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by David
Bryant
The words are so familiar that
they slip through our minds leaving scarcely a ripple:
... and to the Republic for
which it stands, one Nation under God, indivisible, with liberty and justice
for all. Section 4 of Article IV of the
federal Constitution says:
"The United States shall
guarantee to every State in this Union a Republican Form of Government, and
shall protect each of them against Invasion; and ... against domestic
Violence." What has happened to that
simple word? It means less to us today, somehow, than it meant to the men who
framed the Constitution two hundred and thirteen years ago. Back then it was a
robust term, a bright new vision for human society, bristling with notions of
independence and freedom. Today it's a humdrum commonplace -- a cliché --
almost meaningless because it is so familiar.
In the eleventh chapter of The
Road to Serfdom, his classic critique of socialism, Friedrich Hayek tells us
how the basic meaning of words can be subtly twisted through a process of
continuous misuse:
"If one has not one's
self experienced this process, it is difficult to appreciate the magnitude of
this change of the meaning of words, the confusion which it causes, and the
barriers to any rational discussion which it creates. ... [T]he confusion
becomes worse because this change of meaning of the words describing political
ideals is not a single event but a continuous process, a technique employed
consciously or unconsciously to direct the people. Gradually, as this process
continues, the whole language becomes despoiled, and words become empty shells
deprived of any definite meaning, as capable of denoting one thing as its
opposite and used solely for the emotional associations which still adhere to
them." What the dictionary says Webster's Third New
International Dictionary defines
a republic as
2b (1):
a government in which supreme power resides in a body of citizens entitled to
vote and is exercised by elected officers and representatives responsible to
them and governing according to law: Representative Democracy. The casual observer, then,
would say that we are living under a Republican Form of Government today, and
that all is as it should be. But if we scratch this veneer, and peer a bit more
closely at the common notions which prevailed when the federal Constitution was
written, we will soon see how superficial and incomplete Webster's definition
really is. James Madison's Definition In The
Federalist #39, James
Madison offered the following definition of a Republic:
"... we may define a
republic to be ... a government which derives all its powers from the great
body of the people, and is administered by persons holding their offices
during pleasure for a limited period, or during good behavior. It is essential
to such a government that it be derived from the great body of the society,
not from an inconsiderable proportion or a favored class of it; otherwise a
handful of tyrannical nobles, exercising their oppressions by a delegation of
their powers, might aspire to the rank of republicans ..." To proceed in this manner, and
illustrate by direct quotation the several ideas bound up in the original
American conception of a Republic, would require considerable scholarship. It
would also occupy more space and consume more time than I have at my disposal
today. So here, in summary form, is my understanding of the principle features
of the Republican ideal as it existed in the framers' minds -- without the
elaborate framework of supporting quotations that could be adduced in a work of
more ample dimensions, and contrasted, briefly, with the actual operations of
the "republic" in which Coloradans live today. Characteristics of a True
Republic (1) A true republic is
a form of representative government in which governmental power is strictly
circumscribed so that it does not trespass on the natural rights of persons
within its jurisdiction. A true
republic, then, can never devolve into a tyranny of the majority, for the rights
of the individual are inviolable.
In theory, at least, American
governments still honor this ideal. For example, the third section of Colorado's
Bill of Rights says that
"All persons have
certain natural, essential and inalienable rights, among which may be reckoned
the right of enjoying and defending their lives and liberties; of acquiring,
possessing, and protecting property; and of seeking and obtaining their safety
and happiness." (2) In a true
republic, power is not concentrated in a few hands, but is distributed into
several departments, each of which acts as a check upon the others.
We have all heard of the doctrine of separation of powers, and the system of
checks and balances. Indeed, the Colorado constitution contains an explicit
provision, Article 3, which says
"The powers of the
government of this state are divided into three distinct departments, -- the
legislative, executive, and judicial; and no person or collection of persons
charged with the exercise of powers properly belonging to one of these
departments shall exercise any power properly belonging to either of the
others, except as in this constitution expressly directed or permitted." But what has happened in
practice? The legislature has delegated its law-making authority to several
executive agencies as, for example, the Division of Insurance, which issues
regulations purporting to have the force of law. And this was not done "as
in this constitution expressly directed" -- it was done with a simple
legislative enactment. Similarly, several executive agencies have established
their own rules of adjudication, thus usurping the authority lawfully reserved
to the judiciary. Twenty-five years ago, when I first moved to Colorado, these
kangaroo courts were usually called "hearings," and the people
presiding over them were known as "hearing officers." Today the same
people are called "administrative law judges," and the rooms in which
the hearings are held are called "administrative courts."
Even the judicial department
has assumed unlawful legislative powers. While there is a specific grant of
rule-making authority to the supreme court of Colorado (constitution, Article 6,
Section 21), such authority is restricted to "administration of all
courts," and to "practice and procedure in civil and criminal
cases." But in Colorado, the judiciary has defined an offense
("contempt") for which a punishment is prescribed, and against which
the right of trial by jury may not be asserted -- all in direct violation of
Colorado's fundamental law.
Indeed, the petit jury -- which
is, or ought to be, the most important check upon the power of Colorado
government -- has been attacked by the judges (in collusion with the district
attorneys) and has now been so completely undermined that criminal defendants
rarely obtain the "trial by jury" to which they are entitled. Yes,
there are twelve persons in the jury box. Yes, they weigh the evidence and
return a "verdict." But are they really a jury? No -- because the
judicial department has prescribed procedures to keep independent thinkers off
the panel, and routinely forces prospective jurors to take an oath which
prevents them from serving in their proper capacity: as a final check on the
government's power to mete out punishment.
(3) A true republic is
a government of laws, and not of men.
We've all heard this old saw, which is directly tied to the concept of equal
protection. Once again, in theory, this restriction is still in place, for the
Colorado constitution (Bill of Rights, Section 6) declares that
"Courts of justice shall
be open to every person, and a speedy remedy afforded for every injury to
person, property, or character; and right and justice ... administered without
sale, denial or delay." Is this the Liberty and Justice
for All we learned about in school? If you and a gang of your buddies had burst
into Mena's bedroom with guns blazing, would you expect to get off on a
misdemeanor charge? Why should police officers face lesser penalties than anyone
else would when they violate the law?
(4) A true republic is
instituted for the benefit of every peaceful person, and does not provide
benefits to the members of a special class at the expense of everyone else.
This vital principle is enshrined in the very first section of Colorado's Bill
of Rights, which reads
"All political power is
vested in and derived from the people; all government, of right, originates
from the people, is founded on their will only, and is instituted for the good
of the whole." In theory, then, this important
restraint upon the exercise of governmental power is firmly in place. But
everyone knows that modern government is, in practice, a war among special
interests. Lobbyists pursue the members of the general assembly even when the
legislature is not in session. Why would they expend great sums of money to
alter the course of legislation unless there were some gain in it for them?
Amazingly enough, the single
largest group of lobbyists in Colorado today represents the various counties,
municipalities, school districts, and special districts into which state
government is subdivided. In other words, the most influential special interests
in the state are public entities which use the tax money they collect directly
to entreat state government for even more money which they hope will be passed
through to them indirectly. A more egregious violation of this
fundamental principle underlying true republican government can scarcely be
imagined!
(5) In a truly
republican society, there is no professional class of political persons.
Elected officials should be drawn from the ranks of the common people, they
should serve their country for a limited period of time, and then they should
return to private life. A few appointed officials (eg, judges) might indeed
enjoy a lifetime tenure, but even these few would, ideally, choose to resign
after some reasonable interval of time. In this way the persons making and
administering the laws would be continuously exposed to the direct effects those
laws were having on society at large, and the laws themselves would tend to
redound to "the good of the whole."
In practice, of course, there
is a great chasm between the professional politicians and career bureaucrats and
the rest of the population. The pros have their own special (and publicly
funded) retirement plans and medical insurance -- everyone else gets social
security and Medicare. They get free gasoline, chauffeurs, and generous expense
allowances -- we get to pay more taxes.
The recent movement toward term
limits has cut into the tenure of particular politicians in particular offices.
But as the game of house-to-senate musical chairs was played out in Colorado
this year, it became obvious that longevity in some public office or another is
still possible. Many of the term-limited reps ("Republicans," of
course) sought and obtained positions in Bill Owens' executive department. And
tenure in the civil service is still a very desirable thing -- in the eyes of
those who hold it.
The fears of the
anti-federalists -- that a privileged class might one day arise to rule over the
common people in a monarchical manner while retaining the republican forms --
have in large measure materialized. In less than a month George the Third will
ascend to the Presidency, and a magnificent pageant of imperial pomp and
circumstance will mark that regal occasion. Very few Americans will view the
spectacle with clear unblinking eyes and see how deep a wound is thus inflicted
on our longsuffering republic.
(6) In a true
republic, the citizens themselves are virtuous, and the government must be good,
for the people will not allow it to degenerate.
This concept of "republican virtue" is not easily explained to many
modern observers, for virtue itself has become unpopular. Perhaps a few examples
of things the framers and their contemporaries talked about will serve to
illustrate this point.
Writing in Philadelphia in
October, 1787, Samuel Bryan, a Pennsylvania anti-federalist who styled himself
"Centinel," made these remarks:
"A republican, or free
government, can only exist where the body of the people are virtuous, and
where property is pretty equally divided; in such a government the people are
the sovereign and their sense or opinion is the criterion of every public
measure; for when this ceases to be the case, the nature of the government is
changed, and an aristocracy, monarchy, or despotism will rise on its ruin." "[W]hat is to restrain
the House of Representatives from making legal discriminations in favor of
themselves and a particular class of the society? I answer ... the vigilant
and manly spirit which actuates the people of America -- a spirit which
nourishes freedom, and in return is nourished by it. "If this spirit shall
ever be so far debased as to tolerate a law not obligatory on the legislature,
as well as on the people, the people will be prepared to tolerate anything but
liberty." For many years after the
Revolution the Order of the Cincinnati, a club composed of men who served
as officers under George Washington during the war, was a respected American
institution. Its members thought of themselves as having been cast in the mold
of Cincinattus. When danger threatened, they left their farms to become soldiers
and, when the danger was past, they laid down their arms and returned to a
bucolic existence once again. A remnant of that semi-secret society still
exists today. But very few Americans remember the story of Cincinattus, or the
"republican virtue" that was the hallmark of his brief but brilliant
public career.
That the words
"republic" and "virtue" are no longer closely associated in
the popular imagination is the saddest commentary on our country's history one
could possibly imagine. Yes, there are still plenty of people who realize that
prosperity and happiness are each individual's private responsibility. But in
actual practice far, far too many Americans are willing and even eager to look
at the government as some sort of glorified candy factory. Like children, we
look to Uncle Sam as the source of all good things, and call upon the government
to solve our purely personal problems. Hope for the Future Can the republican ideals which
animated the framers ever be rekindled? Is there still a spark of that
"vigilant and manly spirit which actuates the people of America" left
alive in our country today? Or is the living essence of free republican
government lost to us forever? And are we therefore doomed to live in a
"representative democracy" for the rest of our days?
Time alone will tell the tale.
One thing is certain. We will never live in a real Republic until the vast
majority of our compatriots come to understand what self-government is really
all about.
At this Christmas season,
standing on the cusp of a new millennium, those of us who still cherish the
ideal of true republican government -- based on the concepts of limited
authority, individual liberty, and personal responsibility -- ought fervently to
hope and pray that this beautiful word, Republic, will soon be restored to its
former luster. May our daily lives shine as vibrant examples of the republican
virtue which is the necessary ground for Liberty -- and may our neighbors learn
from those examples what that tarnished and neglected term, Republic, really
ought to mean. |
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