Greece, Rome, and the Bill of Rights (20 page)

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Authors: Susan Ford Wiltshire

Tags: #Political Science, #General, #History, #Law, #Reference, #Civil Rights, #test

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trial and from cruel and unusual punishment. He concludes that in all cases these rights were insufficiently or not at all protected in late-eighteenth-century England. Libel laws were vigorously enforced, so that anyone who criticized the government was subject to prosecution for sedition. Free association was restricted, as the turbulent history of the Chartist movement demonstrates. Freedom of religion was absent, and due process in the terms of the Fifth Amendment was inconsistent with the supremacy of the parliamentary system. It was, however, in criminal law that the progressive nature of the Bill of the Rights was most manifest. Even when English law recognized similar rights, they did not have the status they have assumed in the American system.

22

This is due in significant part to the fact that England lacked a written constitution, including a bill of rights, enforceable by the courts against abridgement by Parliament, the Crown, and the common law. The English Bill of Rights of 1689 was hortatory, possessing only the status of a statute. What was "ought not" in the British system became "shall not" in the American. Grammar matters: much depends on whether the mood of the verb is subjunctive ("you may") or imperative (''you must").
Others, however, see a closer connection at least between the Constitution and Magna Carta, especially as interpreted by Sir Edward Coke, with whose works the framers were widely familiar. "Both were written documents," observes A. E. Dick Howard, "both were born of times of crisis in which men believed tyrannical rulers to be threatening their liberties, both were seen by eighteenth-century Americans as embodying natural rights, beyond the reach of positive law."
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Both, too, were practical solutions to real and urgently felt issues of their times.
Statistically, the Bill of Rights
is
an American innovation. The ten amendments contain a total of twenty-seven separate rights. Only six of these, or about 20 percent, were first stated in Magna Carta. Twenty-one, or about 75 percent, had already been formulated in colonial documents written before the 1689 English Bill of Rights. Only the Ninth Amendment could not be found in several

 

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of the state constitutions written between 1776 and 1787.

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Only in the case of the Ninth Amendment does any right receive its first guarantee in the federal Constitution as opposed to earlier enactments by the several states.

It may therefore be argued that the Bill of Rights is both an American invention and a further development of English common law. The Greeks, however, had long before established the notion of
politeia
and the Romans the practice of
constitutio
as concepts of self-governance.
25
Britain had a constitution, but it was unwritten, consisting of traditions and customs so variously embedded that access to it was limited to the educated elite.
Three things were new in the American experience. Although many experiments of self-governance preceded the Constitutional Convention, from the Greek leagues and Swiss cantons to the Mayflower Compact, never before had a group of citizens purposefully come together on such a scale and with such elaboration to determine from the start how to govern themselves. Second, their deliberations resulted in a single written document accessible to everyone. Third, they framed the Constitution, amplified by the Bill of Rights, in such a way that it contained the promise of equal treatment before the law for all citizens. That last is the greatest departure from Roman law, which always operated with, rather than without, respect to the economic and social status of persons.
Most of the provisions contained in the Bill of Rights reflect issues that had already been raised in some way in the ancient world. Particularly in matters of judicial proceedings, many of those issues had been carefully elaborated in Roman law. What remained to be worked out was a comprehensive belief in the basic rights of all citizens and a written enumeration of those freedoms. That was the supreme accomplishment of the U.S. Bill of Rights. It was a revolutionary accomplishment, but it could not have happened without the earlier revolutions of theory and practice about human governance first developed by the ancient Greeks and Romans.

 

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The contributions from classical antiquity to the American experience are like two lanes of a long road, now widened and provided with new surfaces and connecting routes, but originating in the assemblies and schools of Athens and the law courts of Rome.
Having traced that road forward, it is time to turn back and examine the antecedents of the American Bill of Rights in the political theories and practices of classical Greece and Rome.

 

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PART TWO
GREEK AND ROMAN ANTECEDENTS TO THE BILL OF RIGHTS
 
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Chapter 6
Amendment I: The Basic Freedoms
I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
For many people the First Amendment is the heart of the Bill of Rights. Its guarantees of freedom of religion, expression, and political activity reflect the core of the belief in the dignity of the individual. In a letter of 1787, Thomas Jefferson expresses the relationship between the free expression of ideas and successful government by the people: "I am persuaded myself that the good sense of the people will always be found to be the best army. They may be led astray for a moment, but will soon correct themselves. The people are the only censors of their governors: and even their errors will tend to keep these to the true principles of their institution."

1
The good sense of the people, however, will depend on their being fully informedby a free press, as Jefferson empha-

 

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sizes subsequently, and by the other freedoms of thought, religion, speech, and association protected by the First Amendment.
Except for freedom of the press, each provision of the First Amendment has antecedents in the classical world. In the discussion that follows, Rome will be the focus of the treatment of religious issues, given its importance for the subsequent history of religion, while Athens will be shown to be the birthplace of freedom of speech and assembly. It must be reiterated, however, that a belief in individual rights was lacking and that individuals had no civic claims in the classical world apart from their membership in the privileged community.
Freedom of Religion
It is significant, and perhaps not accidental, that the first right enumerated in the Bill of Rights is freedom from a state-established religion. In a theocracy, where only one religious system is permissible and adherence to it is enforced by the powerful, religious toleration is a contradiction in terms. Fundamentalism of any sort is by definition hostile to the freedom of thought required for a democracy. Freedom from coercion in any respect concerning religion or its absence is thus the necessary precondition for all other freedoms.
The close association between religion and politics is an essential characteristic of the classical Greek and Roman worlds, yet these were not theocracies. They were polytheistic in worship and for the most part tolerant of religious differences. A distinction between gods and state would have been inconceivable in either Athens or Rome in the classical period. We have evidence of decrees by the secular organs of the state in Athens, the council and the assembly, showing that religious practices could be determined by statutory enactment. The decrees of the council and assembly in these matters were a form of legal and political statute.

2
This is also what Edward Gibbon means by the fall of the Roman Empire as the ''triumph of barbarism and Christianity," for the triumph of Chris-

 

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tianity meant the end of rendering to Caesar what was both Caesar's
and
god's since the two were the same.
While the Romans were obsessed with placating the gods, there is little evidence in the state religion of much connection between religious practice and an individual's behavior. It has been noted that this is puzzling in the modern world, in which religion is somehow "above politics" and, if genuine, should surely have some influence on conduct.

3
Cicero illustrates the character of Roman public religion best when he says, "Jupiter is called Best and Greatest not because he makes us just or sober or wise but safe and secure, rich and prosperous."
4
As R. M. Ogilvie puts it, "Roman religion was concerned with success not sin."
5

Whereas in modern times religious toleration is a necessary precondition for political liberty, S. L. Guterman suggests that in the ancient world political freedom was the parent of religious liberty. When the Romans persecuted or repressed a religious group, it was for essentially political reasons, whereas medieval opposition to dissenting groups was explicitly religious.
6
There are two ways to assure freedom of religion in a state. One is to establish no religion, the other is to establish many. One might argue that a compelling reason why a small village on the banks of the Tiber in central Italy became a world power was because of the latter, the plural and permeable character of its religious life. A strong citizen base and a working alliance of patrician and plebeian interests had created a militarily successful state, which was paralleled in its civic and military structures by a variety of religious structures, including strong and diverse priesthoods. Just as new offices were created from time to time, so were new priesthoods, which were held for life by men who also often held secular positions. At Rome, religion and politics were not two separate worlds but intertwined into one.
Rome also demonstrated a remarkable readiness to import new deities. This was not because the existing gods were somehow inadequate, but rather because more gods promised even more success. New divinities were im-

 

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