Is America A Republic Under The Rule Of Law, Or A Democracy?
We hear a lot of talk about how we (America) are spreading “democracy” around the world. Is this a good thing? It is my understanding that this country was founded as a Republic under the rule of law. If democracy means “majority rules,” and Republic means “law rules,” can these two apparently opposing systems be compatible?
The United States is a democratic republic under the rule of law. Or, the United States is a representative democracy under the rule of law.
The officials chosen by the people to govern are bound by the laws, and the powers of government in general are constrained by the constitution. Insofar as the government acts within the constraints of the constitution, it does so in accordance with the will of the people, as expressed through elections. For example, the constitution gives the government the power to regulate foreign trade by enacting tariffs. If a majority of the people decide that the tariffs are too high or too low to suit their interests, they may elect legislators who pledge to lower or raise them, as the case may be. Because there are certain subjects the U.S. Constitution declares to be beyond the compentance of government–for example, making laws infringing on the freedom of speech–then even a majority may not simply elect legislators who will pass laws infringing on the freedom of speech of unpopular minorities. Note, however, that under the U.S. Constitution a sufficiently large majority can in theory change just about anything–if a large enough majority of the people want to, and want to intensely enough and long enough to get a constitutional amendment through the process of being approved, they could alter or do away with, say, the Second Amendment, or the Establishment Clause of the First Amendment, or the Thirteenth Amendment. In practice, there is for the most part a strong extra-constitutional cultural commitment to not abridging the Bill of Rights. Of course, no constitution will function if enough people simply decide it’s no longer valid; consider the fate of the Articles of Confederation.
I don’t think you can just reduce “republic” to the “rule of law”, by the way. It’s at least possible to conceive of a monarchy where the king is selected strictly by hereditary succession and rules for life, but in theory must rule only in accordance with the laws and traditions of the country. In fact, historically many if not most monarchs have been in practice constrained by the traditional laws and customs of the countries they have ruled. You can obviously have a non-democratic republic, in which a minority of the population elect those who govern in accordance with the constitution and laws (e.g., South Carolina in 1860). Theoretically you could have a pretty lawless republic, too: all free citizens (however defined) elect a legislative assembly and a separate executive with veto power, all for fixed terms, but so long as the executive and legislative branches agree they have totally sovereign power to do whatever they want–proclaim Unitarian Universalism to be the state religion, abolish private property, end all marriages and institute universal “free love”. Then, when the citizens tire of this, at the next election they put in different legislators and a different president who institute strict Islamic law. And round and round they go.
In practice, when Americans talk about spreading “democracy”, they usually mean this as a shorthand for a system in which the legitimate powers of government are structured by some sort of constitution to prevent abuses (or just general silliness like the above), and also in which the rights of individuals are guaranteed against the power of even the majority in certain specified areas; for example, even the majority has no power to compel the adherents of even the tiniest and most unpopular religious sect to renounce their gods. However, such a system of rule of law is coupled with the understanding that the will of the majority will prevail in those areas where the government may legitimately act: if the people want highways to be built, then highways will be built, even though the minority wanted railroads, or canals, or bike paths. We don’t want a system where the wise and benevolent philosopher-kings rule us “for our own good”, both because such systems (human nature being what it is) tend to wind up being ruled for the good of the philosopher-kings (or aristocrats, or Party members, or members othe Herrenvolk) rather than that of the people as a whole; and also because the citizens of a democratic republic aren’t children, and should be permitted–within the limits of the constitution’s guarantees of fundamental individual rights–to govern themselves as they see fit.
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The United States is a democratic republic under the rule of law. Or, the United States is a representative democracy under the rule of law.
That’s about as good a description (of what America was founded as) as I’ve heard. I appreciate your input. (For space reasons, I didn’t re-quote the entire thing, but anyone reading this post should go back and read it.)
I happen to believe we have been, for at least the last 100 years, moving inexorably away from this system (a democratic republic) toward a pure democracy, and thus toward eventual chaos and tyranny. The founders placed certain safeguards within the framework of the system they created, to circumvent the tryranny of the “mob” against individuals and individual rights. One of those was the right of the criminal trial jury to nullify an unjust decree by acquiting those accused under such a decree, even though they were obviously guilty of violating the particular decree. You are probably familiar with the famous William Penn case (1670), where Penn was accused of violating the"Coventicle Act" (preaching without permission of the Church of England), of which the penalty, if he’d been found guilty, was death. Even though Penn was, indeed, guilty of breaking the law, four of the jurors in the case refused to convict on the grounds that the law was unjust, hanging the jury. The judge held them in contempt, placing them in prison for nine weeks in an attempt to force them to recant, but they would not, Penn was acquitted, and the rest is history. This singular case, legal experts say, was the basis of our first amendment, the writ of habeas corpus, and, or course, the right of the criminal trial jury to nullify the law.
This safeguard, which Jefferson said was far and away the most important of them all, is non-existent at every level of our criminal court system today. The model jury instruction, as to what the jury may and may not do, was layed down by the first Chief Justice of the Supreme Court, John Jay: “The jury has a right to judge both the law and the facts in controversy.” Chief Justice Harlan F. Stone expanded on this in 1941 when he said: “The law itself is on trial quite as much as the cause which is to be decided.” Criminal trial judges, though they are probably very familiar with these statements, no longer instruct juries in this manner, but rather tell them that (the law) is their (the court’s) exclusive domain.
If the court system is the balast against the unlawful decrees of the executive and legislative branches of government, it is only so because of jury nullification. Without this there is no real check against tyranny by this branch of government, in fact, it has itself become the tyrant.
As far as I know, nowhere in the country has gotten rid of jury nullification. If a jury finds someone not guilty, he’s let go…the jury doesn’t have to state a reason for its verdict.
However, it’s interesting you point out jury nullification as an example, because jury nullification is actually an example of the reverse, of popular opinion taking precedence over the rule of law. It’s a group of people saying that they will, because of their own feelings, find someone not guilty, in spite of the fact that the law says that person is guilty.
Because they are often politically motivated, the laws Congress enacts are not always in accord with the Constitution, and/or individual rights. If there wasn’t jury nullification, then the only recourse for someone who is unjustly convicted in a court where the judge controls the jury, is the appeals process, which could take years and cost several hundred thousand dollars. Maybe in ten years the Supreme Court strikes down the law that this individual went to prison for breaking. That isn’t justice. Fortunately, the founders understood this and made jury nullification an integral part of the process.
You have obviously not spent a lot of time observing criminal trials. Let me put it another way: According to the precedent set by Chief Justice Jay in his model charge to juries, which I qouted in my earlier post, judges in all criminal trials should always remind the juries in their instructions as to their responsiblilities, that their primary duty is to make a judgment based on the facts as presented during the trial; but, he/she should also remind them that they have the right to judge the law in question as well. What I’m saying is, criminal court judges–from JP courts on up–do not do this, in fact, most instructions erroneously tell them this is not their responsibility. Who is going to buck the authority of a trial judge?
The remedy is to hold any judge, who does not fully inform juries of their rights, criminally and civilly liable.
Jury nullification isn’t so critical in crimes against other people as it is in cases involving crimes against the state, e.g., the one cited about William Penn. Consider the Branch Davidian trial. Whether you think David Koresh and his group were a bunch of nuts or not, is beside the point. The point is, the judge in the case manipulated the jury to the extent that he got the verdict he * wanted. The jury forman later said, had she and the other jurors been properly instructed, they would have acqiuted the defendants. But of course they were’nt.
*A detailed chronicle of this trial along with the transcript of the jury charge can be read in “The Waco Whitewash,” by Jack DeVault.
JMS@CCT, an interesting POV and informative post. I was totally unfamiliar with the concept of nullification until I heard the term used in commentary at the OJ Simpson trial. Even then, I did not realize that it had ever been lawful.
Welcome to the SDMB.
I can’t talk about the Branch Davidian trials, or to whether or not the accused should be found guilty or not guilty, but I will repeat that jury nullification is an example of the triumph of popular opinion over the rule of law. It may have been one that Jefferson and Jay both favored, but it still is an example of that.
And while jury nullification has sometimes produced favorable results, as in the Penn case you mentioned and the Zenger case, it also can produce bad results. In parts of the South, for example, in the past, whites could assault or kill blacks with impunity knowing that, even if they were brought up on charges, no jury would convict them. So, nullification isn’t all rainbows and gumdrops either.
As a quick approximation, democracy does means “majority rules”. However, it’s not true that Republic means “law rules”. The people who wrote the US Constitution got their ideas about the “rule of law” from Britain, and the UK is still a country where you have the rule of law. However, although it’s a democracy, it is certainly not a republic.
In fact, you have a whole lot of democratic countries, which have the rule of law, but which are not republics: Australia, Belgium, Canada, Japan, the Netherlands, Spain, the Scandinavian countries. On the other hands, to take an extreme case, Iraq under Saddam Hussein was a republic, but it certainly did not have the rule of law: it was a dictatorship, where one man’s word was law.
I find it hard to believe USA is a true Democracy given the existance of the electoral college. The fact that the electoral college dose not have to vote according to the people’s vote that they represent, makes a dissjoint between the people’s vote and the elected president that I beleive is undemocratic.
The Electoral College is a strawman here, particularly because many states require their electors to obey the popular vote. What is “undemocratic” about the way we pick our president is that straight-up popular vote doesn’t determine the winner. Instead, you have to have a blend of popular support and the support of enough individual states. It’s an awkward solution, but it was a compromise to end the bickering between big states and small ones when the Constitution was being written.
However, I think that even if you didn’t have electors, if you just said, “if you win the popular vote in a state, you get that state’s votes automatically” you’d still have a system that I think reflects the fact that we are a federal republic, and not a pure democracy (which is a good thing). We are not merely a collection of 291,000,000 citizens. We are also a union of 50 states, states that have their own powers and responsibilities apart from the federal government. The present way we have of electing our president, whether actual electors are in it or not, is a way of balancing the dual idea of a nation of people and a union of states.
Actually, it isn’t really popular opinion because one juror could hang the jury and nullify the law. There were only four in the Penn case, which is not a majority. To me, a law enacted by Congress (or even a local assembly) is more a triumph of popular opinion, being that most elected officials are licking their finger and checking where the wind is blowing before voting.
Something I didn’t mention as a critical reason for jury nullification, is the judiciary itself. They aren’t supposed to be making law, but they certainly did in Roe v. Wade, which opened pandoras box. When judges step over their constitutional boundries (as judge White did in the Davidian case), the jury should be informed that they have a right to nullify in these cases.
Anyone desiring more detailed information about fully informed juries may go to www.fija.com
Nothing in this world will ever work perfectly. But let’s not through the baby out with the bath water, just because that’s so.