January 16, 2014
Instructor: Douglas V. Gibbs
41669 Winchester Rd.
· Historical Influences on the United States Constitution
· Ancient Israel
· City States of Greece
· The Roman Republic
· British Empire
The British Isles are geographically separate from the rest of Europe, and developmentally separate from the rest of Europe. With the Anglo-Saxon invasion at about 500 A.D., the national character of the English Speaking Peoples were identified as being one that was strong on individualism, land ownership, natural rights, a government by the consent of the people, and a free market.
The rest of Europe developed very differently, evolving from the absolute rule of the Roman Empire, and the authoritarian nature of the Roman Catholic Church. Under the stronger monarchies in Mainland Europe, the rulers owned the realm, and the people had little say about the nature of their government. The Kings were seen as having been divinely appointed, and they ruled with a heavy hand. In 1066, mainland Europe came to England, in an attempt to subjugate the land dominated by the Saxons.
The Normans invaded, and conquered England, and implemented their feudal system into what was a relatively free society. The common people became nothing more than servants to the conquerors, and the land was distributed to King William, the Church in Rome, and Williams loyal supporters. England became a land ruled by a few elites, but the freedom that had been planted by the Saxons had never been forgotten.
The Rule of Law reemerged in 1215 with the Magna Carta. The “English Charter” forced the king to accept the rights of the individual, and unlike the rest of Europe, limits were placed upon the king. Limited rule had been a Saxon tradition, and the English were not going to automatically accept absolute rule from their monarchs.
As time passed, again power consolidated with the ruling class, and many of the limits placed upon the monarchy by the Magna Carta were being ignored. The condition in England continually worsened, until 300 years later, when the Protestant Reformation emerged.
King Henry VIII sought a divorce from Catherine of Aragon so that he could marry Anne Boleyn. He wanted an annulment from the Pope, claiming Catherine was not a virgin when she married him. Pope Clement VII refused. Martin Luther in Germany was calling for the reformation of the Catholic Church, so Henry VIII decided to support Martin Luther’s cause, and severed ties with the Catholic Church. The pope excommunicated King Henry VIII, and in return the Protestant Church of England was created, setting Henry VIII up as head of the church. He granted himself the allowance to have a divorce, and England, once again, was separated from the traditions of authoritarianism that ruled the countries of mainland Europe.
In an attempt to bring England back into the fold of the Catholic Church, Charles V of Spain declared war on England and sent a massive armada to England to set the rebellious nation straight. A large storm in the English Channel scattered the armada, and Sir Francis Drake defeated the remaining Spanish vessels.
England, shortly after, established colonies in the New World, partially to seek riches to help pay for the war with Spain. The legacy of the Anglo-Saxons society of freedom played a strong influence on the new colonies, such as Jamestown, in 1607. After pursuing a failed communal style system of governance, which nearly doomed the colonies, each of them returned to the roots of England. Limited government, a free market, and land ownership. As a result, the colonies began to thrive.
Back home, in England, the King of England was working on a plan to force absolute rule on the English People. The year was 1688, and economic, political, and religious forces came together to stop the overreach of the monarchy, which resulted in the king fleeing London in shame, disguised as a woman.
Absolute tyranny was not acceptable. The principles of the Anglo-Saxons were the choice of the people. Individual freedom was the engine behind the Glorious Revolution, which resulted in the establishment of a parliamentary system, and a return to the principles of a limited monarchy.
The feudal system of master and serf, where it was believed God gave power to the monarch to rule over the people, was no more. In the reemerging system, the people were seen to enjoy God-given rights, and the monarchy was to be governed by the consent of the people. The people were considered to be sovereign individuals, and the stage was set for the emergence of an end of the system with doctrines of divine rule and absolute power of the king. The Glorious Revolution set the foundation of what would later become, across the ocean, American Exceptionalism, and the birth a nation founded on the principles of limited government, individual rights, free markets, and the private ownership of property.
The Founding Fathers studied many historical records as they prepared to establish a new Law of the Land after the apparent failure of the Articles of Confederation. As Christians, they naturally turned to biblical principles, and as they studied the record of the ancient Israelites, they were fascinated by the fact that Israel operated under a system of government similar to those of the Anglo-Saxons.
The Fundamental Orders of Connecticut in 1639 were based on the principles recorded by Moses in the first chapter of Deuteronomy. Connecticut’s constitution was so successful, that Rhode Island also adopted the written order of self-government.
Like the Anglo-Saxons, the Ancient Israelites set themselves up as freemen. Also, the Israelites set up their system of governance into an organization of small, manageable units, where representatives from the families carried a voice, and a vote. The Israelites emphasized strong local government, and a code of justice that was based primarily on reparation to the victim, and a presumption of innocents until proven guilty. Leaders and laws were, through a vote, approved by the common consent of the people.
It was the original intent of the Founding Fathers to have both the Israelite’s Star of David and a portrayal of the Israelis going through the wilderness led by God’s pillar of fire, and the profile of two Anglo-Saxons representing Hengist and Horsa, the brothers that first brought the Anglo-Saxons to England, represented on the official seal of the United States. It turned out to be too complicated for the small seal, so a simpler design was used.
City States of Greece
During the debates of the ratification of the United States Constitution, the delegates discussed the various republics in history. During the North Carolina ratification debates, James Iredell Sr. voiced his concerns over the creation of a central government, despite all of the precautions in place to check the federal government. Recollecting the history of Ancient Greece, which had confederated government, he said that “The king of Macedon, by his arts and intrigues, got himself admitted a member of the Amphictyonic council, which was the superintending government of the Grecian republics, and in a short time he became a master of them all.
James Madison, in Federalist 43, concurred, writing “Greece was undone. . . As soon as the king of Macedon obtained a seat among the Amphictyons.
Ancient Greece was seen as both a shining example of freedom, and a lesson of what happens when such a system does not protect itself from the rise of tyranny through pure democracy.
The concern was not unfounded. The founders existed in an age of kings, emperors, czars, princes, sultans, moguls, feudal lords, and tribal chiefs. A system governed by the consent of the people existed almost nowhere on Earth. Even England’s limited monarchy featured an entrenched aristocracy that carried a heavy hand against a nearly irrelevant House of Commons. The samples of the ancient world, primarily the republics of various Greek city-states, and pre-imperial Rome, were fine examples of what to do, and what not to do, but none had been established as the United States by the people, and both had deteriorated into tyrannies under the heavy hand of powerful rulers.
In the establishment of the plans of government, Greece played an important role, nonetheless. Early on, the Greek republics had resisted the progression of statist alteration. To fight attempts to alter the rule of law that the republics in Greece existed under, Solon stipulated that his constitution for Athens could not be amended in a hundred years.
The American Constitution, in many ways, breaks with the principles of Ancient Greece. The system in Greece was too democratic, and the founders recognized that mob-rule led to the rise of tyrants, and the destruction of the political system in Greece. The lesson of Greece, more than instructional in how a republic can flourish, provided many examples of what not to do.
In Federalist 55, James Madison remarks, “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”
Madison went on to criticize the ancient Greek brand of direct democracy in Federalist 63, writing that the defining principle of American democracy, as compared to Athenian democracy, “lies in the total exclusion of the people in their collective capacity.”
The founders, based on their lessons from the failed system of direct democracy in Greece, instead created a republic, using some democratic processes.
In Ancient Greek governments, which had practiced various forms of direct democracy, the city-states were also referred to as republics. James Madison, in his writings, sought to establish a linguistic distinction, writing, as he did in Federalist 10, “A republic, by which I mean. . .”
The Federalists, in common statist fashion, worked to manipulate the language, seeking to obliterate Madison’s linguistic distinctions, proclaiming that a “republican” form of government could be either directly, or indirectly, democratic. For James Wilson, the crucial distinction did not lie between the definitions of democracy and republic as it did with Madison, but between a democracy/republic and monarchy, or aristocracy. Charles Pinckney described a republican government as one in which “the people at large, either collectively or by representation, form the legislature.”
The politics of Ancient Greece also influenced the decision of the founders regarding the courts, where it was decided that judicial decisions would be made by clusters of ordinary citizens, juries, though smaller than the Greek juries which could number in the hundreds.
The Roman Republic
The Law of the Twelve Tables was the ancient legislation that stood at the foundation of Roman law. The Twelve Tables was the earliest attempt by the Romans to create a Code of Law. Creation of the Twelve Tables followed a 16 year battle with a tyrannical king, Tarquin the Proud, after which the people of Rome vowed never to be ruled by a powerful king again. A representative system, run by leaders elected by the people, emerged.
509 B.C., the citizens of Rome created a new governmental system, and called it The Roman Republic. Adult free Roman men were considered citizens, while women, children, and slaves remained outside of the system. As the system evolved, the leaders of the Republic put the laws in writing, to make sure everyone understood them. These written principles were called "The Twelve Tables" because the written laws were organized into 12 sections. They were engraved on tablets of metal and put on display at the Forum in the city of Rome, so that everyone could see them.
The laws applied to every Roman citizen, regardless of his economic position in society. The concept was that all citizens were equal in the eyes of the law.
When Greece was conquered by Rome, one of the greatest Greek historians of the time period just over a hundred years before Christ, was a man named Polybius. After Greece fell, Polybius was deported to Rome, and once he recognized the advantages of the Roman Republic, he became a friend and ally of Rome.
Polybius recognized that there were three types of government. A monarchy, an aristocracy, and a democracy. By themselves, none of these system provided equality, prosperity, justice, or domestic tranquility for the whole society, so Polybius recommended to the Roman Republic a constitution that mixed these three systems. During his life, Polybius saw his philosophy begin to develop in the Roman system, but his dream of a three-department government ended with his death, and shortly after Polybius departed from this world, the Romans began to abandon their principles of a republic.
About 75 years before the birth of Christ, the Roman Republic had reached its zenith. Rome was the lone superpower in the world. What began as a republic, equipped with a system of representation, was becoming something the founders of Rome did not intend. The leadership were wealthy beyond imagination, and had attained incredible political power. The rulers had become suspicious of everyone, intolerant of opposition, indifferent to the demands of the middle class, and considered the Constitution which was designed to curb their ambitions an impediment to their aims.
Marcus Tullius Cicero was but a young man, a student of law under old Scaevola, the eminent lawyer of his day. Cicero, whose writings many centuries later would be studied by men like Thomas Jefferson, was disillusioned. Caesar, in complete disregard for the rule of law, had by force of arms, guile and trickery, used his military to dominate the world.
Society, like the leaders, were tossing aside standards set by the early Romans. The citizens were no longer worried about defending their rights, and had instead learned to live on the gifts from the treasury the politicians had offered them for their votes. They were fat, immoral, careless, and happy to live on the government’s offerings, which had been taken by bureaucratic chicanery from the substantial men of business.
One such man, wealthy, but wronged by politicians that coveted his wealth, came to Cicero for representation. Cicero built his case, and presented it, but the judges were not responding in the way Cicero had expected. The law was being set aside, believed Cicero, so he consulted with his great friend and mentor, Scaevola.
Cicero explained how he had built his case, and the course he had followed for presentation, and asked why he had failed. Scaevola was disgusted - he slammed his fist on the table and, leaning toward Cicero, shouted, "Imbecile! Of what use are records presented to tribunes, consuls, or senators if the government is determined to rob and destroy a man who had displeased them, or who possesses what they want? Have I truly wasted all these years on such an idiot as this Marcus Tullius Cicero!"
Cicero continued to plead his client's defense against confiscatory taxation, saying "we are taxed in our bread and our wine, in our incomes and our investments, on our land and on our property, not only for base creatures who do not deserve the name of man, but for foreign nations, for complacent nations who will bow to us and accept our largesse and promise us to assist in the keeping of the peace - these mendicant nations who will destroy us when we show a moment of weakness or our treasury is bare. We are taxed to maintain legions on their soil, in the name of law and order and the Pax Romana, a document which will fall into dust when it pleases our allies and our vassals. We keep them in precarious balance only with our gold. Is the heart-blood of our nation worth these? Shall one Italian be sacrificed for Britain, for Gaul, for Egypt, for India, even for Greece, and a score of other nations? Were they bound to us with ties of love, they would not ask our gold. They would ask only our laws. They take our very flesh, and they hate and despise us. And who shall say we are worthy of more?"
Cicero did not save his client. But he did live to argue the cause of honest government and to talk with Sulla, the Dictator (Senate appointed leader), about integrity and fair dealing. Sulla had little faith in the people. He believed them too deeply interested in their own welfare to concern themselves, too timid to stand up for their rights. He told Cicero the middle class, the lawyers, the physicians, the bankers, and the merchants would make no sacrifices. He said none of your lawyers will challenge the lawmakers and cry to them, "This is unconstitutional, an affront to a free people, and it must not pass!" He asked "Will one of these, your own, lift his eyes from his ledgers long enough to scan the Twelve Tables of Roman Law, and then expose those who violate them and help to remove them from power, even if it costs their lives? These fat men. Will six of them in this city, disregarding personal safety, rise up from their offices and stand in the Forum, and tell the people the inevitable fate of Rome unless they return to virtue and thrift and drive from the Senate the evil men who have corrupted them for the power they have to bestow?"
Rome continued to decay. The liberties of the people were being trampled upon in the name of emergencies (crisis), or they were relinquished voluntarily so as to be awarded government benefits.
Cicero, in his Second Oration before the Senate, had this to say: "Too long have we said to ourselves 'intolerance of another's politics is barbarous and not to be countenanced in a civilized country. Are we not free? Shall a man be denied his right to speak under the law which established that right?' I tell you that freedom does not mean the freedom to exploit law in order to destroy it! It is not freedom which permits the Trojan Horse to be wheeled within the gates. . . He who is not for Rome and Roman Law and Roman liberty is against Rome. He who espouses tyranny and oppression and the old dead despotisms is against Rome. He who plots against established authority and incites the populace to violence is against Rome. He cannot ride two horses at the same time. We cannot be for lawful ordinances and for an alien conspiracy at one and the same moment. Though liberty is established by law, we must be vigilant, for liberty to enslave us is always present under that very liberty. Our Constitution speaks of the 'general welfare of the people.' Under that phrase all sorts of excesses can be employed by lusting tyrants to make us bondsmen."
Years later Cicero appeared before the Senate again.
He said "The Senate, in truth, has no right to censure me for anything, for I did but my duty and exposed traitors and treason against the State. If that is a crime, then I am indeed a criminal."
Crassus, Caesar and Pompey were in the hall listening to Cicero, but turned away to reject his words. He said to them, "You have succeeded against me. Be it as you will. I will depart."
He then told the Senate: "For this day's work, lords, you have encouraged treason and opened the prison doors to free the traitors. A nation can survive its fools, and even the ambitious. But it cannot survive treason from within. An enemy at the gates is less formidable, for he is known and he carries his banners openly against the city. But the traitor moves among those within the gates freely, his sly whispers rustling through all the alleys, heard in the very halls of government itself. For the traitor appears no traitor; he speaks in the accents familiar to his victims, and he wears their face and their garments, and he appeals to the baseness that lies deep in the hearts of all men. He rots the soul of a nation; he works secretly and unknown in the night to undermine the pillars of a city; he infects the body politic so that it can no longer resist. A murderer is less to be feared. The traitor is the carrier of the plague. You have unbarred the gates of Rome to him."
Cicero was exiled from Rome for his words. From outside of Rome he continued to plead the cause of honest government. The people were not concerned. They were satisfied living a mediocre life on the public dole. His friends were also satisfied, and did not wish to make waves. They were lawyers, doctors, and businessmen, and they told him, "We do not meddle in politics. Rome is prosperous and at peace. We have our villas in Caprae, our racing vessels, our houses, our servants, our pretty mistresses, and our comfort and treasures. We implore you, Cicero, do not disturb us with your lamentations of disaster. Rome is on the march to the mighty society, for all Romans."
Cicero was in despair. He began to write his book De Legibus, but Atticus, his publisher, asked, "But who will read it? Romans care nothing for law any longer, their bellies are too full."
Cicero, however, was not completely unheard. Brutus, the long-time sycophant of the ambitious Caesar, went to Cicero with his plea that something be done to save the nation. He confessed his error, he said he had believed in Caesar. Brutus believed that Caesar would restore the republic. Caesar had betrayed his trust.
Cicero replied, "Do not blame Caesar, blame the people of Rome who have so enthusiastically acclaimed and adored him and rejoiced in their loss of freedom and danced in his path and gave him triumphal processions and laughed delightedly at his licentiousness and thought it very superior of him to acquire vast amounts of gold illicitly. Blame the people who hail him when he speaks in the Forum of the 'new, wonderful good society' which shall now be Rome's, interpreted to mean 'more money, more ease, more security, more living fatly at the expense of the industrious.' Julius was always an ambitious villain, but he is only one man."
The concept of Polybius’ “mixed” constitution was not lost. During the middle 1700s, France’s Baron Charles de Montesquieu was determined to resurrect the concept of a mixed constitution, and resubmit it for the consideration of modern man.
A scholar that ranked among the best educated, Montesquieu was also a well traveled man. The recipient of a wealthy uncle’s fortune, he spent about twenty years in travel, and research, before writing his philosophical history titled, The Spirit of Laws.
The book was so full of praise for the English system of government that it never became popular in France. The book, however, was greatly admired by the men in the English Colonies that had declared independence, and were forging a new nation.
The concept of a mixed constitution in the book included a concept of a government based on “separation of powers.” This, and the many other political concepts in the book, illuminated the minds of the founders, encouraging them to create a system based on “separated” powers, governed by the consent of the governed, and containing a series of checks and balances.
Polybius had recognized the three departments of government as being the executive, the senate, and the people’s assembly. Montesquieu, however, saw his version of the separation of powers developing in England. Montesquieu’s developed along the lines of an executive, a legislature (with an upper and lower house), and an independent judiciary.
Montesquieu wrote, “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch OR senate [legislature] should enact tyrannical laws, to execute them in a tyrannical manner. . . Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.”
Montesquieu called for a single executive, as opposed to the two or more consuls in Rome set up to preside over the people, or the thirty executives in Greece. A single executive would ensure responsibility would be concentrated in a single person who can make decisions quickly and decisively, and cannot escape either credit or blame for the consequences.
Some, in the Constitutional Convention of 1787, actually called for numerous presidents. Others, like James Wilson, argued along the lines of Montesquieu, that there should only be one president.
As for the concept of “separation of powers,” many of the delegates argued for the existence, at the federal level, of only a Congress. In the Articles of Confederation, the President held no power, and there was no national judiciary. During the Constitutional Convention of 1787, in fact, the creation of the Judicial Branch occurred late in the convention, on the fourth to last day. Many of the founders feared a three-department federal government, and even more of them feared a federal judiciary, for fear it would become a judicial oligarchy, or a tool used by a despotic ruler.
Few are aware of the influence that Slovenia had on the creation of the American System of Government. Thomas Jefferson, in fact, studied the history of Slovenia at length, learning much from his studies.
By the early 7th century, democracy emerged in Slovenia. The Slovenes’ Slavic forebears founded the Duchy of Carantania, based at Krn Castle (now Karnburg in Austria). The Ruling dukes were elected, and vested, before ordinary citizens. The Slovenian model of government was referred to by the 16th-century French political theorist Jean Bodin, whose work was a key reference for Thomas Jefferson when he wrote the American Declaration of Independence.
Experience can be a prime motivator, and in the case of the Founding Fathers, based on the history of the Colonies, and their relationship with the motherland, the Founders knew exactly what not to do. The lessons of tyranny by the British Empire played a heavy role on what the delegates during the Constitutional Convention of 1787 decided upon.
During the early 1600s, King James I enforced conformity to the Church of England. Anyone who dissented was punished. In 1629 King Charles I initiated aggressive anti-Puritan policies. The Puritans, and the Pilgrims, came to the New World seeking religious freedom.
Quakers flocked to Pennsylvania where William Penn was determined to live in peace with the Indians, and all other religious denominations. Penn’s first principle of government was that every settler “enjoy the free expression of his or her faith and exercise of worship towards God.” Pennsylvania tolerated all Protestant sects, as well as Roman Catholics.
Rhode Island was created to advocate freedom of religion when Roger Williams, the founder of the colony, had been banished by the Puritans in the early 1630s.
In all facets of the American System, as it emerged from being an idea, and entered true application, the founders sought to be as unlike the British Empire, in regards to the tyranny and despotism, as possible. The Founding Fathers, based on their own experiences, the experiences of the colonists before them, and the realities of history, determined that freedom for individuals was best served when the governmental system was limited by the chains of a constitution. Nationalists believe that government should have the authority to enact any act of government for the purpose of forceful benevolence. But if an individual is being forced, how is it benevolent?
In the American system, the States held all powers originally. Authorities necessary for the protection, preservation, and promotion of the union were granted to the federal government by the States.
The British Empire had come to be ruled by men. The King believed Britain to be his realm, therefore the concept of property ownership was limited to a small group of land owners, who were the Lords of Britain. The King, and the nobles, had complete power over making law, and imposing taxes. The House of Commons was more of a consultative assembly, than a legislature representative of the people. The Founding Fathers realized that a nation ruled by an oligarchy of political elite was not compatible with the society that would champion liberty, and individual rights, that the founders desired.
- Akhil Reed Amar, America’s Constitution: A Biography; New York: Random House (2005)
-Alexis de Tocqueville, Democracy in America; New York: Penguin Group (1984), Originally published in 1835 and 1840.
- John L. Hancock, Liberty Inherited: The Untold Story of America’s Exceptionalism; Liberty Lane Media (2011)
- Slovenia: History, The Lonely Planet; http://www.lonelyplanet.com/slovenia/history
- The European Tribe That Inspired Thomas Jefferson’s Idea of Democracy, Ground Report; http://groundreport.com/the-european-tribe-that-inspired-thomas-jeffersons-idea-of-democracy/
- W. Cleon Skousen, The 5000 Year Leap: The 28 Great Ideas That Changed The World, Washington: National Center for Constitutional Studies (1981)
- W. Cleon Skousen, The Making of America: The Substance and Meaning of the Constitution, Washington: National Center for Constitutional Studies (1985)
Copyright: Douglas V. Gibbs, 2014