AUTHOR’S NOTE: This post written in response to a blog post titled ,“The United States is not a ‘democracy,’ it is ‘a Republic.’”, by Lawrence Lessig dated November 2016.

On today, TCLO came across an individual who calls himself Lessig (Twitter: @Lessig). He refers to himself as a “law professor, activist, and citizen (in reverse order)”. Having never heard of Mr. Lessig before today, we are not attempting to question his character or credentials, but rather the logical soundness of his legal argument–or subjective political commentary, rather.

In a scarily inaccurate blog post, Mr. Lessig misguides his thousands of followers to believe that the Framers, although they specifically established the United States of America as a republic–which he does not dispute–that they in actuality intended it to be a “representative democracy”. (This, of course, is hogwash).

He then goes on to selectively quote from the Federalist Papers (out of context) to support his ill-founded argument. For instance, he quotes from Federalist Paper No. 39, but fails to acknowledge the preceding passage of that very same Paper, which of itself, invalidates his argument:

“The first question that offers itself is, whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom”. (Emphasis added).

Quote Source: The Federalist №39 (James Madison), 232-233

As can be verified by viewing The Federalist Papers (pages 232-233) for oneself, Madison, per his own words, stated the Union was to be “strictly republican”. The word strictly has a very specific definition which necessitates rigidity and exactness in application.  How Mr. Lessig could misconstrue Madison’s words “strictly republican” to mean anything other than strictly republican, is a mystery. Further, Madison goes on to specify that NO OTHER FORM of government (i.e. “representative democracy”) would suffice.

[Please note that the terms republican and democratic as used in the present article are not synonymous with the political parties, but instead are used to describe forms of government.]

In another failed attempt to substantiate his claim, Mr. Lessig misleadingly quotes from Federalist Paper No.14 (out of context)–the preceding passage of which will once again help to shed light upon the invalidity of his argument.

“The error which limits republican government to a narrow district has been unfolded and refuted in preceding papers. I remark here only that it seems to owe its rise and prevalence chiefly to the confounding of a republic with a democracy, applying to the former reasonings drawn from the nature of the latter. The true distinction between these forms was also adverted to on a former occasion. It is, that in a democracy, the people meet and exercise the government in person; in a republic, they assemble and administer it by their representatives and agents.” (Emphasis added).

Quote Source: The Federalist №14 (James Madison), 77

According to Lessig’s “logic”, rather than read the above quotation in context and take it to mean what is says, it is better to reassign the given definition of a republic to democracy, which leads to the “confounding of a republic with a democracy”.

According to Black’s Law Dictionary, democracy is defined as follows:

“That form of government in which the sovereign power resides in and is exercised by the whole body of free citizens; as distinguished from a monarchy,aristocracy, or oligarchy. According to the theory of a pure democracy, every citizen should participate directly in the business of governing, and the legislative assembly should comprise the whole people. But the ultimate lodgment of the sovereignty being the distinguishing feature, the introduction of the representative system does not remove a government from this type. However, a government of the latter kind is sometimes specifically described as a “representative democracy.” (Emphasis added).

Quote Source:  What is DEMOCRACY? definition of DEMOCRACY (Black’s Law Dictionary)

As can be seen within the very definition of the term democracy, whether or not it is “representative democracy” does not negate the fact that is it still a democracy and not a republic. That is, Mr. Lessig, your theory on American Jurisprudence is outright incorrect. Why not just admit that you do not truly understand the difference between a republic and a democracy? Probably because you have built an entire career upon American Jurisprudence, but do not understand the most basic fact of American Jurisprudence (i.e. the basis of the entire body of law).

Lastly, attention must now be drawn to Mr. Lessig’s erroneous citation of Federalist No. 10 to support his claim. Ironically, the passage that directly precedes his quotation, once again serves to invalidate his claim:

“Hence it is that such democracies have ever been spectacles of turbulence and contention; 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. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.” (Emphasis added).

Quote Source: The Federalist №10 (James Madison), 57

Is that not what you have now? Perfect equality in your political rights? Meaning, all U.S. citizens have the (political) right to vote in public elections and be eligible to hold public office? According to Madison’s above definition of a democracy (whether direct, representative, or otherwise), THIS is what you now have: a democracy, not a republic. To be exact, you have a “constitutional democracy” that happens to be representative in nature. But that is not what the Framers intended as evidenced by the Organic Laws/Founding Charters, as well as The Federalist Papers from which you have erroneously quoted.

WHERE in ANY of the Founding Charters is the word “democracy” ever even mentioned? “Republic”, on the other hand, is mentioned several times. And in the Federalist Papers–as we have briefly seen–the Framers expressed irrefutable disapproval of democracy whilst continually singing the praises of republicanism.

The Framers intended that the United States of America be and are, a “constitutional republic”. There is no way to distort this fact if relying upon logic and adhering to the principals of scholarship (i.e. not taking quotes out of context and bending truths to serve your purposes).

With all due respect, Mr. Lessig, your article is devoid of both logic and fact, and as such, amounts to little more than conjecture, which is unacceptable for a professor of law. And the worst part of all, is that many people look to you as an authority in your field due to your credentials, and will blindly accept what you are telling them without ever verifying your statements or sources. But if they took the time to exercise due diligence, they would realize that your article was based solely upon your subjective opinion–not law or even verifiable fact–which makes it little more appealing than the undeserved air of haughtiness with which it was written.

Even the very sources YOU cited, do not support your claims (as has been shown). Yet you are a tenured professor of law at one of the nation’s premier law schools? Is this the best that America’s higher institutions of learning have to offer? No wonder the justice system is so messed up.

@howardowens, we at #TCLO also, would expect a law professor to know better.


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