Library of Congress



A Republic, If We Can Keep It

It seems undeniable that at this moment our American republic finds itself in a precarious position. Personally, I tend to resist making such grandiose statements, as they tend to get bandied about at wildly unfitting times—when someone’s preferred candidate for governor loses a close race or when the Supreme Court hands down a decision that a bare majority of Americans disagree with, for example. But as we find ourselves reeling from a global pandemic that has cost hundreds of thousands of American lives, an economic downturn that has left millions unemployed, winter storms that have ripped through much of the country and left Texas freezing in the dark, and an attempted coup at the Capitol building in Washington, I don’t feel as if I’ve wandered too far into the realm of hyperbole.

As a student of the law (and, in particular, our Constitution), I find myself asking if our government’s seeming inability to anticipate or even respond to these myriad crises is structurally inevitable. Could it be that the more than 230-year-old framework under which our federal government operates renders us ill-suited to cope with the cascading disasters that surround us? It is certainly tempting to say yes, and you will find no shortage of intellectuals, academics, and journalists who will do exactly that. After all, it seems only logical to conclude that a Constitution meant to provide for the government of a nation of yeoman farmers has little to say about how best to distribute the vaccine to a deadly virus or how to provide better access to broadband Internet so that people can telework. But the answer, I think, is not so comfortingly simple.

Our institutions are ultimately a reflection of us—the people who, under the express terms of the Constitution, are the wellspring from which our government derives all its power. And when our government fails us—and there’s no denying that over the past year, it has done so in spectacularly obvious ways—we cannot simply turn to the sometimes arcane and always deliberately lag-inducing components of our three federal branches to place the blame. Yes, the Senate is by its very nature a counter-majoritarian institution. Absolutely, the President lacks the authority to tackle many (even most) policy areas unilaterally. Of course, the Supreme Court grants a terrible amount of power to nine unelected, graying jurists. But all of these government actors are, directly or indirectly, accountable to us. The President advances specific policy priorities in an effort to assemble a national coalition of voters that will reelect him. Senators and Representatives vote on proposed legislation in the way they believe is most likely to gain the approval of their constituents. And like it or not, when we vote for the President, we’re voting for the future of the Supreme Court as well.

A government that places that much power into the hands of the people will only function so long as the people understand how it operates, what its goals should be, and how best to utilize its awesome powers. And when I look around at America today, I see a voting public the majority of which lacks even the most rudimentary understanding of these principles and—even worse—many who take pride in refusing to even try. Worse still, many among us no longer even live in reality, but rather exist in a fantasy world where the candidate who lost the last presidential election actually won and where our national government is dominated by fanatical Satanists who delight in eating babies. As I have written before, Congress cannot legislate not because of the filibuster or because of corporate expenditures in political campaigns, but because half of our country has elected representatives who refuse to compromise, to engage in productive discussion, or even to legislate. It is no coincidence that a civically illiterate electorate has handed power to an incompetent and corrupt government.

Our Framers knew the risk of this outcome was real. Addressing skeptics who doubted the viability of representative democracy, James Madison in The Federalist No. 55 recognized that “[a]s there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence.” But, referring to those better qualities of human nature, he emphasized that “[r]epublican government presupposes the existence of these qualities in a higher degree than any other form. Were the pictures which have been drawn by the political jealousy of some among us faithful likenesses of the human character, the inference would be, that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.”

Simply put, Madison was observing the obvious truth that representative democracy, no matter how well-constructed, can only survive so long as the electorate does its job by staying in touch with our better values and voting conscionably. Otherwise, we will set ourselves up for a government that mirrors our own corrupted and failed worldview. And that, I think, is where we find ourselves today: on the precipice of watching our government succumb to the rot that started in our own hearts and minds and now threatens to destroy our civic institutions from the bottom up.

The Founders attempted to construct a system of government that would help protect us from this risk. And even now that constitutional system remains a strong framework. Just look at how ably it resisted the earnest attempts of our Chief Executive to overturn the results of a free and fair election—a heinous act that embodied the very worst of our Founders’ fears. But it wasn’t the Constitution itself that encouraged such atrocious misbehavior. It was us. And we have a crucial choice to make. Either we continue further down this path until we reach the point at which our Constitution can no longer protect us from ourselves, or we turn back toward decency and humanity. America is not a failed state. But we are precariously close to becoming a failed body politic.