Word of the Month for December 2025: Constitutional Republic v. Democracy

Ever since the election in November 2024, I've been hearing the terms "Constitutional Republic" and "Democracy" getting batted around like beach balls at a Beach Boys concert.  

What is bothersome is that because so many people of importance (self, or otherwise) have been mixing these terms, there is a risk that both or either of the terms will be as generalized and common as "statutes" and "code" (which are NOT the same thing).

Wait, generalized?  What do you mean by that?

Well, certain formerly trademarked terms have, over the years, become so overused that they've become part of the public domain and are no longer protected under Trademark laws.

You've heard these terms but you may not know that what you are saying was once trademarked or otherwise important terms that have become more common over time.  Some better known examples include:

See what I'm talking about?  If nothing is done to ensure that terms like "Constitutional Republic" and "Democracy" maintain their distinctive meanings, then we the people will become no more unique than Jolly Old England (from which we split back in the 1700 's).

So, before we get too far into this, let's define each of these terms.  

A Constitutional Republic is a form of government in which citizens elect representatives to make decisions on their behalf, and the government's power is limited and defined by a written constitution. 

This constitution establishes the fundamental principles and laws, protects individual rights, and outlines the separation of powers among the executive, legislative, and judicial branches to prevent any one branch from gaining too much control.

Key features of a Constitutional Republic include:

• Elected leaders (including the head of state, often a president) rather than hereditary rulers

• A system of checks and balances to balance power and prevent tyranny, especially protecting minority rights from majority rule

• Government authority derived from and limited by the constitution, ensuring rule of law applies equally to all citizens

• Citizens participate indirectly by voting for representatives rather than directly on all laws, distinguishing it from a direct democracy

A Democracy is defined as: a system of government in which supreme power resides with the people, who exercise that power either directly or through elected representatives under a free and fair electoral system. The term literally means "rule by the people" (from Greek demos "people" and kratos "power").  Essentially, the majority rules.  A person's individual rights are secondary to the majority rule.

Key characteristics of democracy include

• Popular sovereignty: The people hold ultimate authority and govern themselves.

• Political equality: Every citizen’s vote or voice has equal weight in decisions.

• Participation: Citizens participate either by voting directly on laws (direct democracy) or by electing officials to represent them (representative democracy).

• Rule of law and protection of individual rights: Democracies typically uphold laws that protect freedoms, equality before the law, and minority rights, preventing unchecked majority rule.

• Mechanisms for accountability: Fair elections, freedom of speech, and peaceful transfer of power allow citizens to hold officials responsible.

The primary difference between the two is that a Constitutional Republic is governed by a foundational document (a Constitution) that limits government power to protect individual and minority rights.  A pure democracy operates on the principle of majority rule with fewer inherent protections for the minority. 

A key problem with mixing up or watering down the terms "Constitutional Republic" and "Democracy" can be problematic is because it obscures critical distinctions that affect how people understand government structure, individual rights, and the protection against majority tyranny.

A pure democracy centers on majority rule which can risk the tyranny of the majority where the majority may impose laws or policies detrimental to historical minorities or to people who don't want to do what the majority wants them to do.

"So what," you might say?  

Even though we are a Constitutional Republic, there are a number of times when Majority Rule (i.e. Democracy) took over, over the years.  For example: if you're old enough to remember, in the 1950's-60's, blacks and Mexicans were regarded as less than due to Majority Rule.  

Railroad companies imported thousands of Chinese workers to build railroads networks that crisscrossed America and then exiled them to slums when the work was done or prohibited Chinese from immigrating to the U.S. due to Majority Rule.  

While those of Japanese descent were carted off to internment camps after the attack on Pearl Harbor, I can't remember any internment camps for those of German descent when Hitler declared war on America - all thanks to Majority Rule.

So, "so, what"?!  The "so what" is that if there is no distinction between "Constitutional Republic" and "Democracy," the vocal minority will overtake the will of the silent majority in no time, flat!

What is particularly annoying is that notwithstanding the important distinction between the two concepts, there are a number of modern politicians who seemingly disregard the importance of the difference between a Constitutional Republic and a Democracy, such as:

Joe Biden (former POTUS)

“We have to defend democracy. That’s who we are as Americans.”
— Biden, Speech in Philadelphia, September 2022

“Democracy is on the ballot.”
— Biden, November 2, 2022, speech on threats to democracy

“Democracy is more than a form of government; it’s who we are.”
— Biden, Inaugural Address, January 20, 2021

Analysis: Biden consistently frames the United States as a democracy in identity and governance, emphasizing threats to “democracy” but not distinguishing it from the U.S. being a constitutional republic.

Kamala Harris (Vice President)

“We must defend our democracy, protect our democracy, and strengthen our democracy.”
— Harris, Speech in Selma, Alabama, March 5, 2023

“We are a democracy, and our democracy is strongest when everyone participates.”
— Harris, July 2022, National Urban League Conference

Analysis: Harris regularly equates America’s system with “democracy” in public speeches, using it to describe the system itself rather than acknowledging its republican constitutional structure.

Barack Obama (Former President)

“Democracy does not work if people do not vote.”
— Obama, Speech at University of Illinois, September 7, 2018

“We are the only advanced democracy that deliberately discourages people from voting.”
— Obama, August 28, 2020, eulogy for John Lewis

“Our democracy is at stake.”
— Obama, various campaign speeches 2020–2022

Analysis: Obama frequently uses “democracy” as shorthand for the American system and for electoral participation, with no distinction from the structural identity as a constitutional republic.

Nancy Pelosi (Former Speaker of the House)

“We have to fight for our democracy.”
— Pelosi, January 6, 2022, Capitol Remembrance

“The sanctity of the vote is the foundation of our democracy.”
— Pelosi, July 2021, on voting rights legislation

Analysis: Pelosi consistently frames the U.S. system as “our democracy,” emphasizing voting as its foundation, without reference to constitutional republican principles.

Hillary Clinton (Former Secretary of State)

“Our democracy is under assault.”
— Clinton, October 2020 interview with The Atlantic

“We need to protect our democracy.”
— Clinton, various campaign appearances 2016–2020

Analysis: Clinton, like other modern Democrats, uses “democracy” to describe the American system, focusing on electoral participation without acknowledging the U.S. as a Constitutional Republic.

OK, OK, enough with the political rhetoric, what I want to know is how distinguishing between a Constitutional Republic and a Democracy actually helps the modern attorney and/or legal system under which we now operate.

As it happens, there are a number of reasons why it is important to distinguish between a Constitutional Republic and Democracy for the modern lawyer.  

Lawyers Operate Under a Constitutional Framework, Not Pure Majority Rule

In a constitutional republic, laws, policies, and government actions must comply with the Constitution.  So, even if a majority of voters or legislators support a law, if it violates constitutional rights (e.g., First Amendment, due process), lawyers can challenge it in court.  This means lawyers can protect minority rights and individual liberties against majority preferences.  

 

For example, even if 80% of voters passed a state law banning certain speech, lawyers can still challenge it as unconstitutional.  In a pure democracy, that law would stand because it reflects the majority’s will.

 

Judicial Review Exists Because We Are a Constitutional Republic

Presently, lawyers have the ability and opportunity to argue constitutional challenges in federal and state courts (e.g., using the Supremacy Clause, the Bill of Rights, the 14th Amendment).  Under a Constitutional Republic, courts have the authority to strike down laws that violate constitutional principles, regardless of how popular the law is. 

 

If we were purely a democracy without constitutional limits, lawyers would have no basis to overturn laws simply because they violate individual rights.

 

Protection of Clients' Rights Against Government Overreach

Lawyers rely on constitutional protections to defend clients against unlawful government action.  For example, in criminal cases, defense lawyers often use the 4th, 5th, 6th Amendments to challenge unlawful searches, coerced confessions, or unfair trials.  

 

Civil rights lawyers use 1st and 14th Amendments to challenge discriminatory laws.  These protections only exist because the Constitution is a higher law than that of the will of the majority.

 

Constitutional Limits Guide Legislative and Executive Actions

Lawyers advising government agencies, legislators, or executives must ensure policies conform to constitutional standards, not just public opinion.  

 

For example, election laws must comply with Voting Rights Act and other constitutional protections.  Also, criminal statutes must meet due process and equal protection standards.

Finally, in a constitutional republic, powers are divided between the federal and state governments as specified in the United States Constitution.  

 

Lawyers use these principles to challenge federal overreach under the 10th Amendment, assert state sovereignty, and determine jurisdictional questions in litigation.  In a pure democracy, there is no guaranteed distribution of powers between federal and state levels.

 

Bottom line is that lawyers function as our last line of defense defending the Constitutional order and our individual rights (like free speech, gun rights, voting rights) - which ONLY exist because we live in a Constitutional Republic.

 

That's the "so what"!