What might Rome tell us about the making of a constitution?  The most significant intervention in Roman political theory recently has been Benjamin Straumann’s massive account on crisis and constitutionalism. There are three parts to Straumann’s hugely rich argument which are relevant here. First, Straumann argues that Rome developed a notion of a constitution, albeit under the pressure of its imminent collapse; second that that constitution outweighed more philosophical notions of individual virtue; and third that this notion of the Roman Constitution was itself a form of imagination with power and resonance in subsequent periods.
None of this is uncontroversial. However, there are some very strong arguments which resonate with the American case, and in particular we see a parallel between the process by which Cicero builds a constitution (or a constitutional mirage) and the way that the notion of a fixed Constitution takes shape in the specific debates of the 1790s.
Cicero is a perfect example of Gienapp’s position that we should look at the arguments and not just at the motives. It is easy to dismiss Cicero’s writings as serving the narrow interests of his political allies and the personal goal of winning philosophical glory. However, this will not quite do, first because Cicero was not alone in arguing over the nature of Roman politics, and second because his arguments were touching on genuine problems over authority and power.
The distinction however between Cicero and the American case is that Cicero could not have hoped to deliver an agreed text (the Laws was never going to become an act of popular authorship). He looks instead for a very highly wrought notion of natural law. Vickie Sullivan argues that Straumann sets the bar extremely high – other constitutions manage to check overweening power by magistrates or unlimited popular sovereignty without such a claim. Indeed it would be a fairly straightforward proposition that Rome managed it for some time largely by reference to variants of the virtue argument.
Straumann’s counter-argument is that Cicero is constructing an argument that survives the failure of morality, that survives crisis. The place critically where this must sit is in law, not ethics, and Cicero indeed presents the Laws as a quasi-amendment of the earliest Roman law code, the Twelve Tables (archaic Latin included). However, Cicero then has to deal with the problem of illegitimate law-making, and hence the need for a natural law statement of popular authorship. A good example is the way that Sulla’s dictatorship does not set precedent because it goes against the principle of limitation of duration of office. The question is how far the assemblies can diminish the rights of the sovereign people.
The irremovable right of the people to provocatio or appeal, and the expectation of limited tenure of office, thus function on Straumann’s account as principles of indefeasible privilege. Whether we want to call this constitutionalism is up for debate, but it is incontestable that it is the language of crisis.
It is precisely here that Straumann and Gienapp are, I think, tracing the same sort of process. In both cases, historical circumstances raise a question which the available legislative and governance mechanisms cannot readily resolve. At Rome, this happens with issues such as extraordinary commands, or the use of law to subvert custom and practice such as the limitation of office. In the America, it was provoked by for example the Jay Treaty with Great Britain, or the creation of a national bank. At Rome, acceleration of social and political change outstripped the older ways of mediation; in America the Constitution was still very young. In both cases, the lawmakers ramp up the rhetoric to locate and fix what is intended to be a permanent solution. They are of course partial, and subject to the play of personal and factional interest; but the arguments are on a different level, and have persisting force. In America, the arguments force figures such as Madison into constructing political scripture. What about Rome?
The first question is whether Cicero was talking, more or less, to himself. It would damage Straumann’s case to some extent, and much more my argument for a parallel, if this were the case. I offer two obvious counter-arguments. First, Cicero is directly engaging with Stoic ideas of politics, and there were plenty of Stoics in Rome. One of them, Marcus Brutus, was excerpting the Greek historian and political thinker Polybius on the eve of the battle of Pharsalus and would go on to kill the man he believed was seeking to be a king.
As a highly speculative idea, I also wonder if we can associate the Roman interest in the late Republic in language with their constitutional interests. Gienapp is at his most brilliant when discussing the way the Constitution was a linguistic artefact, and the very nature of the language was one of the issues at stake. Clarity was necessary for the People’s Constitution; words need to be taken in their ordinary signification. In the late Republic, few spoke more strongly for simple language and fixed meanings than Julius Caesar. But the upshot of both Anti-Federalist and Federalist arguments was to highlight the inadequacy of words and to accuse the other of misinterpretation. Such arguments seem close to the way the Romans fought so hard over words like bonus (good) and libertas (freedom), all claiming to be the only exponents of true meaning.
Second, as Straumann shows, we do not get to this crisis without there having been arguments made in different directions – the most obvious are Tiberius Gracchus’ arguments that the will of the people is more important than the individual view of a tribune or than the custom of not being elected twice in succession as tribune. Taking these two points together reminds us that Cicero’s natural law is no less a confection of unstable contested propositions than the Constitution.
This then leads to the next and final point. Straumann wishes to show that Cicero’s arguments had the power to influence constitutional imaginations long after his time, from the middle ages to Grotius and on, and although he does not make the case fully, one could indeed drive this through into the Federalist Papers. Cicero himself however was killed in the proscriptions, his severed head and hands nailed to the Rostra, and was thus spared the sight of Augustus as undisputed emperor, subverting all the principles which Cicero had enunciated. So did his act of ‘fixing’ fail?
I think one could legitimately argue that the appeal to natural law succeeded in spite of its origins, in the same way that the Constitution succeeded in entrenching power despite its emancipatory intent. It was Stoicism which provided the philosophical substrate of late Republican debate; it was Stoicism which pervaded the early empire from senator to emperor. What is perhaps burnt out of the Ciceronian model is the focus on law rather than ethics. Emperors could live with ethical expectations more easily than they would accept being subject to the law. As Gienapp traces, the conversation in the 1780s and 1790s returns to the problem of the limits on popular sovereignty and on the power of executive, and, not coincidentally, just where Straumann suggests Cicero and others had left it in the crisis of the Republic.
 See https://anatomiesofpower.wordpress.com/2019/02/25/fixing-the-constitution/ for the first part of this argument.
 Benjamin Straumann, Crisis and Constitutionalism: Roman Political Thought from the Fall of the Republic to the Age of Revolution, Oxford 2016. (I have learnt much from conversations with Benjamin over this and other topics).
 See Global Intellectual History 2018 for three articles on the book and Straumann’s response.
 On the Laws see Jed W. Atkins, Cicero on Politics and the Limits of Reason: The Republic and Laws (Cambridge, 2013).
 On the little we know of Caesar’s grammatical works, see the restrained account of G. Pezzini, ‘Caesar the Linguist: The Debate about the Latin Language,’ in Luca Grillo and Christopher B. Krebs (eds.) The Cambridge Companion to the Writings of Julius Caesar (Cambridge 2018): 173-92.
 See Robert Morstein-Marx, Mass Oratory and Political Power in the Late Roman Republic (Cambridge 2004).
 Valentina Arena, Libertas and the Practice of Politics in the Late Roman Republic (Cambridge 2012); P. A. Brunt, Studies in Stoicism (Oxford 2013).