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CONSTITUTION AND FUNDAMENTAL LAW: THE LESSON OF CLASSICAL ATHENS

Published online by Cambridge University Press:  30 November 2010

John David Lewis
Affiliation:
Philosophy, Politics, and Economics Program, Duke University

Abstract

The question of what constitutions should do is deeply connected to what constitutions are. In the American founding conception, a constitution was a fundamental law, hierarchically superior to the decisions of the legislature, and intended to act as a restraint on legislative action. Despite the massive gulf between the ancient Greeks and the Americans, classical Athens offers an important lesson about how the failure to recognize fundamental laws can lead to catastrophic consequences. The evidence suggests that the Athenians understood the need for conceptual, procedural, and institutional distinctions between the fundamental laws and the more specific decrees of the governing institutions. The Athenian and American experiences also suggest that certain philosophical positions conditioned their understanding of their fundamental laws, and guided the practices that followed from that understanding.

Type
Research Article
Copyright
Copyright © Social Philosophy and Policy Foundation 2011

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References

1 U.S. Constitution, Article VI: “This Constitution … shall be the Supreme Law of the Land …” The phrase “law of the land” is in the Magna Carta: see Davis, G. R. C., Magna Carta, rev. ed. (London: British Library, 1985), sections 39, 42, 55Google Scholar. See also Vinogradoff, Paul, Villainage in England: Essays in English Mediaeval History (Oxford: Clarendon Press, 1892; reprint, Clark, NJ: The Lawbook Exchange, 2005), 100Google Scholar (for aspects of “the general law of the land, maintaining actionable rights of free persons”); and Richard A. Posner, “Modesty and Power” (review of Hamburger, Philip, Law and Judicial Duty), in The New Republic Online, January 15, 2009Google Scholar, http://www.tnr.com.

2 In Federalist No. 1, Alexander Hamilton asked “whether societies of men are really capable or not, of establishing good government from reflection and choice,” or whether they will be forever dependent “on accident and force.” Hamilton, Alexander, Madison, James, and Jay, John, The Federalist (1788), ed. Pole, Jack Richon (Indianapolis, IN: Hackett, 2005), 1Google Scholar.

3 Freund, Ernst, “Constitutional Law,” in The Encyclopedia of the Social Sciences, ed. Seligman, Edwin R. A. (New York: MacMillan, 1951), 4:247Google Scholar: any Act of Parliament is “legally superior to the constitution.” Reflecting centuries of prior history, the German Weimar Constitution was amendable by the legislature, which produced “a formal confusion between constitutional and ordinary law” (ibid., 4:248). See also Preuss, Ulrich K., “The Political Meaning of Constitutionalism: British, French, and American Perspectives,” in Arthur, John and Shaw, William H., eds., Readings in the Philosophy of Law (Upper Saddle River, NJ: Prentice-Hall, 2001), 503Google Scholar (in France, “the concept of an eternal, paramount, or supreme law never arose”).

4 Extant Greek “constitutions” are descriptive studies, not prescriptive plans; see, e.g., the Aristotelian Constitution of the Athenians; the Constitution of the Theban Federation; and the pseudo-Xenophonic Constitution of the Athenians, in Moore, J. M., trans., Aristotle and Xenophon on Democracy and Oligarchy (London: Chatto and Windus, 1983)Google Scholar. See also Polybius, , Rise of the Roman Empire, trans. Scott-Kilvert, Ian (New York: Penguin, 1979), book 6Google Scholar. A few Greek constitutional laws are extant, e.g., the law code of Dreros, which set term limits for officials; and Chios, which established a council. “Foundation” documents for colonies, such as for Cyrene, do not specify a political system. See Fornara, Charles, Archaic Times to the Peloponnesian War (Cambridge: Cambridge University Press, 1988), #11, 19, 18Google Scholar; and Gagarin, Michael, Early Greek Law (Berkeley: University of California Press, 1989), 8191Google Scholar. The seventh-century Constitution of Medina is a list of laws governing relations between groups: http://www.constitution.org/cons/medina/macharter.htm.

5 The politeia is the taxis (arrangement or organization) of the polis, specifically its offices: see Aristotle, , Politics 1289a15; Constitution 3.1, 4.1, 41.2, in The Complete Works of Aristotle, ed. Barnes, Jonathan (Princeton, NJ: Princeton University Press, 1984)Google Scholar.

6 In cases where a polis did change its fundamental character, the early Greeks often relied upon the wisdom of a single lawgiver. See Gagarin, , Early Greek Law, 5180; and Lewis, John David, Early Greek Lawgivers (London: Duckworth, 2007)Google Scholar. The reforms of Solon (c. 594 b.c.) and of Cleisthenes (512–508 b.c.) involved major social and institutional changes. The constitution of Athens changed to a democracy in the middle of the fifth century, under the leadership of Ephialtes and others; a group of Athenians changed their constitution to an oligarchy in 411 b.c., probably with a written document, before turning back to democracy: see Aristotle, Constitution 21, 30. In Federalist No. 38, Madison wonders how “a people, jealous as the Greeks were of their liberty, should so far abandon the rules of caution as to place their destiny in the hands of a single citizen?” (Pole, ed., The Federalist, p. 200).

7 For Aristotle on unwritten nomos, see Rhetoric 1374a17–20. He explains this as a matter of the generality of laws at Nicomachean Ethics 1137b26, and Rhetoric 1354a32–b22. The Spartans took this literally, and created an oral society in which it was unlawful to write the laws: see Plutarch, Lycurgus 13.1, in Plutarch, Lives, trans. John Dryden (New York: Modern Library, undated).

8 Aristotle, Politics 1282b6–10; see also Rhetoric 1360a31–37 (knowledge of constitutions is good for lawmakers).

9 Citizenship was limited to males born of two Athenian-born parents; women, slaves, and foreign workers did not participate. Pericles' citizenship law of 451 made this official; the law was reenacted in 403 when the Athenians reinscribed their laws: see Aristotle, Constitution 26.4; discussed by Rhodes, Peter J., “The Athenian Revolution,” and Davies, John K., “Society and Economy,” both in The Cambridge Ancient History, 5, 2d ed., ed. Lewis, David M. et al. (Cambridge: Cambridge University Press, 1992), 76–77, 299–300Google Scholar.

10 Aristotle, Constitution 20. Herodotus, , The Histories, rev. ed., trans. de Sélincourt, Aubrey (New York: Penguin, 1996), 5.66–70, 6.131Google Scholar. See Ober, Josiah, The Athenian Revolution (Princeton, NJ: Princeton University Press, 1996)Google Scholar, on the rise of Cleisthenes as an assertion of the Athenian people. For a view more focused on the leadership, see Fornara, Charles and Samons, Loren J., Athens from Cleisthenes to Pericles (Berkeley: University of California Press, 1991)Google Scholar. On the period after the Persian wars, see Peter J. Rhodes, “The Athenian Revolution,” in Lewis et al., eds., The Cambridge Ancient History, vol. 5, pp. 62–95.

11 Aristotle, Constitution 27.

12 See Thucydides, , History of the Peloponnesian War, trans. Warner, Rex (New York: Penguin, 1972), 1.97101Google Scholar, on the Athenian use of force against recalcitrant allies.

13 Aristotle, Politics 4.4, 1292a10–13. See Aristotle, Constitution 26, on demagogues and the loss of control in political life.

14 Aristotle, Politics 4.4, 1292a4–7, finds a fifth form of politeia when the decrees of the Assembly and not the laws are authoritative.

15 See Ostwald, Martin, From Popular Sovereignty to the Sovereignty of Law (Berkeley: University of California, 1986)Google Scholar, which hits the essence of the issue in its title.

16 The closest we have to such theory is in Herodotus's Persian constitutional debate (The Histories 3.80f.); the Pseudo-Xenophonic Constitution of the Athenians, an antidemocratic pamphlet; and the funeral oration of Pericles as reconstructed in Thucydides, History 2.35f. Aristotle's Constitution does not treat the Assembly as an institution of government. To most Greek intellectuals, the Assembly easily became “the mob” (ochlos), which acted by popular opinion rather than reason; see, e.g., Thucydides, History 7.8 (see note 29 below).

17 To usurp the democracy was a serious crime. See the oath of Demophantos, in Andocides 1, On the Mysteries 9698, in Minor Attic Orators I: Antiphon, Andocides, trans. Maidment, K. J. (Cambridge, MA: Harvard University Press, 1982)Google Scholar; and the Heliastic Oath, in Demosthenes 24, Against Timocrates, in Demosthenes III, trans. Vince, J. H. (Cambridge, MA: Harvard University Press, 1986), 149–51Google Scholar. The Athenians passed a similar resolution after the defeat by the Macedonians in 338 b.c. See Arnaoutoglou, Ilias, Ancient Greek Laws (London: Routledge, 1998), 7477Google Scholar.

18 See Aristotle, Politics 4.14, for functional distinctions between deliberative institutions, offices, and courts.

19 The practice of Athenian law focused more on the integrity of the procedures than on substantive rules. Todd, Stephen C., The Shape of Athenian Law (Oxford: Clarendon Press, 1993), 7071Google Scholar.

20 Aristotle, Constitution 22.1, attributes the ostracism law to Cleisthenes c. 508 b.c., but the first recorded ostracism, of Hipparchus, probably occurred in 487 b.c. According to Plutarch, Aristides 7, the last was Hyperbolus, killed in 411. Plato, Gorgias 516 d–e, sees ostracism as silencing undesired voices; only a few officials prevented the Assembly from throwing Miltiades into the pit. See Plato: Complete Works, ed. Cooper, John M. (Indianapolis, IN: Hackett, 1997)Google Scholar. On the personal rivalries, see Rhodes, “The Athenian Revolution,” 62–67.

21 As a victim of such conflict one could name the democratic leader Ephialtes, an associate of Pericles, who was assassinated. But his killing was an anomaly—the only political assassination of which we know from fifth-century Athens prior to the end of the Peloponnesian War.

22 Herodotus, Histories 6.136; Plutarch, Themistocles 22; Plutarch, Cimon 17; Demosthenes 23, Against Aristocrates, in Vince, trans., Demosthenes III, 205; Diodorus of Sicily, in Library of History, 12 vols., trans. Oldfather, C. H. (Cambridge, MA: Harvard University Press, 1962), 12.55Google Scholar. See Gomme, A. W., et al. , A Historical Commentary on Thucydides (Oxford: Clarendon Press, 1956–1981)Google Scholar, comments to Thucydides 2.65.4, for a discussion of the prosecutions of Pericles and his associates. See also Aristotle, Constitution 22, 43.5; Politics 1284a17f.

23 See Meiggs, Russell and Lewis, David, Greek Historical Inscriptions to the End of the Fifth Century B.C. (Oxford: Clarendon Press, 1980), #21Google Scholar, for inscriptional evidence.

24 Aristotle, Politics 1274a15–18 and 1281b32–35, claims that Solon gave this power to the demos; Politics 1318b29 connects this to agrarian democracy. See Roberts, Jennifer Tolbert, Accountability in Athenian Government (Madison: University of Wisconsin Press, 1982)Google Scholar.

25 In 429 b.c., the Athenian navy subdued Mytilene; the Assembly voted to kill all the men and sell the women and children into slavery. A ship was dispatched with the order—but the next day the Assembly repented and sent a ship to reverse the order. (The ship arrived in time.) Thucydides, History 3.36–49.

26 Thucydides, History 6.1.

27 Thucydides, History 6.8–25.

28 Thucydides, History 6.60–61. I say more about the so-called Profanation of the Mysteries below.

29 Thucydides, History 7.48. Mistrustful of oral reports “to the mob,” Nicias sent a letter to Athens (ibid., 7.8–15). See ibid., 4.65, on the three generals punished in 424 b.c. for failing to conquer Sicily.

30 Thucydides, History 8.1.

31 Thucydides, History 2.65.

32 On the events of 411 b.c., see Thucydides, History 8.47–50, 53–54, 63–98. See also Aristotle, Constitution 29–33; Diodorus of Sicily 13.34–38. See also Gomme, Commentary on Thucydides, 5:184–256, along with Rhodes, Peter J., A Commentary on the Aristotelian Athenaion Politeia (Oxford: Clarendon Press, 1993), sections 29–33Google Scholar.

33 On paranomos as “illegal,” see Plato, Apology 31e, where Socrates claims to be preventing illegal happenings in Athens, as he had done at the trial of the generals (see note 35 below).

34 Thucydides, History 8.67.2. Aeschines, Against Ctesiphon 3.191, reminisces that “in those days the graphē had to be put away to overthrow the democracy.” See The Speeches of Aeschines, trans. Adams, Charles Darwin (Cambridge, MA: Harvard University Press, 1988)Google Scholar.

35 This affair is narrated by Xenophon, , A History of My Times, trans. Warner, Rex (New York: Penguin, 1979), 1.7Google Scholar. Plato, Apology 32b, has Socrates recall his opposition to the trial.

36 Xenophon, History 1.7.5, says the generals were not given the time allowed by law. The connection of group trials to tyranny may also be seen in the trial of Charias and three accomplices a century later, c. 300 b.c. See Habicht, Christian, Athens from Alexander to Antony, trans. Schneider, Deborah Lucas (Cambridge, MA: Harvard University Press, 1997), 84Google Scholar.

37 Xenophon, History 1.7.10.

38 Xenophon wrote that the citizens later regretted their actions, and shunned one of the prosecutors, who starved to death—an instance of the Assembly acting irresponsibly and then denying its own responsibility.

39 On Gorgias, see Thucydides, History 4.86.3; Diodorus of Sicily 12.53.2. See also Martin Ostwald, “Athens as a Cultural Center,” in Lewis et al., eds., The Cambridge Ancient History, vol. 5, pp., 341–69.

40 Sprague, Rosamond Kent, The Older Sophists (Indianapolis, IN: Hackett, 2001), 279Google Scholar.

41 Aristotle, Metaphysics 1062b13.

42 Plato, Theaetetus 166d.

43 Aristophanes, , The Clouds 1039–40, 1075–78, in Aristophanes, Lysistrata and Other Plays, trans. Sommerstein, Alan H. (New York: Penguin, 1973)Google Scholar.

44 Aristotle, Rhetoric 1402a22–28.

45 See Plato, Protagoras 337d, on phusis and nomos. Aristotle, Sophistic Refutations 173a7–19, understands nomos as the opinions of the many, and phusis as the truth according to the wise.

46 Reported anecdotally in Diogenes Laertius 2.16. See Ostwald, “Athens as a Cultural Center,” 340, 352.

47 Thucydides, History 1.22–23.

48 Aristotle, in his Rhetoric, later offered a corrective, distinguishing a rhetorician—one skilled at rhetoric—from a sophist, on the basis of the latter's choices. The difference is between the real, and the apparent, means of persuasion: Rhetoric 1355b15–22.

49 For the Euripides “Sisyphus” fragment, see the English text in Winton, Richard, “Herodotus, Thucydides, and the Sophists,” in Rowe, Christopher and Schofield, Malcolm, eds., The Cambridge History of Greek and Roman Political Thought (Cambridge: Cambridge University Press, 2000), 8990CrossRefGoogle Scholar. See also Sprague, The Older Sophists, 259–60; and Ostwald, “Athens as a Cultural Center,” 357.

50 Diagoras is alluded to in Aristophanes' Clouds, 830, perhaps to tarnish Socrates with atheism. Aristophanes' Birds 1071–75, has a price on Diagoras's head. The date of his exile was likely c. 431 b.c., or c. 415, after the massacre of Melos; see Woodbury, Leonard, “The Date and Atheism of Diagoras of Melos,” Phoenix 19 (1965): 178211CrossRefGoogle Scholar. For other reactions to science and philosophy, see Lewis, John, “Oh Mist! Science, Religion, and History in Aristophanes' Clouds,” in Themes in European History: Essays from the Second International Conference on European History, ed. Aradas, Michael and Pappas, Nicholas C. J. (Athens: The Athens Institute for Education and Research, 2005), 3347Google Scholar. Aristophanes, , The Birds and Other Plays, trans. Barrett, David (New York: Penguin, 1986)Google Scholar.

51 Draco's homicide law was reinscribed in 409/8: Meiggs and Lewis, Greek Historical Inscriptions, #86.

52 Herodotus, History 8.51–54 (on the sack of the Acropolis).

53 Hedrick thinks the Athenian epigraphy was intended to make knowledge available. See Hedrick, Charles W., “Democracy and the Athenian Epigraphic Habit,” Hesperia 68, no. 3 (1999): 387439Google Scholar.

54 Joyce, Christopher J., “The Athenian Amnesty and Scrutiny of 403,” Classical Quarterly 58, no. 2 (2008): 507–18CrossRefGoogle Scholar.

55 Thucydides, History 8.97.2 (on the nomothetai of 409 b.c.); Demosthenes 24, Against Timocrates 21–30 (on the “legislative committee”). Andocides 1, On the Mysteries 81–87, claims that laws before the archonship of Euclides were invalid. Clinton, K., “The Nature of the Late Fifth Century Revision of the Athenian Law Code,” Hesperia Supplement 19 (1982): 2737CrossRefGoogle Scholar, challenges the idea that laws before 410 were invalid. Tarbell, F. B., “The Relation of ΨΗΦΙΣΜΑΤΑ to ΝΟΜΟΙ at Athens in the Fifth and Fourth Centuries B.C.,” American Journal of Philology 10 (1889): 7983CrossRefGoogle Scholar, stresses that with the institution of the nomothesia, the Assembly “was deprived of its sovereign character and became, to speak in modern terms, subject to a written constitution.” On Euclides as archon, see Diodorus of Sicily 14.12.1.

56 Hansen has offered the strongest arguments supporting this distinction. See Hansen, Mogens Herman, “Graphē Paranomon Against Psēphismata Not Yet Passed by the Ecclesia,” in Hansen, , The Athenian Ecclesia II (Copenhagen: Museum Tusculanum, 1989), 271–81Google Scholar; Hansen, Nomos and Psēphisma in Fourth-Century Athens,” in Hansen, , The Athenian Ecclesia I (Copenhagen: Museum Tusculanum, 1983), 161–76Google Scholar; and Hansen, , The Sovereignty of the People's Court in the Fourth Century B.C. and the Public Action Against Unconstitutional Proposals (Odense: Odense University Press, 1974)Google Scholar.

57 Ostwald, Martin, Nomos and the Beginnings of Athenian Democracy (Oxford: Oxford University Press, 1969)Google Scholar, traces the concept of nomos through the fifth century.

58 Hansen, Ecclesia I, 163–67, shows that the five exceptions were all in the fifth century. He finds no exceptions after 400 b.c. Hansen also shows that, with one exception, the “demos” is never credited with passing a nomos in the fourth century. The sole exception, Demosthenes 59, Against Neara 88f., may hinge on the sense in which “demos” is used, and is not sufficient reason to consider the pattern broken.

59 On Solon in fourth-century speeches as a moral reproach, see, e.g., Demosthenes 19, On the False Legation 256, in Demosthenes II, trans. Vince, C. A. and Vince, J. H. (Cambridge, MA: Harvard University Press, 1999)Google Scholar.

60 This was also understood by Aristotle; see Nicomachean Ethics 5.10, 1137b11–32 (a nomos is a general, standing rule; a psēphisma applies to the facts of the moment). In my view, the “open texture” of Athenian law is the use of generalizations applied to particular cases, and the issue turns on this philosophical point. “Open texture” is a phrase from Hart, Herbert Lionel Adolphus, The Concept of Law (Oxford: Oxford University Press, 1961)Google Scholar. On the application to Athens, see Osborne, Robin, “The Law in Classical Athens,” Journal of Hellenic Studies 105 (1985): 4058CrossRefGoogle Scholar; and Harris, Edward, “Open Texture in Athenian Law,” Dike 3 (2000): 2779Google Scholar.

61 This was noted by Tarbell, “The Relation,” in 1889.

62 Andocides 1, On the Mysteries 87.

63 For a description of passing a nomos, see Demosthenes 24, Against Timocrates 20–23.

64 Demosthenes 24, Against Timocrates 149–51, dated 355 b.c. The oath was dramatized a century earlier in Aeschylus's Eumenides. See Todd, The Shape of Athenian Law, 54–55, for sources.

65 Aristotle, Politics 1292a11–12; 1305a7–9 (popular leaders became tyrants).

66 See Hansen, “Nomos and Psēphisma,” 170, for six examples. Hansen notes as “astonishing” the idea that a new nomos would repeal existing psēphismata, but this is what Demosthenes 20, Against Leptines 44, states, and it is supported by a law on silver coinage. Demosthenes III, trans. Vince, J. H. (Cambridge, MA: Harvard University Press, 1998)Google Scholar. Stroud, Ronald S., “An Athenian Law on Silver Coinage,” Hesperia 43 (1974): 157–88CrossRefGoogle Scholar.

67 Aristotle, Rhetoric 1354a24–25.

68 For citations of this or a similar phrase, see Aristotle, Constitution 59.2; Demosthenes 24, Against Timocrates 1.

69 Demosthenes 20, Against Leptines, offers evidence about how a challenge to a law would work.

70 Andocides 1, On the Mysteries 95.

71 Demosthenes 20, Against Leptines 49.

72 Hamilton, Federalist No. 78, in Pole, ed., The Federalist, 415. See Federalist Nos. 78–83 for Hamilton's ideas concerning the role of the judiciary.

73 Federalist No. 49 speaks against too often referring to the decisions of the people, and Federalist No. 50 rejects both periodic and particular appeals to the people.

74 See Marbury v. Madison, 5 U.S. 137 (1803)Google Scholar.

75 Hamilton, Federalist No. 78, 415.

76 Danelski, David J. and Tulchin, Joseph S., The Autobiographical Notes of Charles Evans Hughes (Cambridge, MA: Harvard University Press, 1973), 143CrossRefGoogle Scholar. The shout from the crowd was recorded by Xenophon at the trial of the Arginusae generals: Xenophon, History, 1.7.12. (See note 36 above.)

77 Although the line has blurred in the past century—for example, through the regulatory powers delegated by Congress to administrative bureaucracies of the executive branch.

78 U.S. Constitution, Article I, section 9. See Madison, Federalist No. 44: “Bills of attainder, ex post facto laws, and laws impairing the obligations of contracts, are contrary to the first principles of the social compact, and to every principle of sound legislation” (in Pole, ed., The Federalist, 244).

79 Andocides 1, On the Mysteries 87. I discussed the amnēsia in Section IV above.

80 Holmes, Oliver Wendell, letter to Harold Laski, September 15, 1916Google Scholar. See First Amendment Center website, http://www.firstamendmentcenter.org/analysis.aspx?id=20074.

81 Holmes, Oliver Wendell, letter to Lady Pollock, September 6, 1902Google Scholar. See ibid.

82 Carneades (214–129 b.c.), head of Plato's Academy, visited Rome in 155 b.c., along with Critolaus (a Peripatetic) and Diogenes (a Stoic). See Plutarch, Marcus Cato 22. This does not imply that Carneades was a sophist.

83 See William H. Rehnquist, “The Notion of a Living Constitution,” in Arthur and Shaw, eds., Readings in the Philosophy of Law, 520–25.

84 Aristotle, Rhetoric 1355a36–37.

85 Aristotle, Rhetoric 1354a32–b22. Aristotle, Constitution 9.2, defends Solon's laws by noting the difficulty involved in formulating general principles applicable to particular cases. Politics 1272b5–7 is clear that the rule of good laws is superior to the rule of men. Aristotle says that passion warps the decisions of kings at Politics 1286a17–20.