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Malcolm F. Lowe on The Classical Foundations of the American Constitution: Prevailing Wisdom, by David J. Bederman

Filed under: U.S. Policy
Publication: Jewish Political Studies Review

Jewish Political Studies Review

Jewish Political Studies Review 22:3-4 (Fall 2010)

Anyone who reads the discussions that took place during the emergence of the Constitution of the United States will notice the frequent references to the political institutions of classical antiquity. In recent times, the trend has been to regard all that “as some peculiar and pretentious residuum of the elite culture of the times” (222). The “prevalent view” in the “modern historiography of the intellectual life of the early republic” is that “classicism was a mere window dressing to the pragmatic, hard-knuckled politics of the period” (ibid.).

David J. Bederman shows very effectively that this modern consensus is superficial and absurd, that education in the classics was so deeply ingrained in the mentality of the Framers of the Constitution that they were obliged to ponder on ancient precedents for their contemporary issues and to draw lessons from the experience of Greece and Rome. Even those, a minority, who wanted to expel the classics from modern education had themselves usually been educated in that manner, and they participated on that basis in the shared discourse.

At the same time, the Framers were by no means uncritical admirers of antiquity. On the contrary, they were less concerned to copy ancient precedents than to identify and avoid the constitutional flaws that had led to the downfall of ancient republics and confederations. “Far from imitating classical models, the Framers were essentially conducting a ‘political pathology’ on ancient forms of government, attempting to understand why they failed or changed in unexpected ways” (51). Thus, besides their understandable antipathy to monarchic tyranny, many of them held Athenian democracy in contempt, regarding it as a form of mob rule. In this regard, the title of Bederman’s book is a little misleading; “classical context” might have been more precise than “classical foundations.”

Education and Scholarship

In its opening chapters, the book investigates what was the typical education of the Framers, which ancient authors they knew, and where more recent classical scholarship has changed the image of antiquity that was current in those times. It seems, though, that even where the Framers had an inaccurate conception of some ancient institution, the conclusions that they drew for their own purposes were mostly not less sound.

School education in those days consisted very largely of the learning of Latin and Greek grammar. It also included British history and the geometry of the first six books of Euclid. College education both presumed and elaborated that foundation, consisting largely of classics, mathematics, and philosophy, besides rhetoric, history, geography, and maybe French. After that, one might seek qualifications for the medical or law professions or for the ministry in a church. Since so many of the Framers were lawyers, it is of note that besides the English common law they might be expected to study standard works of continental European law, sometimes available only in Latin or French.

To judge from whom they chiefly quote, the Framers had widely read and generally admired Cicero, besides familiarity with certain Roman historians (Sallust, Livy, and Tacitus). Among Greek authors, they particularly appreciated Plutarch and Polybius, followed by Thucydides, Aristotle, and Plato. They preferred the more empirical approach of Aristotle’s Politics to the idealized autocracy of Plato’s Republic, but most of all they studied the analysis of the Roman republican constitution in the sixth book of Polybius’ Roman History. Bederman himself quotes and discusses this passage at length in order to clarify what the Framers would make of it.

Not that the Framers necessarily read those works in the original, although many were capable of it. They might use translations and their editions of the original texts were inferior to those of today. Above all, they read them via the works of contemporary authors. Thus “Polybius’ theory of balanced government must be regarded as one of the crucial linchpins of American constitutionalism,” albeit “filtered through the later writings of Machiavelli and Montesquieu” (59).

Two relevant ancient works, as Bederman notes, were unavailable to the Framers. One was the Republic of Cicero, of which they could know only ancient extracts, chiefly the concluding “Dream of Scipio.” Somewhat imprecisely, Bederman states that the work was rediscovered in the early nineteenth century. In fact, the Vatican palimpsest contains many omissions and illegible spots; only the first three of the six books are substantially preserved. (With this exception, however, the book’s references to classical scholarship are reliable and pertinent.)

The other and more important work, found in the late nineteenth century, is the Athenian Constitution of Aristotle or maybe a pupil of his. The early history of Athens is missing from the papyrus, but it does contain a very detailed account of the working of the constitution in the fourth century. The Framers, therefore, knew well the popular excesses committed under the fifth-century democracy, as described by Thucydides and others, but not the reformed fourth-century democracy, which functioned much more smoothly and equitably. Fourth-century Athens was one of the pleasantest places to live in the ancient world and this ended not because of weaknesses in the constitution but because of Macedonian military power.

Constitution-Making, Then and Now

The Framers who made most use of their classical education include John Adams, Alexander Hamilton, James Madison, and James Wilson. What particularly caught their eye in Polybius was his ascription to Rome of a “mixed constitution” in which the various monarchic, oligarchic, and democratic elements both gave representation to all parts of the citizenry and acted as restraints on each other. Thus whereas a constitution based on only one of the three had typically drifted into extremes of tyranny, social differences, or mob rule, the Roman constitution had survived both internal turbulence and external threats for so long.

The adoption of the trio of president, Senate, and House of Representatives was influenced by that model. At the same time, the Framers knew that precisely when Polybius wrote, the Roman Republic had begun its gradual collapse under the pressure of unresolved internal dissensions.

The lesson that emerged in the discussions of the Framers was that the Romans had a system of constitutional checks and balances, which was an indispensable requirement, but a wrongly conceived one. The Romans relied on collegiality in government: two consuls, not just one, ten tribunes, and so on, all with equal powers so that no individual could become a tyrant. The fault in this approach was that executive power was too diffuse to be effective in times of crisis, when the Romans would have to choose a dictator with tyrannical powers.

On the other hand, the elected officials and the Roman popular assemblies (comitia) often exercised a mixture of executive and legislative and judicial functions. The solution found by the Framers was to effect a clear separation of these functions, to strengthen each individually, but to give them powers of control over each other. “The enduring legacy of the ancient theory of mixed constitutions thus came to be manifested in the notion of separation of powers” (66).

As Adams put it (quoted by Bederman, 82), only “three major discoveries” had been made since Polybius: “Representations, instead of collections, of the people; a total separation of the executive and legislative branches, and of the judicial from both; and a balance in the legislature, by three independent, equal branches.”

A curious consequence is the emergence of the term “representative democracy” to describe modern states. As this reviewer has pointed out elsewhere, a more accurate term would be “competitive oligarchy.” That is, every few years the citizens are able to choose between the party leaderships (classic oligarchies) that offer to rule them for the next few years. For Aristotle (Politics IV.15), elections are characteristic of oligarchies, whereas democracies cast lots also in the appointment of magistrates. He could speak of democracy diluted by the election of certain officials (such as the ten generals in Athens), but to him “representative democracy” would have been a contradiction in terms. Thus the chief heritage of ancient democracy, in those modern states that have it, is trial by a jury of citizens chosen by lot.

Only Switzerland has today a constitution that an ancient Greek or Roman might consider democratic, since the ready use of referenda at all levels of government enable the people to decide public policy and make the executive its servant. Cicero, on the other hand, would recognize in the modern Republicans and Democrats a reflection of the Optimates and Populares, his terms for the political alliances that vied for power in his day.

The difference, of course, is that the United States, unlike Rome, achieved world power without repeated massacres of political opponents, the emergence of military tyranny, the loss of personal liberty, and the freezing of income disparities into permanent executive castes. To avoid exactly that was the conscious aim of the Framers, who were manifestly familiar with the intricacies of the Roman form of government. They deserve all credit for their achievement.

To illustrate his thesis in detail, which will not be pursued here, Bederman gives case analyses of five issues that arose in the discussions of the Framers. They are “Confederations and Leagues,” “Bicameralism and the Senate,” “Executive Power,” “Judicial Functions,” and “Republics at War and in Peace.” The Framers were technically mistaken in treating the Amphictyonic League as a confederation of states, but nevertheless learned from its faults and failures when designing the federal aspects of the Constitution. Besides simultaneously concentrating and restricting executive power in the president, a notable contribution to stability was the decision to permit judges lifetime tenure and grant them an adequate salary.

Bederman also considers five contemporary constitutional issues to see whether anything can be learned from the approach of the Framers. His justification is that the U.S. Supreme Court does take the opinion of the Framers into account in constitutional matters, although it gives less weight to “originalism,” the opinions of the original legislators, when it comes to ordinary statutes. Most remarkable, perhaps, is how the late Senator Robert C. Byrd quoted Roman precedents at length from Montesquieu, wholly in the style of the Framers, in his attempts to oppose congressional legislation that would have enabled the president to impose line-item vetoes on financial measures. In 1996 a statute to this effect nevertheless passed, but the Supreme Court struck it down.

The other four “Modern Resonances,” as Bederman calls them, are “Sovereign Immunity and Federalism,” “Executive Privileges and Accountability,” “The Electoral College,” and “Republican Government.” In a short final chapter, Bederman considers whether the American Constitution marks a dividing line between classical and modern governance, while summing up the role of classicism in the work of the Framers. Yes, they did have inferior texts and they did sometimes go down a mistaken exegetic path, but “even by today’s standards of philology, archaeology, and classical studies, the Framers did a reputable job in trying to make sense of antiquity” (228).

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MALCOLM F. LOWE is a Welsh academic in the fields of Greek philosophy, the New Testament, and Christian-Jewish dialogue.