In 1776, Thomas Paine wrote Common Sense, a pamphlet that galvanized American public opinion in the aftermath of the colonial confrontations at Lexington and Concord.  The disorganized revolt against British authority was largely undecided on next steps, public opinion having failed to coalesce around capitulation to London or revolution against the British government.  Paine’s argument for American independence was uncompromising.  Prefiguring the Declaration of Independence that put King George III front and center in the emerging conflict, Paine wrote: “In the monarchies, the King is the Law but in America, Law is King.”

In 2026, we sometimes obscure this fundamental republican premise when we observe that threats to our constitutional institutions undermine democracy.  That is, of course, true, but also a bit misleading.  There are democracies that are monarchies (like the UK) and there are republics that are autocracies (like the PRC) or theocracies (like Iran).  It is the constitutional character of the U.S. that its democracy is a republic, which is to say that law is the monarch, law is the final arbiter. 

This is confused by commentators who juxtapose democracy vs. republic.  At events in the 2024 presidential campaign, Trump rallygoers were repeatedly shown chanting, “we are a republic, not a democracy.” A similar confusion underlies the sarcastic neologism of critics that we are living in a “juristocracy” rather than a democracy and should strip the Supreme Court of the power of judicial review—the power to enforce law on government.

Of course there are practices that pose serious threats to our democracy—campaign finance rules that encourage corruption and gerrymandering that invites and reinforces party polarization—are two.  But the most deadly threat is the vitiation of our republican form of democracy by the undermining of the primacy of law. 

Such threats are not so obvious or so much discussed as campaign finance rules and gerrymandering (although both practices could not survive a more robust constitutional culture in the U.S.), but they are all the more insidious for that. 

A government under law is America’s greatest contribution to civilization because it makes possible the creation and maintenance of a national common ground—the U.S. Constitution—within which political contestation can take place.  Here, the guarantees of free speech and assembly, the rights of religious practice and human dignity are sealed off from government interference; the rights of minorities in the demos are assumed, so that no group—no matter how marginalized—is so isolated, and no group—no matter how numerous—is so exalted, that the need for persuasion evaporates.

The principal threat to democracy thus can come from allegedly “democratic” appeals to cast aside the fidelity to law in the name of exalting a popular movement.  Although it probably isn’t in the top 10 of public concerns, executive impoundment—the refusal to fund programs adopted into law by congressional action on grounds of fiscal discipline—is a striking example.  The flip side of impoundment is the funding of government activities by private gifts.  Here, too, the legal processes mandated by the Constitution are evaded.  But who cares?  Why not get a government building for free—perhaps a ballroom added to the White House?  Why not refuse to spend money so that taxes can be lowered?  Who would object?  Isn’t executive discretion in such matters mandated by a successful election?

In fact, such practices sever the vital link between the election of the only officials constitutionally authorized to fund government activities and the cost of those activities to voters, thus sedating popular concern.  In an aristocracy, it is not difficult to get the government’s rulers to pay attention:  they own the country. But in a democracy that linkage is provided by biennial elections of persons who must explain to the voters why the government took their money and what was done with it.

Of course there are other more sensational attacks on constitutional law: using the Justice Department to harass political adversaries with baseless prosecutions, militarizing the domestic environment by superseding local police and judicial authorities, defaming judges and encouraging threats of violence against them, demoting an opposition senator for the insolence of saying that American troops need not, indeed should not, carry out unlawful orders. 

But because these stratagems are so blatantly unlawful, they will—in time, after much expense, and after much suffering—be thwarted in the courts. 

What courts cannot effectively do is protect constitutional rules that are more elusive to injunctive relief (there are a thousand ways not to spend money, and a thousand concessions to be wrung from lawful recipients by the mere threat to withhold funds) and also to popular understanding. Thus American democracy destroys itself by undermining its republican foundations.