The Online Library of Liberty

A project of Liberty Fund, Inc.

• About the Author
• Preface
• Part 1: The Constitution’s Deep Roots
• Points to Remember
• The Meaning of Constitutional Government
• The Lamp of Experience
• The Constitutions of Antiquity
• English Origins of America’s Constitution
• The Growth of Parliament
• The Challenge of Parliamentary Supremacy
• The Common Law Tradition
• The Republican Tradition and the Struggle For Constitutional Liberty
• The Influence of Continental Thinkers
• The Education of the Founders
• The French and American Revolutions Compared
• Appendix A: Relevant Chapters of Magna Charta (1215)
• Appendix B: Petition of Right (1628)
• Appendix C: The English Bill of Rights (1689) an Act For Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown.
• Part 2: America’s First Constitutions and Declarations of Rights
• Points to Remember
• Colonial Governments
• Relations With Great Britain
• Local Government In the Colonies
• Civil Liberties In the Colonies
• The Movement Toward Independence
• The Declaration of Independence
• The Rights Proclaimed
• The First State Constitutions, 1776–1783
• The Articles of Confederation
• Appendix A: the Mayflower Compact
• Appendix B: Fundamental Orders of Connecticut
• Appendix C: Declaration and Resolves of the First Continental Congress
• Appendix D: Declaration of the Causes and Necessity of Taking Up Arms
• Appendix E: the Declaration of Independence (1776)
• Appendix F: Virginia Bill of Rights
• Appendix G: Thoughts On Government
• Appendix H: Massachusetts Constitution of 1780
• Appendix I: Articles of Confederation (1778)
• Part 3: The Achievement of the Philadelphia Convention
• Points to Remember
• The Problems of the Convention
• The Delegates to the Convention
• A Wide Range of Talents
• Plans and Progress At Philadelphia
• The Meaning of “federal”
• The Virginia Plan: a Supreme National Government
• Hamilton’s Concept of a Unified America
• The New Jersey Plan:checks Upon Central Power
• The Benefits of Compromise
• Compromise and Consensus
• Appendix A: Virginia Plan
• Appendix B: New Jersey Plan
• Appendix C: Constitution of the United States of America (1787)
• Part 4: Basic Constitutional Concepts: Federalism, Separation of Powers, and Rule of Law
• Points to Remember
• A.: Federalism
• Powers Delegated to Congress
• Powers Denied to Congress
• Powers Denied to the States
• The Division of Powers
• The Supremacy Clause
• National and State Obligations
• Obligations of the National Government to the States
• Obligations of the States to the National Government
• Obligations of the States to Each Other
• The Role of the States In the Amendment Process
• The Federalism Factor
• The Advantages of Federalism
• The Future of Federalism
• B.: the Separation of Powers
• Checks and Balances
• Checks Upon the Congress
• Checks Upon the President
• Checks Upon the Judiciary
• The Independence of Congress
• The Independence of the President
• The Independence of the Judiciary
• Summary and Review
• Separation of Powers: a Critical Evaluation
• Separation of Powers At the Crossroads
• C.: The Rule of Law
• The Basic Principles of the American Constitution
• Appendix A: the Federalist No. 10
• Appendix B: the Federalist No. 45
• Appendix C: The Federalist No. 47
• Part 5: Defending the Constitution: the Struggle Over Ratification and the Bill of Rights
• Points to Remember
• A.: the Anti-federalist Persuasion
• The Constitution Establishes a Consolidated Empire
• The Constitution Establishes an Aristocracy
• The Constitution Confers Too Much Power
• An Imperial Congress
• An Elected Monarch
• An Omnipotent Judiciary
• B.: the Federalist Response
• The Constitution Limits and Distributes Power
• Congress Is Not an Oligarchy
• The President Is Not a King
• The Judiciary Is the Least Dangerous Branch
• Whether a Bill of Rights Was Necessary
• The Clash of Values
• C.: The Bill of Rights
• The First Amendment: Religious Freedom, and Freedom to Speak, Print, Assemble, and Petition
• The Second Amendment: the Right to Bear Arms
• The Third Amendment: Quartering Troops
• The Fourth Amendment: Search and Seizure
• The Fifth Amendment: Rights of Persons
• The Sixth Amendment: Rights of the Accused
• The Seventh Amendment: Trial By Jury In Civil Cases
• The Eighth Amendment: Bail and Cruel and Unusual Punishments
• The Ninth Amendment: Rights Retained By the People
• The Tenth Amendment: Rights Retained By the States
• Rights Versus Duties
• Appendix A: the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents
• Appendix B: Northwest Ordinance (1787)
• Part 6: Interpreting and Preserving the Constitution
• Points to Remember
• Principles of Statutory Construction
• The Doctrine of Judicial Review
• The Supreme Court As Final Interpreter
• The States As Final Interpreters
• Strict Versus Loose Construction
• The Independence of the Judiciary
• A.: Origins of Judicial Independence
• B.: the Judicial Power
• C.: Jurisdiction
• Appendix A: Marbury V. Madison
• Appendix B: Martin V. Hunter’s Lessee
• Appendix C: Washington’s Farewell Address (1796)
• Part 7: Changing the Constitution—together With an Explanation of the Amendments Added Since 1791
• Points to Remember
• Our Living Constitution
• Our Changing Constitution
• Amending the Constitution
• The Limits of the Amending Power
• The Amended Constitution
• A.: Amendment Xi (1798)
• B.: Amendment Xii (1804)
• C.: Amendment Xiii (1865)
• D.: Amendment Xiv (1868)
• E.: Amendment Xv (1870)
• F.: Amendment Xvi (1913)
• G.: Amendment Xvii (1913)
• H.: Amendment Xviii (1919)
• I.: Amendment Xix (1920)
• J.: Amendment Xx (1933)
• K.: Amendment Xxi (1933)
• L.: Amendment Xxii (1951)
• M.: Amendment Xxiii (1961)
• N.: Amendment Xxiv (1964)
• O.: Amendment Xxv (1967)
• P.: Amendment Xxvi (1971)
• Q.: Amendment Xxvii (1992)
• Conclusion

The Constitutions of Antiquity

What had the Framers learned about the art of government in 1787? In the first place, it must be kept in mind that the leaders of the founding generation were steeped in classical learning. The study of Greek and Latin literature, and of the ancient world’s history and politics, loomed much larger in American education during the latter half of the eighteenth century than it does in American education today. Indeed, the classical past was a dynamic force in American public life well into the nineteenth century. The last President of the United States with a truly classical education was probably John Quincy Adams, the son of the second President, John Adams. John Quincy Adams even taught the classics at Harvard as a Professor of Rhetoric and Oratory and in 1810 published his lectures on this subject. His administration (1825–1829) marks a turning point respecting the classical influence, however, and after the Jacksonian era few Presidents have been well read in the classics. None was a classicist in the sense that the Adamses and Jefferson were, and certainly none was portrayed, like George Washington in a famous statue by Horateo Greenough, in the character of a Roman senator—nude to the waist, with uplifted arm, draped by a toga, pointing to the heavens. Few statesmen understood, as the Revolutionary and Federal generations had, that classical history had much to teach the nation. Perhaps the last conspicuous surviving remnants of America’s classical tradition in the first half of the nineteenth century were in architecture, which experienced a Greek revival, as seen in the construction and design of great plantation houses in the South; and in oratory, as witnessed in the great senatorial debates and public addresses by John Randolph of Roanoke, John C. Calhoun, Henry Clay, and the most celebrated Ciceronian orator Daniel Webster.

Most of the Framers had read, in translation or in the original Greek and Latin, such ancient authors as Herodotus, Thucydides, Plato, Aristotle, Polybius, Cicero, Livy, and Plutarch—philosophers and historians who described the constitutions of the Greek and Roman civilizations. From their study, the American leaders of the War of Independence and the constitution-making era learned, by their own account, what political blunders of ancient times ought to be avoided by the republic of the United States. “History,” Thomas Jefferson wrote, “informs us what bad government is.” Perhaps he had the ancient republics in mind when he wrote those words.

The Greek city-states of the sixth and fifth and fourth centuries before Christ never succeeded in developing enduring constitutions that would give them liberty, order, and justice. Civil war within those city-states was the rule rather than the exception, pitting class against class, family against family, faction against faction. And when half of those cities went to war against the other half, in the ruinous Peloponnesian struggle—during the last three decades of the fifth century—Greek civilization never wholly recovered from the disaster.

Leading Americans carefully studied the old Greek constitutions. In his Defence of the Constitutions of Government of the United States (published in 1787, on the eve of America’s Great Convention), John Adams, for example, critically examined twelve ancient democratic republics, three ancient aristocratic republics, and three ancient monarchical republics. He found them all inferior to the political system of the new American republics in the several States that were formed after 1776. James Monroe, a hero of the American Revolution, a member of the Virginia Ratifying Convention of 1788, and later the fifth President of the United States, wrote descriptions of the ancient constitutions of Athens, Sparta, and Carthage—finding all of them seriously flawed and therefore not to be trusted by Americans. The authors of The Federalist, in their defense of the Constitution, often referred to “the turbulent democracies of ancient Greece” (Madison’s phrase) and to other ancient constitutions. In general, Hamilton, Madison, and Jay found the political systems of Greece and Rome, as Madison put it, “as unfit for the imitation, as they are repugnant to the genius of America.”

Eighteenth-century Americans did respect Solon, the lawgiver of Athens in the sixth century But Solon’s good constitution for his native city had lasted only some thirty years before a tyrant seized power in Athens. Few American leaders were much influenced by Greek political thought; John Adams wrote that he had learned from Plato two things only, that husbandmen and artisans should not be exempted from military service, and that hiccoughing may cure sneezing. It is true that ancient Greek culture helped to shape education in America, but Greek constitutions had almost no influence in the shaping of the Constitution of the United States—except so far as Greek constitutional flaws suggested what the Framers at Philadelphia ought not to adopt.

There is, nevertheless, much to learn about constitutions from reading Plato and Aristotle. Both of these ancient Greek philosophers wrote about monarchical, aristocratic, and democratic constitutions, about oligarchies and democracies, about tyrannies and kingships, about the origin and nature of government, and about the polity—that regime described by Aristotle as essentially a limited democracy blending the monarchical, aristocratic, and democratic elements of government, in which the greatest political power is exercised by landholders. This was the dream of Greek democracy, but it was not exactly the model the Americans wished to apply to the infant Republic of the United States. This was because Greek politics in ancient times was the politics primarily of “city-states”—compact in territory, very limited in population, and quite unlike the thirteen original States that formed the United States. Also, in the Greek democracies the entire body of male citizens was able to assemble in a forum to make public decisions of the gravest sort—sometimes foolish decisions with ghastly consequences. The United States in 1787, by comparison, was a vast expanse of territory in which there were few cities. Direct democracy of the Greek sort, where the people gathered to represent themselves, would not have been practical, or even possible, in the American republic. Indeed, the sheer size of the United States was almost overwhelming. From north to south the new nation spanned almost twelve hundred miles, and to the west—from the Atlantic Ocean to the Mississippi River—the distance was about six hundred miles. The Greek city-states were mere specks on the map in comparison with almost any of the American states, and England itself could have just about fit within the State of New York. Although there were fewer than four million inhabitants in the thirteen States, the United States in 1787 was already one of the largest nations in the Western world.

The Roman Republic was taken much more seriously by leading Americans in the 1780s. American boys at any decent school in the eighteenth century studied the orations and the life of Marcus Tullius Cicero, the defender of the Roman Republic in its last years. And they read Plutarch’s Lives of the Most Noble Grecians and Romans, which taught them the characteristics and qualities of great statesmen. A classical education was considered essential for all young men, and the better academies for young women also provided classical learning.

The vocabulary of American political culture also reflected the influence of America’s classical heritage. The English word constitution is derived from the Latin constitutio, meaning a collection of laws or ordinances made by a Roman emperor. Among other terms, president and federalism have roots in Roman history; and the Roman term Senate was applied by the Framers of the American Constitution to the more select house of the legislative branch of their federal government, although the method of selecting senators in America was to be very different from what it had been in Rome. Hamilton, Jay, and Madison, the authors of The Federalist, wrote in the name of Publius, a reference to Publius Valerius Publicola, the ancient Roman famous for his defense of the Roman Republic.

Three important political concepts drawn by the Americans from the Roman experience were the doctrines of republicanism, political virtue, and checks and balances. Though theoretically a republic would be any form of government other than a monarchy, it was generally understood by Americans to mean a government in which the people were sovereign. In a small New England town they might rule directly, but on a larger scale the people would have to rule indirectly, through their freely chosen representatives. Advocacy of this form of government in the eighteenth century was a radical idea, and many European thinkers, having grown accustomed to monarchy, looked upon republicanism as a foolish and unworkable relic of the past. Republics might be suitable for a Greek city-state or Swiss canton, but they were too unstable for governing anything larger. The internal collapse of the Roman Republic under the weight of corruption and disorder, resulting in tyranny and the eventual destruction of the nation, seemed to prove the point. In fact, corruption had subverted and toppled almost every republic that had ever existed.

American leaders nevertheless believed that republicanism offered the only hope for preserving liberty, and that republicanism could successfully be revived if the mistakes of the past were understood and not repeated. This goal was within reach, they thought, if a republic could be designed which encouraged public virtue, the animating principle of republican government, and discouraged corruption, the characteristic republican disease. Many of the books that Americans read—Charles Montesquieu’s Considerations on the Grandeur of the Romans and Their Decline, James Harrington’s Oceana (an imaginary commonwealth), the writings of Algernon Sidney, Thomas Gordon’s Cato’s Letters and his translations of Roman historians—emphasized the threat of corruption and provided object lessons on how it might be avoided.

Above all, the Americans valued republican virtue, and the American leader who prized it the most was George Washington. In his own lifetime, Washington came to symbolize republican virtue. The story popularized by Parson Weems that Washington could not “tell a lie” when he was once accused of chopping down a cherry tree was a myth; and yet there was an element of truth in it, for Washington was a true public servant whose honesty and integrity were above reproach. Had he been a lesser man, hungry for power and glory, he might have exploited his enormous popularity among the American people to crown himself king or establish a military dictatorship, as Napoleon Bonaparte did in France. But Washington patterned his conduct in war and politics on that of Cincinnatus, the great Roman patriot and statesman who never sought power for himself, who answered Rome’s call when he was needed and returned to the plow when the crisis had passed. After the Revolution, Washington’s example, the general appeal of Cincinnatus, and the patriotic zeal of American revolutionary war leaders inspired the creation of the Society of the Cincinnati, an organization for officers of the Continental Army. Some politicians expressed concern when the Society first came into existence that it might be part of a military conspiracy to overthrow the government, but Washington’s well-known hostility toward such ideas soon put these fears to rest. The Society still exists as a living memorial to the patriotism of the American revolutionary soldier and as a continuing reminder that the spirit of republican virtue, as represented by the life and career of Cincinnatus, guided Washington and other American leaders in their struggle for freedom.

For the delegates at Philadelphia, the most interesting feature of the Roman Republican constitution was its system of checks upon the power of men in public authority, and its balancing of power among different public offices. The Americans learned of these devices from the History by Polybius, a Greek statesman compelled to live long in Rome. The two Roman consuls, or executive; the Roman Senate, made up of rich and powerful men who had served in several important offices before being made senators; the Roman assembly, or gathering of the common people—these three bodies exercised separate powers. And the Roman constitution (an “unwritten” one) included other provisions for preventing any one class from putting down other classes, and for preserving the republican form of government. Praised by Polybius as the best constitution of his age, this Roman constitutional system was bound up with a beneficial body of civil law, and with “the high old Roman virtue”—the traditional Roman morality, calling for duty and courage.

The actual forms of checks and balances that the Americans incorporated into their Constitution in 1787, however, were derived from English precedent and from American colonial experience, rather than directly from the Roman model. Instances from the history of the Roman Republic, nevertheless, were cited by the Framers and by other leading Americans of that time as reinforcement for the American concept of political checks and balances.

The Americans’ vision of a great and growing republic, it may thus be seen, owed much to the annals of the Roman Republic. The Roman Republic failed because of long civil wars in the first century , and it was supplanted by the Roman Empire. This Roman experience, and the decadence that fell upon Roman civilization as the centuries passed, were much in the minds of American leaders near the end of the eighteenth century. The grim consequences of political centralization under the Roman Empire convinced many Framers that an American government should be federal rather than central—just as some delegates pointed to the Greeks’ disunity as a warning against leaving the American Republic a weak confederation. Besides, Roman struggles of class against class reminded Americans that they must seek to reconcile different classes and interests through their own constitutional structure.

Thus Rome’s political and moral example was a cautionary lesson to Americans of the early Republic. Edward Gibbon’s great history The Decline and Fall of the Roman Empire had been published between 1776 and 1783, the period of the American Revolution, and its details were vivid in the minds of the delegates at Philadelphia.

Yet it will not do to make too much of the influence of the Roman constitution upon the Constitution of the United States, two thousand years after Polybius wrote in praise of Roman character and institutions. The more immediate and practical examples of constitutional success were the British and the colonial political structures. The American Republic was joined with England and with her own colonial past by a continuity of culture that much exceeded the Americans’ link with old Rome, so distant and so remote in time.

It was the aspiration of the delegates at Philadelphia in 1787 to reconcile the need for a strong federal government with the demand for State sovereignty, local autonomy, and personal liberty. They could not find in the history of the ancient world any model constitution that might achieve this purpose. In 1865, nine decades after the Great Convention at Philadelphia, Orestes Brownson—one of the more interesting of America’s political thinkers—would write in his book The American Republic that America’s mission under God was to realize the true idea of the political state or nation. America’s mission, Brownson believed, was to give flesh to that concept of the commonwealth “which secures at once the authority of the public and the freedom of the individual—the sovereignty of the people without social despotism, and individual freedom without anarchy. … The Greek and Roman republics asserted the state to the detriment of individual freedom; modern republics either do the same, or assert individual freedom to the detriment of the state. The American republic has been instituted by Providence to realize the freedom of each with advantage to the other.”

Certainly such a high ambition, surpassing the political achievements of the ancient world, was the spirit of 1787 at Philadelphia.