constitution for a new nation.  It amounted to little more than a “league of friendship,” in which “each state retain[ed] its sovereignty, freedom, and independence.” Although it gave to the central government substantial responsibilities—including the “common defence, the security of their liberties and their mutual and general welfare”—it denied to the government most of the powers necessary to carry out those responsibilities—including the power to tax and to regulate commerce among the independent states. Moreover, the Articles of Confederation failed to provide for a chief executive capable of giving energy and focus to the new central government.

By the fall of 1786, the combination of a financial crisis suffered by the newly-created confederation government and disorder threatened by dissatisfied farmers in western Massachusetts, led a group of “nationalist” politicians, meeting in Annapolis on September 22, 1786, to propose that the Continental Congress in New York call a “general convention” in Philadelphia. Congress delaying until February 21, 1787, reluctantly agreed to that convention, but limited any change to the mere “revising” of the existing Articles of Confederation. The fifty-five delegates who met in Philadelphia between May 25 and September 17, 1787, would not only reject the Articles of Confederation altogether, but they would produce the first written constitution for any nation in the history of the world.

Those gathered in the Assembly Room of the Pennsylvania State House during the summer of 1787 faced a formidable task. The thirteen “united States” seemed at that moment remarkably disunited. Yet somehow, in the space of slightly less than four months, they managed to pull off an extraordinary accomplishment. The Constitution they drafted has been successful for most of U.S. history in striking the difficult balance between the maintenance of public order and security, on the one hand, and the nurturing and protection of personal liberty, on the other.  And it has brought remarkable stability to one of the most tumultuous forms of political activity: popular democracy. The challenge that all nations in the world have faced not only in drafting a constitution, but also creating a form of government that both provides stability to its nation and sufficient civic responsibility and liberty to its people, is enormous. Indeed, among the more than 150 constitutions presently operating in the world today, few have been as successful in creating that delicate balance between governmental power and personal liberty among the citizens ruled by their government. 

The Launching of a New American Constitution

The remarkable achievement of the fifty-five men gathered in Philadelphia during the summer of 1787 was by no means inevitable.  Looking back on their work that summer, we can identify a few factors that enabled them to achieve their success. Certainly among the most important was the quality of leadership among those most committed to strengthening the American government. The ringleader was the thirty-seven-year-old James Madison. Standing only a few inches over five-feet tall, scrawny, suffering from a combination of poor physical health and hypochondria, and painfully awkward in any public forum, Madison nevertheless possessed a combination of intellect, energy, and political savvy that would mobilize the effort to create an entirely new form of continental union.

Madison was joined in his effort by a group of delegates from Virginia and Pennsylvania who, in a series of meetings before the Convention formally began its business on May 25, combined to concoct a plan not merely to “amend” the Articles of Confederation, but to set the proceedings of the Convention on a far more ambitious course. The first gathering of these reform-minded delegates took place on the evening of May 16, in the home of Benjamin Franklin (where dinner was served in his impressive new dining room along with a “cask of Porter,” which, Franklin reported, received “the most cordial and universal approbation” of all those assembled). The Pennsylvania and Virginia delegates then met frequently during the days leading up to May 25. The presence of Ben Franklin and General George Washington gave the group both dignity and prestige, but it was James Madison, James Wilson and Gouverneur Morris of Pennsylvania who provided much of the intellectual leadership and who shared a commitment to creating a truly “national” government based on the consent of the people, not the individual states. Together these men would forge a radical new plan, the Virginia Plan, which would shape the course of events during that summer of 1787.  

By seizing the initiative, this small group of nationalist-minded politicians was able to set the terms of debate during the initial stages of the Convention—gearing the discussion toward not whether , but how —a vastly strengthened continental government would be constructed. On May 28, 1787, the state delegations unanimously agreed to a proposal that would prove invaluable in allowing men like Madison, Wilson, and Morris to move their plan forward. Importantly, to prevent the “licentious publication of their proceedings,” the delegates agreed to observe a strict rule of secrecy, with “nothing spoken in the house to be printed or otherwise published or communicated.” In our twenty-first century world, this manner of proceeding on a matter of such monumental importance would be instantly rejected as unacceptably pretentious and undemocratic. But the rule of secrecy gave to delegates the freedom to disagree, sometimes vehemently, on important issues, and to do so without the posturing and pandering to public opinion that so often marks political debate today. And it also gave delegates the freedom to change their minds; on many occasion, after an evening of convivial entertainment with one another, the delegates would return the following morning or even the following week or month, and find ways to reach agreement on issues that had previously divided them.  The rule of secrecy helped make the Constitutional Convention a civil and deliberative body, rather than a partisan one. It helped make compromise an attribute of statesmanship rather than a sign of weakness.

As the details of the Virginia Plan came under discussion, it became clear that it was not a mere revision of the Articles of Confederation, but rather a bold plan for an entirely new kind of government—a government with a vastly more powerful “national” legislature and, unlike the Articles of Confederation,  with a powerful chief executive. It also became immediately clear that, however bold and innovative the plan may have been, there were many delegates in the room who had grave misgivings about some aspects of it. For nearly four months, the delegates attempted to work through, and resolve, their disagreements. The most divisive of those issues—those involving the apportionment of representation in the national legislature, the powers and mode of election of the chief executive, and the place of the institution of slavery in the new continental body politic—would change in fundamental  ways the shape of the document that would eventually emerge on September 17, 1787.

The Founding Fathers and Federalism

The delegates haggled over how to apportion representation in the legislature off and on for more than six weeks between May 30 and July 16. Those from large, populous states such as Virginia and Pennsylvania—supporters of the Virginia Plan—argued that representation in both houses of the proposed new congress should be based on population, while those from smaller states such as New Jersey and Delaware—supporters of the New Jersey Plan—argued for equal representation for each state. The compromise that eventually emerged, one championed most energetically by the delegates from Connecticut, was obvious: representation in the House of Representatives would be apportioned according to population, with each state receiving equal representation in the Senate.  In the final vote on the so-called Connecticut Compromise on July 16, five states supported the proposal; four opposed, including Virginia and Pennsylvania; and one state—Massachusetts—was divided. James Madison and many of his nationalist colleagues were disconsolate, convinced that the compromise would destroy the very character of the national government they hoped to create. But in the end, recognizing the folly of allowing their desire for their “perfect” plan to become the enemy of the good, they acceded to the Connecticut Compromise. And, interestingly, during the subsequent popular vote on ratification of the Constitution in the thirteen states, Madison would use his “defeat” in the controversy over representation to fashion an entirely new definition of federalism. In The Federalist No. 39 he defended the proposed new Constitution against its critics by praising the different modes of representation in the House and Senate—with the House representing the people of the nation at large and the Senate representing the residual sovereignty of the states—as one of the features that made the new government “part national” and “part federal.” No one at that time knew how that new definition of federalism would work in practice, and it would remain a source of contention for the rest of the nation’s history, including today. In this, as in so many areas, the so-called original meaning of the Constitution was not at all self-evident— even to the Framers of the Constitution themselves.

Creating an American President

The debate among the delegates over the nature of the American presidency was more high- toned and more protracted than that over representation in the Congress. At one extreme, nationalists like James Wilson and Gouverneur Morris argued forcefully for a strong, independent executive capable of giving “energy, dispatch, and responsibility” to the government. They urged their fellow delegates to give the president an absolute veto over congressional legislation. At the other end of the spectrum, Roger Sherman, a plainly dressed, plainspoken delegate from Connecticut who would prove to be one of the most influential members of the Convention, spoke for many delegates when he declared that the “Executive magistracy” was “nothing more than an institution for carrying the will of the Legislature into effect.” This led Sherman to the conclusion that the president should be removable from office “at pleasure” any time a majority in the legislature disagreed with him on an important issue. In the end, it was compromise that once again won the day—the delegates agreed to give the President a limited veto power, but one which could be over-ridden by a vote of two-thirds of both houses of Congress.

Most of the delegates initially thought that the executive should be elected by the national legislature; still others thought the executive should be elected by the state legislatures or even by the governors of the states. James Wilson was virtually the only delegate who proposed direct election of the president by the people. He believed that it was only through some form of popular election that the executive branch could be given both energy and independence. But realizing that his idea of popular election of the president was gaining no favor, Wilson proposed a compromise by which the President would be elected by a group of “electors” chosen either by the state legislatures or by the people of their individual states. The delegates didn’t like that proposal any more than they liked his proposal for direct popular election, voting it down overwhelmingly at that point. They voted against some version of the proposal on numerous occasions between early June and early September of 1787, only agreeing to the version contained in our modern Constitution (modified slightly by the Twelfth Amendment) grudgingly and out of a sense of desperation, as the least problematic of the alternatives before them.

It has often been observed that the Framers’ difficulty in deciding how to elect the president was the result of their misgivings about democracy—their fear that the people of the nation could not be trusted to make a wise choice for their chief executive. In fact, it was not so much that America’s Founding Fathers distrusted the inherent intelligence of the people but, rather, that they had a realistic concern about the provincialism of the people of the thirteen “independent” states. America’s vast landscape, the poor state of its communications, and the diversity of its cultural character and economic interests would make it extremely difficult for any single candidate for chief executive to gain a majority of the popular vote. There was one obvious exception to this—General George Washington, sitting in the front of the Assembly Room as President of the Convention—but aside from America’s hero, how could a voter in Georgia know the merits of a candidate in New York, or vice versa? The other obvious solution—election by members of a national Congress whose perspective was likely to be continental rather than provincial—was ultimately rejected because of the problems it created with respect to the doctrine of separation of powers: the president, it was feared, would be overly beholden to, and therefore dependent upon, the Congress for his election. The creation of an electoral college was a middle ground, and while many delegates feared that locally-selected presidential electors would be subject to the same sort of provincial thinking as ordinary citizens, they reluctantly came to the conclusion that it was the best they could do while still preserving an adequate separation of power between the executive and legislative branches. It was a highly imperfect solution to a real problem, but, in the context of the times—perhaps until today—there may well have been no better alternative.

The Founding Fathers and Slavery

The delegates’ commitment to principles of equality as articulated in the Declaration of Independence was, even in the case of free white adult males, a limited one. For example, most of the delegates supported the imposition of property qualifications for voters in their individual states. But nowhere are those limitations more obvious than during the debates relating to the subject of slavery. In 1787, slavery in America was in a state of decline, but it remained a significant part of the social and economic fabric in five of the states represented in the Convention. In their quest for “compromise,” the delegates exacerbated the existing contradiction in their nation regarding the core values of liberty and equality on which America had declared its independence. Indeed, they enshrined the institution of slavery within their new Constitution.

Although neither the word “slave” nor “slavery” is mentioned anywhere in the body of the Constitution, contention over slavery pervaded the Convention’s debates. It was impossible to discuss questions relating to the apportionment of representation without confronting the fact that the slave population of the South—whether conceived of as residents or property—would affect the calculations for representation. The delegates argued about the proper formula for how to “count” slaves through much of the summer. The final resolution of that issue—the Three-Fifths Compromise, a formula by which slaves would be counted as three-fifths of a person in apportioning both representation and taxation—was a purely mechanical and amoral calculation designed to produce harmony among conflicting interests within the Convention. As many disgruntled delegates pointed out, it had little basis either in logic or morality, but in the end, the need for a consensus on the issue, however fragile that compromise might be, outweighed all other considerations.

The debate over the future of the international slave trade was in many respects even more depressing than that which culminated in the Three-Fifths Compromise. Only the delegates from South Carolina and Georgia were determined to continue what most other delegates believed to be an iniquitous trade, yet their insistence that the trade continue for at least another twenty years carried the day. However troubled delegates from the other states may have been, their concern for harmony within the Convention was much stronger than their concern for the fate of those Africans whose lives and labor would be sacrificed by the continuation of the slave trade. Between 1788 and 1808 the number of African slaves imported into the United States exceeded 200,000, only about 50,000 fewer than the total number of slaves imported to America in the preceding 170 years!

Finally, the delegates adopted without dissent a provision requiring that any “Person held to Service or Labour in one State . . . [and] escaping into another, . . . shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” By means of that tortured language, and without mentioning either the word “slaves” or “slavery,” the delegates made a fugitive-slave clause an integral part of our federal compact. It was the one act of the Convention that not only signaled the delegates’ grudging acceptance of slavery but also made the states that had moved either to abolish or gradually eliminate slavery in the aftermath of the Revolution actively complicit in their support of that institution.

The Absence of a Bill of Rights

On September 12, just five days before the Convention was to adjourn, George Mason, the author of the Virginia Declaration of Rights, proposed that the nearly-completed draft of the Constitution be “prefaced with a Bill of Rights.” It would, he said, “give great quiet to the people.” But the delegates did not embrace Mason’s proposal; indeed, when the matter was put to a vote, not a single state delegation supported Mason’s proposal. That decision would prove to be one of the most serious mistakes made by the men who drafted the Constitution. When Thomas Jefferson—then serving as ambassador to France—received a copy of the completed Constitution from James Madison, he was unable to contain his unhappiness at the absence of a bill of rights. “The omission of a bill of rights, providing clearly and without the aid of sophisms, for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters,” was, Jefferson wrote in dismay to his friend, a grievous error.

When the final draft of the Constitution was submitted to the people of the states for their approval, the absence of a bill of rights quickly emerged as one of the most serious objections to the proposed plan of union.  If many of the supporters of the Constitution subsequently had not promised that they would quickly work to add a bill of rights to the Constitution once the new government commenced operation, it is likely that the document would have failed to gain the approval of the nine states necessary for its ratification. Fortunately, the First Federal Congress of the new government of the United States fulfilled that promise, and in one of its first actions added that bill of rights, making the “more perfect union” devised by the Framers still more perfect. Ironically, the person who took the lead in drafting a bill of rights in the first Congress was James Madison, who had opposed adding a bill of rights not only during the Convention, but also during the debate over ratification in his state of Virginia.  

Nor was that the only occasion when the American people, acting through their representatives both in Congress and in their states, sought to further perfect the American union. “We the People” have added another seventeen amendments to the Constitution after the addition of the original bill of rights. The United States Constitution, which initially consisted of some 4,500 words on four parchments pages, is now a document with nearly 8,000 words, some of which advance the notion of equality not only for former slaves through the Reconstruction Amendments enacted after the Civil War, but also for women through the Nineteenth Amendment of 1920. 

“Approaching So Near to Perfection”

As the Convention prepared to adjourn, the delegates were hardly of one mind about many of the specifics of the Constitution they had created. But whatever their differences, nearly all of the them, true to their revolutionary heritage, had tried to create a government of limited powers which nevertheless had the requisite “energy” to do all the things promised in the Constitution’s preamble: “to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty.” This was a tall order, especially when they were pledging at the same time to create a government that divided power between the states and the nation in such a way as to allay people’s fears of an overbearing central power. As the delegates made their decisions about whether to sign the Constitution on September 17, 1787, there was little certainty among them about how this balancing act would work in practice, but they had at least made a start in creating a framework within which issues of state and national power could be negotiated.

On that final day of the Constitutional Convention, it was left to the Convention’s oldest delegate, eighty-one-year-old Benjamin Franklin, to sum up the nearly four months of debate, disagreement, and occasional outbursts of ill temper that had marked the proceedings of that summer. Franklin observed that whenever “you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected?” The wonder of it all, Franklin asserted, was that the delegates had managed to create a system of government “approaching so near to perfection as it does.”

Franklin acknowledged that there were “several parts of this Constitution which I do not at present approve,” but, he added, “the older I grow the more apt I am to doubt my own judgment and pay more respect to the judgment of others.” Franklin concluded by asking each of his fellow delegates to “doubt a little of his own infallibility” and step forward to sign the Constitution. In that spirit of humility, thirty-nine of the forty-two delegates present on that last day would take that important step forward and, in the process, move America one step forward in achieving a “more perfect Union.” If there is any one lesson that American citizens, and their political representatives, might most profitably learn from the Framers of the Constitution, it is that injunction from the sagacious Dr. Franklin: our own body politic would function more effectively, and with a greater degree of civility, if all of us could occasionally put aside our own sense of “infallibility” and engage in the political process with the same spirit of compromise that guided the Founding Fathers of 1787. 

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Constitutional democracy essay.

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A constitutional democracy is a form of representative, democratic governance, in which the constitution, or rule of law, is supreme. This type of democracy is premised on the doctrine of the separation of powers, resulting in a system of checks and balances. The separation of powers manifests through the constitutional authority that each branch of government exercises in checking and balancing the other branches of government. A constitutional democracy normally consists of three largely independent branches; the functions of each, however, do not operate in complete exclusivity. The executive branch is responsible for the administrative implementation of legislation; the legislature enacts and amends laws; and the judiciary interprets, and applies, the law based on precedence and legislative statutes. Each branch may be elected or appointed.

Constitutional democracies may be unitary, federal, or confederal, but most states are unitary. Unitary states are constitutionally governed as one single unit with authority stemming from a single legislature. In a unitary state, there may be sub governmental units, but they are created and abolished by the central government. Any powers that subgovernmental units hold are granted and amended by the central government without the need for formal agreement from the subgovernmental units—a process known as devolution. A devolved state is unitary in nature, but the subgovernmental units have a great deal of autonomous decision-making authority, much like federal systems. Nevertheless, the subgovernmental units do not have any constitutional authority to override national legislation or to protect the powers they have been granted.

Federal governments consist of a central or national government alongside other autonomous legislatures, such as state or provincial governments. These different levels of government are constitutionally recognized, with constitutionally enshrined legislative distribution of sovereignty. Areas of jurisdiction can be exclusive or concurrent, depending on the requirements laid out in the constitution. Classical federalism mandates that the levels of government are equal; there is no imbalance between the jurisdictional authorities of each level. In this way, the central government normally retains exclusive jurisdiction over matters that are of relevance to the nation as a whole, while the provincial or state governments deal with issues that are localized or regional in nature. However, this rarely occurs because federal constitutions are usually biased in favor of one level of government. Confederal states are rare and mirror federal governments quite closely in structure, albeit with most authority vested in peripheral government bodies, while the central government holds little power.

Centralization occurs when the majority of authority lies with the national government, whereas decentralization describes a system where the subnational legislative bodies hold significant jurisdictional powers. Asymmetrical federalism occurs when the different levels of government have imbalanced degrees of jurisdictional authority. Fiscal federalism stems from the devolution of power over revenue sources divided among the different levels of government, including management of any fiscal imbalances among governments.

If a legislative body acts outside of its jurisdictional authority, it is beyond the legal scope of the constitution, while legislation or statutes that are within jurisdiction are within this power. However, there are residual powers to consider in a federal system. These residual powers are areas of authority not explicitly assigned in the constitution, which are comprehensively granted to one level of government.

In federal systems, there may be additional orders of government, such as local governments, but these are usually not given explicit constitutional jurisdiction. Instead, they are often creatures of the subnational governments, serving the needs and interests of specific cities, communities, or neighborhoods. Powers may include taxation and other limited autonomy granted by the constitutionally recognized levels of government.

Some federations are multinational in scope, including national minority populations within the federation. Canada is an especially useful example of a multinational state, most notably with regard to its francophone and indigenous peoples. Very basically, in the provincial context of Quebec, extensive autonomous governing authority, rooted in historical and cultural distinctiveness, has been recognized and ensured to protect Francophone culture. While the same progress is not evident for indigenous peoples in Canada, there has been implied judicial and explicit governmental acknowledgment of Aboriginal governance. While the Canadian constitution does not explicitly lay out a third order of Aboriginal governance, as would have been the case had the 1992 Charlottetown Accord been successfully ratified by the Canadian public, several governance agreements have been implemented, or are currently being negotiated, including some jurisdictional authority for indigenous communities.

Bibliography:

• Bakvis, Herman, and Grace Skogstad, eds. Canadian Federalism: Performance, Effectiveness, and Legitimacy. New York: Oxford University Press, 2001.
• Dalton, Jennifer E. “Aboriginal Self-Determination in Canada: Protections Afforded by the Judiciary and Government.” Canadian Journal of Law and Society 21, no. 1 (2006): 11–38.
• Murphy,Walter F. Constitutional Democracy: Creating and Maintaining a Just Political Order. Baltimore: Johns Hopkins University Press, 2006.
• Rocher, François, and Miriam Smith, eds. New Trends in Canadian Federalism, 2nd ed. Peterborough, Ont.: Broadview Press, 2003.
• Watts, Ronald L. Comparing Federal Systems, 2nd ed. Kingston, Ont.: Institute of Intergovernmental Relations, Queen’s University, 1999.
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The Essential Role of the 7th Amendment in American Democracy

This essay is about the significance of the 7th Amendment in the United States Constitution, which guarantees the right to a jury trial in certain civil cases. It explains how the amendment ensures that disputes can be resolved by a jury of peers rather than solely by judges, reflecting the Founding Fathers’ intent to protect against governmental overreach and maintain impartiality. The essay highlights the amendment’s role in involving ordinary citizens in the judicial process, promoting fairness and democratic principles. It also addresses the challenges posed by modern, complex cases and suggests that the collective wisdom of juries remains crucial for balanced and just outcomes. Ultimately, the essay underscores the 7th Amendment’s enduring importance in upholding justice and accountability in the American legal system.

How it works

The 7th Amendment to the United States Constitution stands as a pivotal element in ensuring justice within the American legal framework. Adopted in 1791 as part of the Bill of Rights, it guarantees the right to a jury trial in certain civil cases, underscoring the importance of citizen participation in the judicial process. Although its wording is straightforward, its implications are profound and continue to shape the legal landscape.

At its core, the 7th Amendment ensures that individuals involved in civil disputes can have their case decided by a jury of their peers rather than solely by a judge.

This provision applies to federal civil cases where the value in controversy exceeds twenty dollars—a threshold set in the 18th century that reflects a different economic reality but emphasizes the principle rather than the specific amount. The amendment aims to preserve the traditional role of the jury as a fundamental component of the justice system, ensuring that ordinary citizens can play a direct role in legal proceedings.

The inclusion of the 7th Amendment was driven by the Founding Fathers’ deep mistrust of potential governmental overreach. They believed that judges, appointed by the government, might be influenced by political pressures or corruption. By contrast, juries composed of ordinary citizens were seen as less likely to be swayed by such factors and more likely to deliver fair and impartial verdicts based on the evidence presented. This belief in the impartiality and common sense of the average citizen was a cornerstone of early American democratic ideals.

Over the years, the 7th Amendment has significantly impacted the development of the American legal system. It has ensured that many disputes involving contracts, property, and personal injuries, among other matters, are subject to jury trials. This has reinforced the idea that legal decisions should not be the exclusive domain of legal professionals but should include input from the broader community. Juries bring diverse perspectives and collective judgment, which can often lead to more balanced and equitable outcomes.

However, the application of the 7th Amendment is not without challenges. The legal system has evolved, and so have the complexities of civil cases. Some critics argue that juries in modern, highly technical cases may struggle to understand intricate legal and factual issues. Despite this, supporters of the amendment contend that the collective wisdom of a jury can often cut through complexities and focus on the essential facts and fairness of a case. Moreover, judges can still play a crucial role by guiding juries on legal standards and ensuring that trials are conducted fairly.

The 7th Amendment also highlights the enduring tension between direct democratic participation and professional expertise in the legal system. While some aspects of modern law may benefit from specialized knowledge, the amendment insists on the value of lay participation in judicial decisions. This reflects a broader democratic principle that government and its functions, including the judiciary, should remain accessible and accountable to the people.

In contemporary legal practice, the right to a jury trial in civil cases remains a fundamental protection. It acts as a check on judicial power and serves as a reminder of the foundational democratic values that underpin the American legal system. While the specifics of civil litigation have evolved, the principle that ordinary citizens should have a voice in resolving disputes remains as relevant as ever.

The 7th Amendment’s impact extends beyond the courtroom. It is a testament to the democratic ethos that pervades American society. By involving ordinary citizens in the judicial process, it fosters a sense of community and shared responsibility for justice. Jurors, drawn from diverse backgrounds, bring their unique experiences and perspectives to the deliberation process, enriching the decision-making framework. This collective approach often leads to more nuanced and empathetic outcomes, reflecting the community’s moral and ethical standards.

Moreover, the 7th Amendment serves as a crucial educational tool. Participation in jury duty exposes citizens to the legal system’s workings, enhancing their understanding of civic duties and rights. It demystifies legal proceedings, making the law more transparent and accessible. This educational aspect of jury duty contributes to a more informed and engaged citizenry, capable of critically evaluating legal and political issues.

Despite its enduring significance, the 7th Amendment faces contemporary challenges. The increasing complexity of civil cases, driven by advancements in technology and specialized industries, poses a challenge for lay jurors. In response, some legal scholars advocate for a hybrid approach, where juries are supplemented by expert advisors who can clarify technical details. This compromise aims to preserve the jury’s democratic essence while ensuring informed and accurate verdicts.

Additionally, the 7th Amendment’s role in promoting fairness and impartiality is more critical than ever in an era of heightened polarization. By entrusting ordinary citizens with the power to decide civil disputes, the amendment reinforces the principle that justice should transcend political and ideological divides. It underscores the idea that justice is a communal endeavor, requiring the collective wisdom and judgment of the populace.

In conclusion, the 7th Amendment’s guarantee of a jury trial in certain civil cases is a cornerstone of the American justice system. It enshrines the principle of citizen participation, providing a vital check on judicial power and ensuring that legal decisions reflect the community’s values and standards. Despite the evolving complexities of modern law, the amendment’s core principles remain steadfast, upholding the democratic ideals of fairness, accountability, and citizen involvement. The 7th Amendment’s enduring legacy is a testament to the foresight of the Founding Fathers and their commitment to a just and equitable society.

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Constitutional supremacy and the Constitutional Court's powers in post-apartheid South Africa

In this essay, I will look at how Constitutional supremacy in post-apartheid South Africa has led to the Constitutional Court potentially breaching the separation of powers doctrine. I will first look at how constitutional supremacy has facilitated widespread legal reform in post-apartheid South Africa. I will then focus on the Constitutional Court, how it’s extensive powers has allowed it to establish progressive legal human rights protections, but how these powers have also led to a debate of whether it has allowed them to abuse the separation of powers doctrine.

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Fabrice Tambe Endoh

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Reviewed book: Corder Hugh, Veronica Federico, and Romano Orrù (eds.) The Quest for Constitutionalism: South Africa Since 1994 (Ashgate Publishing, Ltd. 2014).

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Sanele Sibanda

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Adv. Fhumulani Mbedzi

The Constitution of the Republic, the supreme law of our land 1 , proclaims a series of norms (rules, principles, and constitutional values). These constitutional norms do not only create (constitute), or structure Government authority or power, these constitutional norms, and prescripts also define the outer limits of governmental power or authority. 2 Just like many

Dr Carol C NGANG

The framework for constitutional democracy in South Africa assigns to the courts a pivotal role in ensuring effective protection and translation of the range of entrenched socio-economic rights into material entitlements. This has enabled the courts in some instances to exercise considerable authority that has significantly influenced policy to the extent that power relations between the judiciary and the political arms of government have been threatened. Proponents of the doctrine of the separation of powers have expressed concerns, claiming that the meddling of the courts in the domain of policy making is politically incorrect. Consequently, the judicial enforcement of socio-economic rights has increasingly suffered setbacks, which to a large extent have retarded the constitutional vision of social transformation. Thus, in spite of South Africa’s acclaimed global leadership in the enforcement of socio-economic rights, little has actually been accomplished in terms of improving the livelihood for victims of socio-economic deprivation. Considering that the enforcement of socio-economic rights is context-specific, I question the rationale for avoiding a ‘jurisprudence of exasperation’, which demonstrates greater potential to produce transformative outcomes than the preferred ‘jurisprudence of accountability’ which has shown little transformative effect. Just as the realisation of socio-economic rights through political strategies amounts to material entitlement, I argue that the result of positive adjudication should equally amount to entitlement to the same material things promised by the rights in question. I conclude with the suggestion that the judicial enforcement of socio-economic rights should be seen as a complementary strategy to the political objective of social transformation, rather than as an oppositional force to the proper functioning of government.

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