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America is a Republic, Not a Democracy

american-flag-republic-pledge.jpegContrary to popular belief, the Constitution of the United States did not form a democracy. It formed a republic. Just think of the pledge of allegiance, which states, "and to the republic for which it stands."

To understand the difference, we first need to understand that there are two, and only two, basic concepts of government. These are Ruler’s Law and Common Law. Ruler’s Law says “he who rules makes the law.”  This means that the authority of the government is vested in a person or group of people who decide what is right and use their power to attempt to force obedience to everyone else. So, under Ruler's Law, it is the government that decides what is and is not a crime.

We readily recognize this principle when the authority to make the laws and enforce the on others is vested in a single person, a king, emperor or dictator. However, this is not the only form of government based on Ruler’s Law. The power to make the laws can also be vested in a particular group of people. For instance, one can have a theocracy, where those who belong to a particular religion make the laws for everyone else. Communism is also a form of Ruler’s Law, as one party (and the philosophy they espouse) is the basis for making the laws and those who have differing views are suppressed.

What most American’s fail to recognize is that a democracy is also a government based on Ruler’s Law. In a democracy, the majority can impose their will on the minority. Democracy has been called “mob rule,” because whoever can persuade the most people to support their “plan” gets to make the rules, which are then imposed on the minority.

The reason there is so much contention in modern American politics is because we have been convinced that America is a democracy, so we are fighting and arguing through various political parties, each vying to impose their policies on the rest of society. No wonder politics stirs up such anger in people. Our love of liberty causes us to fear people with imposing views forcing us to conform to their rules.

The Consent of the Governed

A republic is a government based in common law. In a republic, the sovereign authority of government lies in “we the people.” Unfortunately, we have lost the understanding of what constitutes “we the people.” We have been lead to believe that “we the people” refers to the majority opinion. It does not!

We the people are the individual people in this country who individually, not collectively, possess God-given unalienable rights. Referring back to the Declaration of Independence, we read: “…to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…"

In a republic, the government has one purpose and one purpose only, to secure the unalienable rights of each person living within the country. The government derives its “just powers from the consent of the governed,” but this does not mean it can derive unjust powers from the majority view.

In a republic, those who are the elected officials of the government are not rulers; they are public servants. They are the employees of the public, charges with assisting the public in the protection of their life, liberty and property.

Hiring Public Servants

To understand the concept of a republican form of government (and we’re not talking about the philosophy of the political party that call themselves republicans here), we can use a simple analogy.

Let’s say that we have a town consisting of 100 people. Under the common law, each of these 100 people has the unalienable right to protect their own life, liberty and property. This means that they individually and collectively have the right to use force, including deadly force, if necessary, to protect their God-given rights.

The town decides that they can better protect their rights by pooling their resources and hiring a security guard to patrol the town. Because they possess the right to protect themselves, they can delegate some of that responsibility to a security guard and hold their employee accountable for his or her performance at the job.

They draw up a contract, delegating limited rights to their security guard and then look for someone to fulfill the job. Several candidates apply and the citizens decide who to hire in this role by voting. The candidate who receives the highest number of votes is selected for the position. However, in hiring this security guard, they are NOT surrendering their unalienable right to protect their own life, liberty or property.

Moral Consent

The idea of American government is that town charters, state constitutions and the federal constitution are the contracts under which our public servants are hired. These social contracts delegate limited powers to these public servants, which are always subject the review of the “bosses,” or “we the people.” We hire these people as employees of “we the people” and the contract under which they are hired, and which they swear to uphold when they take office, states that their authority is limited to protecting our unalienable rights, because these are the only just powers we can delegate to them.

We could not morally give consent to a government to perform functions we could not morally do ourselves. In fact, if we order an employee to commit a crime and they do so at our behest, we are morally responsible for that crime. In other words, ALL of the moral authority of the government lies in the public, hence the government is a re-public, a representation of the public or common law. And, because the law is common to all, government officials must obey the same set of rules as the public.

We’ll return to the issue of government morality shortly. Bur we need to explain further how all the authority of the government lies in the public under the constitution, because almost no one in modern society understands this. They think that we delegate the government it’s authority by voting and this is NOT how the public maintains control of a republic.

Due Process of Law

The bill of rights says that we cannot be deprived of life, liberty or property except by due process of law. It is in this due process of law that the true power of the people lies.

To understand due process, we need to remind ourselves that in a republic, all government employees are public servant or employees of “we the people.” So, how does an employee, the public servant, arrest and prosecute one of their bosses? That’s where due process comes in. There are three parts of due process and each is under the control of “we the people,” as is defined in the Bill of Rights.

Due Process Step One: Arresting Someone

Since “we the people” are the bosses and the government officials are supposed to be our employees, they can’t arrest us or search or property without a warrant issued under probable cause.  This means that unless our employees witness us committing a crime first hand, they cannot interfere with our persons or our property. To stop the normal course of our daily activities (i.e., arrest us) or to search our property they must have permission from another “boss.”

This permission (or probable cause) is received when one or more citizens issues a complaint against someone, making them a suspect in a possible crime. This complaint from the “bosses” is what gives the judge the authority to issue a warrant, which gives the officers the right to interfere with our liberty and property. And remember, that under the common law definition of crime, a crime is a trespass against the life, liberty or property of another, not the breaking of some government rule.

Due Process Step Two: The Grand Jury

Once the accused citizen has been arrested, they have the right to be brought to the court to face their accuser(s). They have the right to answer the charge that has been made against them and bring in witnesses to demonstrate their innocence. If the crime they are charges with is “infamous,” or in other words, a felony, they have the right to face their accuser(s) before a grand jury.

The grand jury is a body of 16-24 private citizens (sovereign representatives of “we the people”). These representatives of the public hear the charges and hear the person’s answer to the charges. They then take a vote to determine whether the government will be given permission to prosecute the person charged with the crime.  This is called a “grand jury indictment.”

Under a grand jury indictment, the person is taken to trial in the name of the people. If I were being indicted here in Utah, the grand jury indictment would say, “The people of the state of Utah versus Steven Horne.”  The bill of rights specifically states that NO ONE can be made to answer for any felony (infamous crime) without a grand jury indictment. In other words, the state (i.e., government) is NOT supposed to be able to take me to trial for a serious crime without the permission of the people, represented by the grand jury.

Furthermore, I properly constituted grand jury also has the power to indict any public servant, which means they can charge any government official from a policeman to the president of the United States with a crime and send them to trial for it. This is because everyone in a republic is held to the same standard of law. There isn’t one set of rules for the “people” and another set of rules for the “leader.”

Due Process Step Three: Trial by Jury

The final part of due process is the trial by jury. Again, a jury is a body of private citizens, representatives of “we the people,” who are charged with deciding if the person who has been charged with a crime should be deprived of life, liberty or property. Here again, the authority of the government is vested not in the leaders, but in “we the people.”

Through the principle of jury nullification, the jury has the right to try both the law and the facts. Trying the facts means determining if the person actually broke the law. Trying the law means that the jury has the right to determine if the law is moral and if it should be applied in this particular case.

Perhaps you’ve heard of the Supreme Court declaring a law unconstitutional. Well, it’s not just the Supreme Court that has that right. Ordinary juries have that right, too. Thus, if a jury of 12 private citizens unanimously agrees that a law passed by the legislature is immoral, that is, violates the unalienable rights of the people, they can nullify the law.

This is how a government derives its just powers from the consent of the governed, not by voting. At every step of “due process” it is the people who are in charge of the government, not the government that is in charge of the people.

In Summary

If you’ve read this, it should be very clear our government no longer follows due process in most of what it does. People are indicted in the name of the state, not the people. Juries are not informed of their rights of jury nullification. Grand juries are not investigating alleged wrong doing on the part of government officials. In short, we have substituted a government based on Ruler’s Law for one based on Common Law.

As the government takes more power, I’m concerned that the majority of the people seem to want the government to have this power. Not only are our liberties in danger, but the very moral fabric of our society is in danger, which is what I want to discuss in the next installment. I want to talk about examining the moral implications of what we ask government to do.



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