Download THE ORIGINS AND IMPORT OF REPUBLICAN CONSTITUTIONALISM

ANDO.34.3 (clean) (Do Not Delete)
2/15/2013 12:02 PM
THE ORIGINS AND IMPORT OF REPUBLICAN
CONSTITUTIONALISM
Clifford Ando †
TABLE OF CONTENTS
INTRODUCTION .................................................................................................................917
I.
FROM STAATSRECHT TO CONSTITUTIONALISM .......................................................919
II. INVESTITURE UNDER THE MONARCHY ...................................................................920
A. Prorogation as Fiction ..................................................................................922
B. Precedent and Popular Sovereignty in Constitutional Argument ...........924
C. Sleight of Hand in Constitutional Procedure .............................................927
III. POPULAR SOVEREIGNTY AS POLITICAL COVER .......................................................929
IV. THE MONARCHIC ORIGINS OF REPUBLICAN CONSTITUTIONALISM .....................931
CONCLUSION......................................................................................................................933
INTRODUCTION
The Romans had no constitution. As we shall see, the moment
came when they thought about writing one—or, better yet, the moment
came when they talked as though they were thinking about writing one.
What that moment was, and what issued from it, are problems to which
we shall return.
This claim stands in spite of the elegance and compression of the
definition of ius publicum, of public law, offered by the jurist Ulpian,
who wrote in the early third century C.E., a quarter-millennium after
† Clifford Ando ([email protected]) is Professor of Classics, History and Law
and in the College, University of Chicago, as well as Research Fellow, Department of Classics
and World Languages, University of South Africa. I thank Hannah Swithinbank (Ph.D. St.
Andrews 2009) for discussing Roman constitutionalism with me once upon a time. Surveys of
the historical and historiographic issues at stake in the period under study include ALAN K.
BOWMAN, 10 THE CAMBRIDGE ANCIENT HISTORY: THE AUGUSTAN EMPIRE, 43 B.C.–A.D. 69
(Edward Champlin & Andrew Lintott eds., 1996); and Clifford Ando, From Republic to Empire,
in THE OXFORD HANDBOOK OF ROMAN SOCIAL RELATIONS 37 (M. Peachin ed., 2011).
917
ANDO.34.3 (clean) (Do Not Delete)
918
CARDOZO LAW REVIEW
2/15/2013 12:02 PM
[Vol. 34:917
the establishment of monarchy, which might be thought to bespeak a
shared understanding:
There are two branches of legal study: public and private. Public law
is that which respects the condition of the Roman state, private that
which respects the interests of individuals, for some matters are of
public and others of private interest. Public law consists in rites,
priesthoods and magistracies. Private law is tripartite: for it is
gathered from natural precepts, the laws of peoples and the laws of
political societies. 1
But the simple fact of the matter is that the Romans never codified what
Ulpian calls public law, nor, more surprisingly, did any robust
theoretical literature or commentary tradition develop upon such public
law statutes as did exist. 2 (If they had had a constitution or a robust
public law tradition, it might be that gross errors of misapprehension
like that visible in Maccabees 3 would not exist—nor is it an isolated
example in the foreign literatures of the second century B.C.E. 4)
This is so despite the fact that the Romans wrote constitutions for
their own colonial foundations: it is likely that they did so from the early
third century B.C.E. if not earlier, but they are attested as doing so in
sources contemporaneous with such foundations only as early as 169
B.C.E. 5 They are also on record in just this era modifying the public law
structures of communities under their suzerainty: Like the Persians
ruling over Greeks in Ionia, the Romans tended to dismantle city-state
oligarchies in favor of democracies with strict age and property
qualifications for office. 6
Their unwillingness to inscribe and impose constitutional norms
on themselves should therefore be understood as a knowing act,
probably to be explained by the nature of republican politics, centered,
as it long was, on competition for public honor among a very small,
culturally and economically homogeneous elite.
1 ULPIAN, INSTITUTIONUM bk. 1, fragment 1908, in OTTO LENEL, PALINGENESIA IURIS
CIVILIS 926–27 (1889) (translation adapted from 1 THE DIGEST OF JUSTINIAN bk. 1.1.2 (Alan
Watson ed., D.N. MacCormick trans., Univ. of Pa. Press rev. ed. 1998)).
2 Under the Republic one might cite only L. Cincius, De comitiis, in IURISPRUDENTIA
ANTEIUSTINIANA 1:26 (E. Huschke, E. Seckel & B. Kübler eds. 1908); L. Cincius, De consulum
potestate, in IURISPRUDENTIA ANTEIUSTINIANA, supra, 1:26. Iunius Gracchanus, De
potestatibus, in IURISPRUDENTIA ANTEIUSTINIANA, supra, 1:13–:14; and Sempronius Tuditanus,
De magistratibus, in IURISPRUDENTIA ANTEIUSTINIANA, supra, 1:9–:10.
3 1 Maccabees 8:14–:16.
4 See M. Wörrle, Pergamon um 133 v. Chr., 30 CHIRON 543 (2000).
5 L’ANNÉE ÉPIGRAPHIQUE 1996, at 222 n.685 (1999).
6 On Roman re-writing of the constitutions of subject cities, see Clifford Ando, The
Administration of the Provinces, in A COMPANION TO THE ROMAN EMPIRE 181–82 (David S.
Potter ed., 2006). On the Persian tendency to establish democracies in Greek cities formerly
governed by oligarchies, see CLIFFORD ANDO, LAW, LANGUAGE, AND EMPIRE IN THE ROMAN
TRADITION 70 (2011).
ANDO.34.3 (clean) (Do Not Delete)
2013]
2/15/2013 12:02 PM
REPUBLICAN CONSTITUTIONALISM
919
I. FROM STAATSRECHT TO CONSTITUTIONALISM
We might go further still. To write a proper history of Roman
constitutionalism, one would do well to commence, “130 years of
scholarship notwithstanding.” Few topics in legal history can have
generated such an immense scholarly literature as the Roman
constitution. 7 Indeed, the interest of scholars in the subject has persisted
for something like 800 years in nearly inverse proportion to the
attention the topic received among statesmen and jurists of the
Republic.
This earlier work, some of which is immensely learned (including
the foundational text of Roman history as a modern academic
discipline, Theodore Mommsen’s Römisches Staatsrecht), has generally
conceived its mission according to one of three paradigms:
• As compiling lists of public law statutes, e.g., those regulating
access to office on the part of plebeians, and so forth. A
preeminent example might be the so-called Licinio-Sextian
laws of 367 B.C.E., among whose grand achievements, had
they existed, was the requirement that one consul each year
henceforth should be plebeian—a law whose historicity is
cast into doubt, inter alia, by the existence over the next
quarter century of six years with all patrician consuls (355,
353, 351, 349, 345, and 343 B.C.E.). Livy himself explains
away the problem by insisting that the patricians simply
violated, ignored or overruled the law on those occasions, on
the principle that “whatever the people commanded last, that
is legal and valid.” 8
• As providing schemata of assemblies and offices as they
existed at any given moment. 9
7 On any reckoning, major monuments of the literature include, in chronological order:
THEODOR MOMMSEN, RÖMISCHES STAATSRECHT (1887); FRANCESCO DE MARTINO, STORIA
DELLA COSTITUZIONE ROMANA (2d ed. 1972–1975); JOCHEN BLEICKEN, LEX PUBLICA: GESETZ
UND RECHT IN DER RÖMISCHEN REPUBLIK (1975); ADALBERTO GIOVANNINI, CONSULARE
IMPERIUM (1983); and JOCHEN BLEICKEN, DIE VERFASSUNG DER RÖMISCHEN REPUBLIK (1995).
There have been three surveys in English in the last ten years: ANDREW R. LINTOTT, THE
CONSTITUTION OF THE ROMAN REPUBLIC (1999); T. Corey Brennan, Power and Process Under
the Republican “Constitution,” in THE CAMBRIDGE COMPANION TO THE ROMAN REPUBLIC 31
(Harriet I. Flower ed., 2004); John A. North, The Constitution of the Roman Republic, in A
COMPANION TO THE ROMAN REPUBLIC 256 (Nathan Rosenstein & Robert Morstein-Marx eds.,
2006). See also infra notes 9–10.
8 LIVY, AB URBE CONDITA bk. 7.17.12 (author’s translation). For different views as to the
authenticity of this text, see 2 S.P. OAKLEY, A COMMENTARY ON LIVY, BOOKS VI–X 191 (1998);
Lex XII Tabularum no. 12.5, in 1 FONTES IURIS ROMANI ANTEJUSTINIANI 23 (Salvatore
Riccobono ed., 1941); 2 ROMAN STATUTES 721 (Michael H. Crawford ed., 1996).
9 A pre-eminent exemplar is 2 WOLFGANG KUNKEL & ROLAND WITTMANN,
STAATSORDNUNG UND STAATSPRAXIS DER RÖMISCHEN REPUBLIK, DIE MAGISTRATUR (1995).
ANDO.34.3 (clean) (Do Not Delete)
920
CARDOZO LAW REVIEW
2/15/2013 12:02 PM
[Vol. 34:917
• As assessing the competency of particular magistracies by
asking what occupants of those offices are described as doing
in historical narrative. 10
The focus of this Article is rather different: it inquires into the
history of constitutional thought and argument—what one might term
the history of (Roman) republican constitutionalism. I effect this shift
under inspiration from the rich work of recent years on popular
constitutionalism in American legal history. 11 I do so in part to build a
bridge that might allow Roman legal history to contribute to broader
currents in contemporary legal historiography. I do so in part, as well, to
further another project of my own, namely, to draw attention to the
imperial roots of the Roman republican tradition.
My contentions will be two, one of which might be described (to a
point) as a weaker version of the other: First, constitutionalism became
an important feature of Roman historical and political selfconsciousness under the Principate because it enabled them to
understand the history of their community from the late second century
B.C.E., if not before, straight through to the Principate within a single
interpretive framework. Second, public law consciousness at this level
emerged at the earliest in the second century B.C.E., as a resource in
political engagement at just that moment when the capacity of other
resources to constrain intra-elite competition were failing. But the
doctrines that emerged in constitutional argument in that period, if they
were not invented to legitimate republican monarchy, nonetheless
proved wholly susceptible to co-optation in its justification.
II. INVESTITURE UNDER THE MONARCHY
I begin at the end. The observation of constitutional niceties was a
fetish of Roman imperial practice and a theme of imperial literature.
This is nowhere more visible than in the records of sacrificial acts by the
Arval Brethren, an elite religious fraternity that inscribed detailed
records of its ritual acts, of which extensive portions survive. Over the
10 Notable recent work of this kind includes: T. COREY BRENNAN, THE PRAETORSHIP IN THE
ROMAN REPUBLIC (2000); FRANCISCO PINA POLO, THE CONSUL AT ROME: THE CIVIL
FUNCTIONS OF THE CONSULS IN THE ROMAN REPUBLIC (Hans Beck et al. eds., 2011); FRANCISCO
PINA POLO, CONSULS AND RES PUBLICA: HOLDING HIGH OFFICE IN THE ROMAN REPUBLIC
(Hans Beck et al. eds., 2011).
11 I attempt no survey here. Let me simply cite four very different historical works that I
have found inspiring: DANIEL J. HULSEBOSCH, CONSTITUTING EMPIRE: NEW YORK AND THE
TRANSFORMATION OF CONSTITUTIONALISM IN THE ATLANTIC WORLD, 1664–1830 (2005);
LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL
REVIEW (2004); JOHN FABIAN WITT, THE ACCIDENTAL REPUBLIC: CRIPPLED WORKINGMEN,
DESTITUTE WIDOWS, AND THE REMAKING OF AMERICAN LAW (2004); Richard Primus, The
Riddle of Hiram Revels, 119 HARV. L. REV. 1680 (2006).
ANDO.34.3 (clean) (Do Not Delete)
2013]
2/15/2013 12:02 PM
REPUBLICAN CONSTITUTIONALISM
921
course of the brief reign of the emperor Otho (from January 15 to April
14, 69 C.E.) the Brethren made six sacrifices directly connected with
Otho’s selection and election to the complex of offices and powers that
made up the emperor’s “station”: his acclamation as imperator and his
election to the consulate, to the tribunician power, and to various
priesthoods and the pontificate. 12 It was just this punctiliousness that led
the historian and senator Cornelius Tacitus, writing in the early second
century C.E., to observe that in the change from democratic to
monarchic republic, “the titles of magistracies remained the same.” 13 Or,
to quote Edward Gibbon, “Augustus was sensible that mankind is
governed by names; nor was he deceived in his expectation, that the
senate and people would submit to slavery, provided they were
respectfully assured that they still enjoyed their ancient freedom.” 14
Some caution, however, is in order: As the records of the Arval
Brethren make clear, and all Roman historians will know, emperors did
not hold the tribunate—they were not tribunes—rather, they were
granted the power of a tribune. This separation of the holding of a
magistracy from the exercise of the power with which any given
magistracy was invested might itself appear a legalitarian trick, of
precisely the kind needed to construct an imperial “station” from the
cloth of a democratic constitution, such that the titles of magistracies
would remain the same. And indeed, the regular exploitation of this
capacity was fundamental to the construction of the imperial office. As
Cassius Dio observed a century after Tacitus, the emperors took to
themselves all the powers/functions/offices that had been individually
powerful under the democracy, and under the very same names: In this
way, Roman aristocrats could compete for and hold the consulate, while
the emperor merely exercised a consul’s power of command, and so
forth. 15
The tender respect of Augustus for a free constitution which he had
destroyed, can only be explained by an attentive consideration of the
character of that subtle tyrant. A cool head, an unfeeling heart, and a
cowardly disposition, prompted him at the age of nineteen to assume
the mask of hypocrisy, which he never afterwards laid aside. With the
same hand, and probably with the same temper, he signed the
12 COMMENTARII FRATRUM ARVALIUM QUI SUPERSUNT no. 40, at 99–105 (John Scheid
ed.,1998). I adopt the term “station” in echo of the language devised by Augustus himself to
describe in deliberately non-constitutional terms his position within the state—there was not to
be an “imperial office.” Of course, it was possible to use related words like status to describe the
form of a government: its status was democratic-republican or monarchic. See Clifford Ando,
From Republic to Empire, in THE OXFORD HANDBOOK OF ROMAN SOCIAL RELATIONS 38
(Michael Peachin ed., 2011).
13 TACITUS, ANNALES bk. 1.3.7.
14 1 EDWARD GIBBON, THE HISTORY OF THE DECLINE AND FALL OF THE ROMAN EMPIRE 96
(David P. Womersley ed., 1994).
15 CASSIUS DIO, HISTORIA ROMANA bk. 53.17.3–.4, .9–.11.
ANDO.34.3 (clean) (Do Not Delete)
922
2/15/2013 12:02 PM
CARDOZO LAW REVIEW
[Vol. 34:917
proscription of Cicero, and the pardon of Cinna. His virtues, and
even his vices, were artificial; and according to the various dictates of
his interest, he was at first the enemy, and at last the father, of the
Roman world. When he framed the artful system of the Imperial
authority, his moderation was inspired by his fears. He wished to
deceive the people by an image of civil liberty, and the armies by an
image of civil government. 16
How are we to explain this separation of the holding of a magistracy
from the exercise of its powers? In my view, three different workarounds lie behind it: prorogation; appeals to popular sovereignty to
overrule earlier constitutional norms; and the by-passing of the curiate
assembly. I take these in turn.
A.
Prorogation as Fiction
The word prorogation, like its Latin ancestor prorogatio, is often
defined as a prolonging or extension of a term of office, 17 nor are such
definitions wholly inaccurate. But the term does not mean prolongation
or extension: through considerable compression, it means something
like, “investiture with the powers of a magistracy that one has already
held, without the mechanics of election,” or, in brief, “in place of an
election.” (One of the important changes to occur across the history of
my topic is the slippage from investing private individuals with the
powers of a magistracy they once held, to investing private individuals
with the powers of a magistracy they have never held and might never
hold.)
In tracing the history of prorogation, ever so quickly, we would do
well to remember that on this topic, as on Roman constitutional thought
and practice more generally, we have close to no access to language
contemporaneous with action before the year 66 B.C.E. That said, I shall
argue that the evidence that does survive strongly suggests two patterns:
first, that public law surfaced as an explicit topic of political debate at
just those moments in Roman political life when pre-existing
mechanisms for channeling and constraining intra-elite competition
failed; and second, that the language of public law proved so wholly
malleable as to be made to legitimate that which it had been crafted to
forbid. Indeed, I would go further: the intense focus on public law in
sources of the imperial period is itself a product of the ideological stress
laid upon republican public law as a preeminent pillar in the
GIBBON, supra note 14, at 96.
OXFORD LATIN DICTIONARY 1498 (P.G.W. Glare ed., 1968–1982) (definition of
“prorogatio”); CHARLTON T. LEWIS & CHARLES SHORT, A LATIN DICTIONARY, FOUNDED ON
ANDREW'S EDITION OF FREUND'S LATIN DICTIONARY 1473 (1962) (same).
16
17
ANDO.34.3 (clean) (Do Not Delete)
2013]
REPUBLICAN CONSTITUTIONALISM
2/15/2013 12:02 PM
923
legitimating of monarchy under Augustus. To this point I will return in
closing.
According to Roman sources of the age of Augustus, the first
prorogation of a magistracy took place in 327 B.C.E. According to Livy’s
narrative for that year, the consul of 327, Quintus Publilius Philo, was
on the cusp of a military victory when his term of office expired. In what
seems likely to be an anachronism, Livy describes a tribune bringing a
bill before the people to the effect that “when Quintus Publilius Philo
should depart the consulate, he should conduct matters as if he were
consul until the war with the Greeks should be successfully ended.” 18
And not unexpectedly, the historian Livy’s Augustan narrative finds
confirmation in the Augustan Fasti triumphales—as Augustus
commanded, so Augustan sources dutifully wrote. 19
I translate the Latin phrase pro consule with the English phrase “as
if he were consul,” rather than with some such language as “in the place
of a consul,” in order to highlight the operation of fiction in the
constitutional manoeuvre. 20 In arguing for the importance of that
perspective, one might cite two kinds of evidence. First, according to
Livy, it remained possible as late as 187 B.C.E. for newly elected
magistrates to complain that they were being assigned duties in
impoverished and unimportant areas, while others, exercising power as
though they were magistrates, conducted affairs in the eastern
Mediterranean as private individuals. 21 Second, on current evidence, the
18 LIVY, AB URBE CONDITA bk. 8.23.10–.12; see also LIVY bk. 10.22.9 (“Consules creati Q.
Fabius et P. Decius, Ap. Claudius praetor, omnes absentes; et L. Volumnio ex senatus consulto et
scito plebis prorogatum in annum imperium est.” (“Quintius Fabius and Publius Decius were
created consuls, Appius Claudius was created praetor; all three were elected in absentia. To
Lucius Volumnius, on the advice of the Senate and a decree of the plebs, imperium was granted
without election for one year.” (author’s translation))).
19 Fasti triumphales capitolini, in 13 INSCRIPTIONES ITALIAE 1.70–.71 (A. Degrassi ed., 1947)
(year 326 B.C.E. = A.U.C. 428, recording the first prorogation: “Q. Publilius Q. f. Q. n. Philo II
ann. CDXXVII primus pro co(n)s(ule) de Samnitibus, Palaeopolitaneis k. Mai.”).
20 Cf. ISIDORE, ETYMOLOGIAE bk. 9.3.8 (“Proconsules suffecti erant consulibus, et dicti
proconsules eo quod vicem consulis fungerentur, sicut procurator curatori, id est actori.”),
translated in THE ETYMOLOGIES OF ISIDORE OF SEVILLE 200 (Stephen A. Barney et al. trans.,
2006) (“Proconsuls were substitutes for consuls, and were called proconsuls because they would
function in the place of consuls, as a procurator does in the place of curator, that is, an agent.”).
For an interpretation of prorogation as resting on fiction, see J.S. Richardson, The Roman Mind
and the Power of Fiction, in THE PASSIONATE INTELLECT: ESSAYS ON THE TRANSFORMATION OF
CLASSICAL TRADITIONS 119–23 (Lewis Ayres ed., 1995).
21 LIVY, AB URBE CONDITA bk. 38.42.7–.10 (“A rumor was growing stronger day by day that
a great war brewing ever stronger among the Ligurians. Therefore, on the day when the new
consuls consulted the Senate concerning their bailiwicks and the condition of the state, the
Senate decreed for both the Ligurians as their province. The consul Lepidus sought to veto this
decree of the Senate: it was improper, he said, that both consuls should be shut up in the valleys
of Liguria, while Marcus Fulvius and Gnaeus Manlius ruled for two years now, the one in
Europe, the other in Asia, as if they substitutes for Philip and Antiochus. If it were decided that
armies should be in those lands, it was appropriate that consuls should command them, rather
than private citizens.” (“Si exercitus in his terris esse placeat, consules iis potius quam priuatos
ANDO.34.3 (clean) (Do Not Delete)
924
CARDOZO LAW REVIEW
2/15/2013 12:02 PM
[Vol. 34:917
term proconsul doesn’t replace the legally precise pro consule (“in the
place of a consul”) until the fall of the Republic. 22 It may have appeared
in the history of Claudius Quadrigarius, but the fragment in which the
term appears survives through quotation in a source of the second
century C.E., and there is simply no guarantee that his diction was
respected by that source or, for that matter, that it did not suffer
“correction” in transmission. 23 It may appear on Caesarian
inscriptions—difficulties in dating preclude certainty—but I observe
that the colonial charter of Urso, which was drafted between 59 and 44
B.C.E., still uses pro consule, even though the extant copy was reinscribed under the Principate. 24 The first incontrovertible instance
known to me at present is the decree of an Augustan legate of 27
B.C.E. 25
In other words, the naturalization or routinization of
prorogation—of the investing of private individuals with the power of a
specific magistracy without the formality of an election—took almost
exactly 300 years, and it finally occurred in precisely the year in which
the emperor Augustus first attempted to formalize and stabilize the
holding of monarchic power qua aggregation of magisterial powers in a
notionally democratic republic.
B.
Precedent and Popular Sovereignty in Constitutional Argument
Livy’s insistence that commands were prorogated by means of
legislative acts directs our attention to the two further work-arounds
that I mentioned earlier, namely, appeals to popular sovereignty to
overrule earlier constitutional norms; and the by-passing of the curiate
assembly.
Over the last two centuries B.C.E., the realities of empire stretched
the capacities of the Roman state to the breaking point. The need to
extend terms of office via prorogation is one acknowledgment of this
(though other solutions might have been found). Another problem was
praeesse oportere.”)).
22 10 THESAURUS LINGUAE LATINAE fasc. 2, at 1542, ln. 17, 1545, ln. 58 (1998) (s.v.
“proconsul”) (Hadjú).
23 AULUS GELLIUS, ATTIC NIGHTS 2.2.3; Claudius Quadrigarius fr. 56, 2 DIE FRÜHEN
RÖMISCHEN RÖMISCHEN HISTORIKER, VON COELIUS ANTIPATER BIS POMPONIUS ATTICUS (Hans
Beck & Uwe Walter eds., 2004); Claudius Quadrigarius fr. 57, 1 HISTORICORUM ROMANORUM
RELIQUIAE (Hermann Peter ed., 1914).
24 Lex Coloniae Genetivae, § 125, 11.15–.16, in 1 ROMAN STATUTES 413 (Michael H.
Crawford ed., 1996) (“iussu{q}ue C. Caesaris dict(atoris) co(n)s(ulis) proue | consule”).
25 SUPPLEMENTUM EPIGRAPHICUM GRAECUM no. 555, at 18 (1962); ROBERT K. SHERK,
ROMAN DOCUMENTS FROM THE GREEK EAST: SENATUS CONSULTA AND EPISTULAE TO THE
DEATH OF AUGUSTUS no. 61, 1.12 (1969) (a governor’s edict from 27 B.C.E. inscribed at Cyme,
reading: “Vinicius proc(onsul) s(alutem) d(at) mag(istratibu)s Cumas.”)
ANDO.34.3 (clean) (Do Not Delete)
2013]
REPUBLICAN CONSTITUTIONALISM
2/15/2013 12:02 PM
925
the need for overarching commands, ones traversing the traditional
geographic limits of magisterial authority. In 66 B.C.E. a tribune, one
Gaius Manilius, proposed a law granting a special command to Gnaeus
Pompey, overriding an earlier grant of a similar command to Lucius
Lucullus. Cicero as praetor spoke before an assembly in favor of the law.
Much of the speech concerns the qualities of Pompey as commander
and the needs of the moment. But one crucial passage dispenses with the
principal objection of the law’s opponents, namely, that the grant of
power (and perhaps the means whereby the grant was being effected)
were “contrary to the precedents and institutionalized practices of our
ancestors.” Cicero responded: “I will not bother to point out here that
our ancestors obeyed custom in times of peace, but necessity in times of
war, always developing new plans and policies to meet the new crises of
the day.” 26
I want to be careful not to overread Cicero, or to place arguments
in his mouth that are not in fact there. I must therefore acknowledge
that the public law content of the speech is remarkably vague. But—and
here I deliberately echo public law theory of the imperial era—what
Cicero was in effect arguing was that the People, as sovereign, had the
right to invest imperium, magisterial power of command, in
whomsoever it wished, and that it could choose to accomplish this by
whatever form of legislative act it chose. (It is not innocent that the
clearest articulation of this principle survives from a lawyer of the
imperial period. 27) Furthermore, the People qua sovereign retained the
power to override any earlier enactment by itself. It was a corollary to
this argument that all expressions of popular will are taxonomically
equivalent: legislation, treaty, and election are all mere enactments. 28
Arguments kindred to Cicero’s subsequently played a major role in
Augustan recollections of constitutional argument in the republican
past. One notable example concerns the privileges granted to holders of
a specific priesthood. When a praetor—the second highest ranking
magistrate of the Roman state—wished in 209 B.C.E. to deny those
privileges to the new occupant of the priesthood in question, he, like
Cicero, dismissed ancient practice in favor of more recent precedent:
26 CICERO, DE LEGE MANILIA § 60 (66 B.C.E.) (author’s translation). For a similar reading of
this text, see Adrian Vermeule, Intermittent Institutions, 10 POL., PHIL. & ECON. 420, 438
(2011).
27 See ULPIAN, supra note 1, bk. 1 fragment 1916 (“Quod principi placuit, legis habet
vigorem: utpote cum lege regia, quae de imperio eius lata est, populus ei et in eum omne suum
imperium et potestatem conferat.” (“What pleases the princeps has the force of law, insofar as by
the lex regia which is passed concerning his power, the people transfers to him and into him all
its command and power.”) (translation adapted from DIGEST OF JUSTINIAN, supra note 1,
1.4.1)). On this text in later monarchic theory, see ANDO, LAW, LANGUAGE, AND EMPIRE, supra
note 6, at 92–107.
28 On this problem in Athenian legislation, see ANDO, LAW, LANGUAGE, AND EMPIRE, supra
note 6, at 75.
ANDO.34.3 (clean) (Do Not Delete)
926
CARDOZO LAW REVIEW
2/15/2013 12:02 PM
[Vol. 34:917
“The praetor wanted privileges to rest not upon historical examples of
tiresome antiquity, but in each case upon the most recent practice: not
in the memory of their fathers or grandfathers (i.e., not in the two
immediate prior generations) had any flamen Dialis vindicated that
right.” 29
More notably, at several crucial moments in Livy’s narrative of
constitutional debates—one regarding the power of the people gathered
in electoral assembly to grant office to nominally ineligible slates of
candidates, the other regarding the power of electoral assemblies to
override earlier statutes restricting terms in office—actors in his text cite
a statute attributed to the Twelve Tables, the code of private law
purported to have been made in the mid-fifth century B.C.E.: “It was
enacted in the Twelve Tables that whatsoever the people had decreed
most recently, that should be law and binding,” and as a result, in one
character’s reformulation, “when there are two laws in conflict, the new
one always abrogates the ancient one.” 30
As a legal principle, there’s nothing wrong with this. What is more,
Cicero’s accounts of legislation in the last decade of the democratic
republic indicate that savings clauses of various kinds were routinely
included in legislative enactments, and naturally enough chronological
priority or posteriority was a major concern of such clauses. 31 But the
specific form taken by the argument in Livy’s narrative has no direct
antecedent in constitutional argument of the Republican period, even as
it is crafted so as to endow constitutional innovation with republican
legitimacy. For the actors in his text ground their claims of
constitutional theory in a supposed clause of what Romans, in the late
Republic, regarded as the preeminent product of republican lawmaking. (I set aside today the problem that the Twelve Tables was not
concerned with public law: I will take it elsewhere, in a book on the civil
law origins of public and international law argument in the Roman
tradition.)
I would be remiss if I concluded this section without pointing out
the ad hoc nature of Cicero’s subordinate arguments in his speech for
the Manilian law. Some twenty years later, Cicero spoke before the
Senate advocating that Julius Caesar’s adopted, teenage son Gaius
Caesar, the future emperor Augustus, be allowed to hold the consulate
before the statutorily-fixed age limit 32:
29 LIVY, AB URBE CONDITA, bk. 27.8.8–.9 (author’s translation) (“Praetor non exoletis
uetustate annalium exemplis stare ius, sed recentissimae cuiusque consuetudinis usu uolebat: nec
patrum nec auorum memoria Dialem quemquam id ius usurpasse.”).
30 LIVY, AB URBE CONDITA; see also Id. bk. 9.33.8–.9 & 34.6–.7 (author’s translation) (“[E]t
quia, ubi duae contrariae leges sunt, semper antiquae obrogat noua.”).
31 See, e.g., Cicero, Epistulae ad Atticum no. 68.2 SB (58 B.C.E.), or CICERO, PRO BALBO § 33
(56 B.C.E.).
32 On so-called leges annales in the age of Julius Caesar, rules regulating the age at which
ANDO.34.3 (clean) (Do Not Delete)
2013]
2/15/2013 12:02 PM
REPUBLICAN CONSTITUTIONALISM
927
For why, members of the Senate, should we not wish him to gain the
highest offices as soon as possible? When people fixed a later age for
the consulship by means of leges annales [laws fixing age
requirements for specific offices], they were afraid of the rashness of
youth. But Gaius Caesar has shown in earliest youth that outstanding
and exceptional abilities should not wait upon advancing years. And
so our ancestors, that is, our early ancestors, the men of old, did not
have leges annales. Those laws came in at a much later period, as a
result of the struggle for offices, to create stages at which men of the
same age should compete. The consequence often was that great
natural abilities were snuffed out before they could be of service to
the commonwealth. 33
Restraints enacted by the people over itself are here set aside: In Cicero’s
view, they were the product of a misbegotten age when members of the
Roman elite behaved badly in competition with each other. So
understood, leges annales might restrain those seeking office. They were
not intended, and in any event had no power, to restrain the People
exercising sovereign power in a legislative or electoral assembly.
C.
Sleight of Hand in Constitutional Procedure
The final work-around latent in grants of magisterial power
distinct from actual election to office was the by-passing of the curiate
assembly. Election to offices that carried imperium, strictly speaking, the
power to command Roman citizens, was actually a two-stage process.
One first had to be elected by the citizen assembly and subsequently
invested with power of command. This latter act was apparently
accomplished through the passage of a lex de imperio, a statute
concerning imperium, by the comitia curiata, a sort of vestigial assembly
of the People in which citizens at large had long since ceased directly to
participate. Rather, they were represented in the curiate assembly by
thirty lictors representing the thirty curiae—in this context the term
means something like “voting units”—into which the people had once
been classified. 34
Normally, the passage of a curiate lex de imperio followed
immediately and unproblematically upon election, as votes in the
American Electoral College follow the results of a purely numerical
count at the state level. As it seems, however, there was nothing
automatic about its passage.
one could enter into specific offices, see G.V. Sumner, The Lex Annalis Under Caesar, 25
PHOENIX 246 (1971).
33 CICERO, PHILIPPIC 5.47, in CICERO: PHILIPPICS 177 (D.R. Shackleton Bailey trans., 1986).
34 For a summary of views on the so-called curiate law, see Christian Gizewski, Curiata Lex,
in 3 BRILL’S NEW PAULY 1014 (Hubert Cancik & Helmuth Schneider eds., 2003).
ANDO.34.3 (clean) (Do Not Delete)
928
CARDOZO LAW REVIEW
2/15/2013 12:02 PM
[Vol. 34:917
We know this, or believe we know this, largely on the basis of
another speech of Cicero, delivered in 63 B.C.E. in opposition to an
agrarian law proposed by one Publius Servilius Rullus. In order to carry
out its terms, the law enjoined the creation of a board of ten officials
with power of command, but that power of command could not be
created by legislative act alone—or so Rullus feared. Any grant of power
of command required the passage of a curiate law, and the voters in the
curiate assembly could decline to go along. Hence, Rullus could require
in the statute that the curiate assembly vote, but he could not determine
the outcome of that vote. Rullus solved the problem via fiction, a move
Cicero denounced:
What then, if the lex is not passed? Note his ingenuity! “Then let the
decemvirs be of the same legal standing as those created according to
strict procedure.” If this is indeed possible, that in this polity, which
excels all other polities by far in the rights of liberty, someone should
be able to obtain command over citizens or administrative authority
without the authorization of any electoral body, what is the point of
ordering the passage of a curiate law in the third chapter, when in the
fourth you permit that these officials should have the same legal
status without a curiate law as they would have had if they had been
created by the people according to strict procedure? 35
Cicero confronts statutory language that ordered the voting of a curiate
law immediately upon the passage of Rullus’s plebiscite. What is more,
the first law declared through a exhortatory subjunctive that officials
created under its clauses shall possess the legitimacy conferred by the
second law, regardless whether it passed or not. Cicero explains this
legal chicanery by redescribing it as operating through the use of fiction:
“They shall have the same legal status without a curiate law as they
would have had if they had been created by the people according to
strict procedure.” 36
On one level, the elision of procedural requirements by means of
fiction was a commonplace of private and religious law. The most
remarkable example known to me is found in the regulations of the altar
at Furfo, in which it is announced that priests of the temple may buy or
sell property and those properties are to be considered sacred (if
bought) or profane (if sold) “exactly as if” rites of sacralization or
desacralization had been performed. 37
On another level, what Rullus envisaged, which Cicero elsewhere
approved, was the dismantling of constitutional procedures-cum35 CICERO, CONTRA RULLUM § 2.29, discussed in ANDO, LAW, LANGUAGE, AND
THE ROMAN TRADITION, supra note 6, at 7–8 (author’s translation).
EMPIRE IN
Id. (emphasis added) (author’s translation).
The example is discussed in CLIFFORD ANDO, RELIGION ET GOUVERNEMENT DANS
L’EMPIRE ROMAIN ch. 5 (2013).
36
37
ANDO.34.3 (clean) (Do Not Delete)
2013]
2/15/2013 12:02 PM
REPUBLICAN CONSTITUTIONALISM
929
safeguards through the implicit ascription of power to the popular
assembly, namely, the power of the People as sovereign to create new
constitutional realities by legislative enactment, regardless of earlier
practice or even of earlier constraints the People had voted upon itself.
III. POPULAR SOVEREIGNTY AS POLITICAL COVER
Thus far, the constitutionalism of republican monarchy at Rome
might seem nothing more (and nothing less) than an ad hoc bricolage,
assembled from constitutional arguments and procedural work-arounds
that were remembered as having actual Republican antecedents, or at
least were assigned such in the new public memory of the Augustan age.
The carrying of those arguments was, of course, not simply a matter of
legalitarian chicanery—in the absence of a constitution, one might say,
all constitutional politics was, well, politics. As it happens, the making
and carrying of constitutional arguments in the public sphere was itself
a theme of Augustan literature. Let me offer one example, which I will
then situate in hermeneutic relation to the one statute on the powers of
Roman monarchs to survive from the early empire.
Toward the end of his narrative of the Second Punic War, Livy
describes a negotiation in the Senate over the process by which
provinces were to be allotted. 38 The exceptional circumstances of the
Hannibalic war had enabled Publius Cornelius Scipio to break all the
rules (as it were) in the prominence of his military commands and the
ages at which they were held. His rivals within the senatorial elite
wanted, if possible, not to allow him to draw the command against
Carthage in Africa; final success in that war would, they feared, endow
him with so great political capital as to render competition against him
pointless.
In Livy’s narrative, Scipio’s rivals fear that, if he did not allow the
normal procedure for allotment to proceed, or was dissatisfied with its
outcome, he might bring a motion before the People in assembly, which
he was likely to win. (He had, after all, just won election at a very young
age on the basis of military success under highly unusual circumstances
and the promise that he would bring the war to a close.) Livy’s narrative
therefore depends crucially on the acceptance in this period of the
principle that the People as sovereign had the power to overrule by
simple enactment all existing constitutional norms of whatever source.
The solution devised by his rivals to stop him was to co-opt a tribune to
threaten a veto of any bill moved by Scipio. Livy adds the further detail
that, the possibility of legislation blocked, Scipio’s rivals refused to speak
38 LIVY, AB URBE CONDITA, bk. 28.45.1–.8. The elections for the year are described at id. bk.
28.38.6–.10 and the first voicing of Scipio’s threat to bypass the lot at id. bk. 28.40.1–.2.
ANDO.34.3 (clean) (Do Not Delete)
930
CARDOZO LAW REVIEW
2/15/2013 12:02 PM
[Vol. 34:917
out against him, conceding that his popularity made speaking against
him dangerous to one’s career. (The historicity of many of these details
could be challenged—every one having precise echoes in the triumviral
and Augustan periods—but the accuracy of the account is not my
concern here.)
Constitutional manoeuvre piling on manoeuvre, the parties
retreated to negotiate. The solution: Scipio allowed the Senate to allocate
the provinces; the outcome of its deliberations was that Scipio received
Sicily as his province, with permission to take the war home to Carthage
if he saw fit.
In other words, in return for Scipio’s conceding to the Senate as
collective and institution the authority to allocate provinces, and his
declining to set the precedent of the People’s overriding of that
prerogative, the Senate gave him everything he wanted, indeed,
everything it had wanted to refuse.
So described, the negotiations in 206/205 B.C.E.—at least, as they
were narrated by Livy under Augustus—bear an uncanny resemblance
to negotiations over the constitutional prerogatives of Rome’s monarchs
in the era of republican monarchy. These are revealed to us above all by
the statute on the powers of Vespasian now known (somewhat
misleadingly) as the lex de imperio Vespasiani, which was discovered in
Rome in the first half of the 14th century and made public by Cola di
Rienzo in 1347:
[A]nd that when the senate shall be convened according to his wish
or authority, by his order or mandate or in his presence, the law in all
matters should be maintained and observed, just as if the senate had
been summoned and was being convened according to statute;
. . . and that whatever before the proposal of this statute has been
undertaken, carried out, decreed or ordered by the emperor Caesar
Vespasian Augustus or by anyone according to his order or mandate,
they be lawful and binding, just as if they had been undertaken
according to the order of the people or plebs. 39
The clauses prospectively establish that actions taken by the emperor in
the future or the past will retroactively be understood as having
occurred other than as they did, namely, as having occurred through
those procedures by which sovereign power had once been legitimately
exercised. 40 To paraphrase Cicero in his speech against the agrarian law
of Rullus, in return for Vespasian’s conceding to the Senate the right to
39 The standard treatment of the text in English is Peter Brunt, Lex de Imperio Vespasiani,
67 J. ROMAN STUD. 95 (1977). For more recent bibliography, see Dario Mantovani, Les clauses
‘sans précédents’ de la Lex de imperio Vespasiani: une interprétation juridique, 16 CAHIERS DU
CENTRE GUSTAVE 25 (2005). For the text, see 2 ROMAN STATUTES, supra note 8, no. 39.
40 For a study of the fictions in this text, see ANDO, LAW, LANGUAGE, AND EMPIRE IN THE
ROMAN TRADITION, supra note 6, at 7, 101, 121–122.
ANDO.34.3 (clean) (Do Not Delete)
2013]
2/15/2013 12:02 PM
REPUBLICAN CONSTITUTIONALISM
931
pass such a law—in return, in other words, for Vespasian’s
acknowledging the Senate to be the final repository of authority within
the state—the Senate allows that all his actions will be held legal exactly
as if they had been conducted according to strict procedure.
IV. THE MONARCHIC ORIGINS OF REPUBLICAN CONSTITUTIONALISM
I return at long last to the moment when the Romans might be
described as thinking about writing a constitution. 41 I refer to that
moment on November 27, 43 B.C.E. when by plebiscite—specifically,
the lex Titia—Mark Antony, Marcus Lepidus, and General Caesar (the
latest version of Octavian’s personal name—it had been Gaius Caesar in
January of the same year 42) were created as a board of three rei publicae
constituendae, for the legal ordering of the state. The title of their
magistracy is delivered to us by an inscribed calendar of central Italy
and likewise a late ancient summary of Livy, 43 and the form and title of
the legislation, as well as the circumstances of its passage, are described
by Appian:
The triumvirs entered the city separately on three successive days,
Octavian, Antony, and Lepidus, each with a prætorian cohort and
one legion. As they arrived, the city was speedily filled with arms and
military standards, disposed in the most advantageous places. A
public assembly was forthwith convened in the midst of these armed
men, and the tribune Publius Titius proposed a law providing for a
new magistracy for settling the present disorders, to consist of three
men to hold office for five years, namely, Lepidus, Antony, and
Octavian, with the same power as consuls. Among the Greeks these
41 A more expansive study would have to take into consideration the dictatorships of Lucius
Cornelius Sulla in 81 B.C.E. and Julius Caesar from 46 B.C.E. to his death in 44: Sulla’s title is
described exclusively by Appian—and no contemporary source—as “for setting the politeia in
order,” APPIAN, CIVIL WARS bk. 1.99.462, while Caesar’s may have been understood as “for
conducting public affairs” rather than “for the sake of setting them in order,” but the evidence
admits of no easy solution. Regardless, it seems clear that during prior respites in the first
century B.C.E.’s long civil wars, Romans before the triumvirs had entertained the possibility of
founding some new public order on a distinctly public-law footing.
42 See CICERO, supra note 33, 5.47, at 177. On the evolution of Octavian’s nomenclature, see
RONALD SYME, Imperator Caesar: A Study in Nomenclature, in 1 ROMAN PAPERS 361–77 (Ernst
Badian ed., 1979).
43 Fasti Colotiani, in 13 INSCRIPTIONES ITALIAE, supra note 19, fasc. 1, at 273–274
(recording the creation of the triumvirate: [M. A]emilius [M. Antonius] Imp. Caesar IIIvir. r. p.
c. ex a. d. V. Kal. Dec. ad pr. K. Ian. sex. (“Marcus Aemilius, Marcus Antonius, and Imperator
Caesar [were created as] a board of three for setting the affairs of the state in order, from the
fifth day before the kalends of December [November 27, 43 B.C.E.] to the day before the
kalends of January in the sixth year [i.e. December 31, 38 B.C.E.].”)); see also LIVY, PERIOCHAE
bk.120 (“Gaius Caesar made peace with Antonius and Lepidus in such a way that they should
be a board of three for settling the state for five years—he and Lepidus and Antonius—and such
that each should proscribe his enemies.” (author’s translation)).
ANDO.34.3 (clean) (Do Not Delete)
932
CARDOZO LAW REVIEW
2/15/2013 12:02 PM
[Vol. 34:917
would have been called harmosts, which is the name the
Lacedæmonians gave to those whom they appointed over their
subject states. 44
As an aside, complementing our earlier discussion of the disaggregation
of magisterial power from election to office, please observe that the
triumvirs are invested by legislation “with power equal to that of
consuls.”
Regarding this most famous episode I limit myself to two related
remarks. First, this ultimate act of democratic self-abrogation was
purely and wholly an act of republican law-making. Certainly it could be
described as such on the fasti, and Appian’s narrative of the planning
amongst the principals reveals them to have set out to accomplish their
coup via legislative act. 45 It rested, obviously, on doctrines of popular
sovereignty that we have seen at work in Cicero’s advocacy of the
Manilian law, and likewise on the on-going articulation of principles
regarding the investing of magisterial imperium via legislative act, apart
from actual election to magistracy or the passage of curiate laws. At the
level of constitutional arrangements, the novelty of the lex Titia, such as
it was, 46 lay not in the magistracy’s form—Rome had long established ad
hoc boards to resolve particular problems of public law—but in its
competence.
Which brings me to my second remark. Neither boards of three,
nor the acts embraced by the Latin term constituere (from which English
“constitution” derives, of course), were innovations even in this usage in
Roman public law in 43 B.C.E. On the contrary, constituere was the term
of art in Roman public law for the foundation and articulation in law of
a political community ex nihilo. For example, in one of the earliest
Roman statutes whose actual words survive, namely, the agrarian law of
111 B.C.E., the founding of new cities is described as embracing three
acts: founding, peopling, and siting. 47 The same language is visible in a
APPIAN, CIVIL WARS bk. 4.7.27 (Horace White trans., 1913).
Id. bk. 4.2.6 (narrating the pre-history of id. bk. 4.7.27, namely the conference between
Lepidus, Antony, and Caesar at which they agreed upon the form and duration of the new
office they would create for themselves: “They were in conference from morning till night for
two days, and came to these decisions: That Octavian should resign the consulship and that
Ventidius should take it for the remainder of the year; that a new magistracy for quieting the
civil dissensions should be created by law, which Lepidus, Antony, and Octavian should hold
for five years, wielding power equivalent to that of the consuls. This name seemed preferable to
that of dictator, perhaps because of Antony’s decree abolishing the dictatorship . . . .”
(translation slightly modified by the author)).
46 Observe that Appian’s narrative twice describes the triumvirate as a “new magistracy.”
Id. bk. 4.2.6, .27.
47 Lex Agraria 1.22 (111 B.C.E.), in 1 ROMAN STATUTES, supra note 24, no. 2, at 115 (“[—
quo in agro loco oppidum coloniaue ex lege plebeiue scito constitueretur deduceretur
conlocaretur, quo in agro loco IIIuir a(gris) d(andis) a(dsignandis) i]d oppidum coloniamue ex
lege plebeiue sc(ito) constituit, deduxitue conlocauitue . . . .”).
44
45
ANDO.34.3 (clean) (Do Not Delete)
2013]
2/15/2013 12:02 PM
REPUBLICAN CONSTITUTIONALISM
933
law of Julius Caesar of 59 B.C.E., 48 and is likewise used in historical
narrative, with varying degrees of catachresis. 49 It is from this technical
usage that Cicero’s vernacular derives, when he describes the need to set
the affairs of his hometown in order 50: once again, it is Cicero who set
stage for monarchy.
Regarding boards of three, they were the conventional, perhaps the
universal, form taken by the commissions dispatched from Rome to
settle new colonies.
One might therefore describe the establishment of the triumvirate
and abrogation of republican democracy at Rome as more than
republican in its legislative form. In point of fact, the lex Titia had a
distinguished pedigree in republican public law: The language used
elsewhere of the foundation of political communities ex nihilo was used
in it (to speak euphemistically 51) to describe the (re)foundation of Rome
itself de novo. Hence my characterization of this moment earlier in this
Article, to the effect that they talked at this moment as if they were
thinking about writing a constitution.
The lex Titia might also be described as the application
domestically of public law structures devised for the governance of
colonies. In this way, as in others, the fruits of empire were born in
upon the republican polity that had so eagerly sought them out.
CONCLUSION
Let me conclude by returning momentarily to the Licinio-Sextian
laws. By virtue of their opening high office to plebeians, these have long
been characterized as instrumental as bringing into being a patricioplebeian nobility. 52 My own view is somewhat different: Legislation of
that kind tends only to bring into being that which already exists. The
ability of plebeians to press for such access must have rested upon their
growing social, economic and political clout, and hence upon a prior
48 Lex Iulia Agraria ch. 3 (59 B.C.E.), in 1 ROMAN STATUTES, supra note 24, no. 54, at 409
(“K(aput) l(egis) III. Quae colonia hac lege deducta quodue municipium praefectura forum
conciliabulum constitutum erit, qui ager intra fines eorum erit . . . .”).
49 CAESAR, DE BELLO CIVILI bk. 1.15.1–.2; see also CICERO, DE ORATORE 1.57, .85–.86.
50 Cicero, Epistulae ad Brutum no. 278.3 SB (46 B.C.E.), translated in 2 CICERO, CICERO’S
LETTERS TO HIS FRIENDS 49 (D.R. Shackleton Bailey trans., 1978) (“It is my wish that my son,
my nephew, and a very close friend of mine, M. Caesius, should be appointed Aediles this year
to set the affairs of the municipality in order (constituendi municipi causa)—in our town it is
the custom to elect magistrates with that title and no other.”).
51 CASSIUS DIO, HISTORIA ROMANA bk. 46.55.3 (writing in the early third century C.E.,
describes the same events as APPIAN, CIVIL WARS bk. 4.2.6 but insistently points out that the
triumvirs’ recourse to legislative enactment is a sham).
52 POLO, CONSULS AND RES PUBLICA, supra note 10, at 5.
ANDO.34.3 (clean) (Do Not Delete)
934
CARDOZO LAW REVIEW
2/15/2013 12:02 PM
[Vol. 34:917
surmounting, of whatever extent, of the systems of prestige and social
differentiation that had theretofore shored up patrician privilege.
The failure of constitutionalism as practice and discourse in the
saving of democratic republican government may be explained in
similar terms. On my reading, the Romans may be said to have turned
to public law—to have invented republican constitutionalism—when
other means of establishing a social consensus around the nature of
republican politics and intra-elite competition failed. This was broadly
true of public law, and it was true on another level of sumptuary
legislation and even laws on extortion and other illegalities in office. 53
In so writing, I do not wish to discount the historical importance of
the substantive issues at stake then, or the lasting historical importance
of the formulations then achieved in law of particular doctrines, above
all those surrounding popular sovereignty. But the doctrine of popular
sovereignty existed in Roman constitutional thought as a double-edged
sword: For all its evident sympathies with democratic politics, it
functioned at Rome largely as a weapon against sclerosis in elite
competition, by which power might be delivered to some people’s
champion, who in Roman narrative is always already a monarch in the
making.
Regarding the broader history of republican constitutionalism,
Cicero’s On the Commonwealth and On the Laws may stand as caution
to its modern fans. Those texts were, of course, the only treatises of
normative republican theory produced at Rome in its democratic
republican phase. With them, Cicero sought to bring into being a
culture in which the codification of public law might stand as bulwark
for a broader effort of recuperation and consolidation regarding some
Roman cultural patrimony writ large. Alas, the Romans had by then
spent some ninety years resolving constitutional crises through murder,
and the fact of non-prosecution in those hundreds of cases should be
taken, inter alia, as an index of the nearly total failure of the culture at
large—of all those normative resources that make up and sustain the
rule of law—across that period. In one perspective, Cicero’s
extraordinary plea for the rule of law failed in the face of public violence
on an almost unimaginable level. But in another perspective, republican
constitutionalism as practiced by Cicero served in the triumviral period
and beyond as simply another tool by which the diminishing cultural
and social prestige of the state might be co-opted in the service of
private ends, as Appian and Dio make clear in their analyses of the lex
Titia.
In the end, the work constitutionalism as practice may be said to
have served, was to articulate and to efface the transition to monarchy.
53 On sumptuary legislation, see A. WALLACE-HADRILL, ROME’S CULTURAL REVOLUTION
315–55 (2008).
ANDO.34.3 (clean) (Do Not Delete)
2013]
2/15/2013 12:02 PM
REPUBLICAN CONSTITUTIONALISM
935
Constitutionalism as discourse thus emerges as an important theme of
republican life in retrospective efforts by Romans to explain to
themselves, within a single framework and using a single language, both
the failure of democratic republicanism and its resolution in the
pernicious façade of republican monarchy. As with normative political
theory, or doctrines of citizenship or, indeed, of liberty, so in respect to
constitutionalism, the Roman Republic that we can know is very much
the one that the monarchic Republic wished us to see. 54
In so writing, we should beware indicting the Romans, or the
republican system itself, for insufficient adherence to constitutional
propriety, as though the Republic might have survived if the Romans
had only hewed more closely to the letter and spirit of their own laws.
Such laws, frankly, did not exist. Rather, institutional fluidity was the
true hallmark of Roman republican government, and it was this aspect
that was widely theorized in the final decades of the Republic, and which
in many respects paved the way for the virtuoso institutional and
legislative improvisations that created the Principate.
I give the last words to Gibbon:
To resume, in a few words, the system of the Imperial government; as
it was instituted by Augustus, and maintained by those princes who
understood their own interest and that of the people, it may be
defined 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. 55
54 For an extended reflection on the nature of our knowledge of the Roman Republic, and
the influence its imperial roots have had on the republican tradition from the Italian communes
to the present day, see ANDO, LAW, LANGUAGE, AND EMPIRE IN THE ROMAN TRADITION, supra
note 6, at 81–114.
55 GIBBON, supra note 14, at 93.