Legal Commentary

Whole Lot of Error Going On

By Eugene Volokh

This comment on the republic vs. democracy thread struck me as worth noting, because the errors in it seem to me to be pretty common. Recall that in the thread I was arguing that it?s just fine to call Georgia (the one whose capital is Atlanta, not Tbilisi) a ?democracy,? and not just a ?republic? (though the latter is fine, too). The commenter responds:

References to ?republican government? occur twice in the federal constition; the word democratic never. Words do matter and the writers of the Constitution were consumnate rhetoricians. I?m curious if all those dumping on the Georgia legislature were as dismissive of George P. Fletcher?s screed Our Secret Constitution which is essentially nothing more than an extended ?liberal? argument that Abraham Lincoln crafted a revolutionary reworking of Constitutional interpretation purely by getting the citizenry to think of themselves as a ?nation? rather than a ?republic?. As I remember, this 2001 book was very well-received by the republic?s nation?s intelligentsia.

1. Let?s begin with the Constitution. Whatever the Framers? rhetorical gifts, the usage in the Constitution does not dispose of what constitutes standard usage today. We have a Defense Department, not a Defence Department, notwithstanding the Constitution?s reference to ?defence.? We would normally speak of Justice Scalia, not Judge Scalia, even though the Constitution speaks only of ?Judges of the Supreme Court? (except the Chief, who is called ?the Chief Justice?). In fact, the Associate Justices have been called Justices throughout the nation?s history, notwithstanding the constitutional label of ?Judge.?

2. But beyond this, that the Constitution uses one term doesn?t mean that it?s the only possible term. That the states are supposed to have a ?Republican Form of Government? doesn?t mean that the government can only be labeled ?republican,? and not ?democratic.? (There?s only one such reference to ?republican government? in the Constitution, by the way, not two.) The Commonwealth of Virginia can still be a commonwealth even though the Constitution calls it a state; ?state? and ?commonwealth? aren?t mutually exclusive, and neither are ?republican? and ?democratic? (my original post provides evidence for that).

3. What?s more, look carefully at the Constitutional guarantee, in light of the history of that era. As I mentioned in my original post, ?Indeed, in the early years of the Constitution, many states were republican but not democratic, in the sense that they were governed by only a subset of the adult citizenry (even setting aside the fact that blacks and women were generally excluded).? That might have been why the Republican Guarantee Clause guarantees only republican government. But that some states at the time might have been republican but not democratic doesn?t preclude the possibility that Georgia today is both republican and democratic.

4. Now let?s move on to the insinuation of supposed hypocrisy ? the supposed reaction to Fletcher?s Our Secret Constitution. I can confidently say that not all the people who are condemning the Georgia legislators (not the legislature, just the legislators who?ve signed on to the ill-advised resolution) were as dismissive of Fletcher?s book, and that for a good reason: Probably very few of them read Fletcher?s book. For all I know it might have been a good book, or a bad one; it might even have been relatively successful as such books go; but even if it was successful, that would just mean that some thousands or even tens of thousands of people read it. Chances are that most commenters on the subject hadn?t read it, or even heard about it. I certainly haven?t read it.

5. Likewise, on to ?As I remember, this 2001 book was very well-received by the republic?s nation?s intelligentsia.? Really? It might well have been well-received by some readers, but I?m pretty sure that they too form only a tiny part of the ?nation?s intelligentsia.? Not having read the book, I have no idea what the relationship of the book is to the question of whether it?s proper to call the state of Georgia a ?republic.? But, like most books, it doubtless reached only a very small part of the nation?s intelligentsia; and only a tiny part of it actually publicly registered any opinion on the subject. (I can say that it has gotten 49 citations in Westlaw-accessible legal journals, not bad but hardly the mark of a book that has reached a vast chunk of at least the legal intelligentsia.) What on earth is the relevance of this dig to the subject at hand?

Folks, especially conservative folks: You can do better. I want you to do better. I want conservative ideas (well, some conservative ideas, but more conservative ideas than liberal ones) to win, and that?s more likely if conservatives make sensible, thoughtful arguments. Empty accusations of supposed hypocrisy on the part of the intelligentsia, coupled with unintentional self-parodies of ancestor worship, just aren?t going to cut it.