Greece, Rome, and the Bill of Rights (35 page)

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Authors: Susan Ford Wiltshire

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

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Respect for those procedural constraints, as Barnett notes, is the price of using public as opposed to private institutions to achieve social goals.

14

One may, however, take a more thoroughgoing natural rights approach to the Ninth Amendment. Bennett B. Patterson, for example, emphasizes its close connection with the Declaration of Independence, which does not state that rights and liberties are contrived by governments but rather are "inalienable" and are "endowed" by a "Creator.'' Jefferson carefully prefaced his list of the rights of life, liberty, and the pursuit of happiness by the words "among these," implying that such a list is not complete. Governments, he adds, are instituted "to secure these Rights."
Patterson would see the Declaration of Independence as a legal as well as philosophic document and looks for the day when the courts will cite it as a legal authority for a doctrine that individual liberties are natural and inherent rather than deriving from the U.S. Constitution. The Constitution, says Patterson, echoing Jefferson, was never intended to be the creator but only the protector of these rights.
15
This view understands the Ninth Amendment as opening the door to a wider range of rights, wider than the Constitution and, for Patterson, wider also than the Declaration of Independence. It recognizes a spectrum of individual rights more inclusive than those consistent with presently enumerated constitutional principles.
Prior to 1965 the Supreme Court had never used the Ninth Amendment as a basis for a decision. Then, in
Griswold v. Connecticut,
which concerned the legality of making information about contraceptives available to married couples, the majority opinion, written by Justice Douglas, used the Ninth Amendment as support for the existence of a "penumbra" of privacy surrounding certain specific rights in the first eight amendments.
16
in a concurring opinion, Justice Goldberg elaborated on the language and history of the Ninth Amendment, which reveal "that the Framers of the Constitution believed that there are additional fundamental rights, protected from govern-

 

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mental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments."

17
This reinforced the view that further individual rights may inhere in the notion of "liberty" or in the nexus of the Bill of Rights, and that it is the obligation of the Constitution to protect them.

Griswold
began a new era in the expansion of individual rights. In its wake the courts decided such cases as those having to do with schoolboys and long hair, fundamentalists and schoolbooks, felons and maximum security, and healthful environment in the work place.
18
Then, in 1970, a Texas district court in the case of
Roe v. Wade
,
19
citing a "Ninth Amendment right to have an abortion," struck down a state statute prohibiting abortions unless necessary to save a mother's life.
The U.S. Supreme Court upheld
Roe v. Wade
in 1973 by a vote of seven to two. It based its judgment, however, not on the Ninth but the Fourteenth Amendment: "This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."
20
The last time the Supreme Court mentioned the Ninth Amendment in a majority opinion was the 1980 case of
Richmond Newspapers v. Virginia
.
21
In that decision, which upheld the right of public access to criminal trials, the Court wrote: "Notwithstanding the appropriate caution against reading into the Constitution rights not explicitly defined, the Court has acknowledged that certain unarticulated rights are implicit in enumerated guarantees." In a footnote it cited the Ninth Amendment as supporting evidence.
22
References to the Ninth Amendment are absent from two subsequent controversial cases decided by the Court. By a vote of five to four in 1986, the Court in
Bowers v. Hardwick
23
reversed a lower court decision to strike down a Georgia law criminalizing sodomy, whether between

 

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homosexual or heterosexual, married or unmarried persons. Hardwick had claimed that private sexual activity was protected by the constitutional right to privacy. The dissenting opinion stated: "This case ... is about 'the most comprehensive of rights and the right most valued by civilized men', namely, 'the right to be let alone.'"

24
Then in 1989 in
Webster v. Reproductive Health Services
25
the Court upheld state restrictions on abortions. These two cases in particular leave grave doubt about the future protection by the Supreme Court of a right to privacy.

Griswold v. Connecticut, Roe v. Wade, Bowers v. Hardwick,
and
Webster v. Reproductive Health Services
illustrate the controversial nature of arguments about rights and point to the kinds of issues the courts will yet be called upon to decide. Even if the framers did not foresee such rights as a right to privacy, it was for just such arguments as these that Madison and supporters of the Ninth Amendment consciously opened the door. In their insistence on the wider scope of a natural law basis for human rights, they meant to ensure that the new nation would keep its doors open to new as well as established ideas of the dignity of the individual.
The Tenth Amendment: Powers Reserved to the States or the People
A consideration of the Tenth Amendment turns us from political philosophy to practical problems of political administration. By reserving to the states or the people powers not delegated to the federal government, nor prohibited by the Constitution to the states, the framers addressed the issue of how to reconcile a strong central government with government on the state and local levels.
Here again we look to the Romans. The Tenth Amendment,
mutatis mutandis
, recalls one of the greatest strengths of the Roman Empire: the ability of the Romans to govern a vast array of provinces stretched over three continents with notable success for hundreds of years. Seldom has the government of the world been conducted

 

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in so orderly a fashion for so long a time. The rules of administration, laid out by Caesar and elaborated by Augustus, were maintained with remarkable continuity for three centuries and, when appropriated by the Catholic Church and other European institutions, far longer.
This success was due in part to the Roman genius for organization, but it was due also to the Roman willingness to permit local control to the provinces in certain respects. That flexibility helps account for the longevity of the empire, which in turn assured the establishment of Roman law and customs which have played so large a role in the present story.
Paradoxically, Greek precedents rather than Roman were preferred during much of the earlier period in colonial America. The Greek concept of a colony was preferred over the more tightly organized Roman system, since the former by and large lived free from domination from the mother city. Of special interest as the framers wrestled with the question of a strong central government versus the Articles of Confederation were the Greek Amphictyonic leagues, organized around religious centers of worship, and the other more political federations such as the Achaean, Lycian, and Aetolian leagues.

26

Once the United States was established, however, the Roman model offers a closer analogy. There are fundamental differences, of course, between the genuinely federal system in America and the highly centralized monarchy of the Roman Empire. Nevertheless, a look at Roman provincial administration, particularly in the case of Gaul, will demonstrate the Roman genius for imposing new order on a profusion of existing orders and combining centralized power with at least the semblance of local control.
Until the time of Augustus there was no well-developed bureaucracy for administering the provinces, even though Rome had been in the business of extending its Italian domain almost from the beginning and beyond Italy after the wars with Carthage in the third century
B.C.
Governors ran Italy and the provinces with the help of quaestors. Tax collecting was conducted by means of contracts let

 

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out to tax-farming companies. The reward of holding office in Rome was that it served as admission to the imperial service, perhaps the governorship of a province where wealth was available for the taking. As one observer puts it, the provinces were the
praeda
or booty of the Roman people, to be exploited at will.

27

It was Augustus, serving as emperor from 31
B.C.
to
A.D.
14, who created the machinery of Roman imperial administration. His accomplishments are due, no doubt, to the sheer force of his intellect and political instincts, but it was to his advantage that, unlike his predecessor, Julius Caesar, he lived long enough to pay attention to details. A close look at Gaul will be instructive both because of Augustus's personal role in developing the provincial administration and because the Romanization of Gaul had such long-term consequences for the European West.
28
Mommsen observes that the Roman policies for retaining mastery over the provinces were a greater feat than gaining the dominion in the first place.
29
Before Julius Caesar's Gallic war, the rule of the Romans already extended as far as Toulouse and Geneva; afterward, as far as the Rhine and the Atlantic. While Caesar won the military victories, Augustus made permanent the gains.
Turning over the previously occupied Roman territory of Gaul (called Gallia Narbonensis after the city of Narbo) to the control of the Senate, Augustus kept New Gaul (called Gallia Comata) under his own administration. The Romanization of the older province of southern Gaul in language and customs was already extensive by the Augustan age; many of the cities such as Avennio (Avignon) and Aquae Sextiae (Aix) had Latin rights, with the leading citizens of those towns having acquired for themselves and their descendants the privilege of holding office in the imperial administration.
Augustus divided New Gaul into three administrative districts, each with its own imperial governor. These were attached to the threefold division of the old Celtic territories according to national distinctions, divisions already recognized by Caesar: Aquitania, Lugdunensis, and Bel-

 

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gica. In the year 27
B.C.
, still early in his reign, Augustus went to Gaul and at Lyons (Lugdunum) instituted a census of the Gallic province that became the basis for land registry and for the payment of tribute to Rome. Later in his career he spent three years, 1613
B.C.
, at Lyons to lay out further the imperial organization of Gaul. Other key members of his staff and family, including Agrippa, Tiberius, Drusus, and Germanicus, were sent at various times for the same purpose.
Only Lyons of the three provinces of New Gaul already possessed Roman or Latin rights by the time of the arrival of Augustus. These dated from the year 43
B.C.
, during the civil wars, when the town was established by Italians who had been expelled from Vienne. The site of Lyons, in the far southern region of the imperial province at the confluence of the Rhône and the Saône, was auspicious for both military and commercial purposes. Since Lyons did not grow out of a previously existing Celtic community but from the very beginning was founded by Italians with full Roman franchise, it occupied a unique position in New Gaul. The three provinces did not have a common chief authority. Nevertheless, when emperors or their designates stayed in Gaul, it was usually at Lyons. The city was the site of the only mint for imperial money in the western empire during the earlier period, and it was the headquarters for collection of transit dues for all of Gaul.
Furthermore, Lyons was the converging point for the extensive road system throughout all of Gaul. Some 50,000 miles of major roads crisscrossed the Roman Empire at its height, all measured in standard Roman miles of 1.48 km. Only in Gaul was the local measure of the
leuga
maintained, equivalent to one and a half Roman miles or 2.22 km. Probably it was Augustus who formally decreed the Roman mile for the measure of the entire imperial road system but in reality tolerated in Gaul its more familiar road measurement. This became official at the time of Severus at the end of the second century, a concession to local tradition.
A certain forbearance was also maintained for Gallic

 

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