The Personal Website of Mark W. Dawson

A Republican Constitution or a Democratic Constitution

I do not mean a Republican Party or a Democratic Party Constitution, but a Republic or a Democratic political theory of the Constitution. A Political Theory pronounced in the Declaration of Independence as:

“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 just powers from the consent of the governed…”

A Political Theory that can be summarized as ‘First came Rights, then came Government’ because of the consequences of the phrase “That to secure these rights, Governments are instituted among Men “. A Political Theory that was the goal of The Constitution of the United States, as stated in its preamble:

“We the People of the United States, in Order 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 to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

The difference between a Republican Constitution or a Democratic Constitution is the meaning of the phrase ‘We the People’.  Does the “We’ mean and individual person, or does it mean all the people? Do individual Natural Rights take precedent over government, or do the rights of the majority take precedent? If the individual natural rights have precedence, then you must have a Republican Constitution, while the rights of the majority require a Democratic Constitution. You cannot have both, as each Political Theory leads to a different form of governance.

A Republican Constitution starts with the premise of:

1. “We the People”, starts with the individual person.
2. The rights of an individual do not originate with any government but preexist its formation.
3. The equal protection of these rights is both the purposes and first duty of government.
4. Governments have limited and enumerated powers, and a duty and responsibility to only engage in government actions within these limited and enumerated powers.
5. Even after a government is formed, these rights provide a standard by which its performance is measured, and in extreme cases, its systemic failure to protect rights – or its systemic violation of rights – can justify its alteration or abolition.
6. A least some of these rights are so fundamental that they are “inalienable”, meaning that they are so intimately connected to one’s nature as a human being that they cannot be transferred to another even if one consents to do so.

While a Democratic Constitution starts with the premise of:

1. “We the People”, starts with a collective form of governance.
2. Individual rights are limited to those defined by their constituted government.
3. The rights of the individual are subordinate to the rights of a group.
4. The rights of an individual are malleable as circumstances and externalities dictate.
5. The most good for the most people is the standard by which governance performance is measured.
6. The “Will of the majority” is the only criterion that can justify a government's alteration or abolition.

History has shown that wars of liberty and Freedom are generally fought when a significant number, but not a majority of people believe that their Natural Rights are being violated by a government. It should be noted that the American Revolutionary War and the American Civil War were not fought with the “Will of the majority”, as it is estimated that about one-third of the populace were for these wars, one-third of the populace was against these wars, and one-third of the populace had no opinion on these wars.

A Republican Constitution entails that Legislators may not create “Irrational and Arbitrary Laws” based on who has political powers, Executives must assure that all Laws are “Equally Enforced” regardless of political affiliation, and that the Judicial Review of the Constitutionality of a Law starts with “A Presumption of Freedom and Liberty” for the individual. A Democratic Constitution entails that Legislators may create laws that they determine are proper for the good of the majority, Executives may decide which laws are to be or not to be enforced based on the perceived good or bad of the law's effects, and that Judicial Reviews of Laws starts with a presumption that the Legislators or Executives are acting properly within the bounds of their authorities.

A fine, shortish, and readable book “Our Republican Constitution: Securing the Liberty and Sovereignty of We the People” by Randy E. Barnett examines these two meanings of “We”, what a Republican or Democratic Constitution entails, and their consequences in the form and powers of governance. In this book, Professor Barnett examines the history of these Political Theories and how they were applied throughout American history. It is an interesting and fascinating read that is well worth the short time it will take to read this book.

In the Presidential election of 2020, we have perhaps the most starkly different candidates that reflect these two different Political Theories. The electorate of the United States will not only be deciding on a candidate but also be deciding on our future form of governance. A consequential decision that we have not faced since the election of Abraham Lincoln in 1860. We will be deciding on whether we want a Republican Constitution or a Democratic Constitution.