2019 C. May Marston Lecture: Roots of the US Constitution
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2019 C. May Marston Lecture: Roots of the US Constitution

September 13, 2019

Thank you to the administration and the Center
for Scholarship and Faculty Development for their support of this lecture series. Thanks also to the staff who assist me every
year, especially Jenn, Dom, and David. Thanks to my audience for listening to what
I have to say. The Constitution of the United States was
ratified on September 17th, 1787 by 39 delegates from 12 states, including Alexander Hamilton. Continuing by the numbers, it is over 230
years old and has been amended 27 times. But the Constitution did not spring up out
of nowhere. Numerous traditions of law and practice contributed
to it, and numerous books and scholars have traced various lines of intellectual and legal
genealogy. But I am most interested in what the US Constitution
took from Classical traditions, especially the cultures, plural, of ancient Greece and
Rome. Sometimes Greece and Rome are spoken of as
Greece’n’Rome, as a one-for-two or hendiadys, but the term “ancient Greece” covers a
motley crew of squabbling city-states rather than the current modern nation-state, and
the term “ancient Rome” covers over a thousand years of political practice under
quite different scales or conditions. The preamble reads, “We the People of the
United States, in Order to form a more perfect Union, establish Justice, insure domestic
Tranquility, provide for the common defence, promote the general Welfare, and secure the
Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution
for the United States of America.” The idea of “we the people” is partly
inspired by the Roman word populus, spelled p-o-p-u-l-u-s. Our word “people” comes from this Latin
word through French. The Roman people or populus were considered
partners with the Roman Senate, a body of legislators, in managing the Roman Republic. The letters SPQR, a Latin abbreviation for
the Senate and People of Rome (the Q is “and”), appeared on Roman coins and even today, appear
on sewer and utility box covers in the modern city of Rome. I am hoping to do a future project on the
meanings of the Latin word populus and how it differs from English “people,” but
here I want to highlight the overlap between these words, on how the United States sees
itself at least partly as a continuation of the Roman Republic. But I want now to discuss an idea that goes
well beyond a single word, the separation of powers, an idea perhaps familiar from government
or history class. The idea here is that the legislative, executive,
and judicial branches of government each have their own constitutionally enumerated powers. While they can oppose each other on matters
of policy or of law, they cannot exercise one another’s powers. The president cannot declare a law unconstitutional—only
the Supreme Court can do that. The Supreme Court cannot propose a spending
bill for roads and highways; only the House of Representatives can do that. Separation of powers is a descendant of the
ancient idea of the mixed constitution of three types of government—democracy, oligarchy,
and monarchy. Democracy is rule by the people, often through
votes on proposals prepared by subcommittees. A direct or plenary version of the form of
government held sway at ancient Athens, and each man in the Athenian assembly had one
vote. The Congress in our system is intended to
be a democratic element, but representative rather than direct. Oligarchy is rule by the few, usually based
on a property minimum, but sometimes based on heredity, and this type of government was
found at ancient Thebes, Athens’ neighbor to the northwest. The Supreme Court in our system is an oligarchic
element, but through lifetime appointment rather than by property or heredity. Monarchy is rule by one person, and this type
of government could be found everywhere in the ancient world, including Macedonia and
Egypt. In our system, the President is a quasi-monarchical
element, though limited by having to stand for re-election and by term limits. These three types were familiar to many ancient
Greeks, especially Athenians. The historian Herodotus is known to my ancient
history students as the Father of History or Father of Lies. Around 440 BC, Herodotus tells to his Athenian
audience a tall story that explains why the Persians have a monarchy under the Great King,
and not a democracy, like Athens. When the Persian King died, three noblemen
argued about whether Persia should be a democracy, an oligarchy, or a monarchy. Each form of government has its weaknesses—democracy
has policy zig-zags or gets out of control like a river in flood, oligarchy becomes bogged
down in personal rivalry among the oligarchs, and monarchy allows one man to get away with
insulting or murdering his enemies. Darius, advocate of monarchy, proposed that
the three men ride their stallions to a well-known suburban area of the Persian city of Susa
on a set day, and whoever’s horse neighed first would decide Persia’s form of government. Darius rigged the contest by having his stallion
visit the meadow earlier and mate with a mare on that very spot. So when the horses reached the meadow some
days later, Darius’ horse neighed first because of his happy memories. Darius not only kept Persia a monarchy but
also became himself the Great King of Persia. Later in his reign, he invaded Greece, only
to be repulsed in a close battle with the allied Greek city-states at Marathon. The messenger who ran to Athens to report
the Persian loss gave us the modern Marathon race, 26.2 miles. Herodotus also describes this event, but a
bit more truthfully. The weaknesses of each form of government
led the Greeks of Sparta to establish a mixed constitution, which had hereditary monarchy,
but in the form of two kings so that one could lead armies while the other ran things at
home. Again, these kings were the monarchical element
and resembled our President in their responsibilities. The Spartans also had a small council of 30
called the Gerousia or “old-guy-group” to debate and propose policy, and it was made
up of the two kings plus Spartan aristocrats who had survived past age 60 despite almost
constant warfare. The Gerousia was an oligarchical element,
but was concerned with law and policy. There were also 5 ephors, officials whose
role was to veto laws that departed from tradition, to indict the kings if they committed misconduct,
and to prevent changes to the system, as their legendary founder Lycurgus intended. The ephors resembled the Supreme Court in
being an oligarchical element and in preventing unconstitutional action. Sparta also had a large assembly of free men
organized like the army to vote yes or no on policies or on declarations of war, but
debate and deliberation were limited; however, the assembly also elected the ephors. The assembly was a democratic element, but
also the weakest part of the system. This system was admired in theory by many
Greek political thinkers, although in practice the ephors were often much more powerful than
the kings or assembly. The Spartan system was quite oriented towards
self-perpetuation and even continued to operate as a shadow of its former self when other
powers, like the Kingdom of Macedon, effectively controlled Sparta. Aristotle, living in the 300’s BC, is known
today especially as the inventor of the scientific method, of testing a hypothesis by experiments. He moved several times throughout Classical
Greece, including Athens twice and two different royal courts, Atarnes in Asia Minor and Macedonia
in north Greece. At the Macedonian court, he became the teacher
of the future ruler Alexander the Great. In other words, he experienced two different
forms of government: he lived in the democracy of Athens and in monarchies with royal courts. He was very familiar with the shortcomings
of each system, so his writings do not advocate monarchy. Aristotle does not recommend democracy over
all the other systems, either, as we might expect from his sojourn in Athens. Rather, he commends the Spartan-style mixed
constitution, but he downplays the monarchical element to emphasize the mixture of oligarchy
and democracy (Politics 4.9). Aristotle was very popular in early America,
partly because of his thoughts about politics, which sees the political community or polis,
an agglomeration of villages and household, as the fundamental unit (Politics 1.8). Aristotle also identifies legislative, executive,
and judicial functions of government, but he does not divide them up in the same way
as the US Constitution (Politics 4.14-16). Moreover, Aristotle did not have many competitors. For example, Aristotle’s teacher, Plato,
could not serve as a useful political theorist because he advocated monarchy in the form
of a philosopher-king, yet the young American state had just rejected monarchy as a possible
form of government. Next to take up the mixed constitution in
the ancient world was the Greek military officer and historian Polybius. Polybius came from the city of Megalopolis,
literally “big city.” This city was part of the Achaean League,
an alliance of southern Greek cities against both Sparta and Rome. Polybius, shortly after he turned thirty,
became a popular speaker at the meetings of the Achaean League, and insisted on adhering
to treaties without knuckling under to Rome. The Romans arrested him in 167 BC and took
him to Rome as a hostage or political prisoner. When he wrote his history of Rome, he made
sure to attack rabble-rousers and demagogues in order to reassure Rome that he had learned
his lesson. His history almost sneers at the common people
or the mob, even though they had applauded his speeches at plenary meetings of the Achaean
League. His history also discusses the Roman government
to explain why the Romans conquered the Greeks. The Romans had a similar system of a mixed
constitution during the Roman Republic, and Polybius praises it. The Roman system was more flexible than the
Spartan system by the fact that it was able to be changed. The monarchical element was not a dual kingship,
but a pair of annually elected officials called the consuls, who were chief executives like
our President. The oligarchical element was the Senate, also
derived, like Gerousia, from the word for ‘old guy.’ It ideally consisted of former office-holders
and their descendants, but it had a property minimum to skew its membership toward the
wealthy. The democratic element was a series of assemblies
set up in various ways, but designed to filter popular will through the will of the upper
classes rather than allow direct democracy. Often the wealthier groups voted first, before
the poorer groups, and thus had more influence. The filtering of the popular will in the Roman
Republic was not a bug, but a feature. In 1787, the idea of direct democracy, like
Athens, was repellent, on the grounds that it was likely to lead to revolution and thereafter,
tyranny, like Oliver Cromwell’s Protectorate of England. Political scientist Nadia Urbinati identifies
the late 18th century as the peak of anti-democratic sentiment. But some of the anti-democratic feeling was
a reaction against the French Revolution, typified by Edmund Burke’s pamphlet, “Reflections
on the Revolution in France,” a hot take published in 1790. Polybius and his view of good government were
so important that Thomas Jefferson had copies of Polybius sent from Paris to his fellow
Americans James Madison and George Wythe, who were at the Constitutional Convention. Alexander Hamilton drew chiefly from Polybius
the lesson of unity, that the weak leagues of the Greek city-states were no match for
the Roman Republic. Therefore he believed that the solution for
the United States to fend off the imperial powers of Europe was to have a strong federal
government, including a national bank, rather than powerful state governments. Almost as important to early Americans was
the Roman lawyer and politician Cicero. Living in the first century BC, Cicero knew
the Roman Republic was about to fall under the domination of a single powerful leader;
in other words, the Roman Republic was about to change into the Roman Empire. He favored first oligarchy based on the Senate,
then monarchy under the rule of a strongman. Cicero appeared to think that the Republic
could be saved if the strongman agreed to exercise restraint and to retire after re-establishing
order. He hoped that Pompey the Great could serve
as such a person, but this was not to be. Pompey died in a civil war in 48, leaving
the Romans to the domination of Julius Caesar. I should bring up here Cicero’s most explicitly
political work, called On the State or, in Latin, De re publica. Nevertheless, On the State survived mostly
in fragments until rediscovery of a large piece in 1819, over three decades after the
Constitutional Convention. The main event in the text, known throughout
the Middle Ages, was a dream of the Roman general Scipio about how those who serve the
state go to heaven. The dream occurs in the mid 2nd century BC,
and not coincidentally, the Roman Senate was strongest at this period. This text also featured Cicero most explicitly
advocating for a mixed constitution (De Re Publica 2.41) that avoided domination from
one part of the government or from angry mobs, but Cicero mentions the need for political
balance in many other works. We also see an anti-democratic side of Cicero. The Roman patronage system often exchanged
money or political favors from the powerful for votes from the poor, and Cicero benefited
from this system to win elections. In On the State, Cicero therefore proposed
prohibiting secret ballots to ensure the working of the Roman patronage system, to make sure
that the patrons got their money’s worth in votes. Many of the Constitutional delegates read
other works by Cicero, partly because he was an actual politician and actually won some
elections, but also because he was a wealthy landowner, slaveholder, and landlord who was
suspicious of popular power. Thomas Jefferson owned something like 40 different
works by Cicero over his lifetime. Ciceronian ideas affected the formation of
the US Constitution, such as how the mixed constitution became the separation of powers,
a way to prevent one element of the government from becoming too powerful and dominating
the others. So far, my talk has been about tracing lineages
or even a simple connecting of dots, a matching of features found in the US Constitution and
in ancient societies or political theorists. But sometimes features of the US Constitution
are responses to problems that ancient societies failed to solve. Let me start with the most important problem,
then move on to a weird problem. A large ancient problem was slavery, but part
of the problem was that ancient societies did not see it as a problem. No ancient society or political theorist,
except perhaps a couple Stoic philosophers, ever considered abolishing slavery. Yet emerging ideas of human rights were already
beginning to form in 1787. In reaction, pro-slavery delegates made sure
that slavery was assumed in the constitution. Importation of slaves from Africa or from
elsewhere could not be banned before 1808 by Congress, but import duties could be imposed,
as you can see on my slide. Slaves counted as 3/5 of a person for apportioning
congressional representation (Article 1 Section 2, Clause 3), though slaves could not vote
for any form of congressional representation; this rule was somewhat contradictory to say
the least. But slavery itself represented a more fundamental
contradiction at the heart of the Constitution. Philip Pettit and other political theorists
have formulated the key principle of small-r republicanism as non-domination. That is, the purpose of government is to prevent
the domination of a person or group by others. Slavery contradicts this principle of non-domination. Or, put another way, the existence of unfree
people threatens the principle of freedom. The Civil War was fought over this contradiction,
and one outcome of the war after the defeat of the Confederacy was the passage of the
13th, 14th and 15th Amendments. The 13th outlawed slavery. The 14th Amendment repealed the 3/5ths compromise
and defined citizenship by birthplace to make former slaves automatically citizens. The 15th Amendment attempted to prevent discrimination
against former slaves and their descendants, with limited success. But all these amendments are attempting to
rebut ancient ideas rather than draw from them. Now for the weird problem: “corruption of
blood” as a legal concept in Anglo-American and ancient law. In ancient Athens, the Alcmaeonid family were
declared cursed for killing the politician Cylon, who took refuge in a temple in 632
BC. But they could not simply offer a slaughtered
ox or a piglet as a sacrifice to the gods and be done with it. Instead, the curse was thought to follow the
Alcmaeonids and their descendants so closely that the curse came up in political discourse
200 years later. Pericles, a member of the Alcmaeonid family
and a prominent general and legislator, was called accursed by his opponents, especially
after Athens suffered losses in the Peloponnesian War against Sparta. Ancient ideas of miasma, literally corruption
or ritual impurity, were still powerful in early America, as shown by Edgar Allan Poe’s
short horror story “Fall of the House of Usher.” But by 1787, this belief in corruption of
blood had taken a more straightforward form in law, the prohibition of inheritance. If your blood is corrupted from your ancestor’s
crimes, you cannot inherit the ancestral property. So in the article discussing the Judicial
branch of the federal government, specifically Article 3, Section 3, Clause 2, the US Constitution
reads “The Congress shall have Power to declare the Punishment of Treason, but no
Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the
Life of the Person attainted.” In other words, traitors like Benedict Arnold
did not make their family or heirs liable for their crimes, and their family and heirs
could still inherit their property. “Corruption of blood” has since been abolished
in British law, but it was very much a powerful legal concept in 1787, even though now it
seems like a weird problem. Finally, I want to do quick sidebars on the
first ten amendments to the Constitution or the Bill of Rights, some as adopting ancient
ideas, but others as resisting them. The First Amendment contains more than one
idea, including freedom of speech and of the press. Freedom of speech and of the press is an adaptation
and continuation of much earlier ideas—Athenians recognized the right of parrhesia, the right
of free men to address the assembly, which the Apostle Paul claims a few times to address
the church. Romans in practice simply did not have the
technology to police conversation, political rallies, graffiti, and hand-written pamphlets. Classicist Joy Connolly has argued that the
right to resist was built into Roman political culture and should be retained in ours. Of course, there are many other advocates
for freedom of speech and of the press, notably British poet John Milton in his treatise Areopagitica. The very name of that treatise refers to the
“Hill of Mars” in Athens where the Apostle Paul defended Christianity with his parrhesia
or freedom of speech. But the 1st Amendment also prohibits the creation
of an established religion for the United States. Lacking a state religion is a deliberate departure
from ancient practice. All Greek cities stressed loyalty to both
local and all-Greek deities like Apollo. The Romans during the Empire demanded sacrifice
to an image of the Emperor as a sort of loyalty oath. Under the Roman Empire, Christians were persecuted
for refusing to offer such sacrifices. In the early modern period in various European
countries, dissenters from the state religion had often become refugees and fled to other
countries or to European colonies. Although not having an established religion
was unthinkable in the ancient world, experiences of religious persecution led to America’s
not having a state religion. The Second Amendment reads, “A well regulated
Militia, being necessary to the security of a free State, the right of the people to keep
and bear Arms, shall not be infringed”. There is no ancient precedent for such a law,
and the legal scholar Stephen Finer calls it an indigenous peculiarity of America. Ancient cities would sometimes create militias
to defend themselves, and ancient laws often assumed that people were carrying weapons
or tools (they are the same word in ancient Greek). But ancient laws more often specify that weapons
must be laid aside or confiscated. For example, Roman generals had to lay down
their weapons for a victory parade or triumph in the center of Rome. In his Verrine orations, Cicero tells us that
slaves in Sicily were not allowed by law to carry weapons or tools that could be used
as weapons while they were unsupervised, since Sicily had been the site of more than one
armed rebellion by slaves. The 2nd Amendment, then, goes against ancient
precedent in specifying who can have weapons rather than who cannot. The Third Amendment forbids quartering soldiers
in a house without the owner’s consent. This is a response to British abuses of power
in the colonial era, but again, it goes against all ancient precedent. From the Persian Empire onward, ancient states
exercised the custom of angarum or aggareion, that is, extracting labor, supplies, and housing
from an area to support military operations. The key thing is that the extraction is temporary,
and it allows the army to travel without having to bring absolutely everything with it. This custom lies behind Jesus’ somewhat
puzzling command to “go the extra mile” in response to a request for aggareion or
porter services, “If anyone forces you to go one mile, go with them two miles” (Matthew
5:41). Jesus suggests that performing more aggareion
than required might change someone’s heart. Yet the authors of the Third Amendment tried
to avoid having the government rely on aggareion at all, and this amendment may partially explain
why there is a fort or military facility in every state and territory of the United States. The Fourth Amendment forbids searches and
seizures without legal warrants. All ancient societies had extensive networks
of spies and informers. The Persian Empire even had a position called
the King’s Eye, which was basically the head of the secret police. The Roman Empire had a network of spies called
“frumentarii” or “grain buyers” as their cover job, and these spies were hated
and feared. Early Modern England developed similar networks
in efforts to prevent overthrow of the monarchy, and these networks extended to their colonies. The Constitutional delegates were not against
intelligence gathering per se, but in favor of allowing only searches and seizures for
just cause rather than allowing fishing expeditions or opportunities to plant incriminating evidence
where it was previously lacking. The Fifth Amendment covers a lot of things. Basically, it limits how legal charges can
be filed against people, and I want to consider the limits one at a time. First, no capital charges may be filed against
soldiers while at war or “public danger.” This is a departure from ancient practice—Roman
judges called praetors traveled with their legionary armies to try cases against soldiers—treason,
desertion, espionage, etc., and often, the penalty was death. The Fifth Amendment does not allow double
jeopardy, being tried twice for the same crime, and ancient Greek and Roman laws agreed with
this principle. The issue is not simply fairness, but the
fact that ancient courts were often clogged with cases, and two trials for each crime
would double the backlog. The Fifth Amendment forbids self-incrimination,
and crime shows sometimes feature criminals “taking the Fifth” to avoid having to
testify against themselves. Self-incrimination was not prohibited in the
ancient world, but perhaps this clause was originally intended to prevent wives and slaves
from testifying against husbands or masters, based on the ancient idea that slaves and
wives are extensions of the legal identity of a free man. At the very end is the “takings” clause
forbidding the taking of private property without just compensation. The takings clause is also an innovation,
especially since a good deal of Roman land was conquered and then granted or leased from
the state; in fact, the English word “confiscate” comes from a Latin word meaning “take and
add to the public treasury.” It is hard to imagine the Romans paying anyone
for the land on which they built Hadrian’s Wall in Britain or any of the aqueducts in
Asia Minor. Many construction projects in Rome itself,
such as the Golden House of Nero or the Praetorian Camp at the city’s edge, involved the uncompensated
taking of private land. But the Romans would resonate most with due
process as one of the absolutely key restrictions on behavior. Without due process, things go downhill very
quickly, and people lose trust in the legal system. The Sixth Amendment also focuses on due process—a
speedy trial by impartial jury, no secret charges or witnesses, plus the right to the
“Assistance of Counsel”—an advocate or lawyer. Juries were present here and there in the
ancient world, and they are even mentioned by Homer on the Shield of Achilles. Some ancient juries were as large as 600 people
to prevent defendants from winning acquittal by bribery—very few criminals could afford
to bribe or intimidate all 600 people. But current thinking about juries, including
their smaller sizes, owes more to the Magna Carta and English common law than ancient
precedent. Nevertheless, the idea of counsel is very
Roman, and the Roman lawyer Cicero even identifies the role of the lawyer or advocate as essential
to the functioning of the Roman Republic, as someone protecting individuals or groups
from domination or from the loss of liberty. The Seventh Amendment specifies trial by jury
for everything over twenty dollars. This amount has not been amended in over 230
years, even though that amount might be as high as 250 dollars after adjusting for inflation. In practice, a lot of things go to small-claims
court, which lacks a jury; if you have ever watched Judge Judy’s television show, you
have seen how small-claims court works. But more important is the Seventh Amendment’s
insistence that civil suits follow due process, the rules of common law, rather than irregular
or random procedures. Again, due process or the rule of law is an
important ancient idea carried over into the Constitution. The Eighth Amendment specifies no excessive
bail or fines and no cruel and unusual punishment. The vagueness of these terms allows a lot
of argument—what is excessive? What is cruel? The point of the first clause of the Amendment,
about excessive bail or fines, is not to put people in debt to the state for the near future
or in perpetuity for the results of a judicial procedure. Debt slavery was a huge problem in a lot of
ancient societies; one solution was the Jubilee or debt reset as described in the Hebrew Bible. At Athens around 600 BC, Solon canceled debts
and abolished debt slavery, although no other Greek city-states followed his lead. The Roman Republic abolished debt-slavery
in 326 BC, but there were plenty of other sources of slaves, such as war captives. Cruel and unusual punishment is a characteristic
of tyrannical regimes, such as the tyrant Phalaris of Acragas in Sicily. He roasted his enemies alive inside a bronze
statue of a bull. The Athenians wanted to distinguish their
democracy from tyrannies and gradually reduced the number of crimes punishable by death. The Constitutional delegates also wanted to
distinguish their republic from earlier tyrannical regimes as much as possible with this amendment. The debate about appropriate punishment for
crimes goes in discussions of sentencing reform. Both Amendments 9 and 10 have a similar purpose,
not to make government the default holder of rights. All rights not enumerated belong to the people
or the States. This prevents the government from creating
new rights for itself but also strongly reminds us that the people, and secondarily the States,
are the source of the government’s legitimacy. Again, the Constitution’s preamble reads,
“We the people of the United States…do ordain and establish this Constitution of
the United States of America.” In other words, the people concede limited
power to the government to accomplish certain desirable purposes, and the power is conceded
rather than taken. In conclusion, I hope I have given you some
insight into the relationships between the US Constitution and ancient societies. Some ideas were derived from ancient societies,
but other ideas were resisted or reformed. In any case, our government was formed through
debate and deliberation of Constitutional delegates rather than through the neighing
of a horse. I hope that you will remember something from
my talk on Constitution Day, September 17th, and I hope that there will be many more Constitution
Days for us to celebrate. Thank you for coming.

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