What is a re­pub­lic, and how do we keep it?

The ‘re­sis­tance’ has for­got­ten the fun­da­men­tals be­queathed by the founders

The Washington Times Daily - - OPINION - By Stephen B. Presser

In one of the great, old, pos­si­bly apoc­ryphal sto­ries told about the draft­ing of the United States Con­sti­tu­tion, one of the framers, the ven­er­ated Ben­jamin Franklin, as he ex­ited the de­lib­er­a­tions of the 1787 Con­ven­tion, was asked about the new char­ter. Franklin’s in­ter­locu­tor, worried about the pos­si­bil­ity that we might have just bro­ken with one monar­chy only to have an­other im­posed on us, asked him, “Dr. Franklin, what kind of a gov­ern­ment have you given us?” Franklin was said to have replied, “A re­pub­lic, if you can keep it.” We have al­most for­got­ten the im­por­tance of both the fact that we have a re­pub­lic, and that it’s not as­sured that we can keep it.

Events of the last few months have un­der­scored this dif­fi­culty. The framers un­der­stood two things about the Amer­i­can peo­ple that we rarely re­mem­ber. One of them is that we have cho­sen not to have a pure democ­racy, both be­cause of the ex­tra­or­di­nary dif­fi­culty in­volved in get­ting mil­lions of peo­ple to agree on any­thing, and also be­cause of the his­toric ten­dency — of which the framers were well aware — of democ­ra­cies to de­scend into an­ar­chy, ow­ing to the dif­fi­culty of get­ting hu­man be­ings to ac­cept the need for com­pro­mise and ac­com­mo­da­tion and to aban­don their in­di­vid­ual self­ish in­ter­ests. Thus it was that the United States was to be a re­pub­lic, rather than a democ­racy. In a re­pub­lic, as the framers un­der­stood, there are at least two pro­found dif­fer­ences from a democ­racy. The first, most ob­vi­ous, is that gov­ern­ment is not by the peo­ple them­selves, but, in­stead, is con­ducted through elected rep­re­sen­ta­tives. Sec­ond, less ob­vi­ous, but an es­sen­tial fea­ture of repub­li­can gov­ern­ment from Rome on, is that the gov­ern­ment must not act ar­bi­trar­ily, but must con­duct it­self pur­suant to the rule of law. It must, in other words, fol­low es­tab­lished pro­ce­dures and act ac­cord­ing to ac­cepted norms, in our case pur­suant to our Con­sti­tu­tion and laws.

Ever since the elec­tion of Don­ald Trump — an elec­tion con­ducted pur­suant to the es­tab­lished pro­ce­dures in the Con­sti­tu­tion, pro­ce­dures which the framers put in place to make sure that all of the states of the coun­try would have a voice in the se­lec­tion of our com­man­der in chief

— a cho­rus of those un­happy with the re­jec­tion of Hil­lary Clin­ton have, call­ing them­selves the “re­sis­tance,” sought to un­der­mine Pres­i­dent Trump and, in­deed, to force his re­moval from of­fice ei­ther through im­peach­ment or through pressure on him to re­sign. Un­for­tu­nately, this ef­fort has been aided and abet­ted by a na­tional me­dia over­whelm­ingly sym­pa­thetic to the Democrats and to Mrs. Clin­ton, which has en­er­get­i­cally pur­sued un­sub­stan­ti­ated ru­mors of Rus­sian col­lu­sion with the Trump cam­paign, and the­o­ries of the men­tal in­sta­bil­ity of the pres­i­dent him­self that also are with­out sub­stance.

It was also a be­lief of the framers that there were only two ways to de­stroy a re­pub­lic. One was the ac­cu­mu­la­tion of too much lux­ury, and the other was the li­cen­tious­ness of the press. I think it does not go too far to sug­gest, in our time, that we are cer­tainly see­ing ev­i­dence of the lat­ter, if not the for­mer.

Ac­cord­ing to the es­tab­lished pro­ce­dure, Mr. Trump and the Repub­li­can Party fairly won the right to seek to gov­ern for the next four years. This op­por­tu­nity was given to them by an elec­torate dis­ap­pointed by the di­rec­tion the coun­try had been mov­ing in over the course of the last eight years, and an elec­torate seek­ing the re­duc­tion of taxes, the im­prove­ment of health care, and the reign­ing in of an over­ween­ing cen­tral gov­ern­ment and ad­min­is­tra­tive state. This is the pro­gram Mr. Trump set out to im­ple­ment, and the pro­gram that re­sulted in the tri­umph of the Repub­li­cans in both the House and the Se­nate.

Rather than pur­su­ing the fan­tasy of for­eign plots, for which there seems lit­tle if any re­al­ity, it ought to be the job of a re­spon­si­ble me­dia and re­spon­si­ble leg­is­la­tors to help the Amer­i­can peo­ple and their duly elected pres­i­dent to de­ter­mine whether, in fact, the pro­gram on which the Repub­li­cans ran can be ef­fected. There is plenty to ex­am­ine, plenty to dis­cuss, and plenty to de­bate with­out wast­ing the re­sources and time of our fel­low cit­i­zens and their gov­ern­ment chas­ing af­ter chimeras. More­over, we can’t keep a re­pub­lic un­less we un­der­stand our obli­ga­tion to live un­der the rule of law, and to re­al­ize that the sys­tem un­der which we have thrived re­quires us to sub­mit to events like the re­sult of elec­tions with which we may dis­agree.

There is an­other in­ter­est­ing fea­ture of our his­tory which has been just about for­got­ten by the “re­sis­tance.” We Amer­i­cans, though we may well be com­mit­ted to rep­re­sen­ta­tive gov­ern­ment, do like to switch our lead­ers with some fre­quency, in or­der to max­i­mize the pos­si­bil­ity that we’ll achieve bet­ter gov­er­nance. Thus, only once since World War II has one party ever won the pres­i­dency three con­sec­u­tive times. It is this de­sire to change lead­er­ship (in an or­derly man­ner) that also helps ex­plain why Mrs. Clin­ton (who would have rep­re­sented a third term for the Democrats) was un­suc­cess­ful. Her cham­pi­ons seem to think that the 2016 elec­tion was hers for the tak­ing, and that only chi­canery and in­trigue could have kept her from the Oval Of­fice. This is highly im­prob­a­ble. Her de­feat, wholly apart from her short­com­ings as a can­di­date (which were myr­iad) was very likely in a re­pub­lic prop­erly con­cerned about how to pre­serve it­self. Stephen B. Presser is the Raoul Berger Pro­fes­sor of Law Emer­i­tus at North­west­ern’s Pritzker School of Law and the au­thor of “Law Pro­fes­sors: Three Cen­turies of Shap­ing Amer­i­can Law” (West Aca­demic Pub­lish­ing, 2016).

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