Wait a minute! I thought the U.S. was a republic, not a democracy!

Republicans used to say this. In a way, they weren't wrong. But it seems they've changed their minds.

Not so long ago, it was common to hear conservatives say that America is a republic, not a democracy, when confronted with complaints that some policy or other is undemocratic. This assertion tended to be made as though it ended any debate, as if appeals to democratic values in debates about things like expanded voting rights or the electoral college are some kind of category error. To most liberals, this just sounded like trolling. Of course America is a republic, but it is also a democracy. The statement sounds like a false dichotomy. But behind the trolling, there was a real point, grounded in American political history. If this claim means anything, it expresses an idea central to the founders’ vision and the design of American government in the constitution, namely that government based purely on popular majorities is not a good idea.

Alarmingly, today’s Republicans don’t seem to believe it anymore. A flagrant example is recent attacks on judges, as if judicial rulings the Administration dislikes are illegitimate in the face of the president’s electoral victory. Elon Musk and far-right influencers have even claimed that these rulings amount to a “judicial coup,” as if these judges are illegitimately seizing power rather than exercising their constitutional function. Elon Musk tweeted last month that “The only way to restore rule of the people in America is to impeach judges.” (https://www.theguardian.com/technology/2025/mar/22/elon-musk-doge-judges-usaid).

Even without calling for impeachments, attacks on “activist judges” and “unelected judges” are now common by many on the right lately. An example is Rep. Darrell Issa’s (R-CA) “No Rogue Rulings Act” to restrict federal district courts from issuing nationwide injunctions that block federal policies beyond the individual plaintiffs involved. Issa stated that "The founders could never have envisioned judges and part of the legislative branch teaming up to tie down the executive and disempower the people." (Interview on Fox News Digital, February 25 2025). The blatantly ahistorical implication is clear: judicial rulings that some Administration actions are unlawful or unconstitutional are anti-democratic, and thus unacceptable. The House of Representative passed Issa’s bill on 10 April.

Musk, Issa, and everyone who voted for his bill couldn’t be more wrong, and are ignoring American history to serve their immediate political needs. The founders were all steeped in ancient Greek and Roman history and Enlightenment political philosophy and believed that democracy, in its classical sense of direct popular rule, could easily lead to tyranny, as it had in numerous ancient Greek city-states, and they feared the concentration of power in the hands of a demagogue. That is why they gave us a constitution that distributed power among three branches, created a bicameral legislature with one house representing the states equally to check the other house elected by popular majority and reserved great power to the states and not the federal government. In short, the various “checks and balances” so familiar to every high school civics student. Crucially, the framers created an independent, unelected federal judiciary to (in Alexander Hamilton’s words in The Federalist Papers No. 78) “declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” This role for the courts was established as applying equally to illegal or unconstitutional executive branch acts by the foundational Marbury v. Madison decision of 1803.

Hamilton also noted in Federalist no. 78 that “this independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, … to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.”

All of these “counter-majoritarian” features were designed to check the power of the popular will. In this classical sense, the U.S. was indeed a republic and not a pure democracy. That is, it was originally designed to be a non-monarchical system of representative government with clearly defined rules and limits on government powers, rather than a system that made the will of the majority its sole defining principle. That many of these counter-majoritarian institutions were also intended to protect the interests of the slave states and helped to win their agreement to the new constitution does not alter the fact that the founders believed deeply in the need for institutional checks on concentrations of power and feared that too much democracy might lead to tyranny.

In the modern era, how much sense does it make to insist on a distinction between republic and democracy in America? Since the founding era, the democratic features of the American Republic have expanded and multiplied. The many examples include voting rights for free men in most states (1856), the abolition of slavery and the right to vote and even run for office for Black men (1865, but not of course truly operational until the Voting Rights Act of 1965), direct election of senators (1914), and, finally, in 1920, full political rights for women. Some states even have provisions for direct democracy, whereby laws can be passed via ballot initiatives, without going through the state legislature. Where once candidates for election were chosen by party elites, since 1968 primary elections have given the people greater democratic say in the choice of candidates. All of these things, and many other constitutional amendments, laws and Supreme Court decisions have greatly expanded the democratic aspects of the United States, to the point where it makes little sense to insist on a binary opposition between Republic and Democracy. It is both. Yet, for all the advances towards greater democratic representation and civil rights, the US remains a constitutional republic with many democratic aspects but also many counter-majoritarian institutions. All true democracies – including those that are not republics by virtue of having a constitutional monarch, like the UK or the Netherlands or Sweden -– have such institutions. It is precisely those institutional checks on the potential for a tyranny of the majority that guarantee the existence of real democracy.

Until recently, conservative voices strongly endorsed the idea that the defining feature of the American republic is its counter-majoritarian, even “undemocratic” institutions. An example from an op/ed by Senator Mike Lee (R-Utah) in 2020 states:

Our system of government is best described as a constitutional republic. Power is not found in mere majorities, but in carefully balanced power...

Once passed by both houses of Congress, a bill still doesn’t become a law until it’s signed (or acquiesced to) by the president—who of course is elected not by popular national vote, but by the electoral college of the states.

And then, at last, the Supreme Court—a body consisting not of elected officials, but rather individuals appointed to lifetime terms—has the power to strike down laws that violate the Constitution. What could be more undemocratic?

As I said …, democracy itself is not the goal. The goal is freedom, prosperity, and human flourishing. Democratic principles have proven essential to those goals, but only as part of a system of checks and balances among the executive, legislative, and judicial branches of the federal government, as well as between the federal government and the states.

(https://www.lee.senate.gov/2020/10/of-course-we-re-not-a-democracy)

Another example of the argument that the American republic is not a democracy because power comes not from what Lee calls “mere majorities,” but “carefully balanced power,” can be found on the Heritage Foundation’s website, where an essay from 2020 also observes that “American republicanism, by contrast, offers protections from the instability, rashness, impetuosity, and social and political tyranny of democratic politics because it recognizes that the majority does not equal the whole of the community. “ (America Is a Republic, Not a Democracy. The Heritage Foundation, June 19, 2020 Bernard Dobski, https://www.heritage.org/american-founders/report/america-republic-not-democracy)

So it makes you sit up and take notice to hear Republicans now argue that the popular will as expressed in a presidential election justifies the Trump administration’s utter disregard for American republican institutions and brazen violations of constitutional checks and balances. If this were just another case of political hypocrisy, of suddenly espousing the view they once criticized because it might currently support policies they favor, we could dismiss it as one among many, sighing cynically about typical politicians. But the problem is much deeper than mere rank hypocrisy. Do these Republicans actually now believe we are a democracy, not a republic, in the sense that the popular will should override all constitutional checks and balances? Without getting into the dry thickets of the so-called theory of the unitary executive, the answer is sort of, but not because of any sudden enthusiasm for democracy. Rather, the goal here is not to make the U.S. more democratic, but rather to make it much less so by making it less of a republic. By appealing to the popular will, they seek to neutralize any checks on Presidential power. The courts are a major check on that power, particularly at a time when Republican majorities in the Congress are unwilling to exercise their constitutional role to act as a check on executive overreach. Undermining the courts, for all that they have been used in the past to protect power and privilege and deny democratic rights, is a fundamentally undemocratic move, because the courts play a vital role in guaranteeing those rights.

The Trump Administration and its various spokespersons’ numerous attacks on judges who rule against the Administration as “unelected,” and calls for their impeachment, are nothing less than an attempt to undermine the Republic. Their implication is that such rulings are a violation of some basic principle of American government, rather than a key part of our system of checks and balances. Even when they don’t say it outright, the implication is clear that the only legitimate power is that of the President because he was elected by the people. Criticism of Trump’s executive orders and the role of Elon Musk are met with charges that since Trump won an election, he has legitimate power to act as he sees fit. This view is clearly on display in a comment on social media by Vice-President J.D. Vance, who having gone to Yale Law School, certainly knows better: “Judges aren’t allowed to control the executive’s legitimate power,” or in White House press secretary Karoline Leavitt’s comment on a rare Administration victory in court that “This goes to show that lawfare will not ultimately prevail over the will of 77 million Americans who supported President Trump and his priorities.” In other words, some of the institutional features critical to making America a republic are not relevant in the face of the democratically expressed will of 77 million people. A more crude expression of an idea of democracy ripped from its constitutional framework could scarcely be imagined.

(The courts are a crucial bastion against Trump. What if he ignores their orders? The Guardian 15 February 2025 https://amp.theguardian.com/us-news/2025/feb/15/trump-court-rulings-lawsuits?utm).

This use of Trump’s electoral victory is a brazen attempt to appeal to a certain crude idea of democracy in order to destroy the American republic. If the idea of America being a republic, not a democracy, has any meaning at all, it means, among other things, that the popular will as expressed in a presidential election does not elevate the winner of the election above the constitution and the law. The President is not an elected king, but the chief magistrate of a constitutional republic with great, but limited powers. As the founders feared, unchecked power will lead to tyranny. It is true that Donald Trump won the 2024 election, but that election was within the structure of the democratic procedures of a constitutional republic. Winning that election does not confer the right to operate outside the rules. The legitimacy of the president rests on winning an election within a rational and legal framework, but cannot extend beyond it. Any claim otherwise is little more than a cheap justification for a naked grab for unchecked dictatorial power. If Trump succeeds, America will be neither democratic, nor a republic.