In the first dozen years of America’s life, we were a democracy governed by the Articles of Confederation. That would change on March 4, 1789 when America would officially begin governing via the Constitution as a republic.
As explained in the recently published Our Republican Constitution: Securing the Liberty and Sovereignty of We the People by constitutional scholar Randy Barnett, the founders were afraid of the excess democracy that the Articles of Confederation had given them. It was unworkable. Under the Articles of Confederation, he points out that, “Gouverneur Morris, delegate from Pennsylvania, noted that “[e]very man of observation had seen in the democratic branches of the State Legislatures, precipitation—in Congress changeableness, in every department excesses against personal liberty, private property & personal safety.”
Besides these lost liberties, each state had become sovereign onto its self with its own laws, printing its own money, and deciding whether or not to fund the new US government in order to pay off their war debt. Democracy brought with it a lot of confusion, disorganization, and bickering over how the states should get along. All of the Founders agreed the current form was too democratic. As it was, in this era of no party affiliation, most of them were not democrats but rather republicans.
Professor Barnett reminds us that at the core of our republican Constitution there are two ideals that actually come from the Declaration. First, that all men are created equal and endowed with inalienable rights that among these are life, liberty, and the pursuit of happiness. Second, that governments are instituted among men, deriving their just powers from the consent of the governed. In other words, first comes rights and next is government.
Accordingly, Professor Barnett explains, government does not give rights but is responsible to equally protect the rights of its citizens. If it abuses this duty, the people have the power to change or remove it.
In a very simplistic way, I will attempt to describe the difference between a republican and democratic Constitution which is fully explained by Barnett in Our Republican Constitution. The democratic interpretation of the Constitution is that it is alive and modern issues should be resolved by modern interpretation. That under a majoritarian democracy, a minority could be the subject of objectionable majority rule. Therefore, sovereignty remains with the group in control and not the people.
Under the newly designed republican Constitution, with features such as separation of powers, the Founders wanted sovereignty to remain with the individual. These words were expressed in the body of the Constitution and echoed in the Ninth and Tenth Amendments that “the reserved powers not delegated by “the people” to either the state or federal governments.” Thus, “when read together, the text of the Ninth and Tenth Amendments strongly implies that sovereignty resides jointly in the people as individuals, each and every one.”
Professor Barnett discusses the long arc of the rise of the Democratic party and the pro-slavery movement, the Civil Rights Act under President Andrew Johnson, the impact of the 13th, 14th, and 15th Amendments, and the decline of the republican Constitution. He ends with his suggestion on how to remedy the problems at hand legally and safely.
I would posit that Barnett’s Our Republican Constitution is as equally important as Mark Levin’s Liberty Amendments. It defines the role of self-governance, our basic rights, and how the Constitution has been misinterpreted during three particular periods of our history. It’s an easy read and you’ll find yourself highlighting passages, as I did.
