Constitutional design in the ancient world.

• Author: Lanni, Adriaan

INTRODUCTION I. HISTORY A. The Greek Lawgivers B. Distinctive Features of Ancient Constitutional Design II. VIRTUES AND VICES OF ANCIENT CONSTITUTION-MAKING A. Single Founders 1. Virtues a. Coherence and workability b. Accountability c. Speed: opportunity costs and decision costs 2. Vices a. Selection and variance b. Representation: political and epistemic c. Political representation d. Epistemic representation B. Outsiders as Founders 1. Virtues a. Impartiality 2. Vices a. Information b. Political representation and burden-sharing C. Comparative Statics 1. The best case 2. The worst case 3. Some intermediate cases III. IMPLICATIONS A. Symbolism and Legitimacy B. Constitutional Interpretation 1. Originalism 2. Coherentism 3. Foreign law 4. Interpreting the mind of the foreign founder? CONCLUSION INTRODUCTION

The literature on constitutional design swells by the day. In law, political theory and political science, economics, and history, scholars consider the political and economic effects of constitutional structures and institutions, the optimal design of constitutional arrangements, and the microfeatures of constitution-making assemblies. Comparative politics and economics supply most of the examples and data.

Amidst all this work, however, a major resource for the theory of constitutional design has gone largely unexploited: the ancient world. Contemporary scholars occasionally discuss the Roman Republic, but mostly in the context of emergency powers, and with a focus on the Roman dictatorship. (1) There is also some recent and important work on the virtues of the classical Athenian constitution. (2) By and large, however, the ancient world is terra incognita for the theory of constitutional design. Even historically inflected work in the area often goes back no farther than the eighteenth century, focusing on constitutional design in recognizably liberal-democratic polities after 1789.

As it turns out, however, the ancient world had a rich tradition of constitutional design. Athens and Rome hardly exhaust the topic; as we will see, many city-states of the ancient world, particularly the Greek world, experimented with novel forms and procedures of constitutional design. Even as to Athens, the recent work says little about the striking process by which the classical Athenian constitution came into being.

Our most general aim, then, is to exploit the intellectual resources the ancient world offers. That world, we suggest, provides a form of comparative political history that is optimally different from our own world: sufficiently close to be useful, sufficiently alien to supply unfamiliar institutional forms that can enrich the repertoire of modem polities designing or redesigning their constitutions. Of course, the bare fact that such institutional forms worked in ancient polities does not show that they would work in very different modem ones; background political and institutional differences must be taken into account. However, the ancient world suggests institutional possibilities that have been neglected by the modem world, and offers some evidence about the conditions under which those possibilities might prove useful.

Our more specific aim is to explore two distinctive features of ancient constitutional design that have largely disappeared from the modem world, yet are potentially useful even under modem conditions. These two distinctive features could appear either separately or in combination. First, many ancient constitutions were produced by single founders. Solon of Athens is the most famous, and the best-documented, but single-founder constitutionalism is attested for a number of city-states.

On this dimension, the contrast with the modem world is striking. The French Constitution of 1791 was written by an assembly of no less than 1200 people. (3) One of the smaller groups on record was the one that assembled in Philadelphia in 1789 to write the American Constitution; the group numbered fifty-five, of which thirty-nine signed the eventual product. (4) These two extremes represent roughly the upper and lower bounds in modem polities; (5) there are no Solons to be found. Monarchs in various countries have handed down so-called "octroyed" constitutions from the throne, most famously in Prussia in 1848, (6) but formal participation in democratic constitution-making has become almost exclusively the province of multiple founders. In the bout of constitution-making after 1989, for example, the number of formally designated constitutional drafters reached multiple hundreds in a number of cases. The institution of single-founder constitutionalism in recognizably democratic states died with the ancient world and was more or less forgotten. We will consider its virtues and vices, and claim that under plausible conditions, it could still make sense today.

The second unfamiliar feature of ancient constitutional design is constitution-making by outsiders--by individuals not citizens of the polity the constitution regulates. Although the modern world occasionally sees constitutions forcibly imposed by an outside power, citizens of particular polities in the ancient world would sometimes voluntarily and collectively delegate constitutionmaking to an outsider. That practice has largely disappeared. (7) In the modern world, at least since 1789, foreign constitutional advisers are legion, but formal power to vote on or propose a constitution is usually restricted to citizens of the relevant polity. The possibility of outsider founders has virtues as well as vices, and belongs in the repertoire of modern constitutional design under plausible conditions.

We show that in some respects single founders and outsider founders offer several advantages over representative bodies of citizens. Individuals are more apt to produce an internally consistent document and to avoid the incoherent bargains and poorly considered compromises that plague constitutions produced through group decisionmaking. Single founders are also more directly accountable for their work. Finally, using a single founder provides speed in the case of crisis, and avoids the risk that a representative body will reach an impasse and fail to produce a constitution. On the other hand, using a single founder involves another sort of risk, since individuals are likely to display greater variance than a large group. The most serious objection to a single founder is that the interests of the society's various social, political, and economic groups are not represented in the constitution-making process. The lack of representation is a nontrivial objection, but it should not be overstated. The compromises worked out in committee, and the conflicts visible within a voting group, may cause individual citizens to feel as though their interests are less well represented in a committee-made constitution than in a constitution produced by a well-respected individual whom they trust to consider all points of view. Paradoxically, a single individual who embodies all relevant views and interests can be more representative than a group composed of conflicting parties.

Foreign founders offer an additional measure of impartiality because they are not affiliated with any of the contending factions within the state. One might object that a foreigner would not have enough information about the society for which he is writing a constitution, but this defect could be easily remedied by gathering information from informal advisers. Additionally, foreigners may pose even more of a problem from the standpoint of representation than single founders, though this vice may be lessened by the requirement that any proposed constitution must win ratification, and thus consent, from the people. It is not our contention that the use of a single or outsider founder is preferable in all, or even most, situations, but simply that there are plausible conditions under which the advantages of these forms of ancient constitutionalism outweigh the disadvantages.

Even if the use of a single or an outsider founder is theoretically preferable in some situations, is it imaginable that the citizens of a modern democracy would hand over the writing of their constitution, and would accept the founder's product as legitimate? We explore how and why citizens might agree to appoint an individual, and perhaps even a foreigner, to write their constitution. Particularly where there are sharp divisions in the society, different factions might agree to an individual mediator either because they believe him to be truly impartial, or because both sides plausibly believe that the founder will favor their interests. Once the founder has proposed a constitution, the process of popular ratification would be critical to ensuring that the constitution is accepted by the citizens as legitimate. Although the constitution's legitimacy would be grounded in popular ratification, such a constitution's origin as a document written by a single founder would have profound ramifications on how it is interpreted. In particular, originalism in the sense of attempting to discover the founder's intent would become less practically problematic; coherentist interpretation--that is, reading individual clauses in light of the whole document-would have more to recommend it; and consulting foreign law would seem more natural.

Part I describes the process of constitution-making in the ancient world, and lays out the two distinctive features of ancient constitutional design. Part II considers the virtues and vices of both single-founder constitution-making and constitution-making by outsiders. We then draw together the threads of this analysis by considering some variables that make single-founder constitutionmaking and constitution-making by outsiders more or less attractive. Part III turns to implications and an agenda for future research. We try to understand how constitutional legitimacy would work, and how constitutional...