Guest Essayist: Joerg Knipprath


Two noted maxims of Roman constitutional law contained in the code of Justinian’s 6th century Corpus Juris were, “What pleases the prince is law,” and, “The prince is not bound by the law.” These are classic expressions of sovereignty. They locate the ultimate power and authority to make and enforce law in one identifiable person. They reflect the full imperium of the Roman emperor and create a contrast with the earlier Roman republic, when a similarly complete dominance was exercised only outside the city, by proconsuls in the provinces.

Yet there was another maxim in the Corpus, “What touches all must be consented to by all.” This suggests that the ultimate authority rests not in the governor, but in the governed. In the Roman republic, actions were taken in the name of the Senate and People of Rome. That idea was symbolized by the SPQR (Senatus Populusque Romanus) which was prominently displayed even on the standards of the imperial Roman legions. There is an obvious tension between these maxims. One might locate in that tension the beginning in Western political thought of the lengthy and ongoing debate over the nature of sovereignty.

One of the most influential expositors of the concept was the 16th century French jurist Jean Bodin. In his Six Livres de la République (Six Books of the Commonwealth), published in 1576, Bodin defines sovereignty as the power to make law. Political society, like other human organizations, is hierarchical. Someone must make the rules. Thus, sovereignty must exist as a precondition for a state. Sovereignty, Bodin insists, must be indivisible. And it must be ultimate and absolute. While his preferred sovereign is a monarch, that is not requisite. As a student of the classics, he asserts that all political constitutions are monarchic, aristocratic, or democratic. As a man of the Renaissance, he believes in scientific epistemology. But, before one can effectively study a country’s laws, one must know the source of those laws, which is in one identifiable man or body of men.

The appeal of such a theory to a strong ruler is clear, and there were few rulers of the early modern period as absolute in power and self-assured of his sovereignty as Louis XIV of France. The “Sun King” ruled from 1643 to 1715, said to be the longest recorded of any monarch in history, although during his minority France was governed under the regency of his mother, Queen Anne. He took over sole rule in 1661, after the death of his chief minister, the political and diplomatic virtuoso Cardinal Mazarin who had been the de facto ruler of France for a couple of decades. Louis’s famous dictum, “L’état, c’est moi” (“I am the State”), may well be apocryphal, but it summarizes his view of government.

Louis certainly was not alone in that regard. The Early Modern Period saw the rise of the nation-state and, as an essential component, the absolute monarch ruling by divine right. By the reasoning of various defenders of the new order, an absolute monarch as sovereign was as natural as the rule by the paterfamilias over the family and the rule of the pope over the community of believers. While Martin Luther and other early Protestant leaders might challenge the second analogy, they had no problem with the bigger point. On its way out was the old divided feudal structure, based on personal covenants of fealty, with power divided between popes and emperors, emperors and nobles, and nobles and freeholders. The conflict between King John and the nobles at Runnymede, which culminated in the Magna Carta of 1215, was an anachronism. More representative of the new order of things was King Henry VIII’s campaign of arrest and execution of English noblemen and seizure of noble estates. In similar manner, the walk by Emperor Henry IV over the wintry Alps in 1077 to Canossa to beg forgiveness from Pope Gregory VII and have his excommunication lifted, would be seen as rather odd. Instead, there was that same King Henry VIII first making himself head of the Catholic Church in England and, soon thereafter, head of the new Church of England.

Historians have speculated about the many possible causes of the rise of the modern nation-state. It is difficult to pinpoint any one cause, or even to distinguish between causes and symptoms. Was it the increased sophistication of weaponry and the changed structure of military operations, which eroded the relative equality of power among various nobles because of the greater expense of the new technologies and the larger armies drawn from commoners? Was it the growing influence of commerce due initially to the greater affluence and stability of society in the 12th and 13th centuries and then, ironically, to the economic recovery in the 15th century after the prior century’s population collapse from pestilence and famine due to the colder climate of the Little Ice Age? Was it the result of the decimation of the nobility due to the many wars among nobles, such as that between the House of York and the House of Lancaster in the English War of the Roses in the 15th century? Was it the European expansion and exploration in the Age of Discovery, enabled by European technological superiority, the expense of which could only be undertaken by comparatively large states and which, in turn, brought great wealth to their rulers? Was it simply, as Niccolo Machiavelli might declare, due to Fortuna and the virtu of dynamic statesmen with which a particular political entity was favored?

Whatever the reason, every ruler, it seemed, wanted to be what Louis XIV became. Timing was not uniform. England under the Tudors became the domain of an absolute monarch a few generations before France did, but also lost that status well before France did. The German princes operated on a smaller scale and were well behind France in their pretensions to absolute rule; indeed, the Holy Roman Empire never coalesced into a nation-state. But the common thread for these rulers, other than in various city states and in a few oddities such as the Holy Roman Empire, the Swiss Confederacy, and the United Provinces of the Netherlands, was that they claimed to exercise full sovereignty in fact.

The existence of the aforementioned oddities presented a problem for theorists such as Bodin. The confederated natures of such realms and their distributions of power among various political organs vexed him. His solution was simple. He either just assigned such divided governments to a pure system or declared them not to be true states. Thus, he characterized the intricate constitution of the Roman Republic as a democracy. The Holy Roman Empire, with its imperium in imperio, that is, a purported dual sovereignty, was not really a state, but a chimera of one.

Along with Bodin, another influential author of the doctrine of sovereignty was the 17th-century English philosopher Thomas Hobbes, whose major work on the topic was Leviathan. As Bodin had done, Hobbes declares sovereignty to be indivisible and absolute. But Hobbes goes further. His approach is more pragmatic and more rigorous than Bodin’s. Hobbes analyzes sovereignty less in terms of authority to make law, but rather in the ruler’s power to coerce others. That is the essence of the old Roman imperium, to command. For Hobbes, the sovereign’s legitimacy arises from the consent of the governed rooted in the social contract. That contract results from the human psychological need for peace. Mankind’s desire for survival impels humans to escape the brutal Hobbesian state of nature with its war of all against all. Human nature is both rational and self-interested. Hence, humans seek the safety of the political commonwealth and the strength of its organized coercive power.

Hobbes’s view of the relationship between subject and ruler is best described as covenantal, and his reference to an Old Testament creature is not coincidental. There is no equality of bargaining and equality of relationship as in a typical contract. The subject agrees to obey unconditionally, and the ruler provides protection and peace. To do that, the ruler must have unquestioned power to bend all persons and all institutions to his rule. The sovereign can act in accordance with established law or contrary to it. Church-state divisions are no longer an issue. The secular sovereign controls the ecclesiastical bodies, as Henry VIII controlled the church. It need hardly be added that a divided state or a system of distributed powers would be an abomination for Hobbes, as it would undermine the commonwealth’s stability and raise the likelihood of a return to the state of nature.

The Bodinian and Hobbesian approbation of undivided sovereignty in an absolute ruler sits rather ill at ease with certain assumptions about the American system. The drafters of the United States Constitution deliberately sought to create a system of balanced powers divided between the general government and the states and among several branches of the general government. The supporters of the Constitution frequently discussed the division between the general government and the states in terms of sovereignty, particularly the residual sovereignty of the states, in their efforts to assuage the concerns and blunt the criticisms of their opponents during the ratification debates. James Madison and others even argued that the Constitution was in many ways just a novel and workable modification of the confederal structure of the Articles of Confederation.

The Anti-federalists were not persuaded and, like Bodin and Hobbes, insisted that sovereignty was indivisible and that, within a union, imperium in imperio was impossible. Either the states were the sovereigns, as under the Articles of Confederation, or the general government was. While the framers may have attempted to “split the atom of sovereignty,” in the vivid words of Justice Anthony Kennedy, the effort was bound to fail. Either the states would control the general government or the latter would control the former. For the Anti-federalists, the teleological direction of the Constitution was clear: The general government would inevitably diminish the states to mere administrative appendages and become a tyranny.

This controversy over the nature of sovereignty in the Constitution has continued. Is there, indeed, an identifiable sovereign at all under the Constitution, with the split in authority among the legislative, executive, and judicial branches, as well as between the House of Representatives and the Senate? This does not even consider the role of what is, in the evaluation of some, the true sovereign: the wholly extraconstitutional vast bureaucracy with its essentially unreviewable combined rule-making and rule-enforcing power.

That question also leads to another controversy. To counteract the criticism that the Constitution was a path to oligarchic rule at best, and outright dictatorship at worst, the Constitution’s supporters made frequent references to the power of the people to participate in various political processes. In similar manner, there arose the claim that, in the United States, unlike even in Britain, “the people are sovereign.” In 1776, George Mason asserted in the Virginia Declaration of Rights, “That all power is vested in, and consequently derived from, the People; …” Although he also expressed caution about this principle, James Madison in Number 49 of The Federalist accepted Thomas Jefferson’s dictum that, “the people are the only legitimate fountain of power,” and acknowledged that, at least, in certain unexplained extraordinary matters, the people should decide directly.

But how do “the people” exercise indivisible and ultimate authority and power? Leave aside various inconvenient facts, such as the usual exclusion of large groups of “the people” from the political system, the often low fraction of eligible voters who actually participate, the ability of unelected bureaucracies or courts to frustrate the political decisions reached, and the dubious premise that “the people” have acted when the vote is, say, 51% in favor and 49% opposed. As the experience of ancient Athens and Rome shows, it is not possible for “the people” to gather in one place. As an interesting side note, modern technology makes such an event less implausible, but even with the capacities of a premium Zoom version, it might be difficult to get a couple of hundred million of “the people” to participate in policy-making. It is a far cry from an 18th-century New England town meeting, and even there, a majority assumes a power over a minority.

Moreover, aside from the Constitution’s optimistic reference to “We, the people of the United States,” every part of that document is about entities other than the people making laws and coercing individuals to obey those laws. Indeed, “the people” did not adopt the Constitution. Nor can they amend it. Technically, there is not even a guaranteed right in the document for “the people” to vote, as the states control the qualifications for voting in the first instance. True, here or there across the American constitutional landscape, one might spot an exemplar of popular sovereignty. Some states provide for direct participation by voting on ballot initiatives and referenda to make law, and there remain in some localities the afore-mentioned town meetings. One might even point to jury nullification as another example. But all of these are well outside the norm.

This dissonance between declarations of popular sovereignty and the reality of governments nevertheless has led some writers to try to reconcile them. Jean-Jacques Rousseau asserted that the people cannot act individually to legislate. Instead, their particular interests are collectivized and transformed rather mystically into the community’s “general will.” For Rousseau, the community is an actual, albeit incorporeal, entity with a will. That general will is expressed in laws through some legislative body. This seems to be a well-perfumed version of the Roman empire’s old constitutional sleight of hand that the people are the ultimate source of political authority but have ceded their sovereignty to the emperor.

Rather than resolve these tensions, one might distinguish between “theoretical sovereignty” and “practical sovereignty.” In a system whose claimed legitimacy is based on consent of the governed and which purports to base the legitimacy of its actions on some degree of popular participation, one might indeed posit a theoretical grounding on “the people” as the unlimited sovereign. The then-future Supreme Court justice James Wilson, a prominent lawyer and intellectual who signed the Declaration of Independence and the Constitution, wrote in his law lectures that a constitution originates from the authority of the people. “In their hands, it is as clay in the hands of the potter: they have the right to mould, to preserve, to improve, to refine, and to finish it as they please.” But that is not how government operates in practice. It is certainly not how the Constitution was adopted and how it has actually been amended.

Just as the high-minded assertion in the Declaration of Independence that “All men are created equal” states a Christian view of us all as God’s children or perhaps a still-aspirational secular equality before the law, “popular sovereignty” or “consent of the people” is a useful philosophic device to communicate the difference between a government and a bandit. It establishes a conceptual basis, perhaps a noble lie, for political obligation, that is, why one is obligated to obey the commands and coercions of the former, but not the latter.

The more difficult and practically relevant investigation is where in our constitutional system does the practical sovereignty lie. Who really governs, makes the rules, and coerces obedience? There indeed is no clear Bodinian sovereign in the Constitution’s formal dispersal of power. Despite Alexander Hamilton’s expansive views of executive power in The Federalist and his subsequent Pacificus letters, the President’s constitutional powers fall well short of a monarch’s, as Hamilton wrote, as well. Even Louis XIV, despite his pretensions, found out that his word was not everyone’s command. He did ultimately acknowledge on his deathbed, “I depart, but the State shall always remain.”

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.

 

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Guest Essayist: Ron Meier


In Federalist 31, using references to math and science, Hamilton says that, “IN DISQUISITIONS of every kind, there are certain primary truths, or first principles, upon which all subsequent reasonings must depend. But in the sciences of morals and politics, men are found far less tractable; yielding to some untoward bias, they entangle themselves in words and confound themselves in subtleties. Strong interests, passions, and prejudices may degenerate into obstinacy, perverseness, or disingenuity.”

In Federalist 37, Madison says, “In some, it has been too evident from their own publications, that they have scanned the proposed Constitution, not only with a predisposition to censure, but with a predetermination to condemn.” On the other hand, (The Federalist Papers) “solicit the attention of those only, who add to a sincere zeal for the happiness of their country, a temper favorable to a just estimate of the means of promoting it. A faultless plan was not to be expected.  The most that the convention could do in such a situation, was to avoid the errors suggested by the past experience of other countries, as well as of our own; and to provide a convenient mode of rectifying their own errors, as future experiences may unfold them.”

Madison notes that the delegates to the Constitutional Convention sought to find the best combination of features in the construction of government that would provide “stability and energy in government with inviolable attention due to liberty and to the republican form. They sought to avoid those features that they believed would risk the destruction of their proposed government as quickly as was that of the Republican government of Florence in the early 16th century.

In the turmoil of Florentine politics, Machiavelli believed that Republican government was necessary for good government, but that many who sought to be autocratic rulers had different ideas of what good government looked like. Machiavelli observed that those opposed to good government under a Republican form believed (1) that moral and spiritual virtues are not essential for the administration of government and must be avoided by ensuring that government is secular; (2) that Christianity, in particular, is destructive to governing; (3) that fear and the threat of coercive force are more important than legal force; (4) that a forceful, and even violent, response is the only appropriate means to prevent enemies of the state from upsetting the political order of the state; (5) that what’s good for the state should guide government rather than what’s good for its individual citizens; (6) that the head of state must use whatever means is at his disposal to do whatever is necessary to maintain control and power; (7) that, to ensure peace and tranquility in the country, a consequence is that citizens will be disarmed.

It’s not difficult to understand Machiavelli’s observations when one considers the period in which he was an official in Florence’s government. Although a Republic existed after the Medici government was overthrown, it lasted less than 20 years; in addition, a co-conspirator in the overthrow of the Republic was the Papal forces. Thus, he seems to have concluded that Christian leaders may have been no more moral than secular leaders and that Christian leaders were as willing as secular leaders to exercise force to gain control of government and the populace.

America’s Founding Fathers, all of whom had studied the Bible as an essential part of the classical education, believed that moral and spiritual virtues were necessary for good men to establish good government.  They believed that the government should be entrusted with limited powers, with those powers determined by the people through their elected representatives, rather than with unelected governors who used force to obtain security for the people, but at the expense of the people’s liberty. And they believed that government existed to secure the rights of the people rather than to ensure the long-term viability of the state.

As they debated the construction of a new Republican form of government in Philadelphia in the summer of 1787, they sought to use their knowledge of republican and authoritarian governments over thousands of years to construct one that might prevent their proposed republic from ultimately being overcome by authoritarian-minded opponents. The features of acquiring authoritarian power in government noted by Machiavelli were features that the Convention delegates sought to minimize in their new Constitution.

Their Christian education and study of Aristotle’s Ethics informed them that leaders of good character were necessary for good government.  John Adams, in a speech to the Massachusetts militia in 1798, said that “Our constitution was made only for a moral and religious people,” and George Washington reflected a similar sentiment when he said, in his Farewell Address, “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. . . And let us with caution indulge the supposition that morality can be maintained without religion.”

Yet they also recognized that no particular religion should require support by the citizens of the nation and that no religious affiliation should be required to hold federal public office. At the time, many of the 13 states had state-sponsored religions and, at a minimum, required that those citizens eligible for public office must be Protestants. In Article VI, Clause 3, of the United States Constitution, the Constitution clearly stated that, “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”  So, good character, moral, and ethical principles, generally acquired from education in religious and philosophical principles, were recognized as important for helping citizens acquire responsible civic virtue that the Founders considered necessary for good government of the people.

In crafting the Second Amendment, the Founders recognized that citizens who were disarmed would be unable to retain their liberty should authoritarian politicians attempt to seize power in the federal government.

Rather than adopting Machiavelli’s concept that government existed for the “good of the state,” the Founders decided that government existed to secure liberty for the people. The Constitution was designed to provide the government’s structure in support of the principles of the Declaration of Independence, most specifically the Declaration’s statement that, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” To more forcefully communicate that government existed to secure the rights of the people, Article I, Section 8 of the Constitution specifies limited powers of the federal government and the Ninth Amendment states that, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Additional measures in the Constitution provided for two houses in Congress, one to represent the people and the other to represent the individual states. The President was given power to veto laws passed by both houses of Congress to prevent the legislature from accruing excessive power, and the Congress was given the power to override a Presidential veto to prevent a President from accruing excessive power.  The Supreme Court was given the power to ensure that laws passed by Congress and signed by the President were in accord with the Constitution to prevent a situation in which both houses of Congress as well as the office of President were occupied by politicians of one faction and attempted to enact legislation to benefit their faction, in conflict with the Constitution.

If all else fails, then Article I of the Constitution provides for impeachment of the President, Vice President and all civil Officers for treason, bribery, or other high crimes and misdemeanors, with the additional check and balance providing that the House has the sole power to impeach and the Senate has the sole power to try all impeachments.

As noted above in Federalist 37, “A faultless plan was not to be expected.” The Founders attempted, to the best of their abilities, to construct a Constitution that reflected the strengths and minimized the weaknesses of republican governments over thousands of years of history, a history they knew well because of their classical education.  Yet, they recognized that their conception of a federal government structure was an experiment, as reflected in what Benjamin Franklin said in his final speech at the Convention, “when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views.” Later, when he was asked by a group of citizens what sort of government the delegates had created, his answer was, “A republic, if you can keep it.”

We’ve kept it for more than 230 years, overcoming many challenges to its existence. In his Gettysburg Address, President Lincoln reminded us that, “It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced.”  And President Reagan said in his 1964 speech, “Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected and handed on for them to do the same.” It’s up to us, we the people, not the government, to keep it going for another 230 years.

Ron Meier is a West Point graduate and Vietnam War veteran. He is a student of American history, with a focus on our nation’s founding principles and culture, the Revolutionary War, and the challenges facing America’s Constitutional Republic in the 20th and 21st centuries. Ron won Constituting America’s Senior Essay contest in 2014 and is author of Common Sense Rekindled: A Rejuvenation of the American Experiment, featured on Constituting America’s Recommended Reading List.

 

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Guest Essayist: Joerg Knipprath


Among the common definitions one finds for “Machiavellian” are “unscrupulous,” “cunning,” “deceitful,” and “duplicitous,” words associated with disreputable character. The namesake for these malignant traits is Niccolo Machiavelli, a Florentine diplomat who lived from 1469 to 1527. He was a scion of an ancient Florentine family. His father, a lawyer, provided him with a classic education. That learning shows in Machiavelli’s various books about political science, warcraft, and history. In addition, Machiavelli wrote numerous letters and shorter essays and a satirical play, Mandragola, which was immensely popular at the time. Whether or not he intended it as such, this play has been described as an allegory about political events in 16th century Italy, a bawdy dramatization of the advice Machiavelli gave to the Medici family in his notorious work, The Prince (De Principatibus or Il Principe).

Machiavelli and his family were firmly associated with the republican factions in Florence. Through that connection, he held diplomatic offices in service to his city, traveling extensively to political centers and royal courts in Italy and the rest of Europe. In this capacity, he met a number of rulers, including the charismatic Cesare Borgia, after which the protagonist in The Prince is supposedly styled. With the return to power of the anti-republican faction of the Medicis in 1512, Machiavelli’s political fortune cratered. The following year, he was accused of plotting against the regime, arrested, imprisoned, and tortured.

It has long been claimed that he wrote The Prince while in prison as a testimony that he was loyal to the regime and, indeed, should be permitted to serve in the new government. The fawning dedication to Lorenzo de Medici, Duke of Urbino, that Machiavelli wrote in the preface of the book lends credence to that claim. Whether or not Lorenzo or any other member of the family ever read the book, Machiavelli’s hope for a further diplomatic career remained unfulfilled. He retired to a life of contemplation and writing.

Around 1517, he wrote his other famous work on politics, The Discourses on the First Ten Books of Titus Livy, wherein he examined the politics of the early Roman Republic. From Rome he sought to learn the necessary conditions for a successful republic, an aspiration for his own city’s future. Although there are common threads, such as the judicious use of violence when needed to maintain the government, The Prince is different in tone and goal than The Discourses. This has led to much speculation about Machiavelli. Was he the amoral cynic who scorned Christian ethics, which the former book displays? Or was he the admirer of republican Rome, who emphasized the need for constant “rebirth” to maintain that best of all systems? In the latter work, he is alarmed that corruption of republican character will destroy the republic, unless something spurs its rebirth, preferably from reforms within the republic itself. John Adams, writing a quarter-millennium later in A Defence of the Constitutions of Government of the United States of America, agreed. But that is not The Prince.

In short, one must look at The Prince on its own terms. Readers then and since have been shocked—or piously professed to be shocked—by its content and tone. But why? The book makes no claim to promote virtue, either in the classic or Christian sense. He does not disparage Christianity or challenge Christian virtue in this or any other of his works. As one commentator has noted, “What should not be assumed is that whatever Machiavelli thinks about things in general is necessarily ‘Machiavellian.’ His view of politics is, but it simply does not follow that his view of everything is ‘Machiavellian.’” The Prince purports to deal with the world as it is, not as philosophy or religion would like it to be. It followed a long literary tradition called “the mirror of princes,” books whose lessons instructed future rulers about “proper” governance. It should come as no surprise that such instructions during the Middle Ages came with a heavy dose of Christian ethics to civilize the prince and habituate him to just and temperate rule. After all, as Thomas Aquinas noted, God gave the ruler care of the community for the general welfare, not a license to exploit the people for the ruler’s own benefit.

Machiavelli builds on that literary tradition but uproots it from its philosophical grounding. He tosses aside the Aristotelian conjoining of ethics and politics, the classic assumption that what defines a good person also defines a good ruler, where the private virtue is elevated to the public. It is an abandonment of the scholasticism of the High Middle Ages and its synthesis of philosophy and religion, of which Thomas was a prominent expounder. The Prince warns the ruler that, to be successful in politics, assume the worst of everyone, whereas the classical version of politics as ethics writ large held that a few people are virtuous, more are evil, and the great majority are in-between. It was for the last group that habituation to ethical behavior might move the needle.

Machiavelli is not interested in saving the prince’s soul, but in having him survive, a matter of particularly acute relevance in the chaotic and often murderous factional politics of the Italian states. He does not hold up his examples as paragons of morality, and his praise of virtu means a prince’s skill at the craft of statesmanship, not the ideal character of a Christian nobleman or the pursuit of personal excellence by a Roman Stoic sage. His advice is specific and based on assumptions about how human beings consistently respond to certain events and actions. These assumptions are drawn from hard-nosed examination of human behavior and contemporary events. Machiavelli engages in empirical psychology, no less valid because his analysis often also draws from historical sources made familiar through his classical education. Like the image of Janus, the Roman two-faced god of transitions, Machiavelli and his contemporaries looked ahead to a more secular world revealed through humanistic tools of discovery but still could not avert their gaze from the medieval world receding behind them.

The Prince is divided into several sections and chapters, dealing with the particular conditions of various principalities. There are secular and ecclesiastical princes.. Among the secular are those who became rulers by conquest, by criminal acts, or by acclaim of the people. Just as all cars might have certain similar requirements for maintenance, yet need different manuals to address their particular components, so does the governance of people in different polities.

Starting with commonalities, there are certain common sense postulates derived from experience. It is better to be feared than loved by the people. He acknowledges that it is best to be both respected and loved by the people. A ruler who is loved is likely to return that love and act magnanimously and govern moderately. But love is unsteady. In human relations, lovers betray each other constantly, through deceit or worse. That behavior is the theme of much literature, dramatic as well as comedic, including Machiavelli’s own Mandragola. At the impersonal level of a state, love becomes even less stable, which Machiavelli’s own fate in a city riven with factionalism demonstrated all too well. No politician is loved by everyone and should not even try. Sic transit gloria mundi should be a warning for every politician, as the glory of today becomes the exile, or worse, of tomorrow. Fear, on the other hand, provides a more stable rule, because it always produces the same reaction from people, of obedience and, indeed, respect for the ruler’s decisive leadership.

True, some might feel so much hatred for a strict ruler that it overcomes their fear. Therefore, the ruler must apply the precautionary principle: treat everyone as a potential assassin, more practical advice to survive in 16th century Italian politics. From this, another general rule emerges. Feign affability, but never let down your guard by mistaking your disguise for reality.

Of particular relevance to the Medicis would be the advice for rulers of conquered lands. Upon victory, the new ruler might react in an understandable human way and be indiscriminately magnanimous to the conquered people. Big mistake. The ruler must put himself in the position of various groups among those people. First, there is the former ruler and his family, around whom those with loyalty to the prior regime might coalesce. To the extent possible, the prior ruler’s family must be exterminated to eliminate this mortal danger to the new prince.

Another group might be those who have invited the prince to invade as a result of factional strife within that domain. This group expects to be rewarded. It is safe to ignore them, as they have no one to support them against the new prince. Their own people consider them traitors, and their very existence depends on the prince’s success. He holds their reins, not they his.

A third group are the sizable portion of the people who have something to lose in wealth or position, but are not among the first two groups. They might be, for example, merchants, artisans, and bureaucrats. The advice: be generous to make them feel connected to him. Kill those with loyalties to the old regime, fine. But get it done quickly, and do it through a subordinate who can then be blamed for having been overly zealous. One might think of King Henry II of England and his cry to the nobles, “Will no one rid me of this meddlesome priest” about killing Thomas Becket, the 12th century Archbishop of Canterbury. Better yet, kill the executioner, for there is no better way of showing that executions are over than hanging the hangman. The conquered people are afraid and cowed, uncertain of what will become of them, their families, and their property. They look for any sign of humanity in the conqueror and want to believe in the ruler’s good will. Such an approach will reassure them that they are safe and will be seen by them as one of generosity. After all, the condemned man is thankful for a pardon, even though it may have been the ruler whose prosecution put the man in the position of needing one. The reader might find it difficult to avoid the sense that this part may have been about Machiavelli and his own family’s situation while he wrote The Prince.

People, by nature, lack gratitude. Over time, the effect of not having been killed or lost their property wears off. Now the prince should reward them, but do so gradually and without raising taxes. The people may see through this, but will respect the prince for his fiscal discipline which has benefited them financially. One other noteworthy point that Machiavelli makes is that this third group of people might accept their conqueror because they blame the prior ruler for their situation. They will believe that the prior ruler lost because of corruption of his moral or political bearings, with the latter due either to the ruler’s laziness in attending public affairs or to a rot of the political structure as a whole. In any case, the prior ruler proved unfit, which makes the new one worthy of respect and fealty.

The last group is the remainder of the population. One option is to rule with perpetual fear and to strangle their livelihoods with taxes to keep them struggling for survival rather than engaging in political scheming. But, sooner or later, the prince will need them as soldiers. It will not do to impoverish the people because, with nothing for them to lose, it will make them unable and unwilling to fight on his behalf.

This broaches the topic of war, one of Machiavelli’s favorites, not coincidentally also a frequent pursuit of the rulers of Italian states during his time. War, he declares, is ubiquitous and inevitable among states. The prince should embrace it, but be smart about how and when to fight. War must deliver benefits for his people, such as tribute or new lands. Internal politics are inevitably connected to foreign policy, an interrelation which a diplomat such as Machiavelli would be sure to emphasize. War also can be a useful distraction from domestic trouble by rallying the people to the prince.

The “how” of fighting the war is of particular significance and requires long-term choices. One might use one’s own forces, those of allies, or mercenaries. While some combination among them, particularly the first two, is possible, he addresses the benefits and drawbacks of each. If one relies on allies, one takes a risk. They may help you and fight with elan. However, they may want a division of the conquered territory. If you refuse, they may turn on you. Therefore, be hesitant about allying with more powerful entities, but at least make sure that there is not one predominant ally among the group.

Mercenaries are always a problem, during war or peace. Perhaps he based this on the experience Italian states had with their frequent use of mercenaries, particularly German and Swiss. He broadened the argument to include professional soldiers in general. They fight for money and often are on retainer during peacetime. Therefore, they want to avoid war and will counsel against or even frustrate the ruler’s political decision about war. If war happens, they feel a certain fraternity with those on the other side. They may know them and even may have fought alongside them in other wars. Mercenaries do not fight vigorously, because the soldier on the other side is “just doing a job,” just as they are. The mercenaries lack the necessary conviction for the cause, because, in the words of one commentator, they “no more hate those they fight than they love those whom they fight for.” Even if they win, they could turn on the prince. At the least, they might raise their fee, a demand it would behoove the prince not to ignore lest the mercenaries act against his interest.

Best, then, to rely on one’s own citizen militia. If there are military reverses, the citizens will fight most vigorously for their hearth and home. If they are victorious, they can be rewarded with a moderate degree of plunder. They might also be useful to colonize the new realm. However, this migration must be undertaken with the long view towards intertwining the conquerors with the original inhabitants. It must not produce a collection of isolated communities of occupiers. Assimilation works best if the conquerors and the conquered share language, religion, and customs. Otherwise, particular care must be taken to be sensitive to deeply-held customs of the conquered people to pacify them. This reflects a practical strategy employed successfully by the ancient Romans as they spread across alien lands.

Machiavelli’s commendation of citizen militias and his distrust of professional soldiers reflects his republican leanings. Such broad-based military service was at the heart of the classic Greek and Roman conception of citizenship. His views became a staple of classic republican argumentation. During the debates over the American Constitution in 1787 and 1788, the Anti-federalists vigorously objected to a standing army as a tool of tyranny that would doom the republic. Hamilton and Madison used several essays in an attempt to blunt those objections.

Another aspect of Machiavelli’s instruction was that the ruler must consider the role of luck in events, particularly in war. He uses Fortuna, the Roman goddess of luck and fate. She is capricious, moody, and willful. She must constantly be courted to keep her on one’s good side. Her capriciousness cannot be tamed, but fortunately, if one may use that word, it may be calmed by the ruler’s virtu. Machiavelli is a Christian, so he does not believe in unalterable fate; man has free will. Moreover, the history of warfare shows not only the influence of luck, but of skill at warcraft, such as when a commander executes a deft maneuver that allows his army to escape a precarious situation. Hence it behooves a ruler to act decisively. Fortuna and virtu, working together, are irresistible.

Unlike the legitimacy a prince has by succession under established constitutional rules, conquest by itself cannot bestow legitimacy on the new prince. Machiavelli’s prince is not Thomas Hobbes’s Leviathan. Machiavelli calls to mind Aristotle’s distinction between king and tyrant. The non-pejorative meaning of “tyrant” was someone who came to power outside the customary process. That said, a consistently “lucky” prince will be seen by the people as beyond ordinary men, which creates legitimacy in their eyes. It is a well-known psychological urge in people to “go with a winner.” One need note only the increased attendance at sporting events in our time when the team is on a winning streak that season. As in the case of the ancient Greek heroes favored by their deities, Fortuna smiles on the prince. The concrete evidence of the prince’s success bestows the legitimacy on him which medieval Christians believed occurred through God’s anointment of kings and emperors. A lot of this may be theater, where elaborate court pomp and ritual provides the stage to make it appear that the prince is powerful and favored by fortune. The medium becomes the message, as the phrasing goes. As in Plato’s parable of the cave, the appearance becomes the reality in the minds of the subjects, a metamorphosis to which citizens of modern republics certainly are not immune, either.

The requirement that a successful prince take account of Fortuna’s fickleness and need for constant attention and courting sounds very much like Plato’s and Polybius’s critiques of the “pure” forms of democracy. For them, the general citizenry was fickle and willful and craved constant flattery from would-be leaders. The extent to which the latter possessed the political virtu to manipulate the citizens would determine how much support such demagogues would get. One also is reminded of Hamilton’s concern in Number 68 of The Federalist that direct election of executives is undesirable, because it rewards men who offer nothing more than their “[t]alents for low intrigue, and the little arts of popularity.”

The Prince has often been compared—unfavorably—to the works of political theorists who followed Machiavelli within a few generations, preeminently Jean Bodin and Thomas Hobbes. The latter, critics have charged, produced much more sophisticated and internally consistent investigations of political systems. Bodin, a French academic and jurist who wrote in the 16th century, analyzed different forms of government and organized them around the concept of sovereignty. Hobbes, an Englishman writing a hundred years later, claimed his work to be a new science of politics. He provided a modern psychological basis for the origin of political society in the rational self-interest of mankind, foremost the desire for personal security and safety. Meeting that primal psychological need established for Hobbes the legitimacy of an absolute ruler such as his Leviathan.

These criticisms miss the purpose of writing The Prince. Like Bodin, Machiavelli favored centralized and effective power through his prince. He hoped for a strong leader to unify Italy, much as Bodin wrote in favor of the French monarchy which had mostly completed the unification of France. Like Hobbes, Machiavelli in The Prince rejects established ethical justifications for a ruler’s legitimacy and justifies a strong and energetic ruler based on that ruler’s success in governing. As was essentially the case for Hobbes, there is no universal moral order of natural law which actually limits the prince’s law-making. To borrow from Justinian’s Code, the prince is the law because there is no earthly sovereign above him. This had also been the position of certain medieval churchmen, especially William of Occam, in regards to the divine realm and God’s omnipotence. Machiavelli and Hobbes secularized those arguments. It is true that The Prince lacks the philosophical wholeness and complexity of other works, but Machiavelli was not aiming for that. His Discourses on Livy comes closer to it. With The Prince, he was writing a practical guide for a successful ruler, a guide drawn from experience and an exemplar of a new science of statecraft.

Machiavelli’s prince did not, then, fail as a political concept. Indeed, Machiavelli’s goal of Italian unification through a dynamic leader, possessed of virtu and smiled upon by Fortuna, was realized, albeit more than three centuries later. Rather, because so much depended on the political skills of each ruler, particular princes failed while others succeeded. This flux destroys the social stability which is needed for productive lives and is traditionally the goal of government. Machiavelli reveals the concurrent strengths and weaknesses of monarchy and other single-executive systems of government. Leaving aside the potential problems of standing armies and heavy taxation discussed earlier, The Prince provides many lessons for us and reveals parallels to how our system functions.

For one, Machiavelli’s methodology is strikingly similar to the approach in The Federalist. Alexander Hamilton declared in Number 6, “Let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries.” Use of illustrative historical events and commentaries on human nature based on similar psychological investigations run throughout those essays. One goal of the authors of The Federalist was to explain to their readers how this republican system could be successful as a practical undertaking, regardless of its conformance to some ethical ideal, the virtue—or lack thereof—of its politicians, or the problematic legitimacy of its creation.

Machiavelli also recognized that the fate of the prince and the people ultimately are tied together. The prince’s wise practice of statecraft will bring prosperity, which the citizens will defend vigorously, if needed. This is an eminently pragmatic position, well supported by examining history. As James Madison wrote in Number 40 of The Federalist in response to criticisms that the Philadelphia convention had acted illegitimately and against existing constitutional rules, “[If] they had violated both their powers and their obligations, in proposing a constitution, this ought nevertheless be embraced, if it be calculated to accomplish the views and happiness of the people of America.”

Another lesson is the need to avoid dependence on the particular qualities of one leader. It has long and often been recognized that the Constitution creates a potential for strong executive government. Examples abound, from Alexander Hamilton’s broad claims of implied executive powers in his Pacificus essays from 1793, to Woodrow Wilson’s positively Machiavellian observation in his book Constitutional Government, “If he rightly interpret the national thought and boldly insist upon it, he is irresistible. . . . His office is anything he has the sagacity and force to make it.” Most telling are the numerous claims of far-reaching power to act in emergencies by presidents down to the present, which emergency powers then conjure more emergencies. While the political benefits from energy and decisiveness in the executive were duly noted, the framers of the Constitution intended the system of structural separation of powers to diminish the dangers from concentration of power in a single ruler.

Finally, there was the need to deal with the destructive factional politics that plagued Italian cities during Machiavelli’s time and beyond. The Prince proposes one manner—the charismatic leader whose skill will prevent these factions from entrenching themselves. The Constitution recognizes the problem, but proposes a different solution, to set the factions against themselves in peaceful competition by multiplying their number and diversity so that none become entrenched.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.

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Guest Essayist: Ron Meier


As Professor Joerg Knipprath notes, Webster defines Machiavellian as a term often used to describe someone who employs cunning, duplicity, or bad faith tactics to get what he wants. Synonyms include cutthroat, immoral, unconscionable, unethical, unprincipled, unscrupulous.

Only 250 years before the rise of revolutionary fever in the American colonies, Machiavelli’s observations on political power were published.  Those observations were more a description of how government worked at the time he wrote than a prescription of how government should work.  Government in the British colonies in the 18th century, in many ways, looked too Machiavellian to our Founding Fathers and influenced their decisions about how to form a new government, more specifically how to minimize human nature’s inclinations for control and power by those to be trusted as America’s future political leaders. Machiavelli’s tenure in political office in the Republic of Florence was sandwiched between the long Medici reign before its overthrow and the Medici restoration, with the aid of Papal troops, less than 20 years later.

In the turmoil of those years, Machiavelli saw that raw power determines who rules; natural law, religious faith and morality were irrelevant to rule and therefore, a secular government was more the norm. Preserving the state, not protection of individual rights by the state, was the objective of government; and whatever force was necessary to preserve the state, provide security for its citizens, and stability was acceptable. Machiavelli is considered by many today as the father of political science, generations before the term “political science” came into common usage.

Considerable discussion occurred during and after the 1787 Constitutional Convention between those arguing for and against a strong, energetic President. This was understandable in light of the recently concluded war of independence from a perceived strong British ruler whose “long train of abuses and usurpations” were listed in the Declaration of Independence.

In Anti-federalist 70, the author, arguing against a strong and energetic executive says, “In the first place the office of President of the United States appears to me to be clothed with such powers as are dangerous.”  He then adds, “So far is it from its being improbable that the man who shall hereafter be in a situation to make the attempt to perpetuate his own power, should want the virtues of General Washington, that it is perhaps a chance of one hundred millions to one that the next age will not furnish an example of so disinterested a use of great power.”  Although Washington was not yet in office as President, the author recognized that Washington would probably be elected President if the Constitution were ratified, but that subsequent Presidents, lacking the moral and civic virtues of Washington, may hunger for unlimited power and become the despot that all feared. The author went on to say that, “If we are not prepared to receive a king, let us call another convention to revise the proposed constitution, and form it anew on the principles of a confederacy of free republics.”

In Anti-federalist 71, the author says that “the best security for liberty was a limited duration, and a rotation of office, in the chief executive department.”  And, in Anti-federalist 72, arguing against unlimited reelections of a President, “Upon his being invested with those powers a second or third time, he may acquire such enormous influence and, haughtily and contemptuously, turn our poor lower house (the only shadow of liberty we shall have left) out of doors, and give us law at the bayonet’s point. We seem to be fast gliding away; and the moment we arrive at it — farewell liberty.” The Anti-federalists’ knowledge of the history of ancient governments reflected their concerns that political offices in the proposed Republic didn’t have more stringent restrictions on the ability of those elected to federal office to be reelected. Where restrictions were in place, the risk of despots holding office was reduced and where such restrictions were not in place, authoritarian government often grew.

The Federalists, on the other hand, took pains to illustrate that the checks and balances and separation of powers in the proposed Constitution would slow down the enactment of laws with extensive debate and thereby check the authoritarian impulses of the various branches. In modern terms, days, weeks, and months of debate were preferred to the ability of a President to use his phone and pen to enact new law rapidly.  They also believed that the two, four, and six-year terms of office in the Legislative and Executive branches were long enough to enable the occupants of those offices to have a positive impact on the exercise of their enumerated powers, yet short enough to allow citizens to turn them out of office when their Machiavellian methods and authoritarian impulses, to override the will of the people, became too strong.

In Federalist 51, Madison states that, “In republican government, the legislative authority necessarily predominates.” Therefore, to avoid a legislative branch aggrandizing its power at the expense of the executive branch, the Founders believed that care must be taken in constructing the government to grant powers to the President to check legislative overreach. Also, they recognized that a legislature which knew that the President who, after his four-year term ended could not be reelected, could wait out a President whom the legislature deemed too willing to check their power and hope that the next occupant of the executive branch would be less willing to check the legislative powers with a veto.  Over a period of time, patience by the legislature would enable them to accrue significant power. Therefore, the Founders decided that a President would not be forced to vacate his office, but could be reelected if the citizens so decided.

In Federalist 71, Hamilton discusses the advantages and disadvantages of a term of four years for the President. He says, “a duration of four years will contribute to the firmness of the executive but not long enough to justify any alarm for the public liberty.” In Federalist 72, Hamilton argues that a President shouldn’t be limited to only one four-year term, stating that there is a connection between “the duration of the executive magistrate in office and the stability of the system of administration.” This is easily observed in recent years as the Executive Orders of a prior President are frequently reversed immediately open the ascension to office of a new President, especially when a sitting President is defeated after his first term of office. Businesses that don’t know if a President’s Executive Orders will stand in the next administration are not willing to make long-term investments to grow their businesses.

In Federalist 23, Hamilton discusses the problems encountered during the fighting of the War under a Confederation form of government. He states the difficulty of requisitioning troops, supplies, and money to fight the war and of keeping morale high in the military ranks under such conditions. Hamilton says, of the country, “the Union ought to be invested with full power to levy troops; to build and equip fleets; and to raise the revenues which will be required for the formation and support of an army and navy, in the customary and ordinary modes practiced in other governments.” The President, as Commander in Chief, also must know that he has the authority to effectively lead the nation in time of war.

The Founders’ knowledge of the successes and failures of all types of government was deep; Machiavelli’s observations of what government transitions normally looked like provided an important, more recent, reminder of how quickly a Republic can fail internally if its government is not well constructed at birth and externally when confronted by powerful, amoral governments, led by autocrats’ intent on seizing and holding power.

Ron Meier is a West Point graduate and Vietnam War veteran. He is a student of American history, with a focus on our nation’s founding principles and culture, the Revolutionary War, and the challenges facing America’s Constitutional Republic in the 20th and 21st centuries. Ron won Constituting America’s Senior Essay contest in 2014 and is author of Common Sense Rekindled: A Rejuvenation of the American Experiment, featured on Constituting America’s Recommended Reading List.

 

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Guest Essayist: Andrew Langer


In making the case for the ratification of the Constitution, the authors of the Federalist papers (Alexander Hamilton, James Madison, and John Jay) routinely looked to history for examples of what to follow, and, almost more importantly, what shouldn’t be followed. The Constitution, of course, was to be an improvement over the previous Articles of Confederation, and document whose flaws in the separation and balance of powers necessitated the drafting of the Constitution itself.

The Articles of Confederation was also built on historic example, and among these was the 1579 constitution of the Netherlands provinces—the subject of Federalist #20, authored by Madison. Created as a result of the “Union of Utrecht”—a treaty created between the seven northern Dutch provinces who had allied with one another to oppose the Habsburg-controlled southern provinces, this constitution laid out the shared power structure between these unified territories.

But Madison recognized that the flaws endemic in the document creating this Dutch confederacy were duplicated by the flaws in the Articles of Confederation. In laying out his criticism of the Netherlands Constitution, he said the following:

“What are the characters which practice has stampt upon it? Imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace, and peculiar calamities from war.”

In other words, because of the structural flaws in how this constitution laid out the relationship between the provinces, it left this union weak and vulnerable. Madison went on to say, “It was long ago remarked [that] nothing but the hatred of his countrymen to the House of Austria, kept them from being ruined by the vices of their constitution.”

To be fair, there was a flaw in Madison’s essay (and it was a flaw repeated by others), in that Madison suggested that votes on issues of importance to these provinces had to be unanimous. This was untrue.  William Riker, a political scientist and expert on federalism, said this in his 1957 journal article, “Dutch and American Federalism”:

“Nearly all the framers who spoke on the subject seemed certain of one statement about the Netherlands; and in this they were mistaken. Nearly all seemed to believe that the decisions of the general government required unanimity of the seven provinces-an even more stringent requirement than in the Continental Congress. But, misled by inaccurate commentaries, they did not know what this requirement meant or how it worked in practice or what significance it had in Dutch politics.”

Riker noted how favorably many of the founders (other than Madison) looked at the governmental practices within the Netherlands—which should come as no surprise given the breadth of Dutch colonial activity in the continent prior to the American founding.  He said:

“[W]hen the records of the Constitutional Convention and the state ratifying conventions are superficially examined, it appears that our heritage from the Netherlands is considerable. The records show that members of the conventions referred to the government of the United Provinces more frequently than to any other modern European government, except that of Great Britain.”

It should be noted that Professor Riker’s views on federalism changed over time as his expertise on the subject grew.  In his 1987 book, The Development of American Federalism, he admits the following in the introduction:

“Given my ideological shift [from “New Dealer” to “anti-statist”], I have also changed my evaluation of federalism. Initially I regarded it as an impediment-minor, perhaps—but still an impediment to good government. Now I regard it as a desirable, though still minor, restraint on the leviathan.”

But contemporaneous accounts underscore the relationship between the 1579 constitution and the Articles of Confederation. Pieter Paulus, who later became the first President of the Batavian Republic, wrote:

“It is surprising and to the credit of our ancestors, that these inhabitants of another continent, after a lapse of some two centuries, adopted practically the same measures and arrangements as they did when drafting the Union of Utrecht.”

Yet, here we have Madison’s criticism, a criticism which may have been informed by his fellow-Virginian, William Grayson, a lawyer and soldier who later became a member of the United States Congress.  Grayson had deep concerns about the Articles of Confederation, and how similar it was to the 1579 Netherlands constitution, writing to Madison:

“It is no wonder our Government should not work well, being formed on the Dutch model where circumstances are so materially different.”

This becomes reflected in Madison’s concluding remarks for Federalist #20, in which he says:

“The important truth, which it unequivocally pronounces in the present case, is, that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals; as it is a solecism in theory; so in practice, it is subversive of the order and ends of civil polity, by substituting violence in place of law, or the destructive coertion [sic] of the sword, in place of the mild and salutary coertion [sic] of the magistracy.”

The answer then is made manifest in the choices made in the structure of the Constitution as it was ultimately adopted: carefully enumerated powers for the federal government, a balancing of those powers between branches of government, and the retention of all power not surrendered in the hands of the people themselves as well as state governments.

This theme is made manifest throughout the Constitution and, in just one example, one can note the balance and contrast between what is discussed in Article 1, Section 10, and Article IV.  In Article I, Section 10, the founders placed very clear limits on the extent of state power—by making it clear, for example, that states cannot coin their own monies, nor could they negotiate treaties on their own. The reason for this is clear: building on the warning echoed by Madison in Federalist 20 (in part because of how he understood the flaws of the 1579 Netherlands Constitution), the drafters knew that while there might be intense internal debate between the states, that once an issue reached America’s shorelines, the nation had to speak with one voice. It would be chaos, for instance, if Massachusetts were negotiating one treaty with Spain, and Maryland were negotiating something different with Spain, or with an enemy of Spain.

In the same way that the federal government is responsible for regulating interstate commerce, these drafters also knew that it would likewise be chaotic if each state were creating its own currencies. So, they limited the power of the states in that regard as well.

But like all the other checks and balances, the trade-off to this is seen in Article IV—while the powers of the states are limited in terms of things like treaties and currency creation, Article IV gives a guarantee of protection to states. The federal government agrees to defend a state against military threats, and at the same time offers assurances in terms of working to make sure that each and every state treats each and every other state fairly. Article IV also makes guarantees as to the admission of new states into the Union, and a guarantee of a “republican” form of government.

With all of that in mind, the framers still felt it necessary to include the Supremacy Clause (Article VI, Clause 2), which says that the Constitution, and any laws that are created by Congress, are the “supreme law of the land.”  So long as Congress creates laws that are based on the powers delegated to the federal government by the people (and the states), should those laws come into conflict with state laws, the federal laws take precedence.

But those laws have to be within those enumerated powers—and this is central to many of the policy and political debates of today. For much of the 20th century, the federal government’s authority was virtually unlimited in terms of legislation, and thus holding sway over competing laws that might be enacted by state legislatures, due to an expansive interpretation of the Commerce Clause (Article I, Section 8, Clause 3).

But in a series of Supreme Court decisions in the 1990s, the limitations on federal power were re-asserted. The Supremacy Clause remains, but that “leviathan,” as Professor Riker described it, is checked by the limitations on, and diffusion of, that power within our system of federalism.

Andrew Langer is President of the Institute for Liberty.

 

 

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Guest Essayist: Chris Burkett

In Federalist No. 20, James Madison (with Alexander Hamilton) discusses the vices of the constitution of the United Netherlands. The United Provinces of the Netherlands, sometimes called the Dutch Republic, consisted of seven republics and was established through the Union of Utrecht in 1588. After decades of bloody religious wars, the sovereignty of the United Provinces was officially recognized with the Peace of Westphalia in 1648, but the union collapsed in 1795 during the Batavian Revolution.

In theory, Madison observes, the constitution of the United Netherlands seems to have successfully combined effective executive power with republican representation in a legislative body. “The sovereignty of the Union,” Madison writes, “is represented by the States General, consisting usually of about 50 deputies appointed by the provinces.”[1] The States General has well-defined powers and responsibilities – including the power to make treaties, to make war or peace, to raise armies and equip fleets, and to demand quotas of contribution from the provinces – and the individual provinces are restrained from engaging in certain actions that are deleterious to the other provinces or to the Union as a whole.

“The executive magistrate of the Union is the Stadtholder,” Madison continues, “who is now a hereditary Prince.”[2] Each of the seven provinces was led by a stadtholder, but the offices eventually became hereditary and, in time, the Prince of Orange came to hold most or all of the individual stadtholderships. The Stadtholder of the union was given many powers and prerogatives, including the power to settle disputes between provinces, and to command the federal troops and navy.

The United Provinces of the Netherlands, “as delineated on parchment,” seemed to have struck a form that balances popular representation with an energetic executive. “What are the characters which practice has stampt upon it?” Madison asks. “Imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace, and peculiar calamities from war.” The first vice of the constitution of the United Provinces is that there is a nearly constant tension between the different aims and policies of the States General – which wants to preserve the republican nature of the government – and the Stadtholder, with his ties to wealth and other monarchical powers in Europe. In fact, Madison writes, the authority of the Stadtholder arises mainly “from his great patrimonial estates [and] from his family connections with some of the chief potentates of Europe.”[3] This tension between the foundations and objects of the Stadtholder and States General had led to frequent disagreements and conflicting policies between the two departments over commercial affairs and defense policies.

The second vice of the union is that the States General, though vested with general legislative authority, requires “unanimity and the sanction of their constituents” for the enactment of all policies and laws. Although the unanimity requirement arose from an assumed equality of the seven provinces, and a desire to protect the provincial interests of each, it had led to two further difficulties. First, the unanimity requirement meant that a single deputy in the States General could veto measures necessary for the good of the whole union. “The Union of Utrecht,” Madison writes, “reposes an authority in the States General seemingly sufficient to secure harmony, but the jealousy in each province renders the practice very different from the theory.”[4] The second difficulty this produces is that in times of great and urgent emergencies, the States General and the Stadtholder frequently violated the constitution by ignoring the rule of unanimity. A constitution that, of necessity, is frequently violated, Madison suggests, is fundamentally flawed and in need of improvement.

The Articles of Confederation, which governed the union of American states prior to the Constitution, suffered from this second vice in some important ways. The unanimous consent of all the state legislatures and state delegations in Congress was required for all amendments to the Articles of Confederation. In the Confederation Congress, supermajorities (nine out of thirteen state delegations) were required for Congress to raise revenues, make treaties, and do other things necessary for the good of the American Union. The Federalists defended the new Constitution’s ability to remedy these potentially deadly defects: the requirements for ratifying and amending the Constitution were reduced from unanimity to a supermajority of state conventions; furthermore, all acts of Congress under the new Constitution would require only a majority vote of both houses of Congress. This last improvement especially makes it less likely that the federal government would need to violate the Constitution to take necessary actions in times of crisis, as the United Netherlands had done on numerous occasions. This problem is further mitigated by the independence and discretion of the president to take certain actions in times of crisis without prior authorization from Congress; it is further mitigated by the fact that there are implied powers in the Constitution, as indicated by the necessary and proper clause in Article II. These improvements would give the federal government a degree of flexibility to better fulfill its responsibilities, especially with regard to national security, without the need to undermine the sanctity of the Constitution by frequent violations.

Christopher C. Burkett is Associate Professor of History and Political Science, and Director of the Ashbrook Scholar Program at Ashland University.

 

[1] The Federalist ­No. 20

[2] The Federalist ­No. 20

[3] The Federalist ­No. 20

[4] The Federalist ­No. 20

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Guest Essayist: Joerg Knipprath


Historians have usually described the government of the Netherlands in the two centuries between 1579 and the political system’s collapse in the late 18th century as a “republic.” Consistent with his commentary about the government of Venice, James Madison did not approve of this characterization. In Number 20 of The Federalist, he deemed the United Netherlands “a confederacy of republics, or rather of aristocracies, of a very remarkable texture.” While at times complimentary in his assessment, overall he saw in their government further evidence of what ailed, in his view, all confederations, including the United States under the Articles of Confederation.

Like the Articles, the Dutch system was forged in a war for independence, the first goal of which was to survive militarily. The Dutch referred to their Revolt of the Netherlands as the “Eighty Years’ War.” Fighting against Spain began in 1566, the seven northern provinces of the Spanish Netherlands formally united in their common cause through the Union of Utrecht in 1579, a watershed step not unlike the agreements of mutual aid and action among the North American colonies in the years before 1776. The Dutch analogue to the American Declaration of Independence was the Act of Abjuration of 1581 against the king of Spain. There were some truces and cessations of hostilities in subsequent decades, but independence was not officially recognized until the Treaty of Westphalia in 1648 which ended the much broader European conflict known as the Thirty-Years’ War. Still, the Dutch Republic had been functioning as an independent nation long before the status became official.

In the romanticized founding myths of the Dutch, the struggle was about religious toleration and national independence precipitated by an inquisition launched by the Spanish crown in support of the Council of Trent of 1543 and the Catholic Counter-Reformation. That may have been the motivator for some portion of the populace, and the assertion was useful in papering over the tensions which arose among the provinces during the war. The general reality was less lofty and more prosaic.

The Habsburg family ruled the Holy Roman Empire. They had received 17 provinces of the Duchy of Burgundy in 1482, which were allotted to the family’s Spanish branch in 1556. What happened next sounds familiar to the student of American history. The new Spanish king, Philip II, sought to centralize administration over these provinces located some distance from Spain, and to increase the efficiency of tax collecting. This would diminish the power that local bodies had previously exercised under the more hands-off approach of the Burgundians and the Emperor. The commercial towns in the southern provinces and the local nobles viewed this as an attack on their ancient privileges, secular and religious.

With resistance turning into rioting in 1566, the Spanish government sent an army, led by the Duke of Alba. Although a very capable military leader said by some to be one of the greatest of all time, he was a harsh governor, referred to by the Dutch as the “Iron Duke.” His army was generally successful against the rebels, but his policy of mass executions, sackings of towns, and massacres coalesced the population against the Spanish. The rebels received the support of a Catholic German-Dutch prince, William of the House of Orange-Nassau, the incumbent royal governor of several of the provinces. Colloquially—but unjustifiably—known as William the Silent for his supposed self-control not to erupt in anger, he was an effective political leader. As one of the richest Dutch nobles, he was also an important financial supporter of the rebels.

Although William had some successes against the Spanish army, the Duke of Alba eventually defeated his forces. William fled to his ancestral lands in Germany, from where he organized several mostly unsuccessful invasions. In 1573, Philip II relieved Alba of command and instituted a policy of reconciliation and acquiescence to greater local control. That split the rebels. The mostly Catholic southern provinces, which constitute Belgium today, returned to the Spanish fold. The seven increasingly Protestant provinces of the north remained in rebellion under William’s leadership. Dutch military fortunes brightened after the army of the United Provinces was formed following the Union of Utrecht. The army was placed under the command of William’s son, Maurice, after William was assassinated by a Spanish agent in 1584. Prince Maurice remained a prominent military and political leader for the next forty years.

One facet of the conflict at which the Dutch were consistently better than the Spanish was at sea. The northern provinces had long been oriented to fishing and maritime trade. Their coastal trade surpassed that of England and France in the 16th century. By the 17th century, their horizon had expanded to oceanic trade and the acquisition of colonies and foreign trading concessions. Along with that experience came skills in naval warfare. Professor Scott Gordon, in his thorough work on checks and balances in older constitutions, Controlling the State, estimates that, in the middle of the 17th century, the United Provinces owned more shipping capacity than England, France, the German states, Spain, and Portugal—combined. Amsterdam became the leading financial center of the world until it was finally replaced by London a century and a half later. It was the Dutch bankers from whom John Adams sought help during the American Revolution, because that was where the money was. Amsterdam was also one of the largest cities in Europe in the 17th century, having grown from 100,000 to 200,000 population in the middle decades.

Although the seven provinces were formally the main constituent parts of the “United Provinces of the Netherlands,” the towns were the actual foundation of the Dutch Republic’s political structure. The approximately 200 native Dutch noble families had status but limited power. There was not the same tradition of feudalism based on relationships of lord and vassal as in other European domains. In part, this was due to the closeness to the sea, with its sources of sustenance and wealth. In part it was due to the fact that for generations, land had been recovered by draining swamps or building dikes. These “polders” were claimed by commoners.

The towns were governed by the Regents, a wealthy subgroup of the merchant elite. The towns traced their charters and privileges to the medieval period. The Regents claimed to act for and represent the citizenry. However, their authority did not rest on broad political participation. From that perspective, the structure was not a republic, but an oligarchy. Meetings of the town councils controlled by the Regents were not open to the public. At the same time, the Regents did not constitute a class-conscious bourgeoisie in a Marxist sense. Rather, their actions seem to have been driven by local identity and preserving their local power. This town-centric system of governance remained until the reorganization of the Netherlands after the end of the Republic in the 1790s.

The towns built their own defense installations and levied taxes to maintain them, to preserve public order, and to provide for the poor. They also operated their own courts, enforced provincial laws, and administered provincial policies. The policy-making bodies, the town councils, generally had between 20 and 40 members. They elected various burgomasters annually from the Regent class to carry out executive and judicial functions.

The oligarchic character of the town governments was modulated somewhat through the militia, a combination military unit and social club. They were composed of troops of well-trained and heavily-armed men. Because members had to supply their own weapons, the militias consisted of middle and upper-middle class volunteers. They were led by officers from Regent families appointed by the town councils and were expected to carry out the latter’s wishes in case of civil disturbances. According to sources cited by Professor Gordon, riots were a not-uncommon manner for the citizenry to provide feedback to the Regents about their policies. The militia sometimes stood back if they opposed those policies themselves. Such expressions of popular discontent would have been particularly potent because the towns were still rather small, with the homes of the Regent families in close proximity to the other residents.

Gordon considers the failure of the Dutch Republic to provide less destructive means of popular expression of opposition to the town councils as one of its defects. Perhaps. But such riots were not uncommon in the history of the American republic, with apparently a customary acceptance of a degree of violence before the militia would be summoned. Recent events show that still to be a characteristic of American society. Whether that shows a defect in the republican nature of the political structure created in the constitutions of the United States and the several states is an interesting speculation.

The level of government above the towns were the provinces, formally the constitutional heart of the Dutch Republic. They were governed by entities called the “provincial states,” another institution formed in the Middle Ages. This term is not to be confused with the American concept of “states” as distinct political domains. Rather, the term refers to specific constitutional bodies which governed such political domains. These were assemblies of delegates from the towns. The members were selected by the town councils typically from the members of the Regent families. A town could send more than one delegate, but each town only had one vote, regardless of its population. However, despite this formal equality where decisions were generally reached by compromise and consensus, a dominant town would necessarily exercise a greater influence. Amsterdam as the largest and wealthiest town within the province of Holland provides a telling example. A province’s nobility also had one vote.

The principal obligation of the provincial states was to maintain the province’s military forces and to provide a system of provincial courts to preside over trials for various crimes and for appeals from the local courts. These assemblies could also assess taxes, but were dependent on the towns to collect them. Not infrequently there might be tension between the provincial state and the stadholder, the province’s chief executive from the House of Orange. Those tensions were especially acute and frequent in Holland, due to the strong anti-Orangist sentiments of Amsterdam, with its bourgeois merchants, its growing tradition of secular and religious dissent, and its cosmopolitanism. At times, Holland, as well as other provinces, refused to elect a stadholder when the prior one died.

At the apex of the Republic’s constitutional structure was the States-General, the body of around 50 delegates from the provinces. It met at The Hague. Although a province might send more than one delegate, each province had one vote. This equality of sovereigns marked the constitutional nature of the Republic in Madison’s characterization of it as a confederacy. As with the provincial states, this formal equality was tempered by the inequality of size and wealth among the provinces, in particular, Holland. That province’s delegation’s willingness to provide—or not—needed funding gave it influence which better reflected its economic position. The terms of office of the delegates were determined by the provinces and could be at pleasure, for one or more years, or for life. The agenda of the States-General was set by its president, which position rotated weekly among the provinces. Unanimity was required for action, although that was sometimes ignored if a particular need arose. It had various working committees to formulate policy and a Council of State to carry out its executive functions. The Council of State was composed of the provincial stadholder and twelve other appointees of the provincial states.

Initially, the States-General was to deal with the military campaign for independence. Thereafter, its role continued to be about war in the various conflicts in which the republic found itself in the 17th century. Beyond that, the States-General had broad responsibilities over coinage, diplomacy and foreign commerce and, as the Dutch quickly entered the pursuit of overseas empire, colonial affairs. Although it had the potential to become a national legislative body, that potential remained inchoate. Aside from the overarching political jealousies of the provinces and towns to maintain their local privileges, there were more direct limitations on the powers of the States-General, as well. For one, that body could not generally impose taxes directly. It could tax the colonies, but that yielded rather little. It could make assessments on the provinces, but that depended on the willingness of their delegates to agree, especially the delegation from Holland which typically had to bear at least half of the burden of an assessment. Any loans sought by the States-General for the benefit of the Republic must be approved by the provinces. It becomes clear why Madison saw the Republic as a case study for the fate of the Articles of Confederation.

Finally, there were the stadholder of the provinces and the de facto stadholder of the United Provinces. The office was derived from the provincial governorships the Holy Roman Emperor had established. Each provincial state selected that province’s stadholder for life. More than one province could appoint the same person, a very common scenario. During the two centuries of the Republic after 1589, all provinces always appointed members of the House of Orange-Nassau. When the need arose, the province of Holland, as the most important of the union, always appointed the head of that family. Technically, there was no Stadholder of the United Provinces. However, by customary practice, the States-General always appointed the stadholder of Holland to be the Republic’s commander-in-chief. This made the head of the House of Orange the main political leader of the most populous and prosperous province and the commander-in-chief of the Republic’s armed forces. The stadholderships generally became hereditary in the mid-17th century.

The power of the Prince of Orange over the armed forces included the power to set up military tribunals and to appoint higher-level officers. He also met with foreign ambassadors and had some adjudicatory powers, such as settling disputes among the provinces. His influence was bolstered by two broad sources. First, at the level of the union, he sat on all working committees of the States-General and on the Council of State. Together with his life term, this gave him broad knowledge about political matters over a much longer time frame than the provincial delegation, analogous to the Venetian Doge’s position in relation to the Senate and Great Council. If knowledge is power, this made the prince powerful, indeed.

Second, being the stadholder of Holland and, usually, several other provinces gave him significant control over provincial and even town affairs. The provincial stadholder was the head the province’s highest court, could pardon criminals, and had significant patronage powers over the appointment of officials at all levels. He could appoint certain burgomasters, although those had to be made from lists submitted by the Regent-controlled town councils. These roles, some formal, others by accepted practice, exercised at all levels of government, and extending to civil, military, and judicial matters, made the Prince of Orange in some ways the vortex around which Dutch politics swirled. In the end, however, with the vague constitutional dimensions of the office, it was the personality and talents of the particular stadholder which defined his powers.

A curious spectacle occasionally arose when various provinces left their stadholderships unoccupied. Even the province of Holland at one point in the 18th century left that position unoccupied for 45 years. In the 17th century Holland also prohibited the House of Orange from holding the stadholderships. Soon thereafter, its provincial state abolished the office altogether. That experiment lasted only five years, when those acts were repealed in the face of an invasion by England and France. One modern commentator quoted by Professor Gordon described the princes of the House of Orange as having “a special status within the Dutch state, almost mystical … in its nature.”

The Republic’s constitution was weakened in the 18th century in part due to factional rivalries in Amsterdam, the largest and wealthiest city in the largest and wealthiest province. The monarchist pretentious of the House of Orange clashed with the increasingly militant endemic anti-Orangist attitudes of the urban bourgeoisie. With a hardening of factional positions, political accommodations became more difficult. As well, the financial burdens of the colonial empire and the military needed to support it began to overwhelm the capacities of what was, after all, a rather small country. Still, it took the military might of, first, the Prussian Army and, thereafter, Napoleon’s forces, to end the Republic’s two centuries of successful government.

Madison in Number 20 of The Federalist disparages the Dutch system, his stand-in for the Articles of Confederation, as, “Imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace; and peculiar calamities from war.” He seems to have derived his information from a book by Sir William Temple, a 17th century British ambassador to the United Provinces. But Temple was hardly an unsympathetic observer of the Republic. Where Madison saw deadlock leading to eventual dissolution and anarchy, Temple saw a system which attracted large numbers of foreigners from polities less conducive to liberty. Certainly, the federal nature of the United Provinces stood in stark contrast to the centralization of power in national governments generally, and in monarchs particularly, which was ascendant in the Europe of the time.

If one uses classic designations of constitutions, the Dutch system at first blush most closely resembles an oligarchy. If one uses Madison’s definition in Number 10 of The Federalist, it was a closed system controlled by the wealthy Regent families and the Prince of Orange. It failed the test of broad public participation even by the limited standards of the early American polities. But, if one evaluates a republic functionally, as a political structure which provides overall social stability, fosters the general well-being of the people, and promotes the liberty of individuals to follow their own paths to fulfilled lives, all by reigning in various political institutions through a functioning balancing of powers, the constitution of the United Provinces qualifies. The mutual checks provided among the levels of government (town, provinces, union), among the provinces themselves, and between the stadholder on the one hand and the provincial states and States-General created a system which protected the liberties of the people better than other contemporaneous countries. More bluntly, as Professor Gordon explains, “[W]ith this political system, the Dutch not only fought Spain and France to a standstill and invaded England, but also made their little collection of swamps and polders into the richest, most civilized, nation in the early modern world.”

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.

 

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Guest Essayist: Chris Burkett


In the previous essay we saw the Federalist’s critique of the Holy Roman Empire and its two principal vices: first, a lack of effective executive authority in the confederacy; and second, a lack of centralized control and effective checks by the national authority over the member states. Both of these defects were strongly prevalent in the American Union under the Articles of Confederation as well. Under the Articles of Confederation, ratified in 1781, there was no independent executive branch. Important matters affecting foreign policy and national security were handled by Congress, which created numerous “executive boards” to formulate and execute defense policies. This uncoordinated approach to fulfilling executive functions, as Alexander Hamilton observed, meant that “their decisions are slower, their energy less, their responsibility more diffused.” Hamilton continued, “Congress is properly a deliberative corps and it forgets itself when it attempts to play the executive. It is impossible such a body, numerous as it is, constantly fluctuating, can ever act with sufficient decision, or with system.”[1]

Congress also lacked any real power – especially a tax power – under the Articles of Confederation, and had no way to coerce or enforce their policies upon delinquent or disobedient states. “The next most palpable defect of the subsisting Confederation, is the total want of a SANCTION to its laws,” Hamilton wrote. “The United States, as now composed, have no powers to exact obedience, or punish disobedience to their resolutions.”[2] All revenue for the purposes of defensing the Union was raised through the voluntary compliance by the state legislatures, which was frequently lacking. Furthermore, the manner in which Congress was constituted gave the individual states great influence – if not complete control – over the affairs of Congress. Each state had one vote in Congress, and state legislatures selected their congressional delegations with authority to recall those delegations at any time. Supermajorities (nine out of thirteen state delegations) were required for Congress to enact important matters such as requisitions for revenue and making treaties. Despite specific restrictions on the states, the structure of government under the Articles of Confederation gave the individual states enormous influence and control over Congress; Congress, on the other hand, had no means by which to compel the states to comply with the Articles of Confederation. In other words, the Articles of Confederation had recreated the same fundamental defects of the constitution of the Holy Roman Empire. The result was a lack of unity, coordination, and effectiveness in doing those things vitally important for the good of the whole Union – or as James Madison put it, there was a complete “want of concert in matters where common interest requires it.”[3]

The framers of the Constitution remedied these defects by creating an independent executive with a large degree of discretionary power, especially in the area of foreign affairs. “Energy in the Executive is a leading character in the definition of good government,” Hamilton observed. “It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws.”[4] The unitary nature of the executive – as opposed to executive boards or committees – provides the office with the “energy” to act on important matters with “decision, activity, secrecy, and dispatch.” The Constitution deems the president “Commander in Chief” of the military forces of the nation, giving the office a further degree of discretion, free from the influence of a cumbersome Congress, in taking swift measures necessary for the security of the Union. Even the longer four-year term in office, combined with the mode by which the president is elected – through an electoral system rather than being appointed by Congress or the state legislatures – gives the executive a degree of independence to do those things necessary for the steady administration of the laws and the protection of the states from foreign threats.

The framers of the Constitution also found remedies to prevent the “inordinate pride of state importance” from hindering the national government’s efforts to promote the good of the whole Union.[5] By dividing Congress into two houses, the preponderance of state influence in national affairs is confined to the Senate, in which state legislatures would appoint the senators (as opposed to direct election by the people of members in the House of Representatives). Rather than each state having one vote in the Senate, the two senators do not need to agree or vote in the same way on any particular law or policy. The framers also overcame reliance on the voluntary compliance of the states to provide the needed revenue for national purposes by giving to Congress a real tax power. “There is no method of steering clear of this inconvenience,” Hamilton observed, “but by authorizing the national government to raise its own revenues in its own way.”[6] Even the “republican guarantee” clause in Article IV section three gives the national government the right to protect every state of the Union “against Invasion [and…] domestic violence.” “Without a guaranty,” Hamilton wrote, “the assistance to be derived from the Union in repelling those domestic dangers which may sometimes threaten the existence of the State constitutions, must be renounced. Usurpation may rear its crest in each State, and trample upon the liberties of the people, while the national government could legally do nothing more than behold its encroachments with indignation and regret.”[7]

Through these improvements, the Constitution of the United States provides the national government with the “energy’ needed to effectively repel foreign and domestic dangers, a higher degree of independence from state interference in national affairs, and the means to prevent the frequent dissentions, rebellions, and civil wars that constantly plagued the Holy Roman Empire.

Christopher C. Burkett is Associate Professor of History and Political Science, and Director of the Ashbrook Scholar Program at Ashland University.

 

[1] Alexander Hamilton to James Duane, 3 September 1780.

[2] The Federalist No. 21.

[3] James Madison, “Vices of the Political System of the United States,” 1787

[4] The Federalist No. 70

[5] The Federalist No. 21

[6] The Federalist No. 21

[7] The Federalist No. 21

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Guest Essayist: Chris Burkett

In the months leading up to the Constitutional Convention in Philadelphia in 1787, James Madison carefully studied ancient confederacies so as to learn from their failures and improve upon their defects. He published his critique of the Holy Roman Empire in The Federalist essay number 19, co-authored by Alexander Hamilton.

The Holy Roman Empire was a union of kingdoms in Western, Northern and Southern Europe. It arose in the Early Middle Ages and lasted over eight centuries until its dissolution after the Napoleonic Wars. The Holy Roman Empire was initially under the nominal authority of one “emperor,” who claimed the right to rule as the heir of the emperors of Rome.  Eventually the office became “elected” after political control devolved to the dozens of kingdoms and territories that comprised the union.

Madison’s critique of the Holy Roman Empire focuses on two fundamental defects. The first is a lack of effective executive authority in the confederacy. Though initially under the centralized control of a single sovereign, the “principal vassals” claimed more localized control over the affairs of the union. “In the eleventh century the emperors enjoyed full sovereignty,” Madison writes. “In the fifteenth they had little more than the symbols and decorations of power.” The Emperor did retain certain prerogatives, including a veto power over the resolutions of the legislative body. Two judicial bodies, under control of the emperor, had “supreme jurisdiction in controversies which concern the empire.” From these institutions one might surmise that the supreme executive was extremely capable and efficient in directing the affairs of the union. But real political power in the Holy Roman Empire was vested in a Diet that represented the constituent members of the union.

The lack of an efficient executive had left important matters of security and commerce in the hands of a Diet whose members were deeply divided over local interests. “Military preparations must be preceded by so many tedious discussions, arising from the jealousies, pride, separate views, and clashing pretensions of sovereign bodies,” Madison writes, “that before the diet can settle the arrangements, the enemy are in the field; and before the federal troops are ready to take it, are retiring into winter quarters.” The military forces of the union are “defectively kept up, badly paid, infected with local prejudices, and supported by irregular and disproportionate contributions to the treasury.” This vice has left the confederacy constantly open to the predations of neighboring enemies.

Madison’s second and most important critique of the Holy Roman Empire is a lack of centralized control and effective checks over the member states. In theory, the member states are expected to restrain themselves from infringing upon the duties of the central government and are pledged to obey its authority. As Madison writes,

The members of the confederacy are expressly restricted from entering into compacts prejudicial to the empire; from imposing tolls and duties on their mutual intercourse, without the consent of the emperor and diet; from altering the value of money; from doing injustice to one another; or from affording assistance or retreat to disturbers of the public peace. And the ban is denounced against such as shall violate any of these restrictions.

Sufficient constitutional restraints seem to have been placed on the member states to prevent them from undermining the interests of the whole union. However, as Madison writes: “Nothing would be further from the reality. The fundamental principle on which it rests, that the empire is a community of sovereigns, that the diet is a representation of sovereigns and that the laws are addressed to sovereigns, renders the empire a nerveless body, incapable of regulating its own members, insecure against external dangers, and agitated with unceasing fermentations in its own bowels.” The central authority, in its weakness, had been forced of necessity to rely on local enforcement of the acts and policies of the Diet. “This experiment has only served to demonstrate more fully the radical vice of the constitution,” Madison writes. “Each circle is the miniature picture of the deformities of this political monster. They either fail to execute their commissions, or they do it with all the devastation and carnage of civil war. Sometimes whole circles are defaulters; and then they increase the mischief which they were instituted to remedy.”

The lack of any effective centralized authority to enforce the policies of the Diet reveals the tenuous nature by which the parts of the union remain barely united. This defect is revealed in the nearly constant acts of violence and injustice among the member states. “The history of Germany is a history of wars between the emperor and the princes and states; of wars among the princes and states themselves; of the licentiousness of the strong, and the oppression of the weak,” Madison writes. In sum, the vices of the constitution of the Holy Roman Empire are marked by “general imbecility, confusion, and misery.”

Despite these vices, one might ask, what allowed the Holy Roman Empire to persist for more than eight centuries? Not the constitution and institutions of the union, Madison concludes, but matters that rely more on “accident and force” rather than “reflection and choice.” “They are kept together by the peculiarity of their topographical position,” Madison writes, “by their individual weakness and insignificancy; by the fear of powerful neighbors…[and] by the mutual aid they stand in need of, for suppressing insurrections and rebellions.”

In the following essay we will explore the remedies to these defects that Madison and the framers worked into the Constitution of the United States.

Christopher C. Burkett is Associate Professor of History and Political Science, and Director of the Ashbrook Scholar Program at Ashland University.

 

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Guest Essayist: Joerg Knipprath

Much of the history of the Holy Roman Empire was one of conflict and intrigue: among emperors and popes, emperors and nobles, and nobles themselves. Periods shaped by forces that fostered centralization of power in the hands of strong and capable emperors were eclipsed by developments that threatened to tear apart the Empire due to personal weaknesses or military miscalculations by the holders of the imperial title. Several generations of extraordinarily wise and astute rulers were inevitably followed by the collapse of dynasties and periods of political turmoil and social misery.

The collapse of the Western Roman Empire in the 5th century A.D. led to the formation of various Germanic kingdoms throughout the former territory. The Visigoths and other invaders attempted to carry on the Roman civilization, but lacked the administrative capabilities, technological know-how, and economic wherewithal to do so. They, in turn, also collapsed within a few generations. For the inhabitants of the former Roman domain, there was continuing danger from Germanic tribes, other marauders that are said to have been successors to the Huns, and, beginning in the 7th century, Arab raiders and armies. The Byzantine emperor’s control over those lands was nominal. The Roman Catholic Church was organizationally weak and doctrinally disorganized.

In the 8th century, the situation improved. A new line of kings had been elected by the nobles of a Germanic people, the Franks. The most prominent was a warrior-king, Charles. He defeated other German tribes and pushed against the Muslims in Spain whose advance into Frankish territory had been stopped by his grandfather, Charles the Hammer. Pope Leo III, eager to distance himself from the political and religious influences of the Orthodox Byzantine Empire, and hoping to spread the influence of the Catholic Church through the physical security offered by the Franks, crowned Charles emperor on Christmas Day, 800 A.D. Carolus Magnus, or Charlemagne, as he came to be known, was proclaimed the successor to the Roman Empire in the west. Indeed, from the imperial capital at Aachen, in the current Germany, he governed, as “Emperor of the Romans,” an area of Europe larger than anything seen since that empire.

Three decades after his death, Charlemagne’s realm was divided among his grandsons. Several centuries later, the western portion became the kingdom of France. The eastern portion became the German dominions. The end of the Carolingian dynasty in 911 resulted in the fracturing of the eastern portion. There were strong tribal loyalties within the various ancestral German domains, centered on several dukedoms and on the holdings of other, less powerful local strongmen.

In 936, Otto, the duke of the Saxons, a particularly warlike people who had been barely Christianized through force by Charlemagne a century earlier, was elected King of the Germans by the other nobles. A successful military campaigner who extended the eastern Frankish realm, Otto was given the imperial title in 962, after the Pope had appealed to him for military help. Referred to as Otto the Great, he established a new dynasty of emperors. His grandson, Otto III, revived the imperial seal of Charlemagne which had the motto, in Latin, that stood for “Renewal of the Roman Empire.” He understood this to be a clearly Christian empire, not only a political unit as imperium romanum, as reflected in his designation of the realm as imperium christianum. The successors of Otto III were weak and saw themselves as primarily German kings who happened to have holdings in Italy, not as rulers of a multicultural and transcendent Christian empire.

Once political conditions in western Europe became relatively settled by the end of the 10th century, the era of the warrior-king was succeeded by the era of the great landholding magnates. High feudalism emerged as the dominant social and political structure. Wealth, social standing, and power were based on land ownership and formalized through personal obligations between lords and vassals. On the continent more so than in England, local great men were independent of the emperor, who was addressed at times as “King of Germany” or the “German Roman Emperor.” These nobles retained their ancestral privileges and often claimed new ones.

Nevertheless, the idea of Empire remained alive. This political tension of a universal empire, yet of a German people, led externally to frequent, and not always enthusiastic or well-received, involvement of the Germans in the affairs of Italian communities. Internally, it resulted in the strange federal structure of what formally became known in the 13th century as the Holy Roman Empire. The interactions between emperors and popes further underscored the claims to universality. Papal coronation bestowed God’s recognition of the emperors’ legitimacy as secular rulers in Christendom. Refusal by a pope to grant that legitimacy, or removing it later by issuing a ban on the emperor, endangered the emperor’s rule by absolving the people, particularly the nobility, of loyalty to their earthly lord and excused them from fealty to any oath sworn to that lord. In a society vastly more religious than ours, within a feudal structure fundamentally based on mutual personal loyalties and obligations, such a development could prove fatal to the ruler.

After the end of the Saxon Ottonian line in 1024 and of its successors, the Frankish Salians, control over the Holy Roman Empire shifted in 1127 to a family from another part of the realm, the Hohenstaufen line from the Duchy of Swabia in southwest Germany. Under their best-known ruler, the charismatic and militarily and politically astute Emperor Frederick I Barbarossa (“Red beard”) from 1155 to 1190, the Empire achieved its greatest geographical expanse. Shortly after the rule of his similarly powerful grandson, Frederick II, the Hohenstaufen line ended, and the Great Interregnum brought considerable turmoil to the Empire and contests among various noble families for the imperial title. Rival emperors from different houses were chosen, and a general decline of the Empire’s territory and influence occurred. Not until the 16th century did the Empire regain a prominent position in Europe.

The struggle between emperor and nobles ebbed and flowed, depending significantly on the dynamism and capabilities of the emperors. These contests were endemic, with a parallel for several centuries in the conflict between the emperors and the popes. An example of the latter was the Investiture Controversy over the right to name local church leaders which led to a half-century of civil strife in Germany in the late 11th and early 12th centuries and ended with the emperor’s powers reduced as against popes and local nobles. Even as strong an emperor as Frederick II out of political expediency had to confirm, in statutes of 1220 and 1232, previously only customary privileges to the nobles, such as over tolls, coinage, and fortifications.

In 1493, Maximilian I from the Habsburg family, became Holy Roman Emperor. From that year, the Habsburg line provided an almost uninterrupted sequence of emperors until the Empire was abolished in 1806. A significant change in outlook under Maximilian was a turn to a more national identity and the stirrings of a nascent nation-state, in part due to the proposed Imperial Reform during the late 15th century supported by the energetic Maximilian. As a consequence, the realm began to be known as the Holy Roman Empire of the German Nation.

The Imperial Reform of 1495 was an attempt to modernize the administration of the realm and to increase the power of the emperor through more centralized governance. Aside from some success in making aspects of legal administration uniform through the use of Roman Law, the reforms came to naught by being ignored in the local principalities. There, the rulers generally strove to exercise the absolute powers of monarchs in England and France. As to the Empire, these local nobles guarded their privileges. Not to be outdone, the independent imperial “free” German cities, with their rising populations and increasingly powerful commercial bourgeoisie, were no less jealous of their privileges than the landed nobility.

The problem with the political structure of the Holy Roman Empire in the eyes of the framers of the American Constitution of 1787 was the overall weakness of the emperor in relation to the nobles. The Empire was a federal system, but, in their view, an unsuccessful version. The criticism is, overall, a fair one. Alexander Hamilton and James Madison, writing in The Federalist repeatedly identified the sources of weakness. Both emphasized the straightened financial circumstances in which the emperor frequently found himself to fund the costs of imperial government or necessary military actions against foreign countries. That difficulty was due at least in part to the obstructions created by local rulers to the flow of commerce.

Hamilton mentioned in Federalist Number 12 the emperor’s inability to raise funds, despite the “great extent of fertile, cultivated, and populous territory, a large proportion of which is situated in mild and luxuriant climates. In some parts of this territory are to be found the best gold and silver mines in Europe. And yet, from the want of the fostering influence of commerce, that monarch can boast but slender revenues.” Along the same lines, quoting from the Encyclopedia, he wrote in Number 22, “The commerce of the German empire is in continual trammels, from the multiplicity of the duties which the several princes and states enact upon the merchandises passing through their territories; by means of which the fine streams and navigable rivers with which Germany is so happily watered, are rendered almost useless.” In Number 42, Madison seconded Hamiltons’s point, “In Germany, it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and diet [the parliament]; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here.” Both writers painted this bleak picture as an omen of what would occur in the United States under the Article of Confederation. The Constitution would prevent this problem because, there, Congress was given “a superintending authority over the reciprocal trade of [the] confederated states.”

More fundamentally, however, the problem of the Empire and, by analogy, the United States under the Articles of Confederation was in the structure itself, an imperium in imperio, a state exercising sovereignty within another state. In Number 19 of The Federalist, Madison presented a lengthy overview of the Empire’s history. He identified problems with the structure, such as the difficulty to meet military emergencies or collect requisitions. The emperor had no holdings as such, only in his position as a hereditary sovereign in his ancestral lands or those acquired by marriage. Madison dismissed the Empire as a playground of foreign rulers because of the conflicts among the members of the Empire and between the emperor and the nobles large and small. This division allowed foreign rulers to split the allegiances of the nobles and to keep the empire weak. The worst example of this was the Thirty Years’ War from 1618 to 1648. While there were limitations on the powers of the nobles, and while the emperor had various prerogatives, these were paper powers, not real. Ultimately, the problem was that the empire was a community of sovereigns.

In support of Madison’s critique, one can look at one locus of power, the Reichstag, the name for the Imperial Diet or parliament. The Diet in some form already existed during Charlemagne’s time. Originally intended as a forum for discussions, not as a modern legislative body, by the 11th century it presented a serious counterweight to the emperor and a source of power for the nobles in two ways. First, the Diet participated in the making of law, typically through a collaborative manner with the emperor. Second, certain members of the Diet elected the Emperor.

The Diet during the Middle Ages comprised two “colleges.” That number was eventually raised to three as feudalism gave way to a more commercial modern society, and the growing importance of the bourgeoisie in the cities required representation of their estate. Each member of those colleges in essence represented a sovereignty, and the Diet in that light was a “community of sovereigns.” When the Diet met, the colleges and the emperor attended together. All were seated in a carefully prescribed manner, respecting their rank, with the emperor front and center and raised at least three feet above all others. Voting might be either per individual or per collegium as an estate in a complicated arrangement, depending on the rank of that individual and group.

The most important of these groups was the college of electors, which represented another locus of power in the Empire. Not only did the prince-electors vote individually, rather than as an estate, but they had the important occasional task of electing the emperor, the third institution of power. There was a fourth locus of power in the Empire, that is, the pope. Papal influence precipitated many political crises in medieval Europe, because the emperor was not properly installed until crowned by the pope, a practice discontinued after Charles V in the 16th century. However, papal influence is not crucial to an examination of the Empire’s political constitution as that structure influenced the debates over the American Constitution of 1787.

The election of the emperors was derived from the ancient practice of German tribal councils to elect their leaders for life. The direct male heirs of a deceased ruler generally had the advantage in any succession claim, but heredity was never a guarantee. That practice was extended first to the election of the kings of Germany by the dukes of the largest tribes in the 10th century, and then to the election of the emperors in the 13th century. Initially, the number of electors was somewhat fluid, but eventually there were four set secular and three set ecclesiastical electors. Over time, the membership was increased to nine and, briefly, to ten electors. The ecclesiastic rulers from certain archbishoprics eventually were replaced by secular electors, and, in time, the secular rulers themselves might be replaced by others as power shifted among rulers of various local domains.

A critical moment came with the promulgation of the Golden Bull of 1356 by the Imperial Diet at Nuremberg. A “bull” in this usage is derived from the Latin word for a seal attached to a document. Because of such a decree’s significance, the imperial seal attached to this document was made of gold. This particular golden bull was the closest thing to a written constitution of the Empire. It was the result of the political instability caused by contested elections and succession controversies. It specified the number—seven—and identity—by secular or ecclesiastical domain—of the imperial electors. Procedures were set for the emperor’s election, the specific functions of the electors were prescribed, and an order of succession was provided if an elector died. For example, to prevent rival claims from lingering and dragging the realm into disunity and war, the deliberations of the electors must result in a timely decision. Failure to decide on an emperor within 30 days in theory would result in the electors being given only bread and water as sustenance until they concluded their task.

Also significant was the Golden Bull’s undermining of the emperor’s power. Sometimes described as a German analogue to the Magna Charta of 1215 imposed by the English nobility on King John, it affirmed the privileges of the nobility against the emperor. Tolls and coinage were the right of the nobles in their domains. Crimes against them, including presumably through actions by the emperor, became treason against the empire itself. The rulings of their courts could not be appealed to the emperor. With a few notable episodic exceptions, such as the rule of Maximilian I and Charles V in the 16th century, this decree put the Empire on a gradual path to disintegration and reconfiguration as independent nations-states.

Voltaire is credited with the quip in his Essay on Customs in 1756 that the Empire was “neither Holy nor Roman nor an Empire.” Whatever might have been the veracity of his derision half a millennium earlier, when he wrote the essay his satire did not require much nuanced reflection on the part of his readers. The emperor in a basic sense was always the primus inter pares, and his power rested on the prestige of his title, the size and wealth of his own ancestral domain, and his skills as a political operator and military leader. Even with the emergence of the modern nation-state, the Holy Roman Empire remained just a confederation of de facto sovereignties, a matter underscored by the Treaty of Westphalia in 1648, which ended the Thirty Years’ War. The Habsburg ruler’s power was a far cry from the classic imperium of Octavian.

With the Reformation and the rise of the self-confident nation-state, the Roman and classic medieval idea of the universal Christian empire also became anachronistic. And it was no longer “Roman.” The conscious effort of Frederick I Barbarossa in the 12th century to demonstrate that the Empire was “Roman” stands in stark contrast with the 16th century, when emperors and the Diet emphasized its German character. As constituent German entities in the Empire, such as Prussia and Bavaria, grew more powerful, the struggles between emperor and nobles intensified and sharpened into outright wars as between independent nations. The imperial structure and its institutions, such as the Diet, became weaker and, indeed, irrelevant. Despite some belated and ineffectual efforts at reform and reorganization around the turn of the 19th century, the Empire, the thousand-year Reich, was dissolved a half-century after Voltaire’s remark, when Napoleon’s army crushed the emperor’s forces and effected the abdication of Francis II in 1806.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.

 

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Guest Essayist: Daniel A. Cotter


America’s Founders and Constitution Framers who gathered in Philadelphia in 1787, 235 years ago this May, did not arrive without examples of what worked and what did not work in past empires or republics. In Essay #12, we examined the Constitution’s wisdom in light of the Roman Empire and how certain provisions helped ensure against regime failure. In this essay, we explore further some of the Constitution’s wisdom in preventing such failures.

The Republic of Venice

While the Republic of Venice officially lasted eleven hundred years, the five hundred years referred to here is the constitutional period, from 1297 until the fall of Venice in 1797. In 1297, an ordinance was passed providing for the Council of Forty. Venice was ruled by the doge, elected by the Council, and ruled for life. The Founding Fathers would consider the form of government of Venice and provide protections against regime failure, including the Republican Guarantee Clause.

The Guarantee Clause

Article IV, Section 4 of the Constitution provides:

“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

This was an important provision included by the drafters to ensure a process of governance through elections. The drafters had examples of the Republic of Venice and Rome and other regimes in collapse, with concerns about other forms of government, even those labeled republics, at its core.

In Federalist No. 57, the reality of various forms of republican government is acknowledged:

“The elective mode of obtaining rulers is the characteristic policy of republican government. The means relied on in this form of government for preventing their degeneracy are numerous and various. The most effectual one, is such a limitation of the term of appointments as will maintain a proper responsibility to the people.”

In 1787, ahead of the Constitutional Convention and back from a trip to the Netherlands, John Adams published the first of his three-volume set, “A Defence of the Constitutions of Government of the United States of America.” In it, his goal was to defend the tripartite form of federal government. He examined other republics, including Venice. As to Venice, he wrote:

“It was at first democratical…. the people…determined that one magistrate should be chosen, as the center of all authority…. He was to be for life…he was to have the nomination of all magistrates, and the power of peace and war.”

Adams then discusses the evolution of the system in Venice, with power being in a few and not in the populace. Adams proposed the form of republican government that would find its way into the Constitution.

Adams concluded Volume I:

“All nations, under all governments, must have parties; the great secret is to controul them: there are but two ways, either by a monarchy and standing army, or by a balance in the constitution. Where the people have a voice, and there is no balance, there will be everlasting fluctuations, revolutions, and horrors, until a standing army, with a general at its head, commands the peace, or the necessity of an equilibrium is made appear to all, and is adopted by all.”

In Federalist No. 39, James Madison refers to Venice and how the republican form of government, as the Founding Fathers envisioned it, was to be different.  Madison wrote:

The first question that offers itself is, whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government. If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible.

“What, then, are the distinctive characters of the republican form? Were an answer to this question to be sought, not by recurring to principles, but in the application of the term by political writers, to the constitution of different States, no satisfactory one would ever be found. Holland…has passed almost universally under the denomination of a republic. The same title has been bestowed on Venice, where absolute power over the great body of the people is exercised, in the most absolute manner, by a small body of hereditary nobles…These examples, which are nearly as dissimilar to each other as to a genuine republic, show the extreme inaccuracy with which the term has been used in political disquisitions.

“If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic.”

(Emphasis added.)

With the Guarantee Clause, majority rule is the way, and each state must have an electoral process in place, to prevent the usurpation of power by a monarchial actor such as the doge. It is an important safeguard put in the Constitution by the founders.

The Supreme Court has ruled that the Guarantee Clause cannot be challenged in federal court, as it is nonjusticiable.

Conclusion

The Constitution’s wisdom is shown in many ways, including with the Guarantee Clause of the Constitution. The careful drafting in 1787 has helped to ensure American Exceptionalism once again.

Dan Cotter is Attorney and Counselor at Howard & Howard Attorneys PLLC. He is the author of The Chief Justices, (published April 2019, Twelve Tables Press). He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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Guest Essayist: Joerg Knipprath

 

In Number 39 of The Federalist, James Madison objects to the habit of political writers of referring to Venice as a republic. He asserts that Venice is a system “where absolute power over the great body of the people is exercised, in the most absolute manner, by a small body of hereditary nobles.” Later, in Number 48 of the same work, Madison raises the need of providing practical security for each branch of the government against the intrusion by others into its powers. He quotes Thomas Jefferson’s Notes on the State of Virginia. Jefferson, commenting about the formal separation of powers in the constitution of Virginia which he had been instrumental in creating, bemoaned the lack of effective barriers among the branches which would better preserve their respective independence. As a part of his critique, Jefferson opined that the concentration of legislative, executive, and judicial powers in one body would be “the definition of despotic government.” Further, it mattered not “that these powers would be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it, turn their eyes on the republic of Venice.”

Leaving aside the historical veracity of Madison’s and Jefferson’s characterizations of Venice, their perceptions shaped their ideas of a proper “republican” political structure and how that would differ from Venice. Madison’s critique of a city governed absolutely by a small body of men made Venice an aristocracy or, more accurately, an oligarchy for him. It is ironic that opponents of the proposed Constitution launched that very calumny against the structure which Madison was defending. The Anti-federalists maintained a drumbeat of attacks about the supposed anti-republican, aristocratic Constitution. Some were thoughtful and substantive objections. Other writers opted for the popular appeal of satire, not likely nuanced and subtle humor, but an entertaining burlesque style.

Two examples suffice. A writer styling himself “Aristocrotis” wrote a lengthy satire in a pamphlet published in Pennsylvania in 1788.

“For my own part, I was so smitten with the character of the members [of the Philadelphia Convention], that I had assented to their production, while it was yet in embryo. And I make no doubt but every good republican did so too. But how great was my surprise, when it appeared with such a venerable train of names annexed to its tail, to find some of the people under different signatures—such as Centinel, Old Whig, Brutus, etc.—daring to oppose it, and that too with barefaced arguments, obstinate reason and stubborn truth. This is certainly a piece of the most extravagant impudence to presume to contradict the collected wisdom of the United States; or to suppose a body, who engrossed the whole wisdom of the continent, was capable of erring. I expected the superior character of the convention would have secured it from profane sallies of a plebeian’s pen; and its inherent infallibility would have debarred the interference of impertinent reason or truth.”

With the tune of satire set, Aristocrotis applied it to a libretto of feigned aristocratic enthusiasm for a document which, according to him, set the few to rule over the many, in accord with the law of nature. Particularly useful for this aristocratic scheme was a powerful Senate and both direct and deviously hidden restrictions on the potentially dangerous House of Representatives. Establishing the latter was an unavoidable practice reflective of the corrupt practices of the times, he acknowledged. However, providing for 2-year terms, instead of the annual elections common to republican state constitutions, in combination with Congress’s power to set the times, places, and manner of elections allowed that body’s membership to perpetuate itself. In addition, Congress had the power to tax so as to give itself independence over its own pay. Raising taxes on the people would have another salubrious effect: it will make them industrious. “They will then be obliged to labor for money to pay their taxes. There will be no trifling from time to time, as is done now….This will make the people attend to their own business, and not be dabbling in politics—things they are entirely ignorant of; nor is it proper they should understand.” If the people object, Congress had the power to make them comply by raising an army. This backhanded compliment reflected the deep republican antipathy to peacetime armies.

Another example of the style was an essay by “Montezuma,” which appeared in the Philadelphia Independent Gazetteer on October 17, 1787, a month after the constitutional convention adjourned. If anything, Montezuma was even more prone to literary absurdity and plot lines reminiscent of a Gilbert and Sullivan production a century later than was Aristocrotis. He begins, with all emphases in the original,

“We, the Aristocratic party of the United States, lamenting the many inconveniences to which the late confederation subjected the well-born, the better kind of people, bringing them down to the level of the rabble—and holding in utter detestation that frontispiece to every bill of rights, “that all men are created equal”—beg leave (for the purpose of drawing a line between such as we think were ordained to govern, and such as were made to bear the weight of government without having any share in its administration) to submit to our friends in the first class for their inspection, the following defense of our monarchical, aristocratic democracy.”

After this mockery of the Constitution’s preamble, Montezuma proceeds to a listing of provisions that animate his imagined constitution. Any semblance of republicanism in the actual proposal, such as the election of the House of Representatives is a mirage. After all, the actions of the House can be overridden by the aristocratic Senate’s refusal to go along or by the monarchic President’s veto. Moreover, there is no limit to their re-election, so that the basic republican principle of “rotation of office” found in the Articles of Confederation is eliminated. This will result in perpetual re-election and soon make the representatives permanent members of the ruling elite. The Senate is the main home of this elite and is structured with long overlapping terms so that there is continuity in membership to acculturate any newcomers to the elite’s ways. The states are made subordinate to, and dependent on, the national government and will be “absorbed by our grand continental vortex, or dwindle into petty corporations, and have power over little else than yoaking hogs or determining the width of cart wheels.” The office of President is so named to fool the rubes with a republican title which hides his kingship. After all, “[W]e all know that Cromwell was a King, with the title of Protector.” He is the head of a standing army, which will start out small, ostensibly to defend the frontier. “Now a regiment and then a legion must be added quietly.” This allows the elite “to entrench ourselves so as to laugh at the cabals of the commonality.” There is no bill of rights, including the “great evil” of freedom of the press. The list goes on. Concluding his send-up of the Constitution through its closing phrase, Montezuma writes, “Signed by unanimous order of the lords spiritual and temporal,” a direct reference to the British House of Lords.

Montezuma and Aristocrotis recited the common themes of the Constitution’s opponents about the document’s insufficient republicanism: Long terms of office, no rotation in office through mandatory term limits, an aristocratic Senate, a president elected and re-elected for sequential lengthy terms, a standing army, consolidation of the formerly sovereign states into a massive national government, and lack of a bill of rights. There were other, more specific concerns raised by thoughtful opponents, but the foregoing resonated well with the citizenry.

If those themes defined a constitution’s non-republican character, Venice looked little different from what the Philadelphia Convention had produced. True, a formal nobility was prohibited under the Constitution, but there had been no formal nobility set in place in Venice until the previous constitutional structure was changed in 1297. Rather, wealth determined one’s status. Further, the commoners controlled the operations of the government through the bureaucracy. There were other important political institutions, such as the Senate with its important role to define public policy in Venice, but the ultimate power to make law was in the most populous branch, the Great Council, acting without fear of a veto by another branch of government. Unlike the proposed American system, membership in the Venetian Senate and the executive apparatus, with the exception of the Doge, was limited to annual or even shorter terms, as was the practice in the early state constitutions. While the President’s selection was filtered through electors chosen by the state legislatures, and the election might finally be determined by the House of Representatives, the selection of the Doge occurred through a process which had a strong component of what was classically viewed as a “democratic” tool, the drawing of lots of the names of those who would make that selection. The likelihood of a cabal controlling this convoluted process in order to install a puppet as the head of government was no more likely in Venice than under the Constitution. Moreover, the Doge had little formal power, unlike the President. Finally, Venice had no standing army, although it did have a large and powerful navy. In short, to an opponent of the Constitution, “aristocratic” Venice had at least as “republican” a character as the proposed American system, and Madison’s contemptuous dismissal of the city as a small group governing with absolute power sounded hollow.

The writers of The Federalist strove mightily to rebut these attacks. Madison’s narrowly formalistic definition of a republic in essay Number 10 that its distinguishing characteristic was its system of government by indirect representation, rather than direct action by the citizenry, was useful to establish a minimum of republicanism in the proposed system. But, by itself, it would hardly suffice to address the Anti-federalists’ multiple attacks. Madison understood this weakness and went on the attack, cleverly turning his opponents’ arguments against them in connection with the problem of “factions” and their threat to individual liberty and political stability.

Today, that essay is considered a brilliant insight into how political actors operate and how the framers were practical men who set up the constitutional machinery for our system of interest group politics later dubbed by the American political theorist Robert Dahl as Madisonian “polyarchy.” Yet, at the time of its publication, essay Number 10 aroused hardly a murmur. The reason likely was that few disputed his premises or his discussion about the existence, sources, and problems of factions in society seeking their own ends in contrast to the republican ideal of the general welfare. Alexander Hamilton, for one, had addressed the same point in essay Number 9. As well, no one really challenged his definition as a necessary characteristic of a republic. They disagreed about its sufficiency for a republic and, more profoundly, about whether the Constitution adequately balanced the self-interests of factions while at the same time preserving liberty.

As in so many other instances, the writers of The Federalist took to heart the maxim that “the best defense is a good offense.” Madison argued first that the republican principle of the vote, as qualified by the states themselves per the Constitution, would protect against extended dominance by some political minority. As to liberty, Madison asserted that the very variety of political factions spread across the country made the national council less likely to succumb to a dictatorship of an entrenched faction than would be the case in a smaller, culturally more homogeneous polity, whether democratic or republican in structure, such as a state or a city, including Venice. In a memorable paragraph, he wrote:

“The influence of factious leaders may kindle a flame within their particular states, but will be unable to spread a general conflagration through the other states: a religious sect may degenerate into a political faction on a part of the confederacy; but the variety of sects dispersed over the entire face of it, must secure the national councils against any danger from that source: a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the union, than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire state.’

In other words, to prevent the deleterious effects of factions, the answer is, the more, the better, and the larger the domain, the more factions will exist. In at least the sense of guarding against a federal tyrant, diversity really is our strength. He repeated this defense of the general government in other essays, including one of the most renowned, Number 51.

Essay Number 51 also provides a thoroughgoing refutation that the states will be “consolidated” into the general government, and that the latter will degenerate into a tyranny. Madison relied on the formal structural separation of powers with its mutual checks and balances and on reflections about human nature. As to the first, he found common ground with his opponents:

“In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which, to a certain extent, is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted, that the members of each should have as little agency as possible in the appointment of the members of the others….It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices.” In the opinion of its supporters, the Constitution did that, and to exactly the correct degree.

As to the second, Madison tapped into the cynicism of some of his antagonists and the generally pessimistic views most Americans had about human nature in its fallen state. In another series of hard-hitting paragraphs, he urged:

“But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others….Ambition must be made to counteract ambition. The interests of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government of men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

In short, government is a necessary evil commensurate with the fall of mankind. But, as a human creation, it, too, is naturally corrupt. To protect liberty, one cannot overly rely on the virtue of the citizenry, and certainly not on that of the rulers. Constitutions are made of parchment and need robust pragmatism to work. To do that, it is best to harness the natural self-interest of politicians to maintain and then expand their power, by setting them against each other in various independent centers of power, state, national, legislative, executive, and judicial. The scandalous and amoral proto-capitalist assertion by the early-18th-century economist Bernard de Mandeville in his satirical Fable of the Bees about how private vices, such as greed, lead to public benefits, such as economic growth, applies well in the political realm, it seems. Such a multiplicity of political institutions acting as checks on each other, exists in the entire system of human affairs, private and public, according to Madison. An examination of the competition among political bodies and offices which characterized constitutions throughout Western history, from Athens and Sparta to Rome and Venice, bears him out.

It must be noted that, by engaging their opponents in a debate about the objects of government in a republic, not merely about its operational grounding in the particulars of the concept of representation, the writers of The Federalist were able to turn the contest to their advantage. Debates over annual versus biennial election of representatives, or four-year terms for the President versus three-year terms for the governor of New York, was playing small ball. Those issues must be addressed and were, in various writings. Excepting the careful obfuscation of the institution of slavery, the big issues were given their proper due. Reassuring the people incessantly that the federal government was of little consequence when compared to the reserved powers of the states; that the President had exactly the right degree of power to provide energy to government while also being checked by Congress’s or the Senate’s power over the purse, war, and treaties; that a standing army was necessary to protect the country’s security and that the possibility of that army becoming dangerous to liberty was remote in light of the vastly larger number of armed Americans organized into militia.; that a bill of rights was both unnecessary and would be proposed once the Constitution was adopted. Those were the republican principles which mattered, and it was there that Madison and others successfully advocated the Constitution’s republican bona fides.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.

 

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Guest Essayist: Joerg Knipprath


In Number 10 of The Federalist, James Madison defines “republic” and distinguishes that term from “democracy.” The latter, in its “pure” form, is “a society consisting of a small number of citizens, who assemble and administer the government in person, ….” Think of the classic New England town meeting or the administration of justice through a jury drawn by lot from the local citizenry. A republic, by contrast, is “a government in which the scheme of representation takes place, ….” It is distinguished by “first, the delegation of the government … [given] to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of the country, over which [a republic] may be extended.” The last quality is due to the fact that direct participation by citizens means that the place of government cannot be too far from their homes, lest they must leave their livelihoods and families, whereas the indirect system of governance in a republic only requires that the comparatively small number of representatives be able to travel long distances from their homes. One argument by historians for the collapse of the Roman Republic and its popular assemblies is that eventually there were too many Roman citizens living long distances from the city to make the required direct participation in the assemblies possible.

Political theorists and Western expositors of constitutional structures have characterized various systems as republics more broadly than Madison’s functional and limited definition. Examples abound. Plato ascribed the title Politeia (“Republic”) to his principal work on government. His conception of the ideal system was one of balance among different groups in society, with the leaders to come from an elite “guardian” class bred and trained to govern. This has been called government by philosopher-kings, but it was an obvious aristocracy in the true meaning of the word, government by the best (aristoi). Such government would establish a realm of “justice,” the cardinal virtue of the individual and the political order, through trained reason. He analogized the system to a charioteer who, through his reason guides the chariot safely along the path to the destination. The charioteer relies on the help of the strong obedient horse to control and direct the unruly horse which, driven by its appetites for physical satisfaction, wants to bolt off the path in search of immediate gratification of its desires. The charioteer is the guardian class, the strong horse the auxiliaries—disciplined and competent military officers and civil administrators—, and the unruly horse the masses. The system allows all to achieve their proper status in society in reflection of their inherent natural inequalities, provides stability necessary for social harmony, and is guided by an ethical principle—justice; hence, it is a republic.

Aristotle in his Politika did not discount the role of the demos in Athens. Like Madison, Aristotle considered democracy to be unstable and dangerous. From an analytic perspective, as was the case for Plato, democracy was a corruption of politeia, which he considered the best practical government for a city. Man is a politikon zoon, a creature which by his nature is best suited to live in the community that was the Greek polis. Once more, preserving a stable society and governing system was the key to maximizing the flourishing of each resident in accordance with the natural inequalities of each. Aristotle saw that balance in the “mixed” government of Athens, neither pure democracy nor oligarchy, in which the formal powers of the demos in the assembly and the jury courts were balanced by the Council of 500 and the practice of deference to the ideas and policies advanced by the elite of the wealthy and of those who earned military or civic honor.

The government of Rome before at least the First Triumvirate in 59 B.C. of Caesar, Pompey, and Crassus has consistently been described over the centuries as a “republic.” Polybius explained mikte (mixed government), the political structure of the Roman Republic, differently than did Aristotle. But he, too, deemed Rome a republic because of the balance among the monarchic, aristocratic, and democratic elements of its constitution. As important, the practical functioning of the competing political institutions limited the power of each. Polybius related the political structure and its evolution to Roman character traits that reflected Rome’s history and contemporary culture, which had stressed the maintenance of civic virtue. Polybius also understood that Romans were not immune to human passions and vices. Like Madison writing nearly two millennia later, he warned that Rome’s republican structures were better than other forms of government but were not impregnable barriers against political failure.

Cicero also described Rome as a mixed government, although his declaration that the people were the foundation of political authority was opposed to his approving description of the patrician Senate as preeminent. For Cicero, Rome’s system reflected the natural divisions of society, with leadership appropriately assigned to the best, the optimates. What made Rome a republic was that the mutual influences and overlapping authority of the various political institutions provided the stability for a successful community oriented to the thriving of all, the res publica. In the Ciceronian version, Rome was a republic, but an aristocratic one.

Closer to Madison’s time were the observations of Baron Montesquieu, an authority well-respected by the writers of The Federalist. Montesquieu’s The Spirit of the Laws has been criticized as contradictory and lacking systematic analysis. In a relevant portion which describes the English system, he calls the structure a mixed government, with separate roles for monarch, Lords, and Commons. He characterizes this as a republic, similar to the Rome of Polybius, because they embodied different interests and were able to check each other to prevent any of them from exercising power arbitrarily. England was a republic in function, but a monarchy in form.

Today, one sees systems self-named as republics that are a far cry from the foregoing examples. North Korea as the Democratic People’s Republic of Korea, the People’s Republic of China, and the erstwhile Union of Soviet Socialist Republics appear to have at most a passing resemblance to the Rome of Polybius or the England described by Montesquieu. Their “republican” connection seems to be at best a theoretical nod to the concept of the people, in the form of the proletarian class, as the source of authority, with the ruler chosen for long term, often life, by a token assemblage of delegates in a closed political system.

What then made classical Venice a republic? Based on classical taxonomy of “pure” political systems, Venice was an aristocracy. Although Venice had been founded under Roman rule, the most revealing period was the half-millennium between the constitutional reforms of 1297 and the Republic’s end after the city’s occupation by Napoleon in 1797. Like Rome and other classical polities, Venice had no written formal constitution or judicially applied constitutional law. The political structure was the result of practical responses to certain developments, the demands of popular opinion, and, as in Rome, the deference to custom traceable to the “wise ancestors.”

In 1297, membership in the nobility became fixed in certain families, and the previous fluid manner of gaining access through the accumulation of wealth during a period of economic expansion was foreclosed (the “Serrata”). That said, the number of nobles was significant, with estimates that it amounted at times to 5% of the population. The nobility governed, and their foundational institution was the Great Council. All adult males of the nobility belonged to the Council and could vote in its weekly meetings. That body debated and enacted laws. It voted on the appointment of the city’s political officials, of which at times there were estimated to be more than 800. Since the officials’ terms of office were brief, and turnover frequent, this task occupied considerable time of the Council.

In addition, there was another powerful political body, the 300-member Senate, Venice’s main effective policy-making institution. Nobles at least 32 years old were eligible to be selected by one of two procedures, election by the Council or by lot drawn from nominations by retiring Senators. Their annual terms overlapped, with no uniform beginning and end. As well, senior civil and military officers were members. The Senate determined policy for the government, most particularly in foreign and financial affairs. However, the agenda of the Senate was set by the 26-member Collegio, a sort of steering committee. While the Collegio could control what matters were debated by the Senate, it could only offer opinions held by various of its members about an issue, not submit concrete proposals.

The administrative part of the Venetian government was particularly complex, as described by Professor Scott Gordon in his well-researched book, Controlling the State. Regarding Venice, he refers frequently to Gasparo Contarini’s classic work from 1543, De Magistratibus et Republica Venetorum. Selection to office involved a confusing combination of voting and selection by lot. Gordon provides a schematic of the selection of the Doge, the city’s head. At once amusing and awe-inducing for its complexity, a simplified version is shown by: 30L-9L-40E-12L-25E-9L-45E-11L-41E-Doge, where L stands for selection by lot and E for election. In other words, at a meeting of the Great Council, the names of 30 members were drawn by lot. From them, 9 were drawn by lot. Those nine voted for 40 members of the Great Council. From those, 12 were drawn by lot, and so on, until 41 nominators were selected who would select the duke. This convoluted procedure had some anticipated benefits. Together with the prohibition of formal campaigning, the unpredictability of the eventual selecting body discouraged election rigging. Moreover, the time delays involved and the likely variation of opinions among the members of the Council encouraged debate in the Council and among the public about the qualifications of various potential candidates. Factionalism is unavoidable in large bodies, but its effects likely were somewhat blunted by this procedurally chaotic approach.

Although elected for life, the doge himself had little formal substantive power. He could do nothing official by himself. To meet visitors, or when he engaged in correspondence, at least two members of the Ducal Council had to be present. The Ducal Council was composed of six members elected for eight-month terms by the Great Council, each representing a geographic district of the city. They were the doge’s advisors, but also his watchdogs, much as the ephori (magistrates) of Sparta shadowed their kings.

Upon election, the new doge had to swear an oath on a document which detailed the limitations imposed on his office. Those limitations could vary, depending on the political conditions and the identity of the person selected. To remind him, the oath was reread to him every two months. After the doge died, his conduct was subject to an inquiry by committees of the Great Council. If he was found to have engaged in illegality, his estate could be fined, a not unusual result.

The office had little formal power, but it was more than simply ceremonial. The Doge presided over the meetings of the Great Council and the Senate, though he did so attended by the Ducal Council and the three chief judges of the criminal court. His power came from his long tenure and his participation in the processes and deliberations of all of the important organs of the city’s government.

There also were security and secret police organs, such as the shadowy Dieci (Council of Ten), elected by the Grand Council to staggered one-year terms, and the three Inquisitors. The Dieci targeted acts of subversion. The usual legal rules did not apply to them, to allow them to move quickly and secretly. The Inquisitors were a counterintelligence entity, set up to prevent disclosure of state secrets. Like all such extraordinary bodies connected to national security, they represented a potential threat to the republican structure of Venice. Notably, there is no record of them attempting to subvert the republic and seize power.

A final and very significant component of the Venetian system were the bureaucracy, the craft guilds, and the service clubs. All of these were controlled by the non-noble citizens of Venice. The first, especially, was an ever-expanding part of the government. Excluded from the political operations, commoners sought power through the bureaucratic departments. Eventually, a sort of bureaucratic oligarchy developed, as prominent families came to dominate certain departments over the generations. These cittadini roughly equaled the nobles in number, and they had the advantage that, unlike the annual terms of noble officeholders, they held their offices for life.

Venice acquired the reputation among writers during the 15th through 17th centuries of an “ideal” republic, with a stable constitution able to survive even catastrophic military defeat in 1508. The city was marked by good government and the protection of political and religious liberty. As noted by one modern commentator, Venice was “a Catholic state where the Protestant could share the security of the Greek and the Jew from persecution.”  The system stood in contrast to the violent chaos and bouts of persecution that characterized the history of Florence and other Italian cities, and the economic backwardness and lack of social mobility of the emerging nation-states, such as France. It was a wealthy, capitalist society, which was easily able to raise more tax revenues than nation-states with several times its population. On the military side, although it had no regular army or militia, Venice had for several centuries the most powerful navy in the world, with bases around the eastern Mediterranean to protect its far-ranging commercial interests.

However, by the 18th century, the “myth of Venice” had become tarnished, as the city acquired a reputation for civic decay. Hamilton and Madison wrote disparagingly about it in The Federalist, the latter claiming that the city did not meet the definition of a republic. Thus, coming back to that earlier question, why was Venice’s constitution described as such by so many? Madison’s own definition in No. 39 of The Federalist, in which he rejects characterizing Venice as a republic, emphasizes that the governing authority in a republic must come directly or indirectly from the “great body of the people,” and the government must be administered by persons holding office during good behavior.

It is true that the organs of state in Venice were controlled by a noble elite of at most 5% of the population. Yet, the general exclusion of women, children, convicts, and slaves from governance in the American states, along with the impact on free male adults of the property qualifications imposed by many states on voting well into the 19th century, undercuts Madison’s claim that the American states were republics. Moreover, in Venice the cittadini carried out the ordinary operations of the government and were, therefore, a significant force in the execution of government policy. Looking at terms of office, with the exception of the doge’s life tenure, office holders in Venice were usually selected for annual terms, unlike the longer terms of office for President, Representatives, Senators, and judges in the United States. Indeed, it was the very length of the tenures of officers of the general government which the Anti-federalists decried as unrepublican, and which Madison defended.

That is not to say that Madison’s focus is misplaced. It is a necessary, but not sufficient, condition of a republic that there is a significant element of popular participation, albeit one not amenable to precise reckoning. As important, however, is that the government is not unlimited and power is not concentrated in a single person, class, or body of persons. The balance and separation of powers which Madison considers to be crucial in The Federalist Numbers 10 and 51, when he defends against the charge that the Constitution is a prescription for tyranny, is also clearly present in Venice’s, one might say Byzantine, structure of overlapping entities checking and supervising each other. It was a structure that, by Madison’s time had, with some alterations, served the city for 500 years since the Serrata, and another three centuries since its independence from Byzantium before then. It took Napoleon’s mass army, the military might of a large nation-state, to end Venice’s long-functioning, but obsolete city-state constitution.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.

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Guest Essayist: Daniel A. Cotter


Those who gathered in Philadelphia in 1787, 235 years ago this May, did not arrive without examples of what worked and what did not work in past empires or republics. With such wisdom, the Founding Fathers made sure the Constitution addressed regime failure. Two of those provisions are the Necessary and Proper Clause and the vesting clause of executive power.

The Necessary and Proper Clause

Article I of the United States Constitution sets forth the Congressional powers. Article I, Section 8, Clause 18 of the Constitution provides:

“[The Congress shall have Power] … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

This clause has been referred to as the “elastic clause” or the “sweeping clause” because the language on its face appears to expand significantly the powers of Congress. The clause has been referred to as the most important provision in the Constitution, for good reason – most federal laws are enacted under this Clause 18.

From the beginning, the clause has been debated. In Federalist No. 33, Alexander Hamilton argued the “virulent invective and petulant declamation against the proposed Constitution” caused in large measure by the Necessary and Proper Clause was misdirected, writing in part:

They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government and vesting it with certain specified powers. This is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the plan, without emotions that disturb its equanimity.

“What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the MEANS necessary to its execution? What is a LEGISLATIVE power, but a power of making LAWS? What are the MEANS to execute a LEGISLATIVE power but LAWS? What is the power of laying and collecting taxes, but a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and collect taxes? What are the proper means of executing such a power, but NECESSARY and PROPER laws?”

James Madison in Federalist No. 44 reiterated much the same. Anti-federalists expressed concern about the unlimited power the Clause presented. Writing in Anti-federalist No. 32, Brutus wrote: “It is truly incomprehensible. A case cannot be conceived of, which is not included in this power. It is well known that the subject of revenue is the most difficult and extensive in the science of government.” The concern would play out in the Supreme Court over the years, beginning early in the republic.

In 1819, the Court supported the views of the Federalists, in McCulloch v. Maryland, 17 U.S. 316 (1819). Chief Justice John Marshall wrote the opinion, and after explaining the meaning of the clause, echoed the language of Federalist No. 44:

“We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

(Emphasis added.)

Vesting Clause

Article II, Section 1 begins: “The executive power shall be vested in a President of the United States.” Known as the “vesting clause,” this clause too has been the subject of debate. With no settled meaning of the term “executive power” at the founding, some have argued that the term refers only to those powers set forth in the Constitution in other provisions. The opponents of the minimalist view assert that the power is expansive, subject only to specific limitations included in the Constitution. The latter view is referred to as the “unitary executive” and many have argued the president has such powers, often the party of the president in the White House asserting he has such powers, but not when the opposing party is inhabiting the White House.

In Federalist Nos. 69 and 70, Hamilton wrote of the need for a singular executive and the powers. In Federalist No. 70, Hamilton wrote in part:

“This unity may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority; or by vesting it ostensibly in one man, subject, in whole or in part, to the control and co-operation of others, in the capacity of counsellors to him. Of the first, the two Consuls of Rome may serve as an example; of the last, we shall find examples in the constitutions of several of the States. New York and New Jersey, if I recollect right, are the only States which have intrusted the executive authority wholly to single men. Both these methods of destroying the unity of the Executive have their partisans; but the votaries of an executive council are the most numerous. They are both liable, if not to equal, to similar objections, and may in most lights be examined in conjunction.”

Conclusion

The Constitution’s wisdom is shown in many ways, including with the two provisions covered by this essay.  The careful drafting in 1787 has helped to ensure American Exceptionalism.

Dan Cotter is Attorney and Counselor at Howard & Howard Attorneys PLLC. He is the author of The Chief Justices, (published April 2019, Twelve Tables Press). He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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Guest Essayist: Will Morrisey
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Plutarch writes of the life of Gaius Marius, the noted Roman general who seized power in the Roman Republic early in the first century B.C., that Marius was no patrician. He was born into the equestrian class—“poor smallholders,” as Plutarch describes them, a family living outside the great city. He rose to prominence on the strength of his own abilities and of his leading virtue, courage. As a young man, he had disdained the liberal arts education which had entered Rome from Greece. After all, were not the Greeks now the slaves of Rome, their education corruptive of the manliness that resists enslavement? A real man evidently needed no Aristotelian moderation, in Marius’ judgment: Plutarch cites Marius’ “harsh and better character,” his “inordinate love of power,” and “insatiable greed,” along with his inveterately superstitious mind, as markers of his rejection of everything urbane and civil. No gentleman he, and proud of it.

A great military strategist and tactician, Marius began his rise to prominence by crushing the Teutones and Ambrones at today’s Aix-en-Provence in 102 B.C. Using paupers and slaves as his soldiers, he next defeated and captured the formidable African monarch, Jugurtha. When the Teutones and the Cimbri joined forces to invade Italy, moving towards Rome, the Romans elected Marius consul, empowering him to repel the enemy. In this war, he proved a superb manipulator of the souls of his men, taking them to battle with appeal to their fear, their courage, their shame, their honor—all, sometimes, in the same speech.

“In a military context,” Plutarch writes, Marius’ “status and power were based on the fact that he was needed, but in political life his preeminence was curtailed, and he took refuge in the goodwill and favor of the masses”—not the patrician senators—and “abandoned any attempt to be the best man in Rome, so long as he could be the most powerful.” To do that, he needed to keep his soldiers satisfied and thereby to maintain his power base. This political necessity mirrored the character of his soul: “He was incapable of just quietly enjoying what he had.” Therefore, when he ran out of foreign wars, he could only turn to civil war. Forced into exile by his even more vicious rival, Lucius Cornelius Sulla, he regrouped his forces and came back, turning the city into a field of blood.

For centuries, Rome had been a proud republic, with elements of monarchy, aristocracy, and democracy mixed in rough balance, with the senate as the balance-wheel. Marius and Sulla overturned that regime temporarily, foreshadowing the end of the republican regime at the hands of the Caesars, several decades later. Military overthrow of republics had occurred many times in Greece as well, and modern history has seen such revolutions in England (Oliver Cromwell), France (Napoleon Bonaparte), Iraq (Saddam Hussein), and many other countries. If there is any truth to the claim of ‘American exceptionalism,’ the absence of any such coup d’état in our own history undoubtedly ranks among the most striking examples of it. The dogs of war have barked no less frequently for Americans than for other nations, but the wolf of military takeover has remained silent. And this, despite the fact that we have seen some twelve U.S. generals elevated to the presidency, beginning with George Washington. Unlike Marius, our military men have been able to become first in peace after having been first in war, without bringing a general’s command-and-control temperament with them. The framers of the Articles of Confederation and the ‘anti-federalist’ opponents of the proposed United States Constitution in the late 1780s had provided for no presidency at all, in large measure to avoid the possibility that an independent executive branch could be seized by a military man, using the equivalent of the Roman consulship as his vehicle.

As students of the Roman regimes, the Framers of the Constitution recognized the need of energy in the executive as much as the Romans did. They also wanted to make their chief executive a defender of republican liberty, not its subverter. Politically ambitious military officers might channel their vigor and courage into peaceful civilian life, including high office, but no more than that. With this intention, the Framers designed the ruling institutions of the new republic in ways that have kept tyrannical souls like those of Marius and Sulla out of the presidency.

Marius could not have risen to power in Rome except by exploiting Rome’s factionalism, the inveterate resentment of the many plebeians for the few patricians. In Federalist 10, Publius famously calls faction the characteristic vice of popular governments. Factions typically center on what he calls the various and unequal distribution of property. The regulation of property has become “the principal task of modern legislation,” since “neither moral nor religious motives” adequately moderate factitious passions. As Rome itself had repeatedly proven, “Enlightened statesmen will not always be at the helm.” One way to control faction and thereby to prevent the tyranny that may arise to eradicate it is by designing the republic’s ruling offices not so much along the lines of a mixed regime, as in Rome, but in accordance with the principle of representation. The people will have a voice, but not directly—only through their elected delegates to the bicameral legislature and, much more indirectly, through the Electoral College to the presidency. The most democratic part of the government, the House of Representatives, will consist of persons who know their constituents but do not need simply to register their desires. Representative government enables officials to deliberate, to “refine and enlarge the public views.” The kind of appeal Marius made to the Romans would find itself quickly diluted among the Americans.

If there is something resembling a ‘mixed-regime republican’ element in the Unites States government, it can be found in that bicameral legislature. Although, as a democratic republic, America doesn’t have a born-to-rule patrician class as in Rome (and indeed as in Europe at the time of the Founding), there is no question that Senate members tend to be wealthier than members of the House. In the thirty-fourth Federalist, Publius examines how this kind of legislature will govern military expenditures. Such expenditures, he writes cannot be limited constitutionally, as it’s impossible to estimate far in advance the cost of wars, “contingencies that must baffle all the efforts of political arithmetic.” As we are not “entirely out of [Europe’s] reach,” and would indeed become less so as naval technology advanced, “to model our political systems upon calculations of lasting tranquility would be to calculate on the weaker springs of the human character.”

Rome exemplified this dilemma, Publius observes. Its liberties “proved the final victory to her military triumphs.” As for modern Europe, its “liberties…as far as they have ever existed, have, with few exceptions, been the price of her military establishments” (Federalist 41). This being so, a standing army “is a dangerous, [and] at the same time that it may be a necessary, provision.” Therefore, “a wise nation will combine all these considerations.”

The federal union, however, “by itself, destroys every pretext for a military establishment which could be dangerous.” Although one or a few states might be easy prey to foreign invaders, “America united,” even without a standing army, “exhibits a more forbidding posture to foreign ambition than America disunited.” “The moment of [the Union’s] dissolution will be the date of a new order of things.” In that event, “the face of America will be but a copy of that of the continent of Europe,” its liberty “crushed between standing armies and perpetual taxes.” Worse still, a disunited America would see foreign powers playing divide and rule on this continent, even as they do in Europe. As I write these lines, this has been exactly the strategy followed by Russia in its several invasions of Ukraine, perhaps with more to come, beyond Ukraine.

The fact that all spending bills must originate in the House—again, the most democratic branch of the democratic republic—will limit such spending nonetheless, as the people have won the battle against taxation without representation. At the same time, the more nearly patrician, or at least richer, Senators, with their longer terms in office, will moderate any impassioned rush into war. Congress as a whole can check and balance ambitious presidents, if only by exercising the power of the purse. Further, Congress must limit its funding, as “the Constitution ties down the legislature to two years as the longest admissible term” for military appropriations.

The Framers built additional constraints into the office of the executive itself. Publius forthrightly observes that “energy in the executive is a leading character in the definition of good government”—a character the Articles of Confederation lacked. “A feeble executive implies a feeble execution of the government,” which is one way of having “a bad government.” This, he continues, is especially true in war, which is why the American president is commander-in-chief of the armed forces. In Federalist 70, Publius pays considerable attention to the executive offices of the Roman republic.

The “ingredients” of executive energy are unity, duration in office, financial support, and competent power.” Safety in the executive depends upon a due dependence upon the people and due responsibility for one’s conduct in office. How did Rome measure up to these standards?

In its frequent wars, Rome “was obliged to take refuge in the absolute power of a single man, under the formidable title of dictator, as well as against the intrigues of ambitious individuals who aspired to tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasion of external enemies who menaced the conquest and destruction of Rome.” The dictator had little or no dependence upon the patricians, let alone the people as a whole. And he made sure that he could not be prosecuted for anything he did while dictator.

When it did not suffer under dictatorship, however, Rome had not one but two co-equal executives, the consuls. That is, if something went wrong, each pointed the finger of blame at the other. Responsibility was lacking. This executive dualism might well have led to even more rivalry than it did, except that the patricians were so frequently in conflict with the plebeians at the same time they were faced with foreign wars and invasions. This led the Romans to give one consul authority over foreign policy, the other over domestic policy, keeping the two men distracted from one another. “This expedient must no doubt have had great influence in preventing those collisions and rivalships which might otherwise have embroiled the peace of the republic.”

In the American republic, by contrast, the executive enjoys the unity of a Roman dictatorship along with the powers of commander-in-chief while at the same time being constrained by four-year terms in office and by dependency on Congress for financial support. Publius is well aware that an executive might be tempted to undertake a life of Marius. “Self- love” often causes “the great interests of society [to be] sacrificed to the vanity, to the conceit, to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind.” Against this, the Framers designed a regime that frustrates such passions, while recognizing that they will never be extirpated so long as human beings are what they are.

In addition to the institutional structures ordained in the Constitution, one must notice that the way of life in republican Rome differed from that of America. Rome had begun as a military monarchy, then became a military republic. Even in its founding legend, Romulus overpowered Remus and, as Roman historians from Livy to Tacitus testify, it fought its way through the centuries. Because it was so good at pursuing that way of life, its great generals became its principal heroes. More, as those men ranged farther afield in the republic’s extensive empire, their troops became more attached to their generals than to Rome and its republic. A military republic thus encourages not only habits of obedience to one commander but the geopolitical circumstances in which such a regime might easily threaten the civilian-ruled capital.

America’s commercial republic is as extensive as many of the ancient empires, but the American way of life inclines us to think of territory less in terms of military rule than of free trade. From the start, Americans have understood their political union as a vast free-trade zone. Ambitious citizens most often devote their lives and energies to peaceful commercial competition, not military rivalry. The best accounts of the distinction between military and commercial republics remain Montesquieu’s Considerations on the Greatness of the Romans and their Decline and his massive and authoritative The Spirit of the Laws both works well known to the American Founders.

Finally, the purpose of the American republic differs from that of the Romans. The Declaration of Independence maintains that government should aim at securing the safety and happiness of the people. Romans most assuredly sought their own safety, but it wasn’t happiness so much as glory that its leading men prized. War did not only seek them out; they sought it. And so have many rulers and many peoples, before and since—America (mostly) excepted. Our presidents have sometimes conquered for territory—invoking our ‘Manifest Destiny’ to rule from sea to shining sea on this continent—but seldom for fame, which Alexander Hamilton called “the ruling passion of the noblest minds.” Thanks to the Framers’ work, that ruling passion has stayed within the boundaries of reason, along with the men whose minds are ruled by it.

Will Morrisey is Professor Emeritus of Politics at Hillsdale College, and Editor and Publisher of Will Morrisey Reviews.

 

 

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Guest Essayist: Joerg Knipprath


Rome, the city-state on the Tiber River, like her counterparts in Greece, had no cohesive written constitution. There were the Twelve Tables from around 450 B.C., of which mere fragments remain, which are sometimes presented as the Roman Republic’s constitution. However, the tablets were more an attempt to codify certain principles of criminal and civil law, rather than to lay the foundation for a political system. However, they did begin the practice in Roman law of published codes enacted by a legislative body and accessible to all citizens, which remained a core characteristic of European legal systems influenced by Rome.

Much of Rome’s political constitution by contrast was the product of custom. That custom evolved through responses to changes in the society’s social structure, through the citizens’ tacit acceptance of political bodies that arose from critical events, and by incorporating founding legends. An example of the first was the change in sources of wealth and the nature of the aristocracy comprising the leading families. The second would include the expulsion of Rome’s last king, the Etruscan Tarquin the Proud, at the end of the 6th century B.C. That event resulted immediately in the preeminence of the established aristocratic council, the Senate, and, a half-century later, in the emergence of the assemblies as sources of political influence for the commoners. The last would be the creation of institutions (such as the Senate and the tribunes) and practices said to go back to the 8th century B.C., and the acts of Rome’s first king, the legendary Romulus, and his successor, the Sabine Numa Pompilius.

While the writings of historians such as Livy and Sallust and political leaders such as Cicero are instructive, the single most authoritative source for the Roman constitution is its earliest expositor, the great Greek historian and father of constitutional analysis, Polybius of Megalopolis. Born in 200 B.C., he became a prominent politician in the Achaean League, of which his city was a member. The League, had for some years, had to tread a narrow path in relations with Rome, by then in control of most of Greece. With some exceptions, the leaders of the Greek cities generally were less than thrilled about Roman control. Such lack of enthusiasm raised suspicions and put those politicians in potential danger.

After Rome in 168 B.C. defeated Macedon for the third and final time, the Senate decided to break up that kingdom into four tributary republics. Rome also “went Roman” on the Greeks allied with Macedon, destroying 70 towns in the region of Epirus and selling a reported 150,000 into slavery. Rome’s Greek “allies” fared better but were disciplined for their lack of commitment. Polybius was among the 1000 Achaean leaders suspected of “fence-sitting” who were deported. Most were sent to provincial towns away from Greece.

Polybius was allowed to stay in Rome itself, due to the intervention of two powerful Roman leaders, Scipio Aemilianus and his brother. The developing friendship between Scipio and Polybius gave the latter access to the Roman elite. His learning and gregarious and active personality further solidified those connections. Polybius, in turn, became a committed advocate for the city and its system of government. As well, his favored status gave him extensive freedom to travel. When the Senate authorized the Greeks to return to their cities, Polybius declined. Instead, he eventually accompanied his friend Scipio to North Africa when the latter was given the command of the army sent to destroy Carthage in the Third Punic War. Polybius was well acquainted with Rome, its history, and its institutions, and he wrote about them with affinity.

The Histories is Polybius’s major influential work. It was a massive undertaking of 40 books, although one needs to keep in mind that the physical limitations of papyrus scrolls meant that a “book” might be more like a quite lengthy chapter today, and the entire effort perhaps a couple of thousand pages. The first five books are fully available, with more or less extensive excerpts from many others. Some are entirely lost. Most of the work covers Roman history from the Second Punic War (against Hannibal) to Polybius’s time. Most important to constitutional analysis is Book 6, the numerous preserved fragments of which cover, in the estimate of one authority, about two-thirds of the book. Missing is a thorough analysis of the Roman assemblies, in contrast to his discussion of other elements of the Roman constitution.

The constitution Polybius describes is that of his time, after Rome has finalized its drive for dominance of the Mediterranean world. The Punic Wars lie in the past, Carthage has been eradicated, and the destructive Social Wars and civil wars are in the future. Romans’ confidence in their institutions is high, and the republic which Polybius describes is at its political zenith. As was the habit of classic Greek observers of political systems, Polybius believed in a duality of good and bad forms of government, with an inexorable process of degeneration between those forms. But, unlike, for example, Plato and Aristotle, he claimed to see in the Roman constitution a system resistant to such degeneration. He also observed that states commonly moved through those forms sequentially and even attempted an anthropological explanation for the origins of government. Thus, he argued an archaic form of monarchy emerged when the physically dominant member of a primitive band of humans took command.

As societies become more sophisticated, that archaic form of tribal leadership proves inadequate. A more stable form of kingship emerges, one based on reason and excellence of judgment, which, in turn, fosters consent of the governed. Initially, such kings are elected for life. Eventually, the dynastic impulse of rulers to pass their office from father to son leads to kingship often becoming hereditary. Over time, such dynastic succession induces a sense of superiority and entitlement, which results in formal distinctions and ceremonies to set the royals apart from commoners. Worse, these royals begin to consider themselves exempt from rules and morals. As ordinary people begin to react with disgust at such licentiousness and arrogance, the ruler responds with anger and force. Thus, the inevitable outgrowth of kingship is tyranny.

The wealthy and talented members of respected families chafe at the tyrant’s rule the most. Conspiracies develop and the tyrant is replaced by a ruling class of high-minded men, the aristocracy. Recalling Plato’s criticism of oligarchy, Polybius saw the degeneration as the fault of the sons, not the fathers. As he wrote, the descendants “had no conception of hardship, and just as little of political equality or the right of any citizen to speak his mind, because all their lives they had been surrounded by their fathers’ powers and privileges.” Soon enough, the government controlled by supremely moral and wise men gives way to a self-interested oligarchy “dedicated … to rapaciousness and unscrupulous money-making, or to drinking and the non-stop partying that goes with it ….”

The general populace, encouraged in their passions by manipulative leaders, murders or banishes the oligarchs and itself takes on the responsibilities of government. Democracy, according to Polybius, is based on majority rule, but a majority tempered by “the traditional values of piety towards the gods, care of parents, respect for elders, and obedience to the laws.” This sounds strikingly like the admonition of republicans through the ages, that self-government requires self-restraint, focus on the common good and general welfare, and a strong moral and religious framework to promote republican virtue. John Adams’s observation that the American system was fit only for a moral and religious people is one example particularly relevant to the American experience. The exhortation in the third article of the great North-West Ordinance of 1787, about “Religion, morality, and knowledge being necessary to good government and the happiness of mankind” is another.

Regrettably, such values prove to be in short supply, and the population of the democracy, now encouraged in their delusions by manipulative politicians, believes instead that it has “the right to follow every whim and inclination.” Those ambitious for power and wealth seek to get ahead by corrupting the people with money to obtain their support. The common people become greedy for such largesse, and democratic self-government degenerates into ochlocracy (“mob rule”). As Polybius described the fate of democracy, “For once people had grown accustomed to eating off others’ tables and expected their daily needs to be met, then, when they found someone to champion their cause … they instituted government by force: they banded together and set about murdering, banishing, and redistributing land, until they were reduced to a bestial state and once more gained a monarchic master.” This is the predictable and depressing lifecycle of political systems. Polybius would have nodded knowingly, had he been present at Benjamin Franklin’s reply to his interlocutor about the type of government produced at the Philadelphia Convention, “A republic, Madam; if you can keep it.”

Fortunately, such a cycle of corrupt and degenerate forms of government could be avoided, and Rome showed the way. Polybius exalted Rome as a “mixed” government, composed of essential elements of all taxonomic forms, monarchy, aristocracy, and democracy. Unlike Plato’s fictitious ideal republic, Rome’s was a functioning system which had proved its mettle for centuries. Unlike Aristotle’s description of the Athenian government as a workable, but uneasy, mixture of popular and oligarchic elements in the Assembly on one side and the Council of 500 and other institutions on the other, Rome succeeded because of its more developed balance of powers. In that, according to Polybius, Rome’s constitution resembled that of Sparta, although Rome’s developed by natural evolution rather than from a conscious decision by a wise lawgiver like the mythical Spartan Lycurgus. Polybius regarded Sparta’s system as particularly enlightened and wrote with great favor about it, although he recognized that the structure did not prevent Spartan hubris from engaging in ultimately disastrous foreign military adventures. In light of Sparta’s legal totalitarianism, it is ironic that Polybius ascribed to this mixed government a long history of liberty in Sparta. Perhaps by this he meant independence. In any event, his characterization of mixed government became the classic understanding of what today would be called a system of limited government.

The preeminent political institution of the Roman Republic was the Senate. Although eligibility changed over time as membership was opened up to the more prominent plebeian class, the equites ((knights), the Senate was primarily the institution of Rome’s aristocratic families, the patricians. The body had begun as a council composed of 100 men chosen by Romulus from the leading land-holding families as city fathers (“patres“). Initially, it was solely a hereditary body, but eventually the primary determinant, if one sought admission to the Senate, became landed wealth. The Senate had the power over appropriations. The civil functionaries had to obtain Senate consent for all expenditures, most importantly for the massive funds spent every few years on the repair and construction of public buildings. Major crimes, such as treason, conspiracy, and gang murder were under Senate jurisdiction. Foreign relations, colonial administration, and matters of war and peace were the domain of the Senate.

Striking about the Senate was that it had no formal role except to act as an advisory council, the same as under the earlier monarchy. In reality, it was the single most powerful body in the republic, due to its class ties and consciousness, its continuous sessions, and its life membership. Moreover, the mos maiorum (the “custom of the ancestors”), the powerful force of tradition in the Roman constitution, sustained the legitimacy of the Senate. A senatus consultum was merely an advisory opinion by the Senate, but such an opinion was required for any law proposed for adoption by an assembly. Although a consultum could be overridden by the assembly or could be vetoed by a plebeian tribune, in reality an unfavorable consultum usually spelled the end of the proposed law or, if enacted, caused it not to be enforced by the magistrates. Polybius noted, if one were to look solely at the Senate, one would believe that Rome was an aristocracy. Or, in the more jaundiced view of some historians who claimed that the Senate was actually controlled by a tightly knit small hereditary group of families, it was an oligarchy.

There was also, however, another long tradition in Rome’s constitution, “What touches all must be approved by all.” As Cicero put it in Republic, “res publica, res populi.” The consent of the people was given through the assemblies. Polybius described their role in assessing taxes, the ratification of treaties, actual declaration of war, and confirming the appointment of officials. Moreover, the people had a role in legal processes. All death penalties had to be approved by an assembly. The same held for more general criminal cases where a substantial fine would be imposed. He concluded that, from this perspective, one might declare Rome a democracy.

There were various assemblies over time, and Roman citizens could attend any. Histories does not have much discussion of them. This might be because Polybius was not a great admirer of those bodies or, more simply, because his discussion is in the chapters which have been lost. These explanations are not contradictory, and there is evidence for both. One such body was the Centuriate Assembly, the oldest. It can be traced to a 6th century B.C. king and was modeled on the centuriae, the military units of 100 infantry and 10 cavalry that each of the ten subunits of the three “tribes” of Rome had to provide. As in Athens, these tribes were not based on ethnicity but were simply geographic constituencies within the city.

As the city grew, so did the number of tribes and the size of the voting units. For a long time, there were 193 “centuries.” They were organized on the basis of land ownership, wealth, and age, which, in turn, was related to the type of military service and associated weaponry of the members. At the top were the equites (knights), who were wealthy enough to provide horses and served in the cavalry. They had 18 centuries. Next were 170 centuries for the infantry, divided further into five classes based on their members’ wealth and weaponry. Below them were five centuries for the proletarii (the poor), those who could not supply weapons and typically were assigned to the navy.

In contrast to the Athenian ekklesia, in the Roman system the citizens did not vote simply as individuals. Although they met in the same place, the actual voting took place within their respective centuries. Each century had one vote, determined by the majority vote of citizens assigned to that century. The Assembly’s approval depended on a majority vote of the centuries, not of the undifferentiated citizens. With 193 centuries, the votes of majorities in 97 of those centuries would be required to approve a measure. In fact, voting was heavily skewed in favor of the equites and the wealthiest layer of the others. Between them, they were assigned 98 centuries, on the reasoning that those who provided the most financial support and had the most to lose in military service should have the most influence. Moreover, voting was done in class order, with the centuries of the equites voting first, those of the wealthiest class of others voting next, followed by the next lower group, and so on. The poor voted last. As a result, the vote of the poor rarely mattered. Class solidarity, the number of centuries weighted towards the wealthy, and the staggered voting meant that most issues would be decided well before the smaller landowners or the poor voted. Even the reforms of the 3rd century B.C., which expanded the number of centuries for the landowning classes to 350, had little effect on the dominance of the wealthy.

The Assembly could only consider bills which were on the agenda set by the tribunes or the magistrates. The citizens could vote on the proposal but not debate the bill at issue or offer amendments. Finally, all voting was done in the city of Rome. As the city’s domain spread, it became more difficult for any but wealthy citizens to travel to Rome for the duration of the Assembly’s legislative or appointive tasks. Based on his analysis of the system, the historian Scott Gordon doubts that even one-tenth of the 400,000 Roman male citizens at the end of the 2nd century B.C. attended a voting assembly in their lifetimes. The formal powers of the Assembly eventually were transferred to the Senate by the Emperor Tiberius.

There was, however, one mechanism by which the public could express its views, the contio. After a bill was proposed by a tribune, there had to be a period of at least twenty-four days before the Assembly could vote on it. This allowed for informal discussion among citizens of the bill’s merits. Moreover, any tribune could call for a formal meeting, the contio, which all residents, including women, foreigners, and slaves, could attend. The only speakers permitted were those selected by the presiding tribune and usually were senators or various magistrates. Public comment was limited to shouts and other sounds indicating support or opposition.

The final part of the formally operating civil government were judicial, executive, and administrative officials. Chief among them were those sought by ambitious Romans embarked on the cursus honorum, the “path of honors” along a sequence of offices, the apex of which was the consulship. All were initially open only to those of senatorial rank, but eligibility was expanded in the 4th century B.C. In practice, only scions of the wealthy families were likely to be elected, especially as consul. Thus, Cicero, a non-patrician resident of a non-Roman town in Latium and member of the knightly class, the highest of the plebeian classes, climbed this ladder of success quickly.

Election to these offices was by the Assembly for a one-year term, with minimum age requirements. The lowest office was that of the quaestor, who had to be 30 years old and have completed several years of military service. Quaestors were in charge of financial administration, a source of influence for further political advancement, and of record-keeping for the state archives. Above the quaestor was the aedile, in charge of public facilities and public festivals and celebrations. The next rung in the ladder was the praetor, a multi-function office. Praetors performed judicial functions but also could step into the executive role of consul if both of the consuls were absent from the city. As jurists, praetors had significant influence on the development of the body of Roman law. After his term ended, a praetor could also be awarded a foreign post as propraetor. This included military power, with full governing authority in the province. There was no term limit for that office.

At the end of the cursus honorum beckoned the consulship. The Assembly elected two consuls each year, at least one of whom was usually engaged in military campaigns in the provinces, the consul peregrinus. The one in Rome, the consul urbanus, had no real military function, because armed forces had to be kept some distance from Rome during peacetime, a constitutional limit broken, for example, by Julius Caesar when he crossed the Rubicon River. The consul’s position in the Republic was one of influence, not formal power. Any executive decision could be vetoed by the other consul and any of the ten plebeian tribunes, Moreover, he could not override the actions of other magistrates. However, his status as a member of a leading family and constant interaction with the Senate, plus the fact that he had survived the competition to reach the apex of the cursus honorum gave his opinions and actions great constitutional legitimacy. After his one-year term ended, a consul could not be re-elected for at least ten years, until the general Marius destroyed that informal constitutional limit in the 1st century B.C. After his term, a consul could be elected as proconsul, the highest military and administrative position in the provinces, with no term limits. This usually arose from the extended military campaigns abroad, which necessitated continuity of command.

Finally, outside the formal cursus honorum were the tribuni plebis, ultimately ten in number, who originally represented the “tribes” or sections of the city. Tribunes spoke for the political interests of the plebeians. They were elected to one-year terms by the Assembly. In that capacity, they were responsible to assist any plebeian who had been wronged by a magistrate. This included the power to overrule an unjust judicial order of punishment. The tribunes’ political power extended to vetoing any bills proposed to the Assembly by other magistrates and to consulta of the Senate deemed contrary to the plebeians’ interests. Eventually, they became members of the Senate and set the agenda for that body. While they formally represented the plebeian classes, with some exceptions such as the famous Gracchi brothers, they were no radicals. They were typically drawn from the patricians and the knights, the high-status classes, and shared their interests. As well, their potentially significant power was impeded by the fact that any affirmative act of a tribune could be vetoed by any of his nine colleagues. In reality, tribunes could act as a shield for the commoners against the wealthy, but rarely as an effective sword to advance the interests of the lower classes in opposition to the wealthy.

One additional aspect of the Republic’s constitutional practices bears mention. Every system has to deal with the state of emergency that can arise over time, the most common of which is war, either foreign or civil. For a long time, in such exceptional circumstances the Roman Senate would formally appoint a dictator to rule by decree for six months. That practice was discontinued by the end of the 3rd century B.C. Instead, during later troubles, such as those of the civil wars of the 1st century B.C., such exceptional powers would be authorized under the terms of a senatus consultum ultimum, a “final act of the Senate” needed to protect the Republic.

Polybius saw in the structure of the magistracies, especially in the consuls, the monarchic element that was part of the “balance” in the Republic’s constitution. In the various interactions of Senate, Assembly, and tribunes, and in their mutual formal and practical limitations, he perceived a system of “checks” on the power of any of them. In some of the particulars, he was off the mark. For example, unlike the Spartan kings to which he compared the consuls, the latter served for only one year, not life. Moreover, the consuls lacked the formal powers one normally associates with kingship. On the whole, however, his assessment has merit.

Historians have long debated the causes of the Republic’s demise. There is certainly no reason to limit the matter to one such cause. Among them was the collapse of broadly-distributed land ownership which sustained a “middle class” in an agricultural republic. As the wealthy became more so regardless of the source, they bought up more land. Land was a reflection of one’s status. Indeed, because commercial ventures were formally prohibited for Senators, one needed land to join that body. The demand raised the price of land and the taxes imposed on it. The growth of these large latifundia drove the previous smaller landowners into the city. There, they became part of the urban proletariate and competed for employment with the large and growing number of slaves acquired through foreign conquests and with other foreigners attracted to the increasingly imperial city.

Another cause was the opportunity for power and wealth afforded to successful generals operating as proconsuls in the provinces. With the troops often ill-paid by Rome, local taxes were extracted by these commanders and used to pay the troops directly. Loyalties became redirected from the city to the commander. The republican slogan SPQR (Senatus Populusque Romanus), “the Senate and the People of Rome,” which appeared on the standards of the legions, was supplanted by the reality that, “You take the king’s silver, you become the king’s man.” Especially as those troops were increasingly formed from poor Roman volunteers or foreigners, especially after the military reforms of Gaius Marius around the turn of the 1st century B.C., it became easier for generals to use those professional troops—or threaten to do so—against the city itself and to rule by force. Marius himself, and his erstwhile protégée Sulla, set unfortunate examples.

Perhaps most significant was the fundamental change in the political and social conditions of Rome. Consistent with Polybius’s theory, the societal degeneration about which he had warned as the inevitable result of the democratization of politics and the weakening of the population’s character brought about thereby, in fact occurred a couple of generations after his death. The impoverishment of a large portion of society and the resultant dependency on public largesse for survival, made those citizens susceptible to the slogans and programs of the populares, such as Julius Caesar and other, more dangerous demagogues. The bloody competition among families of the oligarchic upper classes, as shown in the Social Wars and the proscriptions of the military commanders Marius and Sulla, contributed to the chaos which sent the Republic on the path to the monarchy of the Empire.

The same events that brought about that radical social transformation also manifested themselves in the essential incongruity of governing a huge multi-cultural empire through institutions designed for a small city-state on the Tiber River. The notion of “community,” with shared traditions, civic and religious, and an ethic of sacrifice necessary to sustain the civic engagement at the core of real self-government, is eroded in the chaos of ethnic, linguistic, religious, and cultural diversity and the impersonality of large numbers. Had the Roman elite been willing to open up its political institutions and to extend citizenship and formal participation in the political system to all parts of their domain sufficiently and in a timely manner, a republican structure of sorts might have survived. As it was, the city had become an empire in fact well before its political structure changed from Polybius’s republic to Octavian’s monarchy.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.

 

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Guest Essayist: Ron Meier


Not all the political leaders in the 13 states were sold on the Constitution presented to the states for ratification in the fall of 1787. It was common under the Articles of Confederation to require unanimous agreement, of the states to changes, made to the Articles. Aware that unanimous agreement on the Constitution was unlikely, the Constitutional Convention delegates decided that the Constitution would require only nine states’ ratification to become effective. Had Las Vegas existed then, the betting would have reflected the more-likely result that the Constitution would not be ratified.

Alexander Hamilton, James Madison, John Jay, and others realized that a marketing and communication campaign had to be waged. They were especially concerned about New York, and proceeded to write a series of 85 essays in New York newspapers to sell the new Constitution to the public. Those essays are known as the Federalist Papers. Those opposed to the new Constitution, known as Anti-federalists, countered with their own essays to disprove the points in each of the Federalist Papers.

The Anti-federalists were as well educated on the history of governmental structures of the past and, in particular, knew that Democratic Republics were unlikely to survive because of their greater trust in the political wisdom and virtue of the common man. The Anti-federalists also were concerned that a “national” government, rather than a stronger Confederation, would quickly erode the Sovereign powers of the individual states. They feared a national government, not unlike the British government they had just relinquished, that would dictate to the states and leave the state governments with few powers, even over more local matters. Although the Tenth Amendment was designed to ensure that the states retained significant powers, to some extent, the Anti-federalist fears have been increasingly realized, especially since the passage of the Seventeenth Amendment when the Senate was effectively made into a second House of Representatives by popular election of the Senators rather than the Senators being “representatives” of the states who sent them to Washington. Since then, Federal mandates have diminished the power of the states to act independently with respect to many otherwise local issues.

The Federalists had a difficult job to sell the Constitution, but their wisdom eventually won the day. Some of the major issues addressed are reflected below.

In Anti-federalist 47, the author writes, “Mr. Adams has traced the constitution of every form of government that ever existed. A republican, or free government, can only exist where the body of the people are virtuous.” All our founders were very familiar with the writings of Cicero and Aristotle regarding individual and community virtue and many Anti-federalists doubted that sufficient civic virtue existed in man to make this new experiment at republican government successful.

“But Hamilton’s notes for his famed five-hour (only) speech to the Convention cite Cicero, as well as Aristotle and Montesquieu, in favor of the Constitution’s proposed mixed government theory, and Madison’s notes, while drafting the Federalist Papers, cite Cicero in addition to Aristotle and Polybius. Hamilton based his foundation of republican government on Cicero’s as that strong, representative government which is most conducive to liberty and resistant to tyranny.”[1]

In Anti-federalist 57, the author notes that “the men most commonly presented to the people as candidates for the offices of representatives include (1) the natural aristocracy, (2) popular demagogues, and (3) the substantial and respectable part of the democracy, a numerous and valuable set of men, who discern and judge well, but from being generally silent in public assemblies are often overlooked. He fears that those elected to the national House of Representatives will be less likely to come from the third category than from the first two categories.”

In Federalist 57, Madison counters this argument saying, “Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune. The electors are to be the great body of the people of the United States. They are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgement or disappoint the inclination of the people.” Furthermore, Madison notes that a key restraint to the election of representatives, who are found unworthy after their election, is the requirement in the Constitution that Representatives be elected every two years, allowing constituents to “throw the bums out” quickly.

Separation of powers was an important element of the new Constitution.  Anti-federalists weren’t convinced of the validity of the claim that such separation would be effective. But in Federalist 47, Madison observes that “the oracle who is always consulted and cited on this subject (separation of powers) is the celebrated Montesquieu.” Madison then quotes Montesquieu as saying, “There can be no liberty where the legislative and executive powers are united in the same person or body of magistrates, or if the power of judging be not separated from the legislative and executive powers.”

The authors of the Federalist papers used extant facts from foreign governments as well as from the Constitutions and practices of the 13 states to demonstrate that what the Constitution proposed is not so distinct but, in fact, identifies deficiencies in those documents and proposes solutions to correct those deficiencies. Madison, in Federalist 47 examined the Constitutions of each of the states to prove his case that provisions such as separation of powers already existed at the state level; if they existed there, then why would the anti-federalists believe that such a provision wouldn’t work at the national level?

Whether to have one or two bodies in the legislature was a topic of contention in the Convention. The final Constitution proposal was for two bodies, a House and a Senate. In Anti-federalist 63, the authors state, “But they are so formed, that the members of both must generally be the same kind of men, men having similar interests and views, feelings and connections, men of the same grade in society, and who associate on all, occasions. The Senate, from the mode of its appointment, will probably be influenced to support the state governments; and, from its periods of service will produce stability in legislation, while frequent elections may take place in the other branch.”

In Federalist 63, Madison notes that, “history informs us of no long-lived republic which had not a senate.” And, as to an equivalent to the Constitution’s House of Representatives, Madison states that, “in Sparta we meet with the Ephori, and in Rome with the Tribunes; two bodies, small indeed in numbers, but annually ELECTED BY THE WHOLE BODY OF THE PEOPLE, and considered as the REPRESENTATIVES of the people, almost in their PLENIPOTENTIARY capacity,” and “The Tribunes of Rome, who were the representatives of the people, prevailed, it is well known, in almost every contest with the senate for life, and in the end gained the most complete triumph over it.”

Because of the breadth and depth of the Founding Fathers’ understanding of both good and bad governments from ancient to then-current history, their debates in the Constitutional Convention, and in the political pamphlets produced in those days, were robust. The citizens read the Anti-federalist and Federalist arguments and heard both sides’ arguments in the churches and meeting halls in their communities. Because civic virtue was an important part of their formal and informal education in the 18th century, they were able to decide that the strengths of human nature could prevail over its weaknesses and that the experiment the Convention created, had a better than even chance of success.

Ron Meier is a West Point graduate and Vietnam War veteran. He is a student of American history, with a focus on our nation’s founding principles and culture, the Revolutionary War, and the challenges facing America’s Constitutional Republic in the 20th and 21st centuries. Ron won Constituting America’s Senior Essay contest in 2014 and is author of Common Sense Rekindled: A Rejuvenation of the American Experiment, featured on Constituting America’s Recommended Reading List. 

(1) What the founders learned from Cicero // The Observer (ndsmcobserver.com)

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Guest Essayist: Ron Meier
The School of Athens, Raphael, 1509-1511, Apostolic Palace, Vatican City

In our schools over the past century or so, we’ve learned, and quickly forgotten after the test, a little about some of the great philosophers who lived thousands of years ago, the ancient Greek and Roman empires, the Kings of medieval Europe, the pilgrims who landed at Plymouth Rock and Jamestown in the 17th century, and the Renaissance and Enlightenment. Since the early 19th century, academic attention has increasingly shifted to a focus on more utilitarian subjects, particularly STEM over the past half century since the first rockets left the earth’s atmosphere to circle the earth in outer space.

All our Founding Fathers were educated in the early-to-middle 18th century. Some were able to attend the colleges of the day, but most were not so able and were self-taught or homeschooled. Primary and secondary education for all included study of the Bible. Libraries were few until Benjamin Franklin and his Junto Club[1] members started the first public library in the early 18th century. Soon thereafter they started the American Philosophical Society to “promote useful knowledge.”

With so few books and libraries, no internet to provide instantaneous acquisition of virtually any information or knowledge one would like to acquire, no email to communicate with anyone anywhere in the world, no Zoom to interact with experts on any topic, it’s natural to wonder how America’s Founding Fathers could have acquired the knowledge required to write the Preamble to the Declaration of Independence, and later, the United States Constitution. How were they able to create a Constitution, admired around the world, in only three months meeting in the humid city of Philadelphia in a building with no air conditioning?

Whether in a formal school or not, colonial children had to acquire a broad body of knowledge to survive in the largely agrarian, merchant, and shopkeeper society of that time; knowledge of religion, science, literature, art, rhetoric, human nature, and politics were necessary to solve the problems each would encounter in daily life, both individually and in their spiritual and political communities. Few could afford specialization in one body of knowledge as is more common today. We call those few among us today with such a wide-ranging body of knowledge Renaissance Men (and Women).

The Colonies’ most influential authors of the Declaration of Independence and the Constitution included Thomas Jefferson, John Adams, and James Madison.

Thomas Jefferson attended the College of William and Mary where he studied science, philosophy and law. He learned the law from the leading Virginia legal scholar, George Wythe. Acknowledging the importance of education, he later founded the University of Virginia.[2] Jefferson, well-educated in the classics, “argued that the Declaration of Independence rested on the authority of Cicero and Aristotle as well as that of Locke. This is most evidently seen by Jefferson’s altering of Locke’s natural rights formulation of ‘life, liberty and property’ into the famous American creed: ‘life, liberty and the pursuit of happiness’ in the Declaration’s preamble.”[3]

John Adams attended Harvard College, which expressed as its primary purpose “to educate future members of a learned ministry and an effective civil government.”  At Harvard, all students took the exact same curriculum with no electives, which included courses in theology, mathematics, and natural science.[4] Adams then studied law with a Massachusetts lawyer, which was how preparation for a career in law was conducted in Colonial America.

“It was upon John Adams that Cicero had the greatest influence among early Americans. The Harvard curriculum had at its core in the colonial grammar schools and colleges the study of the Latin and Greek languages, literatures and antiquities, what some called the “Sacred Classics.” The aims of this learning were to expose students to classical authors from whom they could derive “useful knowledge.” And among these selected Classics in early America Cicero took pride of place in the admiration of many liberally educated men as model authority for diction and style, as orator, lawyer, political theorist, letter writer, and guide to “private and public virtue.”[5]

James Madison, considered the “Father of the Constitution,” attended the College of New Jersey (Princeton). His primary and secondary education included mathematics, geography, modern and classical languages, particularly Latin, and ancient philosophy. At college, he studied classical languages, mathematics, rhetoric, geography, philosophy, Hebrew, and political philosophy under university president John Witherspoon, later a signer of the Declaration of Independence.[6]

Because of their education, focused on the “sacred classics,” as described more fully by Professor Joerg Knipprath in Essay #7, our political authors were well-educated in alternate political philosophies and structures. Even those not-highly-educated citizens of Colonial America, in what might be called the Middle Class today, were reasonably familiar with the political thoughts of the day from their pastors, town-hall meetings, and widely distributed pamphlet writings of the more highly educated Colonists.

All our Founding Fathers accepted the Stoic’s fundamental concept of a universal moral order based on reason and nature, but they rejected the Stoic’s concept of an individual moral order being unrelated to the laws of the political community. They understood the importance of religious faith, which at that time was almost exclusively Protestant Christianity, in the development of moral and civic virtue, the necessary ingredients of good government. They recognized the impossible Stoic vision that man could control his passions, prejudices, and pride by perfecting his reason, ethics, and morality. Civic virtue, not perfection, was expected by the founders. As Madison states in Federalist 51, “If men were angels, no government would be necessary,” and in Federalist 55, Madison says that, “In all very numerous assemblies, of whatever character composed, passion never fails to wrest the scepter from reason.”

In Federalist 6, Alexander Hamilton notes that a basic assumption about people is that “men are ambitious, vindictive, and rapacious.” If that is a valid assumption, then expecting that a divided nation would continually live in harmony is pure folly.  It would “disregard the uniform course of human events, and set at defiance the accumulated experience of ages.”

Our Founding Fathers, including those whose debates on the issues, some of which became known through their writings and discussions as Federalists and Antifederalists, were amazingly well-educated in the political philosophies of ancient governments. They were therefore able to identify those components of governmental structure that worked and those components that didn’t work as they met in Philadelphia to construct a new government and provide that government a structure that might survive longer than the Republics of the past. Yet they still recognized that it was to be an experiment, not a proven solution.

Ron Meier is a West Point graduate and Vietnam War veteran. He is a student of American history, with a focus on our nation’s founding principles and culture, the Revolutionary War, and the challenges facing America’s Constitutional Republic in the 20th and 21st centuries. Ron won Constituting America’s Senior Essay contest in 2014 and is author of Common Sense Rekindled: A Rejuvenation of the American Experiment, featured on Constituting America’s Recommended Reading List. 

(1) formed to “discuss queries on any point of Morals, Politics, or Natural Philosophy [physics])” Franklin’s Philadelphia: The American Philosophical Society (ushistory.org)

(2) Thomas Jefferson Biography, History, and Facts

(3) What the founders learned from Cicero // The Observer (ndsmcobserver.com)

(4) John Adams as a Harvard student, by Richard Alan Ryerson | Harvard Magazine

(5) View of The influence of Cicero on John Adams (unito.it)

(6) The Life of James Madison | Montpelier

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Guest Essayist: Joerg Knipprath


It has been said that Stoic metaphysics was the state philosophy of ancient Rome. While perhaps an overstatement, the point is well taken. Rome did not achieve the prominence of the Greeks in original philosophy, but there were a number of outstanding expositors who adapted Stoic principles to Roman conditions. Seneca the Younger, a wealthy Roman statesman, dramatist, and tutor to the future emperor Nero; Epictetus, born as a slave, but freed by his wealthy master on reaching adulthood; and Marcus Aurelius, known as the last of the “Five Good Emperors” of Rome, were particularly influential Roman Stoics.

The absorption of the Greek city-states into the Macedonian Kingdom of Philip and his successors in the 4th century B.C. shocked the Greeks’ self-regard. Hellenic culture for centuries had emphasized the special status of citizenship in the polis, and its necessity for achieving eudaimonia, human flourishing. The polis was not just “political” in the modern sense. It was a “community” in all manner, political, yes, but also social, religious, and economic. Aristotle associated such community with a true form of friendship, wherein one acts for the friend’s benefit. Plato and Aristotle both concerned themselves at length with what constitutes such a community that is suitable for a fulfilled life. For Plato, the city was the individual writ large, which formed a key component of his description of the ideal government in his Republic. For Aristotle, politics was an extension of ethics. The moral and the political, the personal and the public, were joined. The teaching and practice of individual virtue (arete—the root word for aristocracy) were necessary for a just society, and a polis operating on that basis created the conditions for individual virtue to flourish. Those outside the polis, be they hermits, bandits, or barbarians, and no matter their wealth or military prowess, could not attain that level of full human development.

The Macedonian occupiers were not much different than the Greeks and, such as Alexander, were hardly ignorant of Greek ideas or unsympathetic to Greek social and political arrangements. Moreover, the Greek poleis did not vanish, and ordinary daily life continued. Still, after unsuccessful attempts to rid themselves of their Macedonian overlords, it became clear that the Greeks were just one group competing with others for influence in a new empire. Politics being a branch of ethics, the ideal for the Greeks had been to do politics “right.” With the Macedonian success, it seemed that the foundation of the entire Greek project had collapsed.

The result was a refocus of the meaning of life from the ultimately outward-looking virtue ethics of Aristotle and the vigorous political atmosphere of the polis. In this psychological confusion and philosophic chaos arose several schools. One, the Skeptics, rejected the idea that either the senses or reason can give an accurate portrayal of reality. Everything is arbitrary and illusionary, truth cannot arise from such illusions, no assertion can claim more intrinsic value than any other, and everything devolves into a matter of relative power: law, right, morality, speech, and art. Such a valueless relativism can expose weaknesses in the assumptions and assertions of metaphysical structures, but its nihilism is self-defeating in that it provides no ethical basis for a stable social order or workable guide for personal excellence.

Another group was the Cynics, who responded to the psychological shock of the collapse of the city-state by rejecting it. The correct life was to understand the illusory and changing nature of civilizational order and withdraw from it. Life must be lived according to the dictates of nature, through reason, freedom, and self-sufficiency. The good life is not a project of study and speculation, but practice (askesis). Live modestly through your own toil so that you may speak freely, unperturbed by the turmoil and illusions around you. One of the most prominent Cynics, Diogenes, allegedly lived in a rain barrel in the Athenian market and survived through gifts and by foraging and begging. Social arrangements and conventions are not necessarily inimical to this quest, but they often hide the way. Thus, it becomes the Cynic’s duty to light the way, as Diogenes sought to do with his lamp, by exposing and ridiculing such conventions. The Cynics saw themselves no longer as citizens of the polis, but as citizens of the world.

While principled, the Cynics’ grim lifestyle in order to “speak truth to power” was not for most. An alternative school was founded by Epicurus in the late 4th century B.C. The Epicureans urged people to focus foremost on themselves to achieve the good life. The gods have turned away from the city, political decisions are made in royal capitals far away, and the only control is what you have over your actions. Thus, obeying rules, laws, and customs is practically useful but should not be a matter of concern. To live the good life was to obtain pleasure, the highest end. “Pleasure” is not to be understood as we often do as some form of sensory stimulation. Rather, it was to achieve a state of tranquility (ataraxia) and absence of pain. This ultimate form of happiness would come through a life of domestic comfort, learning about the world around us, and limiting one’s desires. Crucially, Epicureans avoided the turbulence of politics, because such pursuits would conflict with the goal of achieving peace of mind. The best one could hope for in this life was good health, good food, and good friends.

Stoic philosophy was an eclectic approach, which borrowed from Plato, Aristotle, and competing contemporary investigations of ethics and epistemology. Its name came from a school established by Zeno, a native of Citium on Cyprus, who began teaching in Athens around 300 B.C. The “school” met on a covered colonnaded walkway, the stoa poikile, near the marketplace of Athens. Its 500 years of influence are usually divided into three eras (Early, Middle, and Late), which eras broadly correspond to changes from the austere fundamentalist teachings of its ascetic founder into a practical system of ethics accessible to more than wise and self-abnegating sages.

There were two key aspects to Stoicism. First, at an individual level, there was apatheia. It would be massively misleading to equate this with our term “apathy.” Apathy is negative, conveying passivity or indifference. Apatheia means a conscious effort to achieve a state of mind freed from the disturbance of the passions and instincts. It is equanimity in the face of life’s challenges. The Stoic sage would “suffer the slings and arrows of outrageous fortune” over which he has no control and focus instead on his own actions. Reason being man’s distinctive and most highly evolved innate feature, the Stoic must train himself to live life in accordance with nature and reason. He must control his passions and avoid luxuries and material distractions that would lead to disappointments and frustrations. His happiness is within himself. The virtuous life is a simple life, achieved through constant discipline “in accordance with rational insight into man’s essential nature.”

Second was universalism. Hellenic culture became Hellenistic culture, as Greek ideas and practices were adapted to the new world order, as the polis became the cosmopolis. A Stoic saw himself in two ways. In the political realm, he was a citizen of his city or state; in his self, he was a human. As Marcus Aurelius expressed it, “My city and country, so far as I am Antoninus [a title for emperor—ed.], is Rome, but so far as I am a man, it is the world.” Stoicism, unlike its Platonic and Aristotelian sources insisted that the universe was governed by law which applied equally to all and raised all to equal status, a “universal brotherhood of man.” This revolutionary claim would profoundly influence Roman and Christian ideas thereafter.

Stoicism differed from Skepticism in that it rejected the latter’s nihilistic pessimism that life was simply a competition for power. It projected a vision of personal improvement and sought to construct a positive path towards happiness within a universal order of moral truth. It differed from the Cynics in that Stoicism did not reject the basic legitimacy of the state and its laws and conventions or urge withdrawal from the public sphere. Rather, the Stoics separated the universal moral order, by which each person’s individual conduct must be measured, from the reality of the political world and the obligation to obey the laws of the community. Stoics did not reject the secular authority or make a point to ridicule it. From a Christian perspective, it was not exactly “Render unto Caesar the things that are Caesar’s, and unto God the things that are God’s.” But it was close enough, coming from a pagan philosophy.

Finally, the Stoics differed from the Epicureans. The latter’s goal of a tranquil private life through the pursuit of health, learning, good food, and good company was at odds with the former’s demands of a more disciplined private life of constant self-reflection and self-improvement, plus the continuing duty to shoulder one’s obligations under the civic law. Those differences made Stoicism much more attractive than Epicureanism to the average Roman. The Roman upper classes might well be drawn to the Epicurean vision, but Stoicism could appeal to more than the leisure class. Most significant, with its emphasis on self-reliance, simplicity, and service, Stoicism more closely reflected the Roman sense of self during a half-millennium of the Republic and the early Empire. The historian Will Durant observed, “A civilization is born stoic and dies epicurean.” By that he meant that civilizations degenerate. As he explained, “[C]ivilizations begin with religion and stoicism; they end with skepticism and unbelief, and the undisciplined pursuit of individual pleasure.” Though at times turbulent and seeming to veer into dissolution as the political edifice of the Roman Republic became Octavian’s principate, the Roman culture did not yet fundamentally change, due in part to the stability provided by Stoic philosophy.

Stoicism fit well the Roman character imagined by the Romans themselves and reflected in their laws and history. As the historian J.S. McClelland wrote, “The Greeks might be very good at talking about the connection between good character and good government, but the Romans did not have to bother much about talking about it because they were its living proof.” Not unlike Sparta, Rome had always had a strong martial component to its policies, which Romans took to be an essential part of their character. It was a masculine, male-dominated culture, and unabashedly so. At the root of virtus, that is, virtue or excellence, is vir, the word for adult male or hero. Stoicism “spoke” to Romans in a way that Epicureanism could not. That said, the Middle and Late Stoic writers from the second century B.C. on were willing to refine some of the school’s rough homespun aspects and accepted that a materially good life was not inconsistent with Stoicism. Self-discipline and self-reflection were key. Moderation, not excess, all in accord with nature and reason, sufficed. Self-deprivation and the ascetic life were not necessary.

American polemicists of the post-Revolutionary War period often associated the Stoic virtues with the Roman Republic and saw those virtues reflected in themselves. This required turning a blind eye to certain fundamental assumptions. For example, as noted, Stoicism separated the universal moral order’s control over private conduct from the need for unquestioning adherence to the state’s laws made for the welfare of the community. For the Americans, a distinction between private morality and virtue on the one hand, and public morality and law on the other was not readily conceivable, at least as an idea. Though at times John Adams was quite doubtful about the capacity of Americans for self-government, in his message to the Massachusetts militia in 1798 he wrote, “Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.” James Madison writing in The Federalist, No. 55, noted that republican self-government more so than any other form requires sufficient virtue among the people.

There was another, profound, appeal Stoicism had for the Romans, which connected to their views of good government. Rome prided itself on its balanced republican government, a government meant for a cohesive community, that is, a city-state. “The Eternal City,” the poet Tibullus called it in the 1st century B.C., and so it became commonly known through the works of Virgil and Ovid during the reign of Octavian, long after it had ceased to be a mere city on the Tiber and become an empire in all but name. Indeed, Octavian styled himself princeps senatus, the highest ranked senator, avoided monarchical titles and insignia, and purported to “restore” the Roman Republic in 27 B.C. The trappings of the republican system were maintained, some for centuries.

As in the earlier Greek city-states, Roman citizens had the right and the duty to participate in their governance. Stoicism called on its adherents to involve themselves in res publica, public affairs, working for the benefit of the whole, not themselves, a commitment of personal sacrifice and service. This mirrored basic obligations of Roman citizenship, from military service to political engagement to contribution for public works. These burdens with their physical and economic sacrifices were to be borne with equanimity. Marcus Aurelius, the last great Stoic sage, spent a large portion of his reign on the frontier leading armies against invading German tribes. It is said that he wrote his famous inward-directed Meditations on Stoic ideas and practice during those campaigns.

An important component of the Roman political system was law, both as a collection of concrete commands and as an idea. As noted, Romans were not, by and large, known for original contributions to Western philosophy. For them, that was the role of the Greeks. They were, however, exceptional jurists. As they gained territory, the need to administer that territory required a system of law capable of adapting to foreign conditions. As they gained dominion over cultures beyond the Italian peninsula, and as Roman trade ventured to even farther corners of the world, the Roman law might differ in particulars from that of the local population. At the same time, there appeared to be certain commonalities to the Roman law and those of disparate communities. For the politicians, such commonalities could help unify the realm through a “common law” and support the legitimacy of Rome and its administrators. For the merchants, it could help make commercial dealings more predictable and lower their transaction costs. For the jurists, it raised the possibility of universal influences or elements in the concept of law itself.

The Stoics provided the framework for systematic exploration of that possibility. Stoicism, it may be recalled, had a cosmopolitan, indeed universal, outlook. The Stoic universe was an orderly place, governed by immutable, eternal, constant principles. In other words, an eternal law. At the center was the universal moral law. Law in general had its basis in nature, not in the arbitrary creative will of a human ruler or the cacophony of mutually cancelling irrationalities of the multitude. Humans have an inborn notion of right and wrong. Unlike Adam Smith’s theory of moral sentiments, which he based on our social nature, the Stoics ascribed this to our essential human nature, with each individual participating in this universal moral order. There was an essential equality to Stoicism that eliminated the lines between ruler and subject, man and woman, freeman and slave. Gone was Aristotle’s attempt to explain slavery with the claim that the nature of some conduced them to slavery.

Of course, this only applied to one’s ability to achieve individual virtue through Stoic self-discipline in the personal realm. The outside world still maintained those distinctions in positive law. Many were slaves in Rome. While the Stoics could consider slaves their brethren as members of the human community within the moral law, they accepted the separate obligation imposed on them to obey the political world in its flawed, but real, condition. Epictetus, himself a former slave, blurred that duality when he declared slavery laws the laws of the dead, a crime. But for most, the reality of despotic and corrupt government, the suppression of freedom, and prevalence of slavery were the actions of others over which the Stoic had no control and the consequences of which he had to deal with as best he could through apatheia.

Still, the concept of eternal law, possessed of inherent rightness, and connected to human nature, had some profound implications for human governance and freedom. The universal order is right reason itself and exists within our nature, accessible to us through our own reason. The Apostle Paul addressed this from a Christian perspective in Romans 2:14 and 15: “For when the Gentiles who do not have the law, by nature observe the prescriptions of the law, they are a law for themselves even though they do not have the law. They show that the demands of the law are written on their hearts ….” Proper human law, in its essential principles, is a practical reflection of this higher moral law and necessary for good government. Despite the shortcomings of actual Roman politics, this set a standard.

Because the moral law is universal, eternal and beyond the control of human rulers, it implies a lawgiver of similar qualities. The character of the Stoic “god” was often unclear and differed among various Stoic philosophers. It was certainly not the gods of the Greek and Roman civic religions, with their all-too-human character failings and pathological urges to interfere, usually disastrously, in human lives. Nor was it the personal and loving Christian God of the Gospels, cognizant of each creature within His creation and particularly interested in the flourishing of those created in His image. Rather, the Stoic god is best viewed as a force which created and through its presence maintained the universal order. This force has been described variously as a creative fire, world soul, pneuma (breath), or logos (word). The last two are particularly interesting in relation to Christian writings. Logos not only meant “word” but also the reason, cause, or ultimate purpose or principle of something. The Stoic moral order was an expression of divine reason and accessible to us through the reason that is part of our nature.

One of the foremost Roman commentators and synthesizers of Stoic doctrine in law was Cicero, the great lawyer, philosopher, and statesman. Cicero claimed he was not a Stoic. He seemed to have seen himself as a follower of contemporary versions of Plato’s ideas. Indeed, his two major works on good government, The Republic and Laws, paralleled the titles of Plato’s major works on politics. However, his introduction of the ius naturale (natural law) to Roman jurisprudence, a fundamental step in human freedom, owes much to the Stoics. Note his justification for the right of self-defense: “This, therefore, is a law, O judges, not written, but born with us, which we have not learnt, or received by tradition, or read, but which we have taken and sucked in and imbibed from nature herself; a law which we were not taught, but to which we were made, which we were not trained in, but which is ingrained in us ….”

Or consider the following that vice and virtue are natural, not mere artifices: “[In] fact we can perceive the difference between good laws and bad by referring them to no other standard than Nature: indeed, it is not merely Justice and Injustice which are distinguished by Nature, but also and without exception things which are honorable and dishonorable. For since an intelligence common to us all makes things known to us and formulates them in our minds, honorable actions are ascribed by us to virtue, and dishonorable actions to vice; and only a madman would conclude that these judgments are matters of opinion, and not fixed by Nature.”

Perhaps most famous is this passage from The Republic: “True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; … It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, [note the use of the singular, not the plural associated with the Roman pantheon—ed.] over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment.”

From these recognitions, it is but a short step “self-evident [truths], that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” A short step conceptually, but centuries in time to realize fully.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.

 

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Guest Essayist: Andrew Langer


In the previous essay, we discussed how classical history (i.e., the history of Greek and Roman political structures) informed the debates over the Constitution—and how James Madison drew on history to make the case for the Constitution’s immediate necessity and importance.

In this essay, we focus again on Federalist #38, but this time discussing how the same examination of historic political structures informed the architecture or structure of the U.S. Constitution itself.

Madison and most, if not all, of the other founders were students of classical history, and well-understood how governance had changed through the ancient Mediterranean societies. They learned how Athenians’ political choices compared and contrasted with those of the Spartans and Minoans, and how the Roman Republic came into existence, but eventually turned into an imperial tyranny.

When reviewing these governments, which ranged from benign monarchies to democracies to despotic autocracies, the founders came to a stunning conclusion: that these historic examples pointed to the necessity of a balancing of powers and interests. Concentrate too much power in one person or one body, and that power could become corrupted as happened in Rome as respect for the rule of law degenerated over time, giving rise to the imperial dictatorship.  Rely too much on pure democracy, and it could descend into the rule of the mob, something equally feared.

As Benjamin Franklin is alleged to have said, “Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.”

The statement is a truism (regardless of whether it was Franklin who said it first!), reflected, in turn, in how the architects of the Constitution ultimately designed our federal government. Our system is one that is rooted in the principles of democratic governance—we elect our legislators and cast votes in a presidential electoral system.

But in order to stave off the possibility of “mobocracy,” those democratic ideals are balanced with republican limitations—from a Bill of Rights which underscores limitations on how government exercises its power, to the idea that each branch of our federal government has its powers specifically enumerated.

Consider, for example, the voicing of unpopular ideas—a subject hotly debated today. There are some, there have always been some, who would like to see unpopular speech outlawed or severely restricted, whether it is so-called “hate speech” or speech that is sharply critical of America, to the point of the burning of a flag. In a pure, Athenian-style democracy, the majority declaring this speech outlawed would be it—the “mob” would have spoken.

But our Constitution recognizes that it is unpopular speech that requires the greatest amount of protection; popular speech requires no protection, after all. So, regardless of what the majority of citizens might demand, and regardless of what the Congress might enact, or the Executive Branch attempts to pursue through the administrative process, the First Amendment presents a counterbalance to a majoritarian tyranny.

It is that explicit assignment of powers, and the careful balancing of those powers against one another, that serves to protect the rights of individual Americans.

In Article I, Section 8 of the Constitution, the legislative powers of Congress are laid out. In Article II, the Executive Branch is given the power to interpret and carry out the laws Congress has passed. Under Article III, the Judicial Branch enforces those laws and ensures that both the laws that have been passed and the interpretation and administration of those laws by the Executive Branch withstand constitutional scrutiny.

In theory, this is supposed to ensure that no branch is more powerful than any other branch—and that the creation and administration of federal policies does not injure or harm the individual rights of American citizens.

In theory.

The ongoing concern is similar to that which brought the aforementioned descent of ancient Rome from republic to dictatorial empire—an increasing disrespect for the regular order of governmental processes and the overall rule of law. In Rome, as chaos and corruption grew, first Julius Caesar and then Augustus offered Romans greater safety and security in exchange for their democratic political rights. The result was the end to any real sort of Roman republic and centuries of despotism.

Again, it was Benjamin Franklin who warned, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

In modern America, we see this playing out in a myriad of ways—from those who seek to simply circumvent the Constitution’s rules to those who use Congress’ political propensity to pass vaguely defined pieces of legislation as a pretext to increase the power of the federal Executive Branch.

Because of the manner in which power is distributed and balanced, if Congress passes a piece of legislation in which the subject-matter is vaguely defined, the Executive Branch can, in turn, define it. The result is a situation in which, while the Executive Branch isn’t creating law out of “whole cloth,” the power of the Executive Branch is expanded.

Take the Clean Water Act of 1972, a piece of legislation with the noble purpose of dealing with America’s polluted waterways of the 1970s—rivers were, literally, catching on fire! In it, Congress declared that we cannot “pollute” a “navigable water of the United States.”

But Congress didn’t define “pollution,” didn’t define “navigable,” didn’t define “water of the United States”—and for a half-century, all of those terms have been subjected to intense debate as various presidential administrations have offered a varying degree of definitions, some focusing on the plain-language of the act, but others which seem to encircle not just America’s major rivers but even disparate and unconnected bodies of water, or even patches of dry land, that would otherwise have been under the regulatory purview of state and local governments (the definition of “Waters of the United States” or “WOTUS” is once again under debate in Washington).

In the end, this balancing of interests is supposed to protect the population at large to prevent the kind of overreach we have been discussing and to also ensure that we “look before we leap” in terms of public policy solutions. This is especially true when it comes to foreign policy.

The President is Commander-in-Chief of the U.S. armed forces and the military operates under the auspices of the federal Executive Branch.  But it is only Congress that can declare war.  The President, and his duly-designated officers, have the power to negotiate treaties, but it is within the power of the Senate to ratify them. Moreover, despite the power of the President and the Executive Branch to respond to national emergencies and international crises, and setting aside the legitimacy of the War Powers Resolution which asks the President to report on such actions within 48 hours of them being undertaken, Congress retains the power of the “purse strings” i.e., the power to actually fund the operations of the U.S. government, so the Executive Branch is further restrained.

In all, taking a cue from the governments of the Greek city-states as well as ancient Rome, the founders knew that there had to be a greater division of powers and balancing of interests, that good democratic principles have to be checked by the limitations that a republican form of government provides. When it works, this balance serves to protect the rights of individual Americans.

But we have to make sure that all of the branches are working properly, lest the American experiment become a cautionary tale that scholars two millennia from now examine as an example of what not to do.

Andrew Langer is President of the Institute for Liberty.

 

 

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Guest Essayist: Andrew Langer


In his play, The Tempest, William Shakespeare wrote, “What’s past is prologue.”  Building on this idea, in 1905, philosopher George Santayana wrote, “Those who cannot remember the past are condemned to repeat it.”

Our founders were acutely aware of this concept—even if they were unfamiliar with Shakespeare or preceded Santayana by more than a century.  Firmly grounded in both the history of classical antiquity and the philosophies underpinning the various Greek and Roman societies, men like Thomas Jefferson and James Madison relied firmly on what they had learned as they were envisioning the American Republic (and, to be certain, Jefferson found great inspiration from the Greeks and the Romans in his architectural pursuits as well).

Nowhere is this more evident than in Federalist #38.  Written by Madison, this essay continues his efforts to counter the rhetoric of those opposed to the ratification of the Constitution—focusing squarely on the flaws in those opponents’ reasoning, and drawing on the lessons of history in order to sway support in favor of ratification.

After briefly discussing the Minoans, the Spartans, and the Romans, Madison focuses on Athens—the cradle of early democracies (the word “democracy” is in and of itself Greek, meaning “ruled by the people”).  After discussing some of what led to the formation of the Athenian democratic government, he asks by the people of Athens,

“should consider one illustrious citizen as a more eligible depositary of the fortunes of themselves and their posterity, than a select body of citizens, from whose common deliberations more wisdom, as well as more safety, might have been expected?”

In other words, there was concern as to whether one person—whether a “divine right” monarch or someone selected through a democratic process—would serve the nation (though in the case of the Greeks we’re generally talking about “city states” better than some group of citizens, acting together to make decisions.

In fact, Athens made participation in their democracy mandatory, and each year a group of citizens would be compelled to serve in the government.

Madison then goes on to talk about the challenges that the founders of these governments faced, showing that there is indeed a lesson in the debates that existed in Greece and Rome for those debating the ratification of the Constitution:

“History informs us, likewise, of the difficulties with which these celebrated reformers had to contend, as well as the expedients which they were obliged to employ in order to carry their reforms into effect.”

In other words—these men faced challenges, too, but those challenges did not prevent them from moving forward with improvements. But most important is the lesson that correcting the mistakes of governance in the past is an essential element of a successful and enduring nation, while at the same time recognizing that opposition for opposition’s sake can be needlessly complicating:

“If these lessons teach us, on one hand, to admire the improvement made by America on the ancient mode of preparing and establishing regular plans of government, they serve not less, on the other, to admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them.”

This is the real focus of Madison’s essay—his accusation to the critics of the Constitution that their arguments are not in any way constructive or substantive, but worse, that they are (in many cases) contradictory and harmful in that they are needlessly delaying the lawful formation of a national government.

The Constitution was meant as a necessary improvement over the Articles of Confederation, a document that, like many implemented first drafts, was found to be wanting and ultimately unworkable.  It was a document full of contradictions—a central government given responsibilities but little authority to exercise those responsibilities.  In fact, it could be said that this is by design, that these flaws were embedded in the Articles of Confederation to make that document (and any government trying to operate under it) unworkable (in modern legal parlance, this is referred to as a “poison pill”).

But Madison knew time was of the essence—and that pointing out the contradictions in the arguments of the Constitution’s opponents was essential to the speedy adoption of that document, framing it as a mortal health issue:

“A patient who finds his disorder daily growing worse, and that an efficacious remedy can no longer be delayed without extreme danger, after coolly revolving his situation, and the characters of different physicians, selects and calls in such of them as he judges most capable of administering relief, and best entitled to his confidence. The physicians attend; the case of the patient is carefully examined; a consultation is held; they are unanimously agreed that the symptoms are critical, but that the case, with proper and timely relief, is so far from being desperate, that it may be made to issue in an improvement of his constitution…

“Such a patient and in such a situation is America at this moment. She has been sensible of her malady. She has obtained a regular and unanimous advice from men of her own deliberate choice. And she is warned by others against following this advice under pain of the most fatal consequences. Do the monitors deny the reality of her danger? No. Do they deny the necessity of some speedy and powerful remedy? No.”

Sometimes, we forget the precarious nature of the fledgling American republic.  Yes, we had just won the war for our independence, but the nation’s future was hardly guaranteed.  In fact, it was even more precarious because of the failure of the Articles of Confederation in producing the balancing of interests between the states, the central government, and the people themselves.

Ultimately, Madison prevailed upon the readers of his essays to consider that as flawed as the Constitution might be, it was better than either of the two alternatives (as he saw them): the Articles of Confederation or no organizing document whatsoever.  Whichever the particular complaints of the Constitution’s opponents, Madison needed them to see that point.  With the past being prologue, Madison knew what would happen to the American experiment otherwise.

Andrew Langer is President of the Institute for Liberty.

 

 

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Guest Essayist: Joerg Knipprath

In classical studies and terminology, a (political) constitution is a concept that describes how a particular political system operates. It is a descriptive term and refers to actual political entities. It is, therefore, unlike what Americans are accustomed to hearing when that term is used. Rather, we think of The Constitution, a formal founding document which not only describes the skeleton of our political system, but has also attained the status of a normative standard for what is intrinsically proper political action. Thus, we can talk about constitutional law and of rights recognized in that document in defining not just how things are done, but how they ought to be done.

In that, our Constitution is unusual. The ancient Greek cities lacked such formal documents that were self-consciously founding a new political order. However, there were analogous decrees and laws which shaped aspects of government. In that sense, we, too, might say that a statute that organizes a branch of government might be “constitutional,” not in the sense that it is somehow a noble law, and not just that it is within the textual limits of the Constitution. Instead, the term conveys that such a law simply sets up basic procedures to run the government, procedures that people use and, thereby, at least tacitly accept as legitimate. An example might be a statute that establishes a specific system of federal courts.

Moreover, functional descriptions of constitutions must take into account not only formal written rules of government for that entity, but the unwritten customs and practices that shape, refine, or even negate those written rules. Even our formal written Constitution is subject to such informal influences, one prominent form of which is the collection of opinions of Supreme Court justices on the meaning of the words in that document. The ancients, too, were keenly aware of the importance of such long-adhered-to customs to influence the practice of politics and also to give—or deny—legitimacy to political actions. The Greek playwright Sophocles made the clash between a novel royal decree and custom in the form of the “immortal unrecorded laws of God” a central plot device in his play Antigone, a part of the tragic Oedipus Cycle. For the Roman Republic and the early Empire, one must look to the use of constitutional custom through the mos maiorum (the “custom of the ancients” or “practice of the forefathers”) to understand the political order.

As with our own polity, it would be foolish to describe the constitutions of the Greek poleis (city states) as unchanged over the centuries of their existence. Cultural perspectives and societal needs do not remain static. Thus, one must give an evolutionary overview, made more specific through a snapshot of a particular period. When Aristotle (or his students) wrote Athenaion Politeia (the Athenian Constitution), he did just that, providing a history and a contemporary description. As an aside, Aristotle is credited with analyzing 158 Greek constitutions, of which the Athenian is the only one to survive in substantial form. With that number, it is more likely that Aristotle’s students compiled these surveys, perhaps on behalf of their teacher’s research.

As the Greek city states evolved, so did their governments. The chieftain or kingly form of government under a basileus, limited often by powerful individual noble warriors, prominent in Homer’s Iliad, typically gave way to an aristocracy based on land ownership. In Athens, as later in Rome and in the history of Europe and North America, there were further pressures towards democratization, influenced by the growth of commerce and sea trade. Both Plato in Politeia (the “Republic”) and Aristotle in Politika (the “Politics”) wrote about these trends. Neither was a fan. Plato, especially, saw these developments as evidence of degeneration.

While much of this history is murky and in shadows, apparently the major power of government in early Athens was in the Areopagus, a council of aristocratic elders with legislative and judicial powers. Significant constitutional changes in Athens began in 621-620 B.C. with the Code of Draco (who may have been an individual or a signifier for a priestly class), which solidified the powers of the holders of large estates in a legislative Council of 400. This body was selected by lot from the class of those who, according to the Code, could supply a certain level of military equipment.

Solon, regarded by many historians as the founder of Athenian democracy, undertook various political reforms in the early 6th century B.C. One was to deprive the Areopagus of much of its judicial power. Instead, jury courts took over that role, including the ability to adjudicate suits against public officials for unjust treatment. The most significant reform was to expand political participation based on size of land ownership. Four classes were created. All, even the landless laborers could take part in the ekklesia (assembly) and the jury courts. However, only the top two classes could hold the significant public offices. Members of the third class could hold minor administrative positions. In effect, this diminished the role of the hereditary aristocracy and entrenched the wealthier oligarchy of large landowners. The Council of 400 controlled the agenda of the assembly, thereby ensuring more control by the landed elite.

The process of democratization continued with the reforms by the military leader Kleisthenes who came to political power in 507 B.C. He organized the citizens in Athens and the surrounding area into ten “tribes.” While Athens had many residents from other Greek cities and from non-Greek areas, these “metics” were not counted. Tribe is not to be understood as an ethnic concept, but merely as a convenient label for a geographic constituency, such as a community or district. Kleisthenes eliminated the Council of 400 and replaced it with the boule, a Council of 500. Each tribe would have 50 seats in that council, chosen annually by lot from male citizens over 30 years old. The Council was a powerful entity, in charge of fiscal administration. It also set the agenda for the Assembly. Council members could serve only twice in their lifetimes. Kleisthenes had his reforms approved by vote of the Assembly, which gave particular legitimacy to the rules and increased the Assembly’s constitutional significance. However, the nine archons, the senior civil officials, as well as other magistrate offices, such as judges, were still drawn from the nobility and the wealthy landowners.

During the 5th century B.C., further reforms occurred under Ephialtes and Pericles, resulting in what historians often call Athens’s “Golden Age of Pericles.” The Assembly was the focal point of Athenian democracy. It met on a hill near the central market. Sessions were held on four non-consecutive days each Athenian month. There were ten months, with thirty-six days each. A quorum was 6,000 of the estimated 40,000 Athenian male citizens. Anyone could speak on items placed before the Assembly by the Council. Laws generally were adopted by majority vote of hands, though some laws required approval also by a special body drawn by lot from the jury rolls.

This façade of radical democracy must not fool casual observers of Athenian politics. First, there was the matter of demographics. Of the estimated 300,000 residents of Athens and its environs, most were slaves, metics, women, or children. It is estimated that only about 15% were adult male citizens. Second, the members of the Assembly did have final authority to vote, but on proposals shaped by the Council. Finally, business could not have been carried on if thousands of people exercised their right to speak. Thus, informal customs were observed. Speeches on proposals were given by a small number of recognized leading members of the community. These speakers were the “demagogues” (demos means “people”; gogos means “leader”). Initially, the term had a neutral meaning. It soon took on the modern sense, as various individuals sought to gain favor and influence with the voters through inflammatory language, theatrics and emotionalism.

As happens not infrequently, many such spokesmen for the people were from noble families or wealthy businessmen seeking to advance their economic interests. Notorious among them were Alcibiades, known for his charm, wealth, good looks, and Spartan military training; Hyperbolus, namesake of a word that represents theatrical and emotional language, a frequent target of satire by Greek playwrights, and the last person to be “ostracized” (that is, required to leave Athens for ten years); and Cleon, a man who, centuries before William F. Buckley, declared that “states are better governed by the man in the streets than by intellectuals …who… want to appear wiser than the laws…and…often bring ruin on their country.” Such speakers could “demagogue” issues and exploit, exacerbate, and even create divisions within the Athenian populace. However, they also served a useful role in that they were usually well-informed and regular participants in the debates. They could explain to the more casual attendees unfamiliar with the intricacies of Athenian government and politics the issues of the day. It is reported that ordinary Athenians, not known to be reticent in matters of political debate, were anything but shy about vocalizing their opinions about the various speakers through shouts, jeers, cheers, laughter, and a multitude of other sounds even if they did not make speeches.

As noted, the Assembly’s power was not unrestricted. The Council of 500 controlled its agenda. More precisely, since a body of five hundred could not realistically expect to control the shaping of public policy and its administration, it was a standing committee of the Council that performed this work. The standing committee of 50 rotated monthly among the ten tribes which composed the Council.

Athens had no king or president. The archons were senior magistrates and judges. They were selected by lot and, in theory, by the 4th century B.C., any male citizen was eligible for the office. Archons served for one year and thereafter could not be re-selected. Strategoi were the military commanders of the army and navy. Since those positions required particular expertise in war and leadership capabilities, they were not selected by the chancy method of the lot. Rather, the Assembly elected them for one-year terms. Unlike the civil magistrates, because wars operate on their own timetable, military commanders were typically re-elected. At the same time, the Assembly could revoke their commands at any time and for any reason. In addition, Athens had many junior bureaucrats who held their offices longer.

By the end of the fifth century B.C., the jury courts, well-established in the litigious Athenian society, had also taken on a political role. They were in charge of the confirmation process that each official had to undergo before taking office. If challenged on his qualifications, a jury would have to vote by majority to approve the selection. The courts and the Assembly also could hear “denunciations” brought by Athenian citizens against public officials and military commanders after an initial review by the Council. Finally, upon completing his term of office, a public official was subject to a review (euthenai) by an administrative board. If a citizen brought a complaint of mistreatment by the official, that complaint also would be heard by the courts after an initial review by a committee of the Council.

Despite its source in the demos, the Athenian system was not an unrestrained democracy. Such a system would have collapsed quickly, given the size and complexity of the Athenian state by the 6th century B.C. Athens was a “mixed” government (mikte). What brought it to eventual collapse was defeat in the Peloponnesian War at the hands of Sparta, the overextension of its colonial reach, the interference by foreign powers during the 5th and 4th centuries B.C. in the politics of Athens (from Persia to Sparta to Thebes to Macedon), and the usual interest group conflicts that plague societies (rich versus poor, landed versus commercial interests, creditors versus debtors, new elites versus old, traditionalists versus modernists). The social frictions and political instability caused by the violence of the successive factions that controlled Athens in the early 4th century B.C. based on support of, or opposition to, Spartan influence, undermined the system to the point that the city could not resist its eventual assimilation by the Kingdom of Macedon and its successor, the Alexandrian Empire. Both the oligarchic pro-Spartans, such as the Thirty Tyrants, and the democratic anti-Spartans seized the property of defeated political rivals and resorted to death for people suspected of supporting those defeated rivals. It was the democratic faction, after all, that convicted Socrates and sentenced him to death for a trumped-up charge.

All of that said, one must not forget that between the initial democratic stirrings under Draco and the Macedonian occupation, the Athenian democracy functioned three centuries. Even after the end of its independence as a city-state, the Athenian constitution continued, albeit in modified form and with less power abroad.

The Spartan system was superficially similar to the Athenian constitution yet was grounded in some fundamentally different social and political realities. Like some other thoroughly stratified and structured societies, Sparta was highly legalistic. The tight and intrusive control over life that is associated with the “Spartan way” was rooted in law, not tyrannical arbitrariness. Law, in turn rested on tradition, not written statutes, allegedly due to a directive from its possibly fictional founder, Lycurgus.

Spartans attributed the origin of their system to their great “lawgiver,” Lycurgus, supposedly in the 9th century B.C. Because so little is known about Lycurgus, historians have questioned the timing and, indeed, his very existence as a real person. Still, this event lay at the base of Spartan claims that their democracy antedated that of Athens by a couple of centuries.

In some sense, it is curious to imagine Sparta as “democratic,” but there is a basis to that description. The apella was the Spartan Assembly, to which all adult male citizens authorized to bear arms belonged. Moreover, Spartan women were far more equal in status to men than were their Athenian counterparts. While they were not given formal political powers, Spartan women were expected to voice their opinions about public matters. Most important, they also, unlike Athenian women, had rights to their own property through dowry and inheritance.

At the same time, the real political power was exercised by two institutions, the gerousia (Council of Elders—gerontes) and the ephoroi (magistrates). The Assembly could only vote on proposals presented by the Council, not initiate them. There is dispute about whether the Assembly could even formally debate proposals, but it is likely that vigorous debates in fact took place. The Assembly was composed of Spartan warriors, after all. The Council consisted of the two Spartan kings and 28 citizens over the age of 60 who were elected by the Assembly for life. This made the Council the main legislative power in what might be considered a bicameral system. Cicero analogized the Council to the Roman Senate. While the Council was not composed of a hereditary “aristocracy,” as was the principal – but not sole — characteristic of the Roman Senate, its members were drawn from the most prominent and tradition-minded elements of Spartan men.

Political writers since ancient times often pointed to another feature of the Spartan constitution, the dual monarchy. The origins of that system are obscure. For example, historians have sought to locate that origin in an ancient dispute between two powerful noble families that was settled by making the leader of each a king. Others have seen this as the result of a union of various villages or tribes at the city’s founding, the chiefs of the two most powerful becoming the kings. In later years, the system evolved that one king was responsible for domestic matters, mainly religious and judicial, while the other was typically away on military expeditions. The two kingships were not explicitly hereditary, and the kings were elected, another democratic feature. But they were elected for life and from those same two ancient families.

Whatever its origins or democratic bona fides, writers have often lauded the dual monarchy as representing an effective barrier to centralization of power in a single tyrant. The force of tradition and the natural rivalries among powerful faction kept each in check. Given the largely ceremonial role of the kings, except in military campaigns, and the checks otherwise placed on the kings make this justification for the dual monarchy less compelling.

The final piece of the formal Spartan political structure was the board of magistrates. The ephoroi were elected annually by the Assembly. Even the poorest citizen theoretically could be elected. There could be no re-election to a subsequent term. Initially, the ephoroi had limited powers, but as time passed, their offices gained substantive powers. When away on a military campaign, the king was accompanied by two ephoroi. Similarly, the kings lost the power to declare war and to control foreign policy to the ephoroi and the Council. Much of this might be traceable to security concerns that a king could make surreptitious deals with enemies of Sparta or get entangled in foreign schemes injurious to Spartan survival. Except while acting as generals, the kings over time became figureheads. But the ephoroi themselves also had significant limitations on their powers, chief among them their short tenures.

Polybius, often described as the founding light of constitutional and political studies, described the Spartan system as a true balanced and mixed government. In the classic understanding, that meant it contained a mixture of monarchic, aristocratic, and democratic elements balanced in harmony to produce an effective government duly attentive to individual rights. It seems unpersuasive to describe the rigid and totalitarian Spartan society in that manner. In light of the functional dominance of the Council, with its life tenure and its selection from the upper levels of Spartan society, one might more readily classify Sparta as an oligarchic system.

The end of Spartan power was not due to any inherent defect in the constitutional structure. More likely were the combined factors of demographic collapse and overextension in foreign and military ventures. The near-constant warfare of the 5th and 4th centuries B.C. against Persians, then Athenians in the Peloponnesian Wars, then against the combination of Athens, Thebes, Corinth, and Persia in the Corinthian Wars, and, finally, against Thebes alone, depleted the Spartan hoplite infantry on which Spartan military success depended. The population of Spartan citizens shrunk, and their rule over the helots which made up 90% of the state’s residents became increasingly precarious.

The rigid nature of Spartan society, the paranoia reflected in the Spartan security state, and the traditionalism of the Council, shown for example by their unwillingness to extend citizenship to the helots, may have contributed to the downfall of Spartan influence after the Battle of Leuctra in 371 B.C. Still, the city at that time had been a powerful actor in the Mediterranean world for three centuries. Moreover, the system continued to operate reasonably well within the Roman world for nearly another eight hundred years, until it was sacked by Alaric and the Visigoths in 396 A.D.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty, Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.

 

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Guest Essayist: Samuel Postell


 
In the last essay, I attempted to show how the framers rejected ancient political thought. In this essay, I will try to show what guided the framers of our Constitution. In Federalist 1, Publius made the bold claim that:

“it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

Publius implied that no past regime had created the circumstances for reasonable lawmaking or political stability. Past regimes lacked liberty, but they also lacked institutional arrangements to foster reflection and cooperation in law making, and thus were ruled by the force of one or the accidents of the many. Publius envisioned that America would create the opportunity for freedom and stability because of the regime’s dedication to liberty and natural rights, reliance on the people, and structure to combat the abuse of power.

In Federalist 9, Publius revealed what regimes governed by “accident and force” look like in practice: he claimed that “The petty republics of Greece and Italy… were kept in a state of perpetual vibration between the extremes of anarchy and tyranny.” Because no regime had provided a stable foundation for “reflection and choice,” the ancient regimes were led by the force of tyrants, or the anarchy typical of pure democracies. But what did the past regimes lack that made them unstable? Publius argued that they lacked a proper constitution that assured a “firm union.”

Publius argued that various principles unavailable to the ancients allowed the framers of our Constitution to check tyranny and prohibit anarchy. In Federalist 9, he argued that the vibration between the extremes of anarchy and tyranny might give the opponents of liberty just cause to “abandon that species of government as indefensible.” However, Publius argued that “The science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients.” He argued that five principles rendered the American republic more stable than ancient constitutions. According to Publius, the following improvements are “means… by which the excellences of republican government may be retained and its imperfections lessened or avoided”:

  1. “The regular distribution of power into distinct departments.”
  2. “The introduction of legislative checks and balances.”
  3. “The institution of courts composed of justices holding their offices during good behavior.”
  4. “The representation of the people in the legislature by deputies of their own election.”
  5. “The enlargement of the orbit within which such systems are to revolve, either in respect to the dimensions of a single State or to the consolidation of several smaller States into one great Confederacy.”

The last of the five improvements was the most novel, but also the most criticized. For example, both Anti-Federalists, Cato and Brutus, argued that such an enlarged sphere made “consolidation” likely, and thus endangered liberty. Montesquieu, the thinker upon whom many of the founders’ relied, argued that free government could only exist in small republics. Additionally, the free regimes of the ancient world were much smaller than the United States, and when they expanded, they became corrupt and liberty was endangered.

In Federalist 10, Publius gave his most robust defense of the “enlarged sphere.” In that paper, he considered an enlarged sphere to be the means by which the union may “break and control the violence of faction.” He argued that there are two means for dealing with the problem of faction: you may either remove the causes, or control the effects. However, the former cure– removing the causes– is worse than the disease because it would require that one remove liberty because “liberty is to faction what air is to fire.” Publius argued that two things will follow from an enlarged sphere, both of which combat faction: first, enlarging the sphere multiplies the number of factions which makes it more difficult for one faction to become a majority, and second, if the country covers a larger tract of land, it will be more difficult for a faction to “concert and carry out its schemes of oppression.”

However, Publius did not explain the most prolific difference between the American Constitution and ancient constitutions until Federalist 51. In Federalist 51, Publius argued that the constitutional form makes possible an extensive republic while also providing checks upon the abuse of power. He argued that the Constitution created an “interior structure” which made the branches “by their mutual relations… the means of keeping each other in their proper places.” In Federalist 47, Publius established that the departments of power were “distributed and blended.” The distribution of powers into separate branches, he argued, is essential to ensure accountability and prohibit the abuse of power. In fact, he argued that the very definition of tyranny is “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective.”

Even before the Constitutional Convention, Madison noted that giving the government sufficient power while ensuring that power was not used to abuse rights was the “great desideratum” (Latin, meaning “great thing desired”). Publius argued that the next and most important task after dividing power was to provide some “practical security” to combat consolidation over time. In Federalist 48-50, he sought the means whereby the distribution of power into separate branches could be maintained. In Federalist 51, he revealed the practical security: the “interior structure” of the Constitution creates ambitious branches which counteract one another, and thereby limit the exercise of federal power.

Ultimately, Publius argued that in order to preserve liberty, each department must have “a will of its own” and each department should have “as little agency as possible in the appointment of the members of others”; additionally, each officer, in each branch, must have the “necessary constitutional means” and the “personal motives to resist encroachments from the others.” In other words, not only must the branches be separate, but the members of each branch must defend the rightful power of the branch to which he belongs. Publius envisioned a system in which each officer identified his own power with that of his branch, and became jealous of usurpation. He argued that the result is that “ambition” will counteract “ambition,” and each branch will check the others in the use of power. The result is that tyranny, consolidation, and the abuse of power is less likely, and the preservation of natural rights is more likely.

But in order to make each branch ambitious, each officer must be ambitious, and that requires that “the interest of the man must be connected to the constitutional rights of the place.” In order for this to occur, the officer must understand that whatever good he may do, or whatever glory he may harvest, ultimately, he requires that the branch to which he belongs maintains its Constitutional strength. Publius argues that such a system reinforces the separation of power. Paradoxically, the solution to the abuse of power is to make each branch ambitiously use its Constitutional powers to limit the abuse of power by other branches.

In our Constitution, therefore, there are a variety of institutional checks that keep the branches in their proper places. I will list a few of those checks inherent in the interior structure of our government. Publius remarks that the legislature is the most powerful branch so it is in need of extensive checks. He remarks that the legislature is an “impetuous vortex” swallowing the power of other branches. Therefore, our Constitution weakens the legislature by dividing its power between two houses and rendering each house different in mode of election and principle of representation. Additionally, the executive department has veto power over legislation. On the other hand, the Senate has the authority to declare war, so the president cannot determine foreign policy alone. The legislature is mixed with the executive and judicial departments when it comes to appointing justices of the Supreme Court, as the Senate must approve the president’s appointments to the Supreme Court. Additionally, the Vice President casts a tie-breaking vote in the Senate. The judiciary checks the legislature by considering the constitutionality of its laws. And finally, the states check the federal government because sovereignty is divided between the states and the federal government. Publius argues that this creates a “dual security” for the rights of the people.

The idea of blending power to control power, and rendering each branch sufficiently ambitious in order to combat tyranny and centralization, was an entirely new theory about how to control power. Institutionalizing this new theory made our Constitution completely novel in political science. Although the framers rejected the popular theory that a strict division of power was necessary to ensure the separation of powers, they did so after careful consideration of ancient history. For example, In Federalist 47, Publius argues that no state embraced a strict separation of power in its constitution, nor did the British government. Although almost all other regimes were forced by necessity to blend power, the American Constitution was the first to utilize the principle of blending power to ensure that power remained limited.

Samuel Postell serves as Executive Director of The Center for Liberty and Learning at the Founders Classical Academy of Lewisville, Texas. Mr. Postell graduated from Ashland University with undergraduate degrees in Politics and English. He earned his master’s degree in Political Thought from the University of Dallas and is working on his dissertation to complete his Ph.D. Mr. Postell is writing a book on Henry Clay and legislative statesmanship, a subject about which he frequently writes and publishes. He has also conducted studies for Ballotpedia and has frequently contributed to Law and Liberty and Constituting America. At Founders Classical Academy he teaches courses on Government and Economics, and has taught courses on American Literature and Rhetoric.

 

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Guest Essayist: Samuel Postell


 

 
In a letter to Henry Lee written in 1825, Thomas Jefferson counseled that the Declaration of Independence’s authority rested “on the harmonising sentiments of the day, whether expressed in conversation, letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, Etc.” George Washington had the play Cato performed before his troops at Valley Forge, presumably because he believed that ancient examples would inspire them. In what sense was America an experiment in self-government, and in what sense was it a continuation of the Roman or Athenian experiment in popular government? The American Founders relied on the Western tradition for their understanding of virtue, but they learned from the failures of the ancient regimes and sought to correct those failures when framing the Constitution.

The ancient constitutions presupposed a high degree of virtue, and ancient regimes would often stifle freedom in order to ensure that citizens cultivate virtue; the American Constitution, prioritizing liberty and individual rights, embraced a more sober understanding of human nature.

Plato’s Republic is considered his most comprehensive account of government, yet the imaginary republic constructed by Socrates stifled liberty to ensure order and harmony. The American founders rejected much of Plato’s thought because The Republic paints liberty as inconsistent with order and political unity. For example, in 1814 John Adams wrote to Thomas Jefferson,

“I amused myself with reading seriously Plato’s republic. I am wrong however in calling it amusement, for it was the heaviest task-work I ever went through. I had occasionally before taken up some of his other works, but scarcely ever had patience to go through a whole dialogue. while wading thro’ the whimsies, the puerilities, & unintelligible jargon of this work, I laid it down often to ask myself how it could have been that the world should have so long consented to give reputation to such nonsense as this?”

In addition to stifling liberty, The Republic relies on one-man rule and proposes that a philosopher king should be vested with power; the founders found this suggestion unpalatable because they believed that one-man rule could quickly lead to abuses of power. One of The Republic’s central allegories is the image of the “ship of state.” In Book 6, Socrates argues that the “true pilot” of the ship will be overlooked by the multitude, and he will be called a “star-gazer” or a “good for nothing.” Nevertheless, Socrates argues that such a man deserves to rule because a good captain must “pay attention to the year and seasons and sky and stars and winds, and whatever else belongs to his art.” In Federalist 10, Publius rejects Plato’s prescription of an “enlightened statesman” to steer the ship of state. He writes,

“Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.”

Not only did Publius believe that an enlightened statesman would likely be rejected, but he also believed that it would be unlikely that the statesman could “take into view indirect and remote considerations.” Whereas Plato believed that a high degree of knowledge was necessary for rule– however unlikely that knowledge may be– the founders believed that it was unlikely that rulers, even if enlightened, could properly consider and weigh all “indirect and remote considerations” having to do with politics in a popular regime. Additionally, the framers did not believe that enlightenment made men less self-interested; rather, they believed that even an enlightened statesman may have passions and interests that would tie him to a particular faction and corrupt his judgment.

If the framers did not follow Plato’s political prescriptions, did they also reject Aristotle? In The Politics, Aristotle identified six different kinds of regimes: monarchy, tyranny, aristocracy, oligarchy, polity, and democracy. He argued that what defines a regime as correct or deviant is whether the ruler rules for his own good, or the public good. He suggested a “mixed regime.” The mixture, he suggested, was an aristocratic republic. In Book 5, Aristotle argued that justice is the end of regimes, and that some degree of stability is necessary to promote peace and justice. Aristotle concluded that disputes among the few rich and the many poor result in instability and injustice. In Book 5, Chapter 7, he wrote that “Both polities and aristocracies are overturned above all through a deviation from justice in the regime itself.” Aristotle argued that such regimes are overturned because the parties attempt to rule for their own benefit at the expense of the common benefit. Aristotle argued that this results because the aristocratic and democratic elements of the regime have not been “finely mixed.”

While it does seem that our regime is mixed because we have aspects of each kind of regime, in Federalist 14 Publius argued that our republic is unmixed. He wrote, “America can claim the merit of making the discovery of the basis of unmixed and extensive republics.” In other words, he argued that the American founding presents a new kind of constitution, a true republic, and that no historical or philosophical examples can explain our Constitution. In Federalist 39, Publius argues that Holland, Venice, Britain, and Poland are all called republican governments, but argues that they are not truly republican in form.

There are many ways in which the U.S. Constitution is novel, but the most obvious novelty is a system of representation predicated on the consent of the people. In Federalist 39, when defining republicanism, Publius wrote that:

“It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people.”

In Federalist 51, Publius argued that what makes a republic– a reliance on the people– is also the “primary security” for liberty. He argued that “A dependence on the people is, no doubt, the primary control on the government.” Unlike Plato’s Republic, which relied on a philosopher king, the American Constitution relies on the virtue and wisdom of the people. Unlike Aristotle’s mixed regime, the idea of consent permeates all of our institutions. What makes the American regime unique is its firm reliance on the people as the source of political power, and the faith that the people are capable of justly wielding political power.

Did the American founders, therefore, reject ancient wisdom entirely? Although the framers rejected many of the ancients’ prescriptions for political constitutions and created a form of government which was unprecedented, they relied on ancient wisdom in order to do so. Although the framers rejected the totalitarian government of Plato’s Republic, and did not precisely follow Aristotle’s model for a mixed regime, what led them to create a novel form of government was an understanding of human nature and the failures of past experience. The framers were led by history and experience, and much of the history they considered was ancient, and they derived their critiques from the same foundation as the ancients did. In the next essay, I will consider the history and experiences that led the framers to create our Constitution, and I will highlight precisely what makes it different from past constitutions.

Samuel Postell serves as Executive Director of The Center for Liberty and Learning at the Founders Classical Academy of Lewisville, Texas. Mr. Postell graduated from Ashland University with undergraduate degrees in Politics and English. He earned his master’s degree in Political Thought from the University of Dallas and is working on his dissertation to complete his Ph.D. Mr. Postell is writing a book on Henry Clay and legislative statesmanship, a subject about which he frequently writes and publishes. He has also conducted studies for Ballotpedia and has frequently contributed to Law and Liberty and Constituting America. At Founders Classical Academy he teaches courses on Government and Economics, and has taught courses on American Literature and Rhetoric.

 

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Guest Essayist: Chris Burkett

How did the American Founders acquire the wisdom to frame a Constitution that has withstood many challenges to liberty and self-government for over two hundred years? Their deep interest in understanding human nature, derived from a careful study of history, allowed them to create a Constitution that both improved upon past constitutions and also anticipated future developments well beyond their time.

The American Founders studied ancient constitutions carefully, especially those of Greece and Rome, and sought to improve upon their imperfections. They found that these ancient regimes were all founded on unrealistic notions of human nature, which led the ancients to count on a degree of civic virtue that was either too high or too low. Many ancient regimes assumed that “there is not sufficient virtue among men for self-government; & that nothing less than the chains of despotism can restrain them from destroying & devouring one another.”[1] The Founders discovered that ancient democracies – or “petty republics” as Alexander Hamilton called them – too often vibrated between the extremes of anarchy and tyranny.[2] The defect in these ancient constitutions was a lack of institutions necessary to preserve both virtue and liberty; many lacked, for example, a proper separation of powers, adequate checks and balances, and important representative bodies such as a senate. Without proper constitutional arrangements, as James Madison observed, “Had every Athenian citizen been a Socrates; every Athenian assembly would still have been a mob.”[3]

The American Founders needed to improve upon these constitutional devices because they wanted to create a political system that balanced civic virtue with liberty. To accomplish this, they established a Constitution framed upon a more realistic notion of human nature – one that acknowledged and anticipated both the good and bad aspects of human motives. “As there is a degree of depravity in mankind which requires a certain degree of circumspection & distrust,” James Madison wrote, “so there are other qualities in human nature which justify a certain portion of esteem & confidence. Republican government presupposes the existence of these qualities to a higher degree than any other form.”[4] The Founders’ study of history revealed that in some fundamental ways, human nature never changes. Human beings are capable of being reasonable and therefore self-governing, but one should not ignore the propensity of mankind to pursue and abuse power for self-interested purposes. By framing a constitution upon a realistic understanding of unchanging human nature, they anticipated all sorts of new political developments: the forms of tyranny might change in the future, but the sources would not.

The American Founders applied what they learned from history and human nature to fix the defects of the Articles of Confederation. The glaring defect of the Articles of Confederation was the frequent failure of the state governments to abide by the terms of that compact – despite the fact that they had all promised to do so. States often refused to pay their share of revenue for the good of the Union, violated international treaties, and exercised other powers that were prohibited by the Articles of Confederation. This led George Washington to observe in 1786, “We have errors to correct. We have probably had too good an opinion of human nature in forming our confederation. Experience has taught us, that men will not adopt & carry into execution, measures the best calculated for their own good without the intervention of a coercive power.”[5] The proposed Constitution, created by the Federal Convention of 1787 to correct these errors, was then submitted to the public for ratification.

The debate over ratification was also the greatest debate in history on human nature. Supporters and critics of the proposed Constitution – Federalists and Antifederalists – made insightful arguments learned from the lessons of history regarding human nature. The key to a good constitution, according to Antifederalist Brutus, for example, is establishing good representation. A virtuous citizenry is especially important under any constitution to check the self-interested abuses of power by elected representatives. “It is a truth confirmed by the unerring experience of ages,” wrote Brutus, “that every man, and every body of men, invested with power, are ever disposed to increase it, and to acquire a superiority over every thing that stands in their way.” This disposition to attain and abuse power, “which is implanted in human nature,” requires sufficient protections against potential tyranny.[6] “The principle of self-love, therefore, that will influence the one to promote the good of the whole, will prompt the other to follow its own private advantage. The great art, therefore, in forming a good constitution, appears to be this, so to frame it, as that those to whom the power is committed shall be subject to the same feelings, and aim at the same objects as the people do, who transfer to them their authority. There is no possible way to effect this but by an equal, full and fair representation; this, therefore, is the great desideratum in politics.”[7]

Federalist James Madison, considered to be the Father of the Constitution, agreed with Brutus on the fundamental difficulty of framing good government – the natural propensity of human beings, out of self-love, to put their private interest above the common good. In Federalist No. 10, Madison argued that a constitution must be framed on the understanding that men are prone by nature to become “factious,” and that the causes of faction are rooted in human nature. Factions are groups of people, according to Madison, united by a common interest or passion, who want to use political power to harm or violate the natural rights of others. From his careful study of history, Madison learned that factions have been “the mortal diseases under which popular governments have everywhere perished.” The causes of faction might only be eliminated, Madison argued, by eliminating liberty itself – in which case the “remedy” would be “worse than the disease.”[8] Rather than trying to eliminate the causes of faction, Madison’s solution was to frame a Constitution that acknowledged the likelihood of factions in politics, and sought to control their dangerous effects through the means of properly separating power and providing sufficient checks and balances between the branches of government. Madison’s insights into human nature led to important improvements to the science of politics and of constitution making.

The insights learned from history allowed the American Founders to infuse the Constitution with a wisdom that stretched far into the future. They understood well that so long as human beings are human beings, the possibility of tyranny will always exist. Even though new forms of tyranny might emerge, its causes remain the same. Because its foundation rested on an understanding of unchanging human nature, the Constitution has proven remarkably adaptable and capable of dealing with new challenges to liberty and self-government for over two hundred years.

Christopher C. Burkett is Associate Professor of History and Political Science, and Director of the Ashbrook Scholar Program at Ashland University.

 

 

 

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[1] Federalist No 55

[2] Federalist No. 9

[3] Federalist No. 55

[4] Federalist No. 55

[5] George Washington to John Jay, August 15, 1786

[6] Brutus No. I

[7] Brutus No. IV

[8] Federalist No. 10