What A Republican Form Of Government Means & Why This Structure Mattered To America’s Constitution Framers – Guest Essayist: Joerg Knipprath

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Under Article IV, Section 4, of the Constitution, the United States shall guarantee to each state a republican form of government. That raises the question of what was understood not only by a “republican form” of government, but by the substance of republicanism.

It would be a fair summary that, for Americans of the Founding, a republic required a body (constitution) composed of certain structures (separation of powers, blending and overlapping of functions, carefully circumscribed powers), that operated by popular participation (potentially moderated by the principle of representation) in a community of manageable size, and was animated by the spirit of republican virtue and modesty. Government was to be limited (civilian control over the military, no standing army, no holding of simultaneous offices, rotation in office, short term limits of office). Increasingly subject to debate, however, was the extent to which reliance on the virtue of either the governors or the governed was a realistic constraint on abuses by government.

Americans looked to their idealized and sentimentalized version of the Roman Republic with its Stoic virtues–and saw themselves: Simplicity of life, self-reliance, civic duty, and morality inculcated through education, religion, and, if necessary, law. What was true for the governed applied equally to the governors, who were selected by the former and would make law not for their self-interest or for their class or faction, but for the general good.

Plato informs us that politeia (often translated as “republic”) is an unlimited government controlled by a carefully bred and educated elite (a natural aristocracy). It is distinguished from an oligarchy that governs for its own benefit, and from a hereditary aristocracy, as we understand it, in that there is no birthright to govern. The guardian class reflects virtue (arête) made concrete by application of reason to administer public affairs for the benefit of the whole.

Americans, too, found such a government by a meritocratic elite conducive to the Founding’s principles. Thus, Thomas Jefferson would write to John Adams in 1813, “The natural aristocracy I consider as the most precious gift of nature, for the instruction, the trusts, and government of society….May we not also say, that that form of government is the best, which provides the most effectually for a pure selection of these natural aristoi into the offices of government?” He (and Adams) also feared the power of an “artificial aristocracy,” one rooted in wealth and birth, rather than virtue and talent. To separate them, and to elevate the “natural” and control the “artificial” was the task. Jefferson saw the proper mechanism as free election of assemblies by the citizens, while Adams saw it in a government of separate political bodies, where one would be the formal domain of the wealthy, checked by the other structures. As a complementary matter, while Plato’s eugenics was not conceivable, both saw the inculcation of virtue through education as critical for representative government. Jefferson again: “If a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be.” He proposed a process by which even some from families too poor to pay might be selected to receive an education. As he described it pungently, “By this means twenty of the best geniuses will be raked from the rubbish annually, and be instructed, at the public expence.”

“Community” was another critical element of a republic. Whether in the Greek poleis, early Rome, medieval Italian city-states, or the post-Revolutionary War “united states,” it was generally assumed that popular control of public affairs could succeed only in relatively small, physically compact, and socially homogeneous units. As an entity becomes more populous and more socially diverse, and as the locus of government becomes more geographically remote, the spirit of civic involvement and individual sacrifice for the common good weakens. Social science research has corroborated that discomforting, yet common-sense, observation.

With population growth and geographic distance to the place of government, we no longer see each other as individuals bound in community, but as members of classes and factions. As well, the bonds between the governors and the governed fray. The Federalist, especially through the writings of James Madison, time and again returned to that theme in an effort to blunt the opponents’ attacks that the remoteness of the general government from the people and the geographically large and socially diverse nature of the “Confederacy” (as they referred to the United States) made republican government at that level impossible and tyranny inevitable. Madison sought to turn the table on the opponents in Federalist No. 10. He boldly asserted that the majority would still exercise control of the general government through the vote, albeit filtered through the principle of representation, but that dissenters would not be permanently excluded, precisely because of the greater size of the domain:

Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.

He amplified his theory in Federalist No. 51, discussing fluid combinations of interest groups:

Whilst all authority in [the United States] will be derived from, and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.

The ideal population size of the community is unclear. Aristotle posited that it had to be large enough to provide the social and economic structure to promote human flourishing, but small enough that everyone would know each other’s personal qualities. With 100 residents, you do not have a polis; with 100,000, you no longer have one. Plato, with his passion for numbers, declared the ideal community to consist of 5,040 adult male citizens. Based on his number, the entire community likely would be around 30,000 residents. The formula for initial Congressional apportionment was one representative for every 30,000 residents (including slaves calculated under the 3/5 rule). The Bill of Rights sent by Congress to the states in 1789 provided in its first article that Representatives would be apportioned at a maximum of one for every 50,000 residents, similar to the views of the classical writers. Although that proposal failed of adoption, these efforts show the Framers’ awareness of the importance of proper community size to the republican nature of government.

Contrary to Plato’s Politeia, other classical writers, such as Aristotle and Polybius, viewed as “republics” the ideal “mixed” structures that were also the best practical approach to the task of administering public affairs. Aristotle saw this in the political balance in the Athens of his day between oligarchy and democracy, both of which in their pure versions were corrupt forms made to benefit the wealthy and the poor, respectively. Polybius favored the mixture of monarchy (consuls), aristocracy (senate), and democratic (assemblies) elements that he found in the constitutional mechanisms of Rome before the Empire. His description also fits what for many 18th century Englishmen described the essentially republican nature of their limited monarchy, a class-based structure that represented liberty and popular will (House of Commons), stability and wisdom (House of Lords), and energy and unity (king). It comes as no surprise that the Federalist uses similar terms in describing the House of Representatives, the Senate, and the President, respectively.

While Plato proposed to invest sole and unrestricted governing power in the guardian class within his ideal republic, advocates of an undivided imperium traditionally were defenders of monarchy. Republics more typically featured distributed powers in their formal constitutional arrangements. For the Framers the question was not whether to distribute powers among various branches, but how. There were two, at first blush contradictory, approaches. One was a formal division of powers and political independence that would prevent each department of the government from consolidating power by intruding on the domains of the others. Classical writers, such as Polybius, had observed this as a feature of Roman republicanism, though not in the context of a formal theory of limited government. Later writers, such as the often-cited and lauded Montesquieu, characterized the English constitutional monarchy in similar manner. More concretely, that approach was earnestly–and somewhat comically–set down in Article XXX of the Massachusetts Constitution of 1780:

In the government of this Commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: The executive shall never exercise the legislative and judicial powers, or either of them: The judicial shall never exercise the legislative and executive powers, or either of them.

There were, then, clear models and definite philosophic grounds for formal divisions of power. While not as detailed as that of Massachusetts, the U.S. Constitution is founded on similar sentiment in its broad division of powers among the three branches and in the specific immunities it grants to a branch against encroachments by another. One example of the former is the distinct vesting of functional powers in the three governmental branches; an example of the latter is the protection of the Speech and Debate Clause for members of Congress.

The second approach sought not separation, but a blending and overlapping of powers. Many Americans reflexively considered the king’s patronage power an affront to republican principles in its corruption of government and threat to liberty. “He has erected a Multitude of new Offices, and sent hither Swarms of Officers to harass our People and eat out their Substance,” Jefferson would fume in the Declaration of Independence. Vestiges of that disgust remain in passages of the Constitution that prohibit holding an office under the United States while a member of Congress. However, the Scottish philosopher David Hume, not a reflexive supporter of King George, saw the king’s patronage power as essential to balanced government and the protection of liberty from what would otherwise be an all-powerful House of Commons:

[The] House of Commons stretches not its power, because such a usurpation would be contrary to the interest of the majority of its members. The crown has so many offices at its disposal that…it will always command the resolutions of the whole [House], so far, at least, as to preserve the ancient constitution from danger. We…may call it by the invidious appellations of corruption and dependence; but some degree and some kind of it are inseparable from the very nature of the constitution and necessary to the preservation of our mixed government.

Hume’s writings influenced the Framers, especially Madison. The result is that there are many instances of “blending and overlapping” functions. One example is the President’s qualified veto over legislation; another is the need to obtain the Senate’s approval to confirm the President’s appointment of federal officers.

In addition to the spirit and structure of republican government, there remain the crucial operative principles of the vote and representation. The Framers left the former to the control of the states, except to require that voters for the House of Representatives had to have the same qualifications of the state set for voters for the more numerous of its own legislative chambers. It was generally agreed, consistent with classic republican ideals, that only those with a significant stake in the community (through wealth, age, citizenship, military service) and deemed most suited to participating in public affairs should vote. However, there were significant differences among the states as to the specific qualifications.

Representation was a crucial device not just to give voice to popular sentiment, but to modulate that voice. This was a crucial distinction between the turbulence of democracies and the calm deliberation needed for sober laws that would foster social peace and stability, yet not destroy liberty. As Madison declared in Federalist No. 10, “[Such] democracies…have ever been found incompatible with personal security, or the rights of property; and have, in general, been as short in their lives, as they have been violent in their deaths.” Further, in Federalist No. 55, “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”

Its decisions on the proper composition of legislatures might suggest otherwise, but the Supreme Court has declared that it is beyond its proper role to define what is a “republican form of government.” The subject goes to the heart of self-government. To what extent we have departed politically, socially, and culturally from the classical vision of republicanism and what that foretells about the future of the American experiment should be a matter of serious reflection and concern for every free citizen.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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5 replies
  1. Ralph Howarth
    Ralph Howarth says:

    A classical aspect of a republic was also the citizen solder of free holders in Greek city-states. The 1689 Rights of an Englishmen embodied the citizen solder concept in citizens keeping arms for eventuality of defense of the free state and prohibition of standing armies.

    2nd was the development of Juries in English Common Law. As the nature of a republic deems foundational laws are immutable and immune from passions of an oppressive majority, juries were deemed fundamental to a free republic.

    Reply
  2. Ralph Howarth
    Ralph Howarth says:

    Jonathan Story, 1833, Commentaries on the Constitution 3:§§ 1890

    “…The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; …”

    Reply
  3. Sandy Thatcher
    Sandy Thatcher says:

    One of the disadvantages if our Constitutional scheme is that, owing to the way it originated, states were accorded more rights and power of sovereignty than were allowed to local governments, so that the government closest to the people, which Jefferson felt to be the best, was always at a disadvantage in conflicts with the federal and state governments. This is a problem for us today in states like my own, Texas, where the state government is claiming authority over local governments and annulling local ordinances.

    Reply
  4. Ron Meier
    Ron Meier says:

    I always learn a lot from your essays Professor Knipprath. Thanks for the meat rather than just an appetizer.

    Reply

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