Editor’s note: This is an edited version of a talk given to the John Marshall Program at Boston College on November 4, 2024.
Let me begin by thanking David DiPasquale for the kind invitation to cross the Charles River and address the John Marshall Program (JMP) here at Boston College and Dallas Terry for helping with the arrangements. When we settled on the date I was working with the professional/academic part of my brain and somehow tuned out the fact that the lecture would take place on the day before the election. The staff of JMP had read an essay I wrote for Law & Liberty about the historical uses of the terms “republic” and “democracy.” They asked me to speak on that subject, but relate it to the timelier theme of elections. I agreed, stipulating that I didn’t want to make a partisan speech but give a historical reflection. However, now that the moment has come to put my ideas into words, I’m not finding it easy to evade the charge of partisanship. We are experiencing a moment of particularly strong passion in our already passionate political life, being literally on the eve of what people are saying is the most important election of our lifetimes. (Let me reassure the younger people in the room that this has been said of every election in my lifetime of nearly seven decades.)
My problem is not just trying to speak on a historical subject at a moment when my audience will be hypersensitive to the partisan implications of my remarks. Election season is a moment when civic-minded people are focused on the present and the future. To bring up the past, especially the remote past I’m going to talk about, appears as an annoying distraction from our most important concerns as a nation. For me personally, it’s also a challenge to speak about history in a moment when the shallowness of Americans’ historical knowledge, and the consequent poverty of our public discourse, have become blindingly obvious. Simple-minded traditionalists like myself have the idea that before elections we should be engaging in some kind of democratic deliberation, discussing the merits of the candidate’s policy proposals, for example. Instead, public discourse has degenerated into an ignorant exercise in name-calling. One side calls the other fascist, the other side calls their opponents communist.
Both claims are hysterical and historically illiterate, and the fact that they are taken seriously at all by anyone is a condemnation of American civic education as well as the absence of deliberation in our public life. Most serious democratic thinkers, from the fifth century BC sophist Protagoras onwards, have believed that participation in the public life of a democracy via deliberation was itself an educational experience for all citizens, and one necessary to the flourishing of democracy. Instead, public deliberation is being led by people who throw around terms of whose meaning they are invincibly ignorant, terms like “republican” and “democratic.” To my mind, it’s like going to an academic conference on biology organized and conducted by people who don’t understand the meaning of the terms botany, zoology, micro-organism, or cell structure.
A disturbing feature of the present moment in our public life is that both sides are accusing the other of being a threat to democracy. People who hold that the events of January 6, 2020, can be plausibly described as the worst insurrection since the Civil War identify the Republican candidate as the chief source of this threat. The wealthiest man in the world shouts back through his megaphone on “X” that the real threat to democracy comes from people who accuse the Republican nominee of endangering democracy. Both parties in the US now take the position that “it’s only democracy when we win.”
No wonder that the latest Georgetown Institute of Politics and Public Service Battleground Civility Poll shows that an alarming number of Americans across party lines believe that the democratic system of government is under threat, although for very different reasons. The poll, conducted by a consortium of Republican and Democratic pollsters, found that 81 percent of respondents agreed with the statement that democracy in America is currently under threat, and 72 percent agreed with that statement strongly. Americans disagree about the source of the threat, however. The forces in America identified as very serious threats to democracy include MAGA Republicans (49 percent, 34 percent extremely serious), major news organizations (47 percent, 24 percent extremely serious), and social media (43 percent, 23 percent extremely serious).
Americans have an almost religious belief that we are a democracy and that democracy is precious to us. On the right, it is said that our personal freedoms depend on democracy, while the left emphasizes that our goodness as a people is threatened by a breakdown in democracy. Everybody has an opinion about this subject, myself included. But a much smaller number seem to have a clear understanding of what democracy is.
Many people, especially foreigners, seem surprised to learn that the US Constitution outlines a form of government that is not democratic, but republican. Many Americans have only a vague conceptions of what a republic is. I remember a student—and a Harvard history major!—writing on an exam I gave some years ago that “republic is just an old name for democracy.” In fact, the thinkers who most shaped the US Constitution, John Adams and James Madison, had a horror of the democratic form of government, which they understood from their reading of history to be a proven failure, leading inevitably and quickly to violence, anarchy, and ultimately tyranny. As John Adams wrote in a letter to John Taylor in 1814, “Democracy never lasts long. It soon wastes, exhausts and murders itself. There never was a democracy yet that did not commit suicide.” Even Jefferson, the Founder most confident in the power of the people to govern themselves, thought direct democracy could only be exercised at the local level, and that the principle of self-government would have to be diluted by the device of representation—a republican device—if it were to operate over large areas. Late in life, Jefferson admitted in a letter to William Charles Jarvis (1820) that the American system of a government, consisting as it did of three distinct and independent branches, would not be able to resist judicial oligarchies abusing their powers on partisan impulses unless the people were to step in to prevent that outcome, using their “wholesome discretion.” But they would lack such discretion absent a serious program of civic education, which in that period, before the founding of the public school system in the 1840s, did not exist.
Of course, democracy is not only a form of government, that is, a particular kind of regime or constitution. A democratic regime, as it was understood in antiquity, is like the one used in Athens in the fifth century BC: a form of government, in other words, in which the people govern themselves via councils and assemblies, random selection of magistrates by lot, and juries consisting of hundreds of jurors to prevent bribery and the undue influence of the wealthy on the judicial process. Democracy as it exists in America is better understood, not as a regime, but as an ethical ideal, one that has grown and developed since the Reformation into a way of life and thought built around three concepts: popular sovereignty, personal autonomy, and equality. This characterization of democracy and its fundamental concepts come from what I believe is the best book ever written on the history of democracy as an ethical ideal, namely my colleague James Kloppenberg’s book Towards Democracy: The Struggle for Self-Rule in European and American Thought (Oxford 2016). As Kloppenberg notes, democracy as an ethical ideal is unthinkable without the influence of Christianity, particularly Protestant Christianity.
So for the balance of this talk, I aim, first, to explain why the United States Constitution does not outline a democratic regime but a republic, and why the Founders thought a republican regime could channel the popular will without suffering from the bad design of the democratic regimes they knew from history. Second, I will discuss democracy as an ethical ideal and way of life, and argue that the aspirations of Americans to be a democratic society, which emerged strongly after the American Revolution, are failing to be realized. I will leave it up to you to decide for yourselves which party or parties in America are most responsible for that failure.
First, let me put a bit more meat on the bones of my claim that the American system of government is republican (lowercase R!), not democratic (lowercase D!). The reason why the Founders did not want a democratic system of government is that, unlike modern Americans, they knew something about Western history and particularly British history. Anyone who has read The Federalist Papers or the private correspondence of the Founders will be aware of just how deep their knowledge was. John Adams was already exciting Americans in 1774 with the thought that their generation could play the role of the ancient Greek legislators Lycurgus and Solon, or the Roman king Servius Tullius, who established Rome’s Servian constitution. In 1776 he wrote in a famous letter known as Thoughts on Government.
You and I, my dear Friend, have been sent into life, at a time when the greatest law-givers of antiquity would have wished to have lived. How few of the human race have ever enjoyed an opportunity of making an election of government more than of air, soil, or climate, for themselves or their children. When, before the present epoch, had three millions of people full power and a fair opportunity to form and establish the wisest and happiest government that human wisdom can contrive?
The Founders were bookish people, and they turned for inspiration as much to history as to political theorists such as Aristotle, Locke, Algernon Sidney, and Montesquieu. Benjamin Franklin’s Library Company of Philadelphia, founded in 1731, which became effectively the Library of Congress during that assembly’s long residence in the city, was well-stocked with histories. The shelves of John Adams’ library, the largest in colonial America, were also loaded with works of history. His writings, like those of Jefferson and Madison, teem with references to the republics of past times: to the ancient Romans above all, but also to the medieval Italian republics, to the Venetian, Swiss, and Dutch republics, and above all, to the English Commonwealth of the seventeenth century. (Note that the word “commonwealth” is just an English translation of the Latin respublica).
Human beings have an ineradicable inclination to evil as well as to good, which is why we need the constraints of a republican regime.
Some of the Founders read Latin, Greek, and French as well as English. They read Thucydides (often in Hobbes’ translation), Livy, Sallust, Cicero, and Tacitus; they read Plutarch’s Lives of the Noble Greeks and Romans in Sir Thomas North’s translation; they read Polybius in the translation of James Hampton (in whose pages they could learn about the federal republics of ancient Greece); they read Edward Mortley Montagu’s Reflections on the Rise and Fall of Ancient Republics; of the Italians, they read Leonardo Bruni’s History of the Florentine People, Guicciardini’s History of Italy, and Machiavelli’s History of Florence; they read John Jacob Mascou’s History of the Ancient Germans; they read David Hume’s six-volume History of England and Obadiah Hulme’s Historical Essay on the English Constitution. As soon as each volume of Edward Gibbon’s Decline and Fall of the Roman Empire left the presses, between 1775 and 1788, copies flew across the Atlantic and were eagerly consumed by Americans. Americans had good reason to be interested in the collapse of states in those years, when the new Confederation in North America was being torn apart by its weak central institutions.
So what understandings of the term “republic” might they have gleaned from their reading? First of all, they would be aware that a republic is not a democracy. The Founders knew what a democracy was and had no interest in giving America a democratic constitution. They knew their history. The historical experience of classical Athens was taken by nearly all the historians the Founders knew to prove that a democratic constitution was doomed to failure.
Already in the fourth century BC, it was widely believed by Greek thinkers that both pure democracy (Athens) and pure oligarchy (Sparta) were failed forms of government. The great political theorists of the fourth century BC—Plato, Aristotle, Isocrates, and Xenophon—had all proposed various fixes for the defects of democracy. The most influential of these was Aristotle’s “mixed” regime, where elements of democracy and oligarchy were balanced against each other to produce stability. Later, Polybius and other writers in the Aristotelian tradition added a monarchical principle for added stability. Aristotle called his mixed regime politeia.
When Aristotle’s Politics was translated into Latin around 1436/37 by the Florentine historian Leonardo Bruni, politeia became respublica. Bruni’s translation was the most popular Latin version for centuries. The 1597 Geneva edition was in John Adams’ library. (Adams also possessed the 1776 edition of the Politics in the English translation of William Ellis, first printed in 1597, where the constitution named politeia was translated, unhelpfully, as “state.”)
When the Romans conquered the Mediterranean in the second century BC, the historian Polybius explained the growth of their power largely in terms of their (unwritten) constitution, which he recognized as a form of mixed regime. The Romans were proud of their republic even in the dark decades of civil war during the first century BC, blaming Rome’s parlous condition on the moral defects of powerful warlords rather than on any weaknesses in her constitution. According to Cicero, Rome’s basic constitutional principles had been laid down by one of the early kings, Servius Tullius. Servius had established the bedrock principle that political power should be proportionate to a man’s income and his contribution to Rome’s military power. Poorer citizens could participate in assemblies but decision-making power was kept in the hands of the most influential citizens. The censors, a magistracy responsible (among other things) for deciding which citizens could belong to the Senate, judged them fit for membership not only on the basis of their moral rectitude, but also on their income. A man without sufficient income to support himself and his family comfortably without engaging in trade or a paid profession was ineligible.
Post-classical Athenians, by contrast, continued to call their city-state a democracy even after all the real power came to be exercised behind the scenes by wealthy oligarchs. As the great authority on Hellenistic Greece, Peter Green, once wittily remarked, Athenians came to see democracy as a privilege best restricted to the upper classes. Modern parallels spring to mind. The Romans for their part were not in the least embarrassed about the preponderant power of the wealthy in their system. It was a feature, not a bug. But in Rome, the possession of wealth and preponderant power imposed upon the great the responsibility to put themselves and their treasure at the service of the republic. It was assumed that the wealthy would also be the best educated, the most likely to have experience in civil and military affairs, and, as persons of long residence in Rome, the most loyal and public-spirited.
In the middle republic (third to second centuries BC), the principle of merit was added to the Servian constitution: distinguished service to the state was also to be a source of dignitas or merited status. Thus, “new men” like Cicero could be taken into the ruling elite on the basis of outstanding abilities and contributions to the republic’s welfare, the salus reipublicae. To prevent the powerful from oppressing the common people, a new magistracy was invented, the tribunate, consisting of ten tribunes of the plebs. The existence of this magistracy led to the emergence of populist politics at the end of the second century BC, but Rome never became a democracy. Roman populism ultimately brought Julius Caesar and Augustus to power, over the opposition of the Senate. Rome’s populists were almost always led by nobles who were more devoted to acquiring power for themselves than serving the interests of the common people.
Cicero, in his dialogue On the Commonwealth (54/51 BC), praised the old republic for favoring the best men or “optimates,” observing “the principle which ought always to be adhered to in the commonwealth, that the greatest number should not have the greatest power” (ne plurimum valeant plurimi). Rome should never be a democracy; that would be too dangerous for ordered liberty, which was guaranteed by law, not popular power.
In a democracy, Cicero believed, sensible public deliberation was impossible. In one of his speeches, Cicero mocked Greek democracies for their foolish practice of herding large numbers of ordinary citizens into amphitheaters and allowing them to shout at each other. The Romans, more sensibly, conducted deliberation in the Senate, among educated men with experience of government. The Senate proposed legislation and the people in their assemblies had the right to vote on the Senate’s proposals, up or down. This practice, that the wise should deliberate and propose, the people approve, was the normal procedure used by most European republics in the centuries before the founding of our American republic. It was recommended by many of the Whig writers—among them The Commonwealth of Oceana by James Harrington—that were widely read in America.
By establishing a House of Representatives to conduct its own deliberation and to propose all legislation involving taxation (a principle now apparently forgotten in Washington, DC), the Founders were attempting to rebalance the republican tradition they inherited in a popular direction, so that the interests of the wealthy could never prevail over those of the people. Nevertheless, they continued to uphold the view that the presumably wiser and better-educated men in the Senate—Jefferson’s “natural aristocracy”—should prevail in matters of foreign policy and in the oversight of the other branches of government. The aristocratic element was also, originally, meant to prevail in the choice of the president, through the Electoral College. The Electoral College was supposed to deliberate about the election results and exercise its discretion, but it very quickly, within a decade of the Constitution’s adoption, was corrupted by party politics. At this point, it lost its deliberative and decision-making power.
All that being said, most of the Founders were much more optimistic than the tradition they inherited about the possibility that ordinary citizens could engage in democratic deliberation. What this shows, I believe—and here I am again following Jim Kloppenberg as well as Gordon Wood’s classic work, The Radicalism of the American Revolution (1992)—is that the founding generation and the generations that followed were imbued with the democratic spirit. I mean here the ethical ideal of democracy, as distinct from the political regime. As an ethical ideal, democracy will always be aspirational. Like other ethical ideals, the frailty of human nature means that we will always fall short in our efforts to realize it. Human beings have an ineradicable inclination to evil as well as to good, which is why we need the constraints of a republican regime.
As analyzed by Kloppenberg, the democratic ideal has three main elements: popular sovereignty, individual autonomy, and equality. Popular sovereignty means that the ultimate authority in the state is the people, and that the form of government, whether constitutional monarchy, aristocratic republic, or popular republic, should reflect its will. Members of this John Madison Program will recognize this as Rousseau’s view in The Social Contract, who posited that the sovereign will of the people could be invested in a regime at the moment, historical or notional, when the social contract was formed. After that moment of authorization, the regime established by the contract did not need to seek continuous and regular authorization from the people for its subsequent acts. In the democratic republics that emerged in the nineteenth century, however—modeled to a large extent on the American republic—the popular will had to be expressed continuously through representatives, duly constrained by law and the enumerated powers given to the legislature by the Constitution. Thus, in the American republic, popular sovereignty implies both participation—being open to citizen participation at all levels and in all branches of government—and representation, the authorization of persons who can then represent the will of citizens in the legislature. As the democratic spirit has spread, any barriers to political participation based on race, sex, or property qualifications have been torn down. At the same time, it is widely recognized that popular sovereignty needs constitutional limits to protect individual rights, the common good, and civil peace and stability.
If people do not have confidence that elections are honest and that the courts are non-political, then there can be no democracy.
The gradual removal of barriers to participation has come from the second element identified by Kloppenberg as part of the ethical ideal of democracy: individual autonomy. This means self-rule, being sui iuris as the Romans would say, not being treated or acting as subject to another, but free to choose ends for oneself. In America and Europe, the impetus behind the modern commitment to autonomy came most powerfully from the struggle against slavery and unfree labor. Autonomy combines both positive and negative freedom, the freedom to rule oneself and specific freedoms from constraints imposed by the public power—civil rights, in other words. Autonomy means that all adult citizens should have the capacity to shape their own lives, within the standards set by law, tradition, and custom. All citizens should also be able to participate on an equal basis in shaping those standards, and revising them when necessary. Liberal pluralism is a valuable thing in a country as diverse as ours, but ideally, it should be based on explicit democratic authorization, not imposed by the courts. This is especially the case when advocates of pluralism seek to change settled ways of life, above all those affecting the family and religion. When judges impose pluralism (as Jefferson noted in the letter of 1816 referred to earlier), the people are likely to become estranged from the legal elites who take it upon themselves to dictate social norms.
This brings us to the third element in the democratic ethic: equality. Equality means, minimally, equality of political rights and equality before the law. These were ancient ideals, associated, respectively, with Greece and Rome. In addition, Aristotle recognized that great inequality of incomes was destabilizing and counseled, as a maxim of practical wisdom, as distinct from a principle of justice, that legislators should act to prevent too much inequality in a state.
Modern ideals of equality descend from the idea of innate human equality, a principle first enunciated by the Greek church father Gregory of Nyssa in the fourth century AD. He based the principle of human equality on the individual possession of reason, on being formed in the image and likeness of God, and on the New Testament injunction to treat others, even the poorest and weakest of human beings, as though they were Christ. The republican political tradition was impregnated with these notions via radical Protestantism in the sixteenth and seventeenth centuries. The modern democratic ethic represents a secularization of these ideas. The weightiest defender of human dignity in its secularized form was Immanuel Kant, whose moral philosophy has been a major source of much later dignitarian thinking.
It is not the exclusive role of governments, of course, to support the democratic ethical ideal; like any other set of ethical beliefs, they need all the sources of reinforcement they can get, including parental teaching, civic education, religious institutions, professional norms, and community standards. Nevertheless, if we want our republic to have a democratic spirit, we need to recognize the ethical preconditions of a democratic way of life, and governments must do what they can to support those norms, or at least not get in their way. Allowing elections to take place is a necessary condition, but hardly a sufficient one.
For the sake of discussion, let me give a short list of three things I believe governments must do to foster the ethical ideal of democracy—what we might also call the democratic way of life or the democratic spirit. There are other preconditions of democratic civil life, but these seem to be the most pressing at the moment.
First, in order to support healthy forms of pluralism and autonomy, democratic states need to foster a particular kind of sociability. They must be committed to allowing fundamental differences between and among the people to persist, including religious differences. Safeguards should exist, at least in the form of peer pressure or common norms, to prevent political parties from demonizing each other. Single political parties should not be allowed to monopolize the public square in which support may be sought from the people. They should also not be allowed to monopolize public education. The government needs to foster a commitment to tolerance. It cannot allow itself to be taken over by utopian fanatics determined to impose their beliefs on their fellow citizens. Governments and public institutions need to encourage a spirit of live and let live, a spirit of reciprocity, and not try to impose a fixed unitary conception of the good life. They need to support a kind of sociability, in short, which allows people of very different beliefs to live and work together with an attitude of mutual respect. This, to me, is far more important to democracy than preserving what is called “diversity” by departments of Human Resources, diversity based only on arbitrary definitions of group identity.
This sort of sociability is much harder to maintain around election time, of course, but I submit that it has been some time, well over two decades, since the spirit of democratic sociability has prevailed in the councils of our government.
Secondly, states must also promote genuine democratic deliberation, and not only among elected representatives in constitutional assemblies. They must also, as much as possible, include the people as a whole in democratic deliberation, promote rational persuasion, and prevent the use of force or fraud in determining the outcomes of political choices. They should be wary of declaring states of emergency, as these are historically the antechamber to tyranny. As an example of what should not be done, I would mention the health dictatorships established during the Covid panic. These curtailed our liberties in the most dramatic fashion, and we the people had little to say about it. Democracy almost completely disappeared at just the moment when the state had assumed unprecedented dictatorial power over us. Most of the time these dictatorships were legal in the sense of operating under legislative authority, but that authority was originally designed to last for short periods, not for many months and years. Not allowing proper democratic deliberation in legislatures by the people’s representative about issues that affected everyone’s lives and livelihoods has done much to undermine the idea that our republic is an expression of the will of the people. It caused the hypertrophy of conspiratorial thinking, always a sign of a lack of transparency or the use of deceit in decision-making.
Finally, for the democratic spirit to flourish, governments have to foster an ethic of impartiality among those who are the umpires of democratic deliberation, namely, those who run the electoral system and the courts. The law cannot be politicized or weaponized by one party against another. If people do not have confidence that elections are honest and that the courts are non-political, then there can be no democracy. This principle of impartiality of course is an ethical derivative of the Roman republican conception of the rule of law, a civil law derived from natural law and standing above politics. It is apparently difficult for many people to understand that they cannot oppose persons they take to be demagogues by corrupting the legal system. This only makes the law itself into a demagogue. It should be a primary goal of public education to teach young citizens what the rule of law means, its history, and its successes and failures. This means the young need to be taught Western history, beginning with Roman history.
The ancient Romans saw clearly the need for an impartial and non-partisan legal system. Cicero’s solution to the problems of demagoguery and warlordism in his time was to limit popular self-rule through the rule of law and to prevent political abuse of the law by placing its interpretation in the hands of the wise, a relatively new class of legal experts known as jurisconsults. Roman civil law, which had begun to coalesce as a system of rules for settling court cases in the second century BC, had by Cicero’s time assumed the character of an autonomous source of right, set above social and political competition, to which appeal might be made by all Roman citizens on a basis of equality. In a famous speech, In Defense of Aulus Caecina, Cicero maintained that it was this autonomy of law, its superiority to politics, that made it the “incorruptible guarantor” of civil rights. It created “the bonds of social welfare and life” and had therefore to be “uniform among all and identical for everyone.”
The strong separation of legal processes—in principle at least—from the corruptions of politics became a bedrock principle of Western legal thought. It was reformulated and strengthened in the eighteenth century as the principle of an independent judiciary. For the Romans, the separation of law from politics was what made a man free: it protected him and his property from more powerful figures in the state and their political projects. As Cicero put it, using a dramatic paradox, “the magistrates are ministers of the law, the judges are its interpreters, and we are thus all slaves to the law so that we can be free.” Roman citizens were subject to the law, not to persons; and if they became subject to persons, they were eo ipso slaves or dependents, not sui iuris, directly under law. For this system to work, lawyers had to see themselves as representatives of the law, not of political parties, demagogues, warlords, or any particular interest. It was their solemn obligation and sacred duty to uphold the law and justice, and to put its integrity before any private interest. The requirement that a judge should be impartial and never align himself with a political party, as this group will know, was a bedrock principle of our first Chief Justice of the Supreme Court, John Marshall.
I submit that in all these respects, America is failing to uphold the ethical ideal of democracy, and we are actually falling away from that ideal, becoming less democratic, rather than simply failing to make progress. What are the causes of this deplorable situation and what should be done about it I leave open to discussion.
