martes, 29 de septiembre de 2015

Is it Constitution alive and well and with us still, actively guiding our decisions and shaping our law?

The Image of Liberty: What the Roman Empire Can Teach Us About American Politics

by Steven Smith

A look back at the disintegration of republicanism in the Roman Empire yields important lessons for contemporary American government. Will we demand actual liberty—including the authority truly to govern ourselves—or be content with its image?

As the celebration of Constitution Day attests, Americans still honor our Constitution. But is it alive and well and with us still, actively guiding our decisions and shaping our law? Or is it something that we gratefully acknowledge for its historical significance but then ignore—like the Mayflower Compact, for instance, or maybe the Magna Carta?

It is surely true that we continue to invoke and talk about the Constitution as if it were our currently governing law. And at least some of what happens in modern governance does seem to conform to what the document prescribes. For example, every state is still represented in Congress by two senators, even though some people think it is unfair that Wyoming and Nevada get as much representation in the Senate as New York and California do. Those senators are directly elected by the people, which is not what the original Constitution provided, but that change was formally and explicitly authorized by the adoption, in the constitutionally prescribed manner, of the Seventeenth Amendment. So, in this case, we seem to be adhering to the Constitution in a plausible, straightforward sense.

In other areas, though, our laws seem only distantly related to, or even incompatible with, what the Constitution prescribes. In these areas, the Constitution exercises a kind of ceremonial or perhaps diversionary function; it provides a venerable facade that covers or disguises the real workings of government. This sort of situation is hardly without precedent; a look back at the disintegration of republicanism in the Roman Empire yields important lessons for contemporary American government.

From Republic to Empire

As the renowned historian Edward Gibbon described, in the Roman Empire, the outward forms of the ancient republican constitution were largely preserved. But these forms were a mere façade—camouflage for the largely unconstrained power of the emperors. Thus, what Romans enjoyed under the empire was not actually democratic liberty but rather, as Gibbon delicately put it, the “image of liberty.”

Although he effusively praised the middle period of the empire as a “golden age,” Gibbon was candid about the Romans’ loss of self-governance, and he recounted how this loss had occurred. After the banishment of the kings in the sixth century BC, the Romans had carefully and jealously guarded their rights of self-rule through a government composed of various assemblies, including the senate, and of officials elected by the citizens for one-year terms. Of these officials, the most important were the two consuls and the ten tribunes, who represented the common citizens. This system of governance had evolved and functioned over a period of centuries.

During the first century BC, Rome was wracked by a series of devastating civil wars: the soldiers of Sulla fought those of Marius, the legions loyal to Julius Caesar engaged those commanded by Pompey, and the armies (and navies) of Octavius battled and eventually defeated those of Mark Antony. Under Sulla, and again under Octavius and Antony, proscriptions had been issued essentially licensing the slaughter of large numbers of leading citizens, including the venerable Cicero.

After defeating Antony at Actium in 31 BC, Octavius skillfully orchestrated a ceremony in which he submitted his resignation to the senate but was then prevailed upon to accept simultaneous ten-year (renewable, and renewed) appointments to a number of powerful offices. It was then that Octavius was given his new name of Augustus. Gibbon explained that the various governmental offices, especially those of consul and tribune, had constituted a sort of separation of powers that had constrained governmental authority. Once those offices were united in a single man, the holder’s power became practically irresistible. The result, Gibbon explained, was
an absolute monarchy disguised by the forms of a commonwealth. The masters of the Roman world surrounded their throne with darkness, concealed their irresistible strength, and humbly professed themselves the accountable ministers of the senate, whose supreme decrees they dictated and obeyed.
In Gibbon’s view, in the earlier years of the Roman Empire, under Augustus and his immediate successors, the loss of liberty had “rendered [the Romans’] condition more completely wretched than that of the victims of tyranny in any other age or country.” But that wretchedness had resulted from two contingent factors. First, Rome in that period had the misfortune of being ruled by a series of spectacularly bad and sometimes deranged emperors including, most infamously, Caligula and Nero. Second, the subjects of the early empire felt the loss of democratic freedom more sharply because “they for a long while preserved the sentiments, or at least the ideas, of their freeborn ancestors.”

Under the later Antonine emperors, by contrast, rulers were for a time more temperate and benign. By that time, self-governance was little more than a distant memory, so its absence was not resented. The “image of liberty”—or the trappings of constitutionalism—were sufficient to keep the Romans satisfied. Augustus understood, Gibbon explained, “that mankind is governed by names.” He knew that
the senate and the people would submit to slavery, provided they were respectfully assured, that they still enjoyed their ancient freedoms. A feeble senate and enervated people cheerfully acquiesced in the pleasing illusion, as long it was supported by virtue, or by even the prudence, of the successors of Augustus.
In other words, as long as the government was tolerably effective, reliably provided the “bread and circuses” on which the people had come to depend, and maintained the facade of the ancient constitution, the Romans, now lacking “the sentiments . . . of their freeborn ancestors,” were content to be supine subjects.

American Empire?

So, does Gibbon’s analysis of the Roman system have any application to the American system of governance today? To be sure, any analogy would surely not be exact. Instead of a century of bloody civil wars, America’s story features a tumultuous century containing the Progressive era’s ideal of a regulatory government based on scientific expertise, the Great Depression and the New Deal, and later the Sexual Revolution and the Civil Rights Revolution and the Culture Wars. And the reality lying behind the facade of the ancient constitution would not be an “absolute monarchy,” as Gibbon discerned in Rome, but something quite different. Three main features characterize contemporary American government’s departure from the democratic republic prescribed by our Constitution.

First, governance today occurs much more at the national level than the Constitution or the framers contemplated.

Second, at the ground level, much or most of the federal law that regulates the day-to-day affairs of Americans is enacted not by our bicameral Congress but rather by unelected administrative agencies whose procedures maintain only a pretense—“pleasing illusion,” to borrow Gibbon’s phrase—of conformity to constitutional separation of powers. The so-called “contraception mandate,” for example, that imposes on the consciences and convictions of many employers, was not and almost surely could not have been adopted by Congress itself; it was imposed by the Department of Health and Human Services.

Third, most serious issues are resolved not by elected legislators but rather by unelected judges based on a mere figment of connection to the Constitution. The recent imposition of same-sex marriage on the nation by judges unwilling to allow this ostensibly irresistible development to be implemented democratically is a leading case in point. As Chief Justice Roberts observed, the outcome had nothing to do with the Constitution.

In sum, both at the ground level and at the grand level, the realities of governance today deviate substantially from the kind of governance contemplated by the Constitution.


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