* Your assessment is very important for improving the workof artificial intelligence, which forms the content of this project
Download Keep the Public Rich, But the Citizens Poor
Travel in Classical antiquity wikipedia , lookup
Senatus consultum ultimum wikipedia , lookup
Roman economy wikipedia , lookup
Executive magistrates of the Roman Republic wikipedia , lookup
Conflict of the Orders wikipedia , lookup
Leges regiae wikipedia , lookup
Roman historiography wikipedia , lookup
Ancient economic thought wikipedia , lookup
Roman funerary practices wikipedia , lookup
Education in ancient Rome wikipedia , lookup
Legislative assemblies of the Roman Republic wikipedia , lookup
Roman army of the late Republic wikipedia , lookup
Culture of ancient Rome wikipedia , lookup
Roman agriculture wikipedia , lookup
First secessio plebis wikipedia , lookup
Constitutional reforms of Augustus wikipedia , lookup
Early Roman army wikipedia , lookup
Constitutional reforms of Sulla wikipedia , lookup
Cursus honorum wikipedia , lookup
MCCORMICK.34.3 (clean) (Do Not Delete) 2/15/2013 12:12 PM “KEEP THE PUBLIC RICH, BUT THE CITIZENS POOR”: ECONOMIC AND POLITICAL INEQUALITY IN CONSTITUTIONS, ANCIENT AND MODERN John P. McCormick † Economic inequality is perhaps the greatest threat to the civic liberty that republics, ancient and modern, promise to citizens. Liberty depends first and foremost on political equality: every citizen ought to influence law and policy-making in a relatively equal way. At the very least, government ought to be responsive and accountable to all citizens on a fairly equal basis. 1 Yet the freedom so prevalent in republics invariably allows those citizens who accumulate greater material resources (and in the long term, the cultural capital of family and personal reputation) to enjoy such advantages at the expense of less privileged citizens. Put simply, economic inequality inevitably undermines political equality, and, hence, liberty itself. 2 This fact ought to be especially alarming today as socio-economic inequality rises precipitously in contemporary democracies like the United States and in others throughout the world. Civic liberty permits wealthy citizens to bring their economic resources directly to bear on politics; various forms of clientelism and bribery are ubiquitous within all republican contexts. Marginally-legal influence-buying or favor-peddling, as well as blatantly illegal political corruption, enables a republic’s few, richest citizens to exert excessive influence over the formulation of laws that are supposed to benefit the majority of citizens. 3 Moreover, wealth enables certain citizens to cultivate greater reputation, a more distinctive appearance, and better public speaking skills. Consequently, both audiences within ancient † Professor of Political Science, University of Chicago; BA Queens College, CUNY (1988); MA CUNY Graduate Center/University of Chicago (1989–1990); Ph.D. University of Chicago (1995). 1 See CHARLES R. BEITZ, POLITICAL EQUALITY: AN ESSAY IN DEMOCRATIC THEORY (1989). 2 See LARRY M. BARTELS, UNEQUAL DEMOCRACY: THE POLITICAL ECONOMY OF THE NEW GILDED AGE (2010). 3 See ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS (1989). 879 MCCORMICK.34.3 (clean) (Do Not Delete) 880 CARDOZO LAW REVIEW 2/15/2013 12:12 PM [Vol. 34:879 assemblies and voters within modern electoral contests have tended to bestow disproportionate favor on wealthy individuals. 4 My remarks today sketch the attempts made by various ancient republics—specifically, Athens, Sparta, and Rome—to confront, constitutionally, the threat posed to liberty by economic inequality. Spoiler alert: none of these constitutions were remarkably successful at defending civic liberty from the corrosive and corrupting influence of economic inequality. 5 Subsequently, I will turn to Niccolò Machiavelli’s analysis of the Roman Republic for clues that might tell us how ancient republics perhaps ought to have better contained the corrupting influence of wealth. 6 In particular, I hope that Machiavelli’s engagement with the crisis associated with Rome’s Agrarian laws will prompt us to think more creatively about how to protect, in his words, “the free and civil way of life” from the “avarice and ambition of the few.” 7 How did ancient republics attempt to mitigate the threat posed to liberty by economic inequality? Democratic Athens established the following informal truce between rich and poor citizens: the demos would not “soak the rich” through democratic institutional arrangements that favored the poor, so long as the wealthy did not use their vast economic resources and public prominence to compromise political equality, or isonomia. 8 As Demosthenes famously exclaimed: “[The elite] have great wealth . . . which no one keeps them from enjoying; therefore they must not keep us . . . from enjoying the security . . . which is our common possession—the laws.” 9 The laws of the Athenian constitution politically empowered poor citizens in three primary ways: 1) a legislative assembly open to all citizens; 2) executive offices distributed by lottery; and 3) political courts comprised of large subsets of randomly selected citizens. In the Athenian assembly, the ekklesia, every citizen was entitled to initiate and discuss law, ultimate decisions over which were decided by majority vote. Furthermore, any citizen who was willing and able to stand for executive or judicial office could submit their name for inclusion in the political lotteries that appointed magistrates and jurors. See BERNARD MANIN, THE PRINCIPLES OF REPRESENTATIVE GOVERNMENT (1997). See JEFFREY A. WINTERS, OLIGARCHY (2011). 6 See NICCOLÒ MACHIAVELLI, Discorsi sopra la prima deca di Tito Livio, in OPERE (Corrado Vivanti ed., Einaudi 1997) (1517). 7 Id. bk. 1, ch. 40. 8 See JOSIAH OBER, MASS AND ELITE IN DEMOCRATIC ATHENS: RHETORIC, IDEOLOGY, AND THE POWER OF THE PEOPLE 74–75 (1991). 9 Id. at 198 (quoting Demosthenes). 4 5 MCCORMICK.34.3 (clean) (Do Not Delete) 2013] INEQUALITY IN CONSTITUTIONS 2/15/2013 12:12 PM 881 When public funding subsidized these forms of political participation, Athenians distributed political power among a greater proportion of its citizenry than any government in history. Of course, property qualifications, slavery, and the political exclusion of free women are unavoidable issues to consider in this context. Nevertheless, Athens, at its most democratic, empowered a greater number of the poor to participate in actual rule than any other political regime, before or since. The Athenian demos jealously guarded the border between socioeconomic and political power—that is, between economic inequality and political equality—through the large citizen juries and the practice of ostracism. Former magistrates and, indeed, any citizen at all, could be indicted by any other citizen, and be tried before the large citizen juries for behavior deemed threatening to the democracy. Moreover, if wealthy or prominent citizens were suspected of exerting excessive influence in assembly, in the regime’s few elected offices, or in any manner whatsoever, the demos might ostracize them; effectively exiling such individuals for as long as a decade. Aristocratic Sparta, by contrast, attempted to secure its own ideal of civic liberty by substituting economic equality for political equality. 10 Sparta’s reputed founder, Lycurgus, established strict economic equality at the outset, for which he compensated prominent families and individuals with fairly insulated political authority. Although denying them traditional economic advantages, Lycurgus entrusted the city’s aristocracy with preeminent political power. Sparta’s two oldest, most esteemed families shared joint rule in the Republic’s dual monarchy. Other prominent families were granted dominance over the Republic’s most important political body, the senate. Moreover, the Republic’s highest magistrates, the ephors, were appointed, not through lottery, but through election in Sparta’s popular assembly—which itself was much weaker than popular assemblies in either Athens or Rome. Lycurgus purportedly established economic equality by distributing land equally among all citizens, by banning foreign trade, and by imposing strict sumptuary laws. Under such circumstances, Spartan citizens could plausibly claim that they were ruled, not by a wealthy few, but by the most experienced and wisest among the citizenry. This conclusion ought not appear as foreign to us as it might first seem: after all, a powerful strand of modern republican political thought identifies true liberty, not with equal distribution of access to self-rule among citizens, but rather with rule by the best citizens. 10 See PAUL CARTLEDGE, THE SPARTANS: THE WORLD OF THE WARRIOR-HEROES OF ANCIENT GREECE, FROM UTOPIA TO CRISIS AND COLLAPSE (2003). MCCORMICK.34.3 (clean) (Do Not Delete) 882 CARDOZO LAW REVIEW 2/15/2013 12:12 PM [Vol. 34:879 Modern republics, however, make no effort whatsoever to ensure that these “few best” are not, in fact, simply the rich or their clients. 11 Thus, while Athens was an economically inegalitarian political democracy, and Sparta an economically egalitarian political oligarchy, we might conclude that ancient Rome was a combination of both. The Roman republic was both politically oligarchic and democratic; and while Roman society was economically inegalitarian in profound ways, Roman citizens enjoyed extensive—indeed, almost unprecedented— opportunities for upward socio-economic mobility. Polybius famously depicted the Roman constitution as a composite of parts affiliated with other, more “simple” regimes: the Roman’s mixed regime contained a tamed monarchical power in its chief magistrates, the consuls; a contained aristocratic power in the Roman senate; and a fairly constrained popular power in the tribunes of the plebs and the citizen assemblies. 12 When the political role of wealth is taken into account, it is clear that Rome’s richest, most prominent families dominated, at first formally and then informally, the consulship and the senate. Assemblies in which votes were weighted in favor of wealthier citizens annually elected Rome’s two consuls. The consuls, originally drawn exclusively from the patrician class, were charged with the highest administrative and military duties. The senate, ostensibly just a deliberative and advisory body, nevertheless enjoyed substantial influence over the Republic’s fiscal and foreign policies. Senatorial mentoring of consuls, plus the prospect of former consuls joining the senate, ensured that this body, comprised of the Republic’s wealthiest citizens, exercised exorbitant sway over the Republic’s supreme magistrates. Rome’s armed poor, the plebeians, responded to the political monopoly enjoyed by Rome’s nobility in two ways: first, by instigating the establishment of the tribunate, a magistracy for which the very wealthiest citizens were ineligible; and second, by increasing the importance of citizen assemblies governed by majority rule over those in which voting was weighted in favor of the wealthy. The ten tribunes of the plebs, annually elected exclusively from plebeian ranks, were charged with popular advocacy. As bearers of veto power over most of the workings of Roman government, and as the chief agents of public indictments for political crimes, the tribunes possessed the means to block policy proposals and punish magistrates and prominent citizens for violating the liberty of the citizenry or for corrupting the republic’s civic life. Furthermore, over the course of the See MAURIZIO VIROLI, REPUBLICANISM (2002). See POLYBIUS, THE RISE OF THE ROMAN EMPIRE (Ian Scott-Kilvert tras., 1979); see also ANDREW LINTOTT, THE CONSTITUTION OF THE ROMAN REPUBLIC 16–17 (2002). 11 12 MCCORMICK.34.3 (clean) (Do Not Delete) 2013] INEQUALITY IN CONSTITUTIONS 2/15/2013 12:12 PM 883 republic’s history, legislative and judicial power shifted from the oligarchically structured centuriate assembly to assemblies where the tribunes presided, where patricians were excluded, and/or where they could be outvoted by a majority of poorer citizens. 13 Thus, we might understand the Roman Republic to sit on a sociopolitical continuum somewhere between Athens and Sparta: some political institutions directly empowered the wealthy, while others directly empowered the poor. Moreover, upward socio-economic mobility, exemplified by the careers of notable “new men,” allowed Romans to insist that their republic was not dominated by a hermetically-sealed wealthy caste of senatorial families. As I mentioned at the outset, none of these republics’ efforts to block, mitigate, or forestall the corrosive influence of economic inequality upon civic liberty worked very well—or at least, they did not work effectively for very long. Even though Athenians permitted the wealthy full enjoyment of their economic advantages, democratic Athens nevertheless proved particularly susceptible to oligarchic coups. The people’s harsh political treatment of the wealthy, whether real or merely perceived, motivated Athenian oligarchs to overthrow the democracy—although, usually on the pretext that the demos was guilty of egregious political or military mismanagement. When analyzing these coups, and what they say about the stability of Athenian democracy, it is very difficult to disaggregate two factors: on the one hand, the unprecedented pressure placed upon Athens by the Peloponesian War, and, on the other, the Athenian elites longstanding resentment toward the democracy that severely curtailed their political power. I leave this issue to the experts to debate. In any case, history has been quite kind to the enemies and the critics of Athenian democracy. The vast majority of philosophical and historical accounts consistently deride the Athenian demos for unjustly ordering the execution of roughly half a dozen citizens: specifically and notoriously, Socrates and the commanders of the battle of Arginusae. The Western Great Books tradition focuses far less extensively on the thousands of Athenian democrats murdered by the oligarchs, more or less in collusion with foreign enemies, during the city’s two principal oligarchic coups in 411 and 404 B.C.E. 14 As for the Spartans, despite the severity of Lycurgus’s proscriptions on wealth acquisition, economic inequality greatly expanded in the Lacedaemonian republic. The royal and noble families, who were meant to enjoy only political authority, soon amassed fabulous wealth, with which they progressively marginalized and oppressed common Spartan 13 See FERGUS MILLAR, THE CROWD IN ROME IN THE LATE REPUBLIC (2002); FERGUS MILLAR, THE ROMAN REPUBLIC IN POLITICAL THOUGHT (2002). 14 See M.I. FINLEY, DEMOCRACY ANCIENT AND MODERN 93–94 (1973). MCCORMICK.34.3 (clean) (Do Not Delete) 884 CARDOZO LAW REVIEW 2/15/2013 12:12 PM [Vol. 34:879 citizens. In response, Agis, ineffectually, and Cleomenes, with some success, attempted to reinstitute Lycurgus’s laws. However, these reform efforts aimed at restoring economic equality resulted in violent, bloody intra-elite conflict within the republic; conflict that arguably contributed to Sparta’s military and political decline. Indeed, as Michael Flower and Melissa Lane have suggested, Spartan laws aimed at achieving economic equality may have originated with Cleomenes himself, and may have been only mythically attributed, after the fact, to Lycurgus, in order to legitimate such policies. 15 In any case, the controversies and instability that emerged as a result of their introduction accentuate how difficult it is to peacefully legislate economic equality within republics. In the Roman Republic, economic inequality, already quite pronounced, was wildly exacerbated by the expansion of Rome’s empire, with dire consequences for its citizens’ liberty at home. As Rome’s army spent ever greater periods of time farther away from the city and, eventually, the Italian peninsula, its citizen soldiers became increasingly impoverished and its commanders increasingly powerful. I will discuss this critical trend in greater detail in a few moments. To conclude this section of my remarks: for various reasons, the constitutional arrangements of Athens, Sparta, and Rome unsuccessfully prevented those republics’ wealthiest citizens from corrupting civic liberty and from undermining the free status of their polities. For further insight into and more penetrating analyses of these ancient constitutions, I highly recommend the writings of the many scholars who are with us today: especially, the participants on our wonderful first panel this morning. I turn now to Machiavelli’s analysis of economic inequality and civic liberty in the Roman context. Machiavelli’s account offers intriguing counterfactuals that might help us think more fruitfully about the problem of wealth and freedom in republics more generally. In particular, I focus on Machiavelli’s treatment of the Brothers Gracchus, Roman tribunes whose efforts to enact economic reforms represented the last stand of Roman civic liberty in the face of oligarchic predation and corruption. In the Discorsi, Machiavelli famously defies consensus among commentators on the Roman Republic: unlike his predecessors, Machiavelli attributes the flourishing of Rome’s freedom and greatness 15 See Michael A. Flower, The Invention of Tradition in Classical and Hellenistic Sparta, in SPARTA: BEYOND THE MIRAGE 191, 193–219 (Anton Powell & Stephen Hodkinson eds., 2002); Melissa Lane, Founding as Legislating: The Figure of the Lawgiver in Plato’s Republic, in PROCEEDINGS OF THE IX SYMPOSIUM PLATONICUM (Feb. 7, 2011) (unpublished manuscript, Univ. of Chi. Pol. Workshop., L. Brisson & N. Notomi eds.), available at http://ptw. uchicago.edu/Lane11.pdf. MCCORMICK.34.3 (clean) (Do Not Delete) 2013] INEQUALITY IN CONSTITUTIONS 2/15/2013 12:12 PM 885 to the tumults resulting from domestic conflicts between the wealthy nobles and the common people. But he also concedes that class conflict ultimately contributed to the ruin of Rome’s free way of life after the Gracchi attempted to institute redistributive economic reforms. 16 The Agrarian Laws, sponsored by Tiberius and Gaius Gracchus, limited the amount of public lands any citizen could hold, and redistributed to the plebeians public lands already held in custody by wealthy Romans. In the Discorsi, Machiavelli marks the reform efforts of these ill-fated brothers as a decisive moment in the history of the Republic. 17 On separate occasions, the Roman nobility infamously eliminated each of the brothers in a dramatically public fashion. In 133 B.C.E., senators and their clients murdered Tiberius in the open air of the Republic’s civic space, after he successfully resisted their efforts to block passage of the laws and his reelection as tribune. A decade later, they desecrated the body of his brother, Gaius, who had committed suicide after his term as tribune failed to prevent a conservative rollback of his brother’s agrarian and judicial reforms. Apparently taking these lessons to heart, all future “reformers” would enter the Roman Forum accompanied by armed legions. It is worth noting that Machiavelli’s description of Rome’s decline after these events invokes the “time of” the Gracchi, or the “scandals” and “contentions” that arose in response to their policies. 18 Machiavelli attributes this decline neither to the brothers themselves, nor to the content of their land reform proposals. Actually, he concludes his account by criticizing the brothers’ prudence rather than their intentions, and by validating the necessity of laws precisely like those they proposed and promulgated. 19 In fact, Machiavelli argues that the cause of the Republic’s corruption and collapse was not the Agrarian Laws but rather the deeply and increasingly inequitable circumstances to which the laws were merely an inevitable and even necessary response. Machiavelli remarks explicitly in this context, “well-ordered republics must keep the public rich and citizens poor.” 20 This statement signals Machiavelli’s preference for socio-economic conditions more egalitarian than those that emerged in his paradigmatically “perfect” republic, Rome. 21 However, Machiavelli does remark, rather curiously, with respect to the Gracchan legislation: “there must have been a defect in this law.” 22 This “defect” seems to correspond with the time, the moment, when the 16 17 18 19 20 21 22 MACHIAVELLI, supra note 6, bk. 1, ch. 4. Id. bk. 1, ch. 37. See id. bk. 1, ch. 37, bk. 3, ch. 24. Id. bk. 1, ch. 37. Id. Id. bk. 1, ch. 3. Id. bk. 1, ch. 37. MCCORMICK.34.3 (clean) (Do Not Delete) 886 CARDOZO LAW REVIEW 2/15/2013 12:12 PM [Vol. 34:879 Agrarian Laws were ultimately promulgated: “Either [the legislation] was not enacted at the beginning so that it did not have to be addressed again every day; or they delayed so much in making it because looking back might be scandalous.” 23 In other words, agrarian legislation, although demanded by the plebeians early on in both Livy’s and Machiavelli’s accounts, was neither instituted at the start of the Republic nor, as a result, successfully preserved at some later point in time. The fatal flaw therefore, according to Machiavelli, resides not in the laws themselves, but in the fact that they were not instituted until it was too late for them to be passed without violent opposition, or too late to be fully efficacious upon enactment. What, to Machiavelli’s mind, accounts for the fact that the laws were promulgated only very late? Or, rather, who prevented the laws from being passed even though they were discussed and proposed very early in the Republic’s history? There were good reasons for the plebeians to clamor for Agrarian legislation from the earliest days of the Republic. As Livy reports, while plebeian soldiers were in the field, senators and their clients foreclosed on their lands at home; consequently, the soldiers could no longer pay their debts since they lacked yields from the farms they had left uncultivated while defending the Republic. The senatorial class then worked these lands with the cheap labor of slaves, such that increasingly impoverished and unemployed citizen-soldiers fell into debt bondage or, later, stopped having children who could repopulate the army. 24 Moreover, the foreign territories that the citizen-soldiers conquered and the riches that they yielded, which were supposed to become the property of all Romans, instead fell into the “custodial care” of Roman nobles. According to Machiavelli, the Roman nobility apparently refused to recognize that the public good necessitated the limiting of economic inequality within the Republic. 25 Moreover, he declares they were angered at the prospect of losing new revenue sources, since agrarian reforms usually sought to distribute conquered lands among the plebeians, in actual practice rather than just in theory. Thus, in Machiavelli’s account, the Senate began to send Roman armies “to the farthest parts of Italy or outside of Italy” so that they might acquire lands that poor plebeians could not feasibly make profitable even if they were to own them. 26 Id. See generally 1–4 LIVY, HISTORY OF ROME, Books 1–10 (B.O. Foster trans., 1919–1926). For a particularly relevant discussion, see id. 4.49, 4.51, 6.5, 6.35; cf. 10 PLUTARCH, Tiberius and Caius Gracchus, in PLUTARCH’S LIVES 145–241 (Bernadotte Perrin trans., 1921). 25 MACHIAVELLI, supra note 6, bk. 1, ch. 37. 26 Id. 23 24 MCCORMICK.34.3 (clean) (Do Not Delete) 2013] 2/15/2013 12:12 PM INEQUALITY IN CONSTITUTIONS 887 These distant lands, in time, became an unlimited source of revenue for the few wealthiest Romans who could afford to maintain them—a source of revenue that inevitably exacerbated the inequality that already existed at home between the nobles and the plebeians. This inequality, Machiavelli suggests, corrupted the functioning of Rome’s assemblies, as increasingly poor and vulnerable citizens stopped openly questioning, criticizing, and when necessary, actively opposing legislation sponsored by increasingly rich, influential and self-interested individuals. 27 Furthermore, the nobles’ self-enriching policies made military commanders inordinately powerful. 28 According to Machiavelli, senatorially-driven acquisition of territory farther and farther afield from Rome and Italy necessitated the prolongation of military commands, which undermined the Republic’s “free way of life.” The Senate encouraged the creation of pro-consuls who required more than the customary, annual term of office to conquer and maintain the distant lands that were the source of the nobility’s steady streams of revenue. This laid the groundwork for Caesarism: fewer captains received military experience, hence necessitating reliance on a smaller and smaller cadre of commanders. Moreover, the increasingly proletarianized citizen-soldiers became economically dependent on the generals with whom they lived for years at a time away from the city. These circumstances generated the conditions for the civil wars that would destroy the Republic: warlords such as Marius and Sulla, Pompey and Caesar, Antony and Octavian, would eventually confront each other at the head of armies comprised of personal clients rather than Roman citizens. Many interpreters suggest that Machiavelli understood the Roman nobility to be driven primarily by a desire for glory or honor rather than by the more base appetite for acquiring and preserving wealth. 29 Yet, Machiavelli observes, when discussing the Agrarian Laws, that the Roman nobles, after protracted delays, “always yielded honors, offices to the plebs without extraordinary scandals.” 30 However, when it came to “property,” he declares quite explicitly that the nobility defended their privilege with the utmost “obstinance.” 31 Recall that this “property” the nobles considered their own was actually won for Rome by the plebeians through the sweat and blood of combat. Moreover, this “obstinance” invoked by the Florentine is an 27 28 29 30 31 Id. bk. 1, ch. 18. Id. bk. 3, ch. 24. See, e.g., LEO STRAUSS, THOUGHTS ON MACHIAVELLI 134, 169, 250 (1958). MACHIAVELLI, supra note 6, bk. 1, ch. 37. Id. MCCORMICK.34.3 (clean) (Do Not Delete) 888 CARDOZO LAW REVIEW 2/15/2013 12:12 PM [Vol. 34:879 explicit, if understated, reference to the butchery that the senators inflicted upon the Gracchi and their supporters in defense of economic inequality. In short, Machiavelli places the blame squarely on the nobles for causing the demise of the Republic: “so enormous is the ambition of the nobles that it soon brings a city to ruin if it is not beaten down by various ways and various modes.” 32 In other words, the nobles’ aspirations are more damaging to a republic than that of the plebs, and the latter need more than one means, such as the tribunate, to hold back the insolence of the great. “If the contention over the Agrarian laws took three hundred years to make Rome servile, it would perhaps have been led into servitude much sooner if the plebs had not always checked the ambition of the nobles, both with this law and with its other appetites.” 33 That is, in addition to the tribunate, the plebs were correct in seeking to reduce the nobility’s material advantages through the Agrarian Laws, and by seeking to share in offices such as the consulship. 34 But what exactly does Machiavelli mean when, as I mentioned previously, he expresses sympathy with the brothers’ “intentions, if not their prudence?” 35 He clearly does not besmirch the Gracchan cause. Therefore, he must reproach their methods. Machiavelli does not denounce the Gracchi for pursuing redistributive policies, as such; he seems only to criticize them for their timing in reviving these laws. Machiavelli remarks: “To try to correct a disorder that has grown in a republic through a law that looks very far back, is an ill-considered policy.” 36 This elusive statement seems to imply that retroactive law is especially obnoxious to those it targets; one cannot expect to take property away from those who have managed and benefited from it for some time without provoking them into uncivil behavior. Yet Machiavelli reports that the nobles were just as enraged by the law’s prohibition on their means of gaining more wealth in the future, as by the law’s redistributive impact on wealth that the senatorial order already controlled. Perhaps Machiavelli had something else entirely in mind here: rather than reviving what he describes as a very old law, Machiavelli intimates that the Gracchi ought to have instituted a new law. That is, like lawgivers or founders such as Lycurgus, in order to make the public rich and the citizens poor, they should have created their own law—one that bore their own names. In order to do so without any compromise 32 33 34 35 36 Id. (emphasis added). Id. Id. bk. 1, ch. 60. Id. bk. 1, ch. 37. Id. MCCORMICK.34.3 (clean) (Do Not Delete) 2013] INEQUALITY IN CONSTITUTIONS 2/15/2013 12:12 PM 889 of their political vision, the Gracchi, in all likelihood, would have been compelled to intimidate, coerce or neutralize the most intransigent obstacle to their designs, namely, the Roman Senate. Remember, the Gracchi merely pleaded with senators to acquiesce to their policies: they effectively asked the nobles for permission to distribute to the plebeians lands that enriched the nobles, and they followed fairly strict procedural avenues in doing so. In response, the Senate liquidated the brothers. Again, Machiavelli insists that the nobility were willing to negotiate with the plebs a sharing of honors and offices; but reforms aimed at economic equality require sterner measures and more compelling leverage. Perhaps, then, the “defect” in the Agrarian Laws that Machiavelli mentions is actually the defect in the Gracchi’s prudence that he explicitly criticizes, if less than fully explains: they attempted to legislate, that is, to seek lawful compliance on the part of the nobility in a matter where straightforward compulsion is necessary. In The Prince, Machiavelli criticizes the Gracchi for failing to avail themselves of a militarily-organized people. 37 But in the Discorsi, he attributes their demise to the imprudent, that is, humane, course by which they pursued a domestic agenda against the nobles. The two are not, of course, mutually exclusive. Machiavelli seems to suggest that the Gracchi had neither the inclination to coerce the Senate, nor, even if they did, the command of armed citizens necessary to do so. 38 As tribunes, the Gracchi presided over the people collected in their assemblies; but they lacked the formal, legal authority to command the people enrolled in legions. Machiavelli emphasizes on several occasions how such authority can be wielded effectively to eliminate an entire senate: most notably, by Agathocles the Sicilian 39 and Clearchus of Heraclea. 40 Consuls of Rome and praetors of other Italian republics— supreme magistrates publicly authorized with imperium and command of armed citizenries—can more successfully institute pro-plebeian reforms than can tribunes, who are merely civic magistrates. Or, at least, Machiavelli hints, supreme, military magistrates can more successfully institute controversial reforms than can tribunes who are faithfully— perhaps too faithfully—committed to observing established legal conventions, as were the Gracchi. If I am correct that Machiavelli insinuates that the Gracchi, in pursuit of their redistributive agenda, should have violently eliminated the senate rather than allow themselves to be violently eliminated by it, 37 See NICCOLÒ MACHIAVELLI, IL PRINCIPE (DE PRINCIPATIBUS) 168–69 (G. Inglese ed., Turin, Einaudi 1995) (1513). 38 Id. at 225–26. 39 Id. at 218. 40 MACHIAVELLI, supra note 6, bk. 1, ch. 16. MCCORMICK.34.3 (clean) (Do Not Delete) 890 CARDOZO LAW REVIEW 2/15/2013 12:12 PM [Vol. 34:879 then the following becomes an inconvenient fact for Machiavelli’s constitutional model. While Machiavelli insists, against his antagonists among the aristocratic literati, that the plebeian tribunate made Rome “more perfect,” 41 it could not solve the fundamental problem that led to the Republic’s collapse. 42 The episode of the Gracchi, and the socio-economic circumstances surrounding the Agrarian Laws, demonstrate that the tribunate was a necessary, but ultimately insufficient institutional means of protecting Rome’s liberty. To be sure, he declares that without tribunes constantly promoting Agrarian reform and exercising their other institutional powers on behalf of the plebeians, the Roman republic would have become corrupt and would have collapsed much sooner. But the tribunate could not definitively solve the problem of economic inequality and, thereby, forestall indefinitely the Republic’s decline and fall. There is another obvious problem with my interpretation of Machiavelli’s ultimate judgment of the Gracchi. Had the Gracchi indeed violently neutralized the senate, what would have separated them from the Republic-destroying warlords, whose very rise the successful passage of Agrarian reforms was supposed to prevent in the first place? Wouldn’t the Gracchi have become the moral and factual equivalent of the successful tyrants that followed them who did, in fact, destroy Roman liberty? Wouldn’t the Gracchi have hastened, rather than delayed the Republic’s demise? Since Machiavelli emphasizes “intentions” in his account of the Gracchi, we should examine his invocation of intentions elsewhere in the Discorsi, when he discusses the need to reform a republic in danger of becoming irredeemably corrupt. In Discorsi, Machiavelli states: “Since the [healthy] reordering of a republic presupposes a good man, and becoming prince of a republic by violence presupposes a bad man, someone good only very rarely wishes to become prince by recourse to evil, even if his end is good.” 43 In other words, there exist real, albeit very rare, instances where a good individual, who wishes to reform a corrupt republic, will resort to extralegal violence in order to do so. The Gracchi, on Machiavelli’s account, were oriented by intention, if not by prudence, to fulfill such a role. Their intentions were good but their prudence was deficient. Had they been more prudent, had it occurred to them to resort to “evil” means, in support of their “good” ends, according to Machiavelli, there is little chance that they would have established a tyranny. Moreover, not only were the Gracchi internally disinclined to be tyrants, they faced external circumstances not yet conducive to tyranny: 41 42 43 Id. bk. 1, ch. 3. See JOHN P. MCCORMICK, MACHIAVELLIAN DEMOCRACY 7–8 (2011). MACHIAVELLI, supra note 6, bk. 1, ch. 18. MCCORMICK.34.3 (clean) (Do Not Delete) 2013] INEQUALITY IN CONSTITUTIONS 2/15/2013 12:12 PM 891 at the moment when the Gracchi confronted the opportunity to crush the senate, the Roman people were not yet corrupted clients, who fully depended on their military-patrons for their economic well-being. Tiberius Gracchus, like, for instance, Agathocles the Sicilian, might have eliminated his republic’s nobility, instituted robust economic-military reforms, and died in his bed, leaving behind him a more egalitarian and civically-vibrant republic. However, as the Spartan example, mentioned before, makes clear, to Machiavelli’s mind, unilateral executive action, aimed at instituting economic equality within a republic, is a recurrent necessity, not a onetime-only proposition. Machiavelli notes how Lycurgus’s laws, however successful at the beginning, required violent re-establishment by successors such as Agis and Cleomenes to be effective in the long term. 44 Moreover, the results in the Spartan case, according to Machiavelli’s own account, were decidedly mixed. Even if the Gracchi had effectively acted, as Machiavelli hints they should have, other “Gracchi” would have had to emerge in the future to guarantee the perpetual success of their reforms. This did not work in the Spartan context. There is another possible route to reforms that would minimize the threat to a republic’s civic liberty posed by proliferating economicinequality. This one is less explicitly violent and less potentially threatening to civic liberty than one in which a supposedly wellintentioned magistrate violently eliminates the aristocratic opponents of his pro-plebeian reforms. It is, however, one for which there is even less support in Machiavelli’s texts: a republic’s wealthiest citizens could, of course, prudently avoid pursuing policies that radically increase inequality, and that, therefore, risk their own eventual political emasculation and/or economic expropriation by a tyrannical champion of the plebs. Indeed, rather than murdering fairly moderate economic reformers like the Gracchi, as did the Roman senate, a republic’s wealthy citizens perhaps ought to give away a few golden eggs rather than allow a princely usurper to emerge and, effectively, kill the goose that lays them. At several points in his writings, Machiavelli notes how the nobles of Rome and Florence might have been more accommodating to the people, rather than pursue courses that jeopardize their polity’s free status and their own privilege and prestige within it. In particular, he demonstrates how Octavian and the Medici gained their respective principates by exploiting hubristic aristocratic overreaching in such circumstances. 45 However, despite underscoring these opportunities for prudent judgment on the part of a republic’s wealthiest citizens, Machiavelli 44 45 Id. bk. 1, ch. 9. Id. bk. 1, ch. 52–53. MCCORMICK.34.3 (clean) (Do Not Delete) 892 CARDOZO LAW REVIEW 2/15/2013 12:12 PM [Vol. 34:879 provides no examples where such nobles actually do pursue a wisely conciliatory strategy on the issue of economic inequality. Instead, the oligarchs invariably seek to maximize their economic advantages such that they inevitably undermine both the people’s liberty and the very conditions on which their own status and privilege depend.