Prevailing Wisdom: Antiquity and the Structural Constitution

Posted: 15 Oct 2003

Date Written: October 2003

Abstract

The members of the Framing generation were as much influenced by the political values and experiences of classical antiquity, as they were by Enlightenment liberal philosophy and by the exigencies of the struggle against Great Britain. Even more pertinently, the Framers' use of ancient history (perhaps even more than their reading of classical philosophy) informed their decisions in drafting the Constitution of the United States. More than merely suffusing their general political theories, my thesis is that ancient history guided in many material respects the fashioning of the most basic features of our government. Such organizational elements I will call here the "structural Constitution," and foremost among them are the federal scheme which allocates authority amongst the national and state governments; bicameralism in Congress; the separation of powers among the legislative, executive and judicial branches; the provision of a strong and vigorous Presidency; and the constraint of the war-making and foreign relations powers of the national government. Together these elements define a constitutionalism of limited, but effective, government. Each - as I will argue here - had its roots in classical antiquity, antecedents that the Framers were well aware of and which they fashioned for their own instrumental ends in creating the American Republic.

The crux of this volume's approach to intellectual history is to take the Framers at face value in their speeches and writings - to let them speak for themselves when they make use of classical idioms to explain and amplify the political considerations in drafting the Constitution. This does not mean that we are obliged to assume that the Framing generation had a perfect understanding of ancient history. Indeed, they did not. One of the contributions that this book hopes to make is to assess - based on modern archaeology, philology and historiography - the actual operation of the constitutions of ancient polities and republics and thereby better appreciate how the Framers used and abused the historical evidence then at their disposal.

The first part of this book is concerned with making the (relatively easy) case of demonstrating the classical predilections of the Framing generation (in Chapter 1) and the impact of ancient political theory on the Framers (Chapter 2). In the latter part of the book, I intend to look at two sets of constitutional controversies. The first (considered in Chapter 3) relates to the central and defining structural issues of the Constitutional Convention of 1787 and the state ratification conventions that followed: the allocation of authority between the federal union and the states, the construction of the deliberative senate, energetic executive and safeguarding judiciary, and the concerns over the war and foreign relations power of the new nation. The second set of issues (addressed in Chapter 4) is torn from the headlines of today's constitutional debates: the sovereign immunity enjoyed by the states in our federal union, executive privileges exercised by the Presidency, the executive branch's insistence on a line-item veto, and the continued use of the electoral college in Presidential votes.

Keywords: classicism, ancient politics and philosophy, structural constitution, intellectual history

Suggested Citation

Bederman, David J., Prevailing Wisdom: Antiquity and the Structural Constitution (October 2003). Available at SSRN: https://ssrn.com/abstract=454920

David J. Bederman (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
404-727-6822 (Phone)
404-727-6820 (Fax)

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