Are we a Democracy or a Republic and is there a difference?
So we talked about the distinction between a Rex Lex society and a Lex Rex society. A Rex Lex society is one where the sovereign or the will of man is the law, making man supreme. Conversely, a Lex Rex society is one where the law is the sovereign; therefore, the rule of law is supreme. Such a distinction is extremely substantive. Clearly, in a Rex Lex society you can have numerous types of governmental structures, from a Monarchy, an Aristocracy, an Oligarchy or even a Democracy. The number of sovereigns is not the relevant factor. What is relevant is that it is the sovereign that determines what is the law. Whereas in a Lex Rex society there is an acceptance in the supremacy of law as the ultimate authority. That is why a society that accepts that there is in fact such a thing as pre-existing law is by definition a Lex Rex society.
This highlights the distinction between a republic and a democracy and such distinction is not merely one of semantics. A democracy is a society that is ultimately one of majority opinion or mob rule. Whereas a republic, at least a republic as adopted and intended by our founders, is one governed by the rule of law, and in the case of the United States, the supreme law of the land is our Constitution.
This is why our government is described as an Empire of Laws not of Men. This is also why James Madison discussed at length not only his concern of a minority faction trampling on the rights of the majority, but expressed equal concern over a majority faction trampling on the rights of the minority. We were never to be a nation that was to be governed simply by majority opinion. The founders were very clear about their disrespect for such a governmental structure. John Adams warned that there never was a democracy that had not committed suicide. And more colorfully, Benjamin Franklin explained that democracy is nothing more than two wolves and lamb voting on what to have for lunch.
Their lack of respect for a democracy is why they chose not to give us one. It is why they decided upon a Republic, if we can keep it. I would argue that the first step in being able to keep anything is to understand what you are trying to keep. If we live in a Constitutional Republic, and that Republic is grounded upon the rule of law, but some of those laws even pre-existed the founding of our nation and our government, then it is clearly important to understand which of those laws and attendant rights pre-existed our Constitution?