On Democracy, Republics, Rights and the Founders

On Democracy, Republics, Rights, and the Founders 

By Lawrence W. Reed

“Democracy,” H. L. Mencken once said, “is the theory that the common people know what they want and deserve to get it good and hard.” He also famously defined an election as “an advance auction sale of stolen goods.”

Mencken was not opposed to democracy in all matters. He simply possessed an insightful view of its limitations.

What form of government did America’s Founders bestow upon the American people—a democracy, a republic, a mix of the two, or something else? The answer goes to the very core of the country’s founding document. Routinely, people refer to “our democracy” but that’s not quite accurate.

There is a limited context in which America’s Founders embraced “democracy.” It has to do with the political process. It is the reason our system is often referred to as “a democracy within a republic.” Two aspects of it are indeed democratic, but that is not the same as saying the system as a whole is a democracy.

One: We elect our representatives in legislative bodies (Congress, state legislatures, and other positions at the state and local levels) by democratic vote. That is, 50% plus one of the popular vote ordinarily wins an election. In fact, except where a run-off is required by law so that one candidate captures at least 50%, a plurality of votes may be sufficient for a candidate to win.

Two: We also occasionally have referenda questions on ballots at the state and local levels whereby majority vote determines the outcome.

Pure, undiluted democracy is unshackled majority rule. Everybody votes on everything, and 50 percent plus one decides every “public” issue—and inevitably, a whole lot of what ought to be private matters too. Clearly, and thankfully, we do not have that! Perhaps ancient Athens for a brief time came closest to it, but no society of any size and complexity could practice that form of governance for long. For starters, it’s unwieldy and unworkable, endlessly contentious, and disrespectful of certain inalienable rights of individuals who may find themselves in the minority.

People like the sound of “democracy” because it implies that all of us have equal say in our government. It suggests that a simple majority is somehow fair and smart in deciding all or virtually all issues. On closer examination it should become apparent that subjecting every decision of governance to a vote of the people is utterly absurd. Many decisions must be made quickly; many decisions require knowledge that few people possess or have the time to become expert on; and many decisions don’t belong in the hands of any government at all. A pure democracy, even if possible, would quickly degenerate into the proverbial two wolves and a sheep voting on what to have for lunch.

Do we subject EVERY issue to democratic vote? No. Nobody does, anywhere.

Once we elect our representatives, they then “represent” us by voting on matters that come before their legislative bodies. That’s what makes us a republic with certain democratic elements. If we like how our representatives voted, we re-elect them; if we don’t, we have the option to remove them from office at the next election. 

Put Anything and Everything to a Vote?

So the question is, what issues should our representatives decide by majority vote? America’s Founders would say, and FSC agrees, that matters of individual rights are inviolable and should not be up for grabs.

Example: Should we have a vote to allow slavery once again? Of course not! And the reason is that every peaceful person possesses an inherent right to be free. You cannot morally vote away another person’s freedom, even if you have majority support.

Example: Should majorities be able to limit the speech of dissenters? Of course not. And the reason is that freedom of speech is an inherent individual right. Furthermore, truth is not a numbers game; you can be alone, and you can be right. Why should we deny society the benefits of hearing a minority view?

Example: Should we decide by vote whether we can take your car or your house or tell you what color your hair must be? Of course not. Because those are also related to the inherent individual rights of peaceful people (though “takings” for public use with just compensation are constitutionally authorized).

So when someone says, “I’m for democracy!”, we should immediately ask, “In absolutely everything?” If not, then by what criteria do you say “yes” or “no”? I know of no sounder ground intellectually but to assert that the inherent rights of free and peaceful people are what should settle the question.

Commonly yet erroneously romanticized, democracy is widely assumed to ensure far more than it possibly can. The Norman Rockwell portrait of engaged and informed citizens contending freely on behalf of the common good is the utopian ideal that obscures the messy details of reality. Majorities are not always right, and a free society limits what they can do to minorities.

Monarchy and military dictatorships are easy to define. If you’ve got a king, you have a monarchy. If one person has all the guns and tanks, and tells everybody else what to do, you’ve got a military dictatorship. But what exactly is democracy?

Suppose someone says, “I just don’t like people with boats and jewelry. I think we should confiscate their property. Let’s have a vote on that.” A democratic purist would have to reply, “All in favor say aye.” A person interested in securing individual rights would have to say, “That’s not a proper function of government, and even if a majority in Congress vote for it, it’s still wrong. There’s nothing about mob rule that makes such a decision legitimate.”

What are Rights?

So, this business of rights is at the very core of the American experience. Remove rights from the equation, and America is just one of countless countries—past and present—in which individuals possess nothing more than what those in power decide to give them or allow them to have.

But what is a right? Is a right the same thing as a wish? Why or why not? If you need something, does that mean you have a right to it? If I require a kidney, do I have a right to one of yours? Is a right something that can or should be granted or denied by majority vote? Does a document such as the Constitution or an executive order or a law of Congress create rights, or do such paper instruments simply acknowledge rights (by either defending or eroding them) that people inherently possess?

Below are two lists for the reader to consider. The first one itemizes what I personally think you have a right to; the second is a partial roster of things I personally think you don’t have a right to (and I readily grant that you have every right to disagree with me).

You have an inherent right to:

1.      Your life (unless compromised by taking or attempting to take that of another person without a self-defense justification);

2.      Your thoughts;

3.      Your speech (which is really a verbal or written expression of #2) so long as you don’t steal it from another without permission or credit;

4.      Material property you were freely given, that you created yourself, or that you freely traded for;

5.      Raise and educate your children as you see fit;

6.      Live in peace and freedom so long as you do not threaten the peace and freedom of others.

You do not have an inherent right to:

1.      High-speed broadband Internet access;

2.      Cheeseburgers, cheap wine (or even expensive wine, for that matter), or an iPhone;

3.      Somebody else’s house, car, boat, income, business, or bank account;

4.      The labor of another person you’ve not freely contracted with (you can’t enslave somebody, in other words);

5.      Anything that’s not yours, even though you really want it and think you’re entitled to it;

Of course, gray areas and reasonable qualifications exist. For example, while I believe you do have a right to raise and educate your own children as you see fit, abuse and neglect are not defensible. But let’s keep our eyes on the big picture, the broad principles here.

Now, look at those two lists again, carefully. How does the nature of the first list contrast with the nature of the second?

Answer: In the case of the first list, nothing is required of other people except that they leave you alone. For you to have a right to something in the second list, however, requires that other people be compelled to provide that something to you. That’s a monumental difference!

The first list comprises what are often called both “natural rights” and “negative rights.” They are natural because they derive from our essential nature as unique, sensate individuals and negative because they don’t impose obligations on others beyond a commitment to not violate them. The items in the second are called “positive rights” because others must give them to you or be coerced into doing so if they decline.

The existence of “negative rights,” wrote the late Tibor Machan, “means that no one ought to enslave another, coerce another, or deprive another of his property; and that each of us may properly resist such conduct when others engage in it.”

So while I believe neither you nor I have a right to any of those disparate things in the second list, I hasten to add that we certainly have the right to seek them, to create them, to receive them as gifts from willing benefactors, or to trade for them.  We just don’t have a right to compel anyone to give them to us or pay for them. If any of us did, then why wouldn’t another individual have a similar right to take them from us?

The Origins of Rights

Where do rights come from? The Founders suggested they originate with a Creator. Others argue that rights come from our very nature. Another view holds that both are correct because a Creator devised our nature. It is manifestly evident in their words that the Founders utterly rejected the age-old claim that rights originate with government. They understood that if government performs its limited and most legitimate function, it will recognize individual rights and then properly defend them.

All this is why America’s Founders proposed a revolutionary idea—that governments and majorities cannot morally subject a peaceful person’s rights to majority vote. What they set up was not yet perfect, but they gave us the mechanism and the encouragement to make the American experiment an ongoing, always-improving venture.

America is not a democracy, properly understood, and never has been. Our Founders established a republic, a form of government that modifies pure democracy considerably. It provides a mechanism by which almost anyone can have some say in some matters of government. We can run for office. We can support candidates and causes of our choosing. We can speak out in public forums. And, indeed, a few matters are decided by majority vote. But a constitutional republic founded on principles like individual rights will put strong limits on majority rule.

In its Bill of Rights, our Constitution expressly constrains what Congress can do legislatively. It does not say, “Congress can pass anything it wants so long as 50 percent plus one support it.” Nor does it say “If a majority votes to reinstitute immoral and discriminatory Jim Crow laws, so be it.”

We should be thankful America’s Founders did not erect a monarchy or a dictatorship, but we should have no illusions about the harm that government can still do. Even the best and most responsive of governments, we should never forget, still rests on the legal use of force—an inescapable fact that requires not blind and fawning reverence but brave and determined vigilance. That calls for sober people who understand the nature of government and the importance of liberty. It demands that citizens embrace the concept the Founders gave us—a democracy within a republic, a system under which no group of people can suppress the legitimate and inherent rights of any other individuals.

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(Lawrence W. Reed is President Emeritus, Humphreys Family Senior Fellow, and Ron Manners Global Ambassador for Liberty at the Foundation for Economic Education in Atlanta, Georgia. He blogs at www.lawrencewreed.com.)