An error lies at the heart of most modern constitutionalism. That error is the notion that people can lead decent, ordered lives of freedom and virtue ruled by governments that organize their lives for them. More precisely, the error that has corrupted constitutional thought is the belief that there ever was a time when significant numbers of people led lives of freedom and virtue ruled by governments that organized their lives for them. Most fundamentally, at least for those academics and other elite figures who have corrupted constitutionalism, is a misreading—whether intentional or not—of the ancient Greek experience. We can and should learn much from ancient Greek constitutionalism. Unfortunately, political scientists and constitutional lawyers have been learning the wrong lessons and applying them in radically wrong fashion.
As with so much else, the source of modern error in regard to constitutionalism is the French Revolution. It was during that time of great trouble that myths of ancient Greek freedom in solidarity (“liberty, equality, and fraternity”—with the state as the guarantor of each) came to hold sway among constitution drafters. The iconic draftsman, here, is Jean-Jacques Rousseau, whose notion of a General Will higher than the wills of particular citizens masked a totalitarian mindset as it was in turn masked by its evocation of the ancient Greek experience of constitutionalism.
We may begin with a crucial term in Greek political thought: politeía. This term was used by Plato and Aristotle, among others in the ancient Greek world. Today politeía is generally translated as constitution. Rarely has mistranslation of a single term caused so much error and trouble. Politeía refers not to a constitution but to a regime—as Aristotle defined it, “a certain arrangement of those who inhabit the city.”
Aristotle was not merely laying out a structure of government and secondary rules. The regime was not merely a collection of laws but an arrangement of social beings—as Aristotle put it, “the governing body is the regime.” The individual person and the community, the citizen and the city, were one and the same. The arrangement of those citizens made the regime what it was.
Mistranslation of another term, polis as city-state, exacerbates misunderstanding of the distinction between constitution and regime. The Italian political scientist Giovanni Sartori has pointed out that the “polis was by no means the citystate that we are accustomed to call it—for it was not, in any sense, a ‘state.’ The polis was a citycommunity, a koinonía. Thucydides said it in three words: ándres gar polis—it is the men that are the polis. It is very revealing that politeía meant, in one, citizenship and the structure (form) of the polis.”
As Aristotle noted, the fundamental principle of a regime—whether virtue, wealth, or freedom—determined the distribution of prerogatives. And, in the interest of shaping the people so as to maximize virtue, protect wealth, or maintain the rule of the many, all arrangements were subject to political control. All of life, from the supply and consumption of food (e.g., common messes), to the freedom or slavery of the workers, to the classification of citizens into particular groups eligible to vote or hold office (or not) was arranged through law and politics. The ancient Greek regime was an all-encompassing power structure defining and ruling life, with no escape into any putatively private sphere.
In attempting to build a nation-state on such Greek foundations, the French revolutionaries guaranteed chaos and mass murder. The Greek politeía could not and cannot be made real in a modern constitution; it is wrong to equate the two, or even to see the one as an embryonic form of the other. Sartori’s reference to the polis as a “citycommunity” rather than a “citystate” highlights the chasm separating ancient Greek life from the modern and contemporary worlds. The state itself came about only with the externalization of political forms—their institutionalization as structures outside the community, acting upon it through political mechanisms. Such mechanisms might be described in a document called a constitution, but that document would not and could not describe all of society. Today’s social democracies (including the one President Obama has sought to concretize in the United States) seek to forge large societies into national communities. The community in ancient Greece made up—actually constituted—the political as well as social, religious, and “private” spheres.
In part, the extreme unity of the Greek polis was a matter of scale. Obviously, cities with populations measured in the thousands instantiated ways of life different from nations with populations measured in the millions. Aristotle himself differentiated nation from city, noting the lack of commonality of experience and knowledge in Babylon, as opposed to Greek communities. Nations seem to partake of the nature of an alliance, for Aristotle. They lack the commonality, face-to-face relationships, and most especially the character of a partnership in pursuit of a good life lived in common. They instead are agreements to prevent injustice and conflict between more fundamental groups such as cities or tribes.
Scale was not, however, the only factor enforcing unity in Greek polities. Tribal relations, the persistent threat of famine, and the very real possibility of extermination by a city’s neighbors forged ties too strong for most contemporary academics to grasp. As Sartori notes, “[N]ot only were the ancient cities very small, but the citizens lived symbiotically with their city, being tied to it, as it were, by a common destiny of life and death . . . The compact community [was] unified by a converging religious, moral, and political ethos that was the polis.”
The meaning and import of crucial political terms were seen in a radically different light from today, owing in part to the radically different form of life intrinsic to small communities engaged in a constant struggle for survival and domination. To take a well-known example, freedom for ancient Greeks referred not to individual autonomy but to the independence of the city from domination by any other political entity. The individual person was a creature of the community. He often was distrusted and was liable to being banished from his home, not as a punishment for any misdeed but just as a precautionary measure to prevent any one citizen from being too much better than the others and so damaging the regime’s commonality. The individual person’s only protection against punishment or preventive banishment was wise exercise of his share of the sovereignty. Only by defending himself in the assembly and by presenting himself in the streets and the field of battle as a loyal citizen could the individual protect his interests. This was in keeping with the political ethos of the time. The Greeks demanded that citizens put the city’s interests before their own as a means of combating factional strife.
The result was not always (indeed, not often) true unity. Having devoted himself to the polis, giving his blood and toil in war and his time and mental efforts in times of peace to the administration of public affairs, the good citizen had little left over for tending to his own affairs. As with social democracies today, those holding office in particular saw their political power as the sole means by which they could succeed in life. Corruption and class warfare ensued as groups fought over political office and its power to distribute and redistribute offices, honors, and rewards.
The Greek model was one of extremely high stakes in a political sphere that was in essence the only active sphere of life. It was this model that the French revolutionaries followed to such disastrous effect. It also was this model that the drafters of the American Constitution sought to avoid. As Publius states in Federalist, no. 9, “It is impossible to read the history of the petty republics of Greece and Italy, without feeling sensations of horror and disgust at the distractions with which they were continually agitated, and at the rapid succession of revolutions, by which they were kept perpetually vibrating between the extremes of tyranny and anarchy.” Publius blames the governance of these ancient cities for perverting the directions in which the talents and endowments of these extraordinary people might have been directed. He also blames the experience of the ancient polis for giving modern tyrants the means of attacking republican government and the very idea of civil liberty. If republican government were truly destructive of peace and liberty more generally understood, it would have to be abandoned by all possessing good will.
Sadly, republican government has been called into disrepute in much of the world because it has been made to promise so much that it cannot provide. Social democratic constitutions in Europe are drowning in debt even as their entitlement mentality undermines productivity. In much of the globe things are far worse, as poor countries do not have the bank and capital of centuries-old traditions of commerce and relative freedom on which to draw. Regimes drown in illegitimacy as they seek to follow the French revolutionary model, promising much even as they are unable to deliver the fundamental good of political life, order.
We are not ancient Greeks, and even if we were their constitutional systems would promise conflict and oppression we would not find congenial, to say the least. History has taught us, though we have forgotten, that constitutions must seek to do a better job of providing less. What is needed in any nation—even a small one—is order. And that order can be provided with freedom only through settled law. These laws are the enemies (or victims) of expansive constitutions. The reason is simple: a constitution by its nature is a set of rules of rulemaking—a law for the lawmakers. Its job is to limit and cabin power, not merely to grant it, let alone to demand that those in positions of authority augment it for the sake of grandiose national projects. That way lies tyranny, poverty, and an end to constitutionalism itself.
Note: This piece is adapted from the recently published, Constitutional Morality and the Rise of Quasi-Law, by Bruce P. Frohnen and George W. Carey (Harvard University Press, 2016)
Bruce P. Frohnen is Professor of Law at the Ohio Northern University Pettit College of Law.