As the celebration of Constitution Day attests, Americans still honor our Constitution. But is it alive and well and with us still, actively guiding our decisions and shaping our law? Or is it something that we gratefully acknowledge for its historical significance but then ignore—like the Mayflower Compact, for instance, or maybe the Magna Carta?
It is surely true that we continue to invoke and talk about the Constitution as if it were our currently governing law. And at least some of what happens in modern governance does seem to conform to what the document prescribes. For example, every state is still represented in Congress by two senators, even though some people think it is unfair that Wyoming and Nevada get as much representation in the Senate as New York and California do. Those senators are directly elected by the people, which is not what the original Constitution provided, but that change was formally and explicitly authorized by the adoption, in the constitutionally prescribed manner, of the Seventeenth Amendment. So, in this case, we seem to be adhering to the Constitution in a plausible, straightforward sense.
In other areas, though, our laws seem only distantly related to, or even incompatible with, what the Constitution prescribes. In these areas, the Constitution exercises a kind of ceremonial or perhaps diversionary function; it provides a venerable facade that covers or disguises the real workings of government. This sort of situation is hardly without precedent; a look back at the disintegration of republicanism in the Roman Empire yields important lessons for contemporary American government.
From Republic to Empire
As the renowned historian Edward Gibbon described, in the Roman Empire, the outward forms of the ancient republican constitution were largely preserved. But these forms were a mere façade—camouflage for the largely unconstrained power of the emperors. Thus, what Romans enjoyed under the empire was not actually democratic liberty but rather, as Gibbon delicately put it, the “image of liberty.”
Although he effusively praised the middle period of the empire as a “golden age,” Gibbon was candid about the Romans’ loss of self-governance, and he recounted how this loss had occurred. After the banishment of the kings in the sixth century BC, the Romans had carefully and jealously guarded their rights of self-rule through a government composed of various assemblies, including the senate, and of officials elected by the citizens for one-year terms. Of these officials, the most important were the two consuls and the ten tribunes, who represented the common citizens. This system of governance had evolved and functioned over a period of centuries.
During the first century BC, Rome was wracked by a series of devastating civil wars: the soldiers of Sulla fought those of Marius, the legions loyal to Julius Caesar engaged those commanded by Pompey, and the armies (and navies) of Octavius battled and eventually defeated those of Mark Antony. Under Sulla, and again under Octavius and Antony, proscriptions had been issued essentially licensing the slaughter of large numbers of leading citizens, including the venerable Cicero.
After defeating Antony at Actium in 31 BC, Octavius skillfully orchestrated a ceremony in which he submitted his resignation to the senate but was then prevailed upon to accept simultaneous ten-year (renewable, and renewed) appointments to a number of powerful offices. It was then that Octavius was given his new name of Augustus. Gibbon explained that the various governmental offices, especially those of consul and tribune, had constituted a sort of separation of powers that had constrained governmental authority. Once those offices were united in a single man, the holder’s power became practically irresistible. The result, Gibbon explained, was
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.
In Gibbon’s view, in the earlier years of the Roman Empire, under Augustus and his immediate successors, the loss of liberty had “rendered [the Romans’] condition more completely wretched than that of the victims of tyranny in any other age or country.” But that wretchedness had resulted from two contingent factors. First, Rome in that period had the misfortune of being ruled by a series of spectacularly bad and sometimes deranged emperors including, most infamously, Caligula and Nero. Second, the subjects of the early empire felt the loss of democratic freedom more sharply because “they for a long while preserved the sentiments, or at least the ideas, of their freeborn ancestors.”
Under the later Antonine emperors, by contrast, rulers were for a time more temperate and benign. By that time, self-governance was little more than a distant memory, so its absence was not resented. The “image of liberty”—or the trappings of constitutionalism—were sufficient to keep the Romans satisfied. Augustus understood, Gibbon explained, “that mankind is governed by names.” He knew that
the senate and the people would submit to slavery, provided they were respectfully assured, that they still enjoyed their ancient freedoms. A feeble senate and enervated people cheerfully acquiesced in the pleasing illusion, as long it was supported by virtue, or by even the prudence, of the successors of Augustus.
In other words, as long as the government was tolerably effective, reliably provided the “bread and circuses” on which the people had come to depend, and maintained the facade of the ancient constitution, the Romans, now lacking “the sentiments . . . of their freeborn ancestors,” were content to be supine subjects.
So, does Gibbon’s analysis of the Roman system have any application to the American system of governance today? To be sure, any analogy would surely not be exact. Instead of a century of bloody civil wars, America’s story features a tumultuous century containing the Progressive era’s ideal of a regulatory government based on scientific expertise, the Great Depression and the New Deal, and later the Sexual Revolution and the Civil Rights Revolution and the Culture Wars. And the reality lying behind the facade of the ancient constitution would not be an “absolute monarchy,” as Gibbon discerned in Rome, but something quite different. Three main features characterize contemporary American government’s departure from the democratic republic prescribed by our Constitution.
First, governance today occurs much more at the national level than the Constitution or the framers contemplated.
Second, at the ground level, much or most of the federal law that regulates the day-to-day affairs of Americans is enacted not by our bicameral Congress but rather by unelected administrative agencies whose procedures maintain only a pretense—“pleasing illusion,” to borrow Gibbon’s phrase—of conformity to constitutional separation of powers. The so-called “contraception mandate,” for example, that imposes on the consciences and convictions of many employers, was not and almost surely could not have been adopted by Congress itself; it was imposed by the Department of Health and Human Services.
Third, most serious issues are resolved not by elected legislators but rather by unelected judges based on a mere figment of connection to the Constitution. The recent imposition of same-sex marriage on the nation by judges unwilling to allow this ostensibly irresistible development to be implemented democratically is a leading case in point. As Chief Justice Roberts observed, the outcome had nothing to do with the Constitution.
In sum, both at the ground level and at the grand level, the realities of governance today deviate substantially from the kind of governance contemplated by the Constitution. On both levels we might argue about whether the law that governs us is “for the people,” but it is surely not of or by the people in the rather strong sense contemplated by the historical Constitution.
What Is To Be Done?
I can envision three possible responses by those who find our current situation unsatisfactory.
One response would be to try to remedy the situation—to bring government into line with the Constitution—through what we might call “regular” means. We might work to elect presidents and representatives who understand and who care about the Constitution, who will work to downsize the administrative state, and who will appoint or confirm judges with a sound constitutional understanding and commitment. These “regular” efforts seem worth exploring and attempting. But I have to admit that I don’t see any great likelihood of bringing about significant change in this way.
So we might think about a second strategy: resisting extra-constitutional governance through extra-legal or “irregular” means, such as passive resistance or civil disobedience. An instance would be the recent refusal of the Governor of Oklahoma to comply with the state supreme court’s order to remove a Ten Commandments monument. A more recent example is the highly publicized case of county clerk Kim Davis in Kentucky, who was jailed for refusing to sign marriage licenses for same-sex couples.
This strategy of “irregular” resistance raises difficult questions, both practical and theoretical. How can a government function if its officials refuse to carry out the law of the land? Is passive resistance to governance that we consider contrary to the Constitution unethical? Is civil disobedience a violation of the rule of law? Or does it constitute adherence to a more fundamental form of natural law? Regardless of one’s opinion of the morality or legality or such methods, thus far neither regular nor irregular opposition have seemed to succeed in turning the tide. So what else is there?
Alas, the remaining alternative seems to be capitulation. We might acknowledge that governance today departs in crucial respects from the constitutional plan, but then either happily or reluctantly acquiesce in this state of affairs. It’s a fait accompli. And really, would acquiescence really be so bad? There is plenty to criticize in contemporary governance, no doubt. Even so, Americans today still enjoy levels both of liberty and prosperity that would be envied by most people through most of history. Why not just be grateful for what we have?
Although we surely should be grateful for the liberty and prosperity we enjoy, I would suggest that complacency is unwarranted. To explain why, let me return once more to Gibbon.
An “Image of Liberty”
Gibbon thought that even though Romans under the Antonine emperors enjoyed only an “image of liberty,” they nonetheless were favored to live in a “golden age” that, all things considered, was the most blessed time in human history. But this was because they had the good fortune to be governed, for several decades, by wise and benevolent rulers. Without self-governance, there was no guarantee that such benevolent rule would continue.
In fact, it didn’t: the enlightened philosopher-emperor Marcus Aurelius was succeeded by his depraved son Commodus and then by a series of tyrannical rulers. The earlier replacement of genuine liberty by “the image of liberty” meant that there was no refuge for anyone. As Gibbon put it:
the empire of the Romans filled the world, and when that empire fell into the hands of a single person, the world became a safe and dreary prison for his enemies. The slave of Imperial despotism, whether he was condemned to drag his gilded chain in Rome and the senate, or to wear out a life of exile on the barren rock of Seriphus or the frozen banks of the Danube, expected his fate in silent despair. To resist was fatal, and it was impossible to fly. . . . “Wherever you are,” said Cicero to the exiled Marcellus, “remember that you are equally within the power of the emperor.”
In many respects, the powers and reach of our rulers are more formidable than in Roman times. Our police forces, our bureaucratic machinery, and our powers of surveillance vastly exceed anything the emperors could have imagined. As we contemplate the choice between regular or irregular efforts to uphold the historic constitution and acquiescence to the seemingly irresistible power of the administrative state and the imperial judiciary, we would be wise to keep that fact in mind.
The question, I suppose, is whether we will demand actual liberty—including the authority truly to govern ourselves—or whether we will be content with, as Gibbon put it, “the image of liberty.”
Time will tell.
Steven Smith is Professor of Law at the University of San Diego.