Have you ever heard the expression that our Constitution is *a
living, breathing document* and should be interpreted consistent with
the *changing times*? Watch out for anyone who proposes such a
position! The agenda of most hard core liberals would have the Supreme
Court stacked with Justices who would practice judicial activism rather
than strictly adhering to the simple language of the Constitution.
Classical Athens, arguably one of the best governments in history,
provides a textbook example of a state nearly ruined by its own
citizens. The Athenian & American founders came to similar conclusions
about the need to restrain the whims of the people or the popular
political opinion of the day. Further, they agreed how this must be
done...by subordinating political matters to appropriate legal review
judged against fundamental Constitutional law beyond the power of
government officials or activist judges to change.
The most important founder of the Athenian State was the law giver
Solon who was appointed chief official in 594 BC.
Solon established three principles:
1) All laws must be written.
2) Laws must be administered equally regardless of wealth and
birth.
3) Even officials must follow the laws
When judging cases, he refused to either redistribute the wealth of the
rich, or allow a poor person to be made a slave due to the inability to
pay a debt. Writers credit him with the development of the jury system:
the right to appeal a magistrate*s decision to a group of one*s
peers sworn to follow the laws.
During Solon*s life, people pestered him to alter the laws in order
to rig particular cases. Solon swore the Athenians to follow the laws,
and then voluntarily exiled himself as a way to assure they followed it.
Solon was far ahead of his peers in his understanding that laws,
properly formulated, must not be altered frivolously or for short term
political advantage.
In the decades following the Persian wars (490-479 BC), the Athenian
political institutions included a traditional aristocratic Council of
the Areopagus which was originally charged with protecting traditional
laws, an Assembly of all citizens...which had law making and executive
powers, a council of 500 citizens that debated issues before the
Assembly voted on them, various offices including Generals and
Treasurers, and Jury Courts consisting of hundreds of sworn citizens.
By the mid fifth century, the citizen assembly reduced the power of the
Council of Areopagus and became the final law-making and executive
authority in Athens. This was democracy in its most elemental form*a
direct, participatory system of government in which every male citizen
had the right to speak, make proposals, and vote on matters of common
importance. This was democracy in its purest form, with no authority
over the Assembly, and its word was final.
The assembly acted with increasing disdain for the written laws. By 410
BC, it had become in every respect an irrational government of men, not
of laws. The assembly, under pure democracy rather than a democratic
republic, held onto power by appealing to the emotions of the crowd.
Popular demagogues were willing to do whatever the people wished and
instead of leading, they followed the whims of the mob. The assembly
could pass any decree at any time.
The lack of any authoritative law over the assembly is what Aristotle
later identified as allowing a democracy to become a tyrant. Aristotle
considered a pure democracy a danger when the rule of men, not of laws,
became supreme. The last legal protection against tyranny disappeared
when the assembly voted to formally repeal the right of a citizen to
challenge the proposals of the assembly to legal review*one had to be
*politically correct.* The repeal of a citizen*s ability to
speak out show there was no law above the assembly.
The assembly maintained control over the military, thereby
subordinating generals and the military to civilian control. Generals
were at the mercy & whims of the assembly, which affected their ability
to make proper military decisions and control of the generals became a
matter of partisan politics debated in the assembly.
In 415 BC, the assembly voted to attack Sicily. General Nikias was
chosen to lead the invasion, and citing fear of the assembly should he
lose, refused to retreat. The result was one of the worst defeats in
military history.
Since about 431 BC, Athens had been engaged in a great war with Sparta.
Athens was a bitter enemy and rival of Sparta. By 406 BC, Sparta had
taken over the Aegean Sea and was about to cut the grain routes to the
Black Sea. The Athenian Navy was blockaded at Lesbos and without grain
imports, Athens was sure to starve. The Athenian directed its army to
regain control of the Aegean, but the best Athenian general resigned and
fled for fear of retribution from the assembly if things went wrong. The
Athenian assembly appointed ten new generals and the generals won the
battle, relieved the blockade, and secured the grain routes.
The response of the assembly was to prosecute the generals for failing
to pick up stranded sailors in the water. The generals were tried as a
group by the assembly and not allowed to speak in their own defense.
This violated Athenian law by having the assembly rather than a jury to
conduct a trial, the right to a separate trial, and the right to speak
in one*s own defense. According to Xenophone in his Greek History, a
voice from the crowd shouted *it is monstrous if the people cannot do
what they wish* after a citizen challenged the trial. With this shout,
Athens threw away its principles of freedom. The generals were condemned
and executed by the assembly. Athens became militarily impotent and
within two years, she starved and surrendered to the Spartans. This is
what happens when emotion or the popular issue of the day, and not law,
is the standard for conviction.
It is a testimony to the love that the Athenian people had for self
government that they eventually overthrew the tyranny and re-established
a legitimate citizen government. The assembly had to be subordinated
not to other men, but to the traditional laws as written by Solon and
others.
Fortunately, the Athenians opted for a solution and annulled the
assembly*s authority to change fundamental law by:
1) Carving the law into stone and displaying it publicly - it was
written in stone for a reason*they were not living breathing words and
were hard to change after written in stone.
2) The law was legitimated by the authority of the ancient law givers.
3) The Athenians protected their fundamental laws procedurally.
To modify a fundamental law required different procedures than simply
passing a decree. A law was passed by a board of lawgivers, and only
after legal review by a sworn jury. All this was an attempt to remove
the whim of the assembly from the procedures needed to pass fundamental
laws. The vital fact about this new Greek system was that it took both a
legal review and a majority vote to pass a new fundamental law.
The actions of the Athenian reformers and the American Founding Fathers
exhibit powerful institutional, legal, and procedural parallels. The
American Constitution is a unique legal document that is fundamental law
and the foundation for legal objectivity in America*the final written
authority. In modern American times, if activist judges can change the
meaning of the Constitution based upon their political views, the whims
of the people, or the most popular issue of the day, then there are no
checks in place.
Some American political leaders today tell us that the Constitution is
*a living document* that must change as the desires of the people
change. Similarly, one politician said recently, *Let*s just pass
this bill...we can debate it later.
The lessons of Athens should serve as a reminder that to pass laws or
invent new meanings of existing laws based upon popular political fads
is inherently dangerous. Liberal political figures who advocate the
appointment of activist judges are equally dangerous.
I maintain that our Constitutional Republic is in the same danger that
the ancient Greeks found themselves in before they reformed their
governmental system. We are being paralyzed by leaders, both Democrat
and Republican, who think that it is *monstrous* if the people
cannot do whatever they wish, or activist liberal judges who
*invent* new law out of simple constitutional language. The
root of the problem is the idea that principles are whatever the people
vote them to be based upon feelings and the current emotions of the day.
The vulnerability of our Constitution is clear from the lessons of
history, and those lessons show us how to protect it.
Thanks for reading!
