Greece, Rome, and the Bill of Rights (36 page)

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Authors: Susan Ford Wiltshire

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

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religious traditions. Worship of non-Roman deities continued, as attested by the discovery of numerous altars to the Druidic gods of the Celtic pantheon. Perhaps as a countermeasure, Augustus instituted an annual religious festival of a strictly Roman character at Lyons, where his representative Drusus consecrated on August 1, 12
B.C.
, an altar to Roma and the genius of the ruler. Each of the Gallic districts was to choose each year a priest to conduct the annual sacrifices at this altar and the festival games associated with it. Augustus also prohibited Roman citizens from taking part in the Gallic cults, but beyond that he does not seem to have taken any further measures against the national religion. Tiberius outlawed Druidism, a move that Claudius after him had to reiterate. By the third century a Gallo-Roman flavor predominated in the religion of the area, and both components eventually gave way to Christianity.
While national traditions in Gaul were respected in other areas insofar as they were compatible with Roman imperial administration, this was not the case with the Celtic language. Celtic continued to be spoken and written, but it was the design of Roman administration that provincial government throughout the empire should be conducted entirely in Latin. The church father Jerome, who had travelled in Galatia in Asia Minor as well as in Gaul, commented that the spoken Latin was roughly the same in both placesa testament to the spread if not the elegance of the language. No coins were struck or monuments raised in Gaul with Celtic inscriptions. The final coup to the Celtic dialect came, however, not through the designs of Roman imperial administration but through the Christianizing of Gaul with a Gospel preached in Latin.
The granting or withholding of citizenship privileges was historically Rome's master stroke for maintaining control of the provinces. In the case of Gaul, Augustus withdrew the privileges of candidacy for the imperial magistracies and thus to the imperial Senate from those native Gaulsthe inhabitants of Lyons always exceptedwho might have gained them one way or another, perhaps

 

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through a grant from Julius Caesar. It is not clear whether this was to limit the intrusion of foreign elements into the Roman system or to promote a continuation of Gallic traditions of governance. In any case, these restrictions on Italian rights were removed by Claudius (emperor in
A.D.
4154), who was born in Lyons.
The Roman capacity for appropriating from the peoples it appropriated is nowhere more evident in the case of Gaul than in military matters. With the disappearance of the old citizen cavalry of the Roman Republic, the cavalry of the imperial armies became essentially Gallicnot only because it was largely recruited from Gaul but also because the cavalry maneuvers and even technical terms were taken from the Celts when Caesar and Augustus reorganized the cavalry.
Gaul was a wealthy province, with extensive natural resources including wine, agriculture, and livestock, especially cattle and sheep. Roman rule enhanced this prosperity; Roman taxation prodded it on. Evidence both of the prosperity of the region and of its increasing Romanization still survives in such imposing monuments as the amphitheater at Arles, the theater of Orange, and the temples and bridges near Nîmes. Gallic wealth was so remarkable that, as Josephus reports, King Agrippa put to the Jews the question of whether they imagined themselves to be richer than the Gauls, stronger than the Germans, or more sagacious than the Hellenes.

30
In Lyons the wealth was so extensive that when Rome suffered the catastrophic fire in
A.D.
64, which destroyed much of the city, the Gallic city sent relief of four million sesterces to the Romans who had suffered losses.

It was wealth such as this that inspired Roman attention to its provinces. Rome managed its empire through an ad hoc mix of mechanisms combining intentional design with pragmatic accommodation to local institutions. By the time of the empire this combination had been evolving for over two hundred years in the wake of Roman expansion throughout the Mediterranean, but the case of Gaul is instructive because of the newly centralized and ongoing role of the emperor at the center of the show.

 

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In the imperial provinces of Gaul, administrative strategies included strict control of access to the magistracies and other privileges of citizenship; special favors granted to certain cities; toleration of local religious practices together with the institution of elaborate Roman rituals in honor of the emperor, rituals that also enticed the native elite into the Roman sphere; the pragmatic appropriation of military expertise; deference to certain local institutions such as the proper length of a mile; and insistence on Latin as the language of empire. This combination of strategies worked for the most part because it was gradual enough, and the preferments enticing enough, that the Gauls themselves came to want to be Romans. Throughout its history Gaul remained a monument to the success of Romanization.
The great similarity between the Roman Empire and America in regard to the powers reserved to local government lies in the pragmatism with which the systems were developed and the flexibility that made both so workable for so long. Rome's practical capacity for imposing new patterns on old traditions maintained the semblance of continuity and smoothed the transition from regional autonomy to the centralized Roman order.
The difference between the Roman and American experiences is, of course, greater than the similarities. That difference is federalism and the direction of the flow of power. Rome conquered and created its provinces. In America, the states created the Union. In Rome, power was always located at the center, with privileges conferred on the provinces and imperial administration flowing in one direction only: out from the center. In America, the Constitution, ratified by the states, created a federal system with rights and powers specifically delegated to the national government and others continuing to reside with the states. Privileges conferred can always be withdrawn. A constitution establishes mutuality.
The federal system in the United States was established not by the Tenth Amendment but by Article I of the Constitution. Sections 1 through 7 define the organization of Congress and the functions of each of its houses.

 

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Section 8 details the positive powers of Congress, while Section 9 enumerates prohibitions. The tenth and final section of Article I lists actions that are prohibited to the states.
Some issues related to the Tenth Amendment, like those of the rest of the Bill of Rights, still have not been permanently settled. The greatest point of conflict has arisen in relation to the commerce clause of Article I, Section 8: ''The Congress shall have Power.... To regulate Commerce with foreign Nations, and among the several States." The question of whether the federal government can also regulate commerce
within
and not just
among
states falls into an open space between Article I and the Tenth Amendment.
That space was the battleground for several cases related to the imposition of federal child labor and minimum wage laws on local municipalities and businesses that do not engage in interstate commerce. In 1918 in
Hammer v. Dagenhart
,

31
the Supreme Court struck down the Child Labor Law as "repugnant to the Constitution." It continued, "If Congress can thus regulate matters entrusted to local authority, all freedom of commerce will be at an end, the power of the States over local matters may be eliminated, and thus our system of government may be practically destroyed."
32

In 1941 the Supreme Court in
United States v. Darby
33
overruled
Hammer v. Dagenhart
. Here the Court held that the power of Congress over interstate commerce is complete in itself and may be exercised to the fullest. Both of those cases involved private employers, however, leaving unresolved the question of whether the federal can regulate the commercial activities of state and local governments.
In 1976 in
National League of Cities v. Usery
,
34
the Supreme Court struck down an act of Congress that extended a federal minimum wage law to most state employees, asserting that "there are attributes of sovereignty attaching to every state government which may not be impaired by Congress"
35
because the Tenth Amendment of the Constitution prohibits it. Only nine years later,

 

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however, the Court reversed itself in
Garcia v. San Antonio Metropolitan Transit Authority
.

36
Decisions in both
National League of Cities
and
Garcia
were reached by votes of five to four, illustrating how controversial the issues related to federalism continue to be.
37

In 1957 Edward Dumbauld wrote that the Ninth and Tenth Amendments were dead letters in practice, not because conditions have changed but because of the ''intrinsic nature" of the amendments themselves. He terms the Ninth Amendment a "simply technical proviso," which was not intended to add "anything of meaning" to the Constitution. "Similarly,'' he continues, "the Tenth Amendment really adds nothing to the rest of the Constitution," since it states only that powers not granted to the federal government are reserved but fails to clarify what powers have or have not been granted.
38
Much has changed in the intervening years to alter such an assessment of the last two amendments of the Bill of Rights. The rights of citizens and the best mechanisms for power-sharing are two of the most crucial questions for any political system. By fashioning the Ninth and Tenth Amendments as they did, the framers left open a spacious plain that would allow for future expansions of civic consciousness, just as the amendments themselves stand as a measure of the evolution of issues first addressed in the classical world.

 

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CONCLUSION
The ideas and practices that formed the Bill of Rights are older than we thought. They are older than two hundred years. They are older even than eight hundred years. When traced to their earliest origins, they represent the yearnings of people over a period of two and a half millennia for better ways of living together and for civic arrangements that bring those hopes to reality.
For individuals to live together happily in communities requires a compromise between freedom and order. The Bill of Rights achieved this balance because of the two intellectual traditions that combined to give it birth: the natural law tradition, with its earliest origins among the Greeks, and the positive rule of law that is the gift of Rome.
It was a belief in natural law that undergirded the claims of the framers to the rights articulated in the first ten amendments. Although there was no theory of inherent individual rights in antiquity, that idea originated in the doctrine of natural law first articulated by the Greek philosophers, especially the Stoics, and then mediated through the political traditions of the Continent and England.
The framers were also committed to the rule of law as

 

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the basis of civil society. The civic and legal institutions of Greece and Rome underlie almost all the provisions of the Bill of Rights. While the Roman contributions are greater in the matters of criminal and civil procedure, the Athenian genius endures in such practices as freedom of speech, freedom of assembly, and trial by jury.
The early political achievements of Athens and Rome reflect their recognition of basic problems of society and politics. The ancient Athenians were capable of innovation because they were more interested in equity (
epieikeia
) than in strict applications of law. Their tolerance for "legal uncertainty" contrasts with the
ius strictum
of the Romans, the preference for tying down all the details in "black letter law."
The American framers wanted it all: equity, freedom, and a written constitution in which to make those things secure. The Bill of Rights, stitched together out of a host of experiences, ideas, and beliefs, was the enduring piecework by which they established those values as the law of the land.
An understanding of the long heritage of the Bill of Rights helps us realize that in terms of its defining documents, the United States is founded on traditions stretching back to Greece and Rome rather than to Jerusalem. In our civic infrastructure we are a secular nation.
The Constitution is the glue that holds American society together. It is the only defining document that applies to everyone and to which, by virtue of citizenship, the assent of everyone is implied. It provides the foundation for what has been called "constitutional faith," that is, an attachment to the Constitution as the basis of political life for both individuals and the nation.

1
In an odd way, Homer's poetry provided a similar glue for the diverse communities of ancient Greece. Homer was the
biblos
, the secular "book," that provided a common frame of reference for diverse peoples and communities without requiring conformity.

In ancient Rome, where there was no separation between church and state, not to believe as the majority believed was seen as a political lapse or unpatriotic devi-

 

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