A Word on Words; 1029; Susan Ford Wiltshire

. . . . . . A word on words, a program delving into the world of books and their authors. This week, Susan Ford Wiltshire talks about Greece, Rome and the Bill of Rights. Your host, for the word on words, Mr. John Seganthaler, chairman of the Freedom Forum First Amendment Center at Vanderbilt University. But even ladies and gentlemen, once again, welcome to a word on words.

I guess this evening is an author who has written a book about a subject that's dear to my heart, the Bill of Rights since I come from the First Amendment Center. Susan Ford Wiltshire, welcome to a word on words. Thank you very much. It's great to have you here. Susan Wiltshire has written a book called Greece, Rome and the Bill of Rights. It's a book that I find fascinating because it helps destroy the myths that have become conventional wisdom about the roots of our liberty. I know many lawyers and many academics who will tell you that all of our freedoms came straight from the British. It's always been fascinating to me if that were so, why we had to fight a revolution to get freedom. But the truth of the matter is it goes back, it goes away back.

The roots are buried in Greece and the Romans did expand on them. Now, let me just, you deal with the issue of ascending and descending environments where rights flourish and diminish. Talk a little bit about that. Well, I've been interested for a long time in how it was that the Athenians, apparently first on any wide scale, decided that they could get together and decide how to govern them. And this was a revolutionary thing that they did. They never did, however, have an idea of individual rights. A person was valuable to the extent that that person was a member of the citizen body. And, of course, that excluded young adult males, all slaves, all women, all foreigners. So it was a limited democracy, but it was still an extraordinary experiment. The Athenian experiment was an exercise in ascending government, that is, we will decide the rules under which we play.

Much more common in Rome, even though Rome called itself a republic for 500 years, was a descending theory of government, and that prevailed over most of the Middle Ages, too, from the top down, either through an emperor or a divinely appointed monarch. So my question was, where did this idea of rights come from if we have this mixed history, and that's the story of this book? Well, if you really think about our system of government and the unique nature of it, and then look at that Athenian form of government, you realize, first of all, an awful lot about the roots of due process, about jury's appears. I suppose I knew, but I had forgotten that charged with wrongdoing, or offenses against the city or the state, Athenians defended themselves.

Who was it to call them a nation of lawyers? Because they all defended themselves, yeah. But that whole concept of trial by one's peers didn't come from the British. No, it didn't. It went back much further. And one of the wonderful things about that story is that at the same time, the Athenians were devising trials, especially in homicide cases, with juries in Athens. The playwright, Eskulus, was writing a wonderful trilogy that reflects in drama the same events that are happening politically. And you will remember in those plays what happens is a series of revenge killings after Agamemnon comes home from the Trojan War.

And he's killed by his wife, and then the sun kills his mother, and then the furies come after the sun, and this all ends up in Athens. And finally, Athena says, wait, we can do this better. And so she declares that she will establish a jury of peers, and they will hear the evidence, and then decide whether or not arrestes his guilty of matricide. You know, you spoke of how the Athenians and the Romans excluded from the processes of government, processes of rights, slaves, and women. And if one didn't look very closely at our own history, we'd forget that we did too. Happy circumstances. The struggle seems to be turning. We're in a period now of a sense of rights. But that shortcoming, even though it was debated with regard to slaves at the Constitution Convention, the vote was...

My story in this book ends in 1791 with the ratification of the Bill of Rights, but of course as a citizen, I was very much aware all the way through of what had not happened by that time. The framers could never have imagined that the sons and daughters of slaves would ever be forevoting citizens in this country. Could never have imagined that Native Americans would someday vote, although it would be 1924, before that happened. And as I'm fond of saying only the wife of one of them could have imagined that women would have been full citizens, Abigail Adams would have had of her time. The framers could not look into the future that way, but they had an extraordinary gift for taking the long view of the past. And my sense is, my evidence, really, is that by looking far back toward all of the experiments in government and self-government and including the ones that failed, they were able to fashion something that would work even into a future they could not see. Now, you had the department, you chair the Department of Classical Studies at Vanderbilt University.

So this is a book I would have anticipated it would have been written by Aloya. Oh, yes. Or perhaps a political site. Or a historian. That's right. I was very much aware of treading on ground. I had not cultivated well myself, but I knew that I had the background in classical antiquity that many others who were interested in the history of the Bill of Rights don't have. And so I just took a chance and learned a lot as well. Well, it was a great experience for me. It was a great learning experience. Some of it was re-learning. I mean, you do get a sense of recollection about Plato and Aristotle. And you know that the civic society was foremost in the minds of the early Greeks. The Stoics I had forgotten about. Yes. Talk a little bit about it. The Stoics are a big part of the story, but it's a classicist I like to back up a little bit.

Let's start with Plato and Aristotle, because both of them, even though they differed profoundly, both of them put the state first. They both believed that the citizen exists for the sake of the state. And that cities will be well governed if citizens are well educated, but always with the priority of the state. And that's why I knew that the Athenians had no idea of individual rights apart from that definition of citizenship. But then Alexander the Great came along and upset the apple cart and destroyed the existing governments of city states. Well, he didn't install because he died before he had a plan, but his generals managed to install themselves as monarchs over various parts of the empire. And this idea of the state as the determiner, not only of personal status, but sort of moral discourse, dissipated because there was no longer active political life in those cities. So the Stoic philosophers starting about 300 BC determined that maybe there were laws that transcended the laws of individual cities.

Maybe there was a divine law somehow in nature that superseded individual laws. And it was the Stoics who fully articulated the idea of natural law that transcends the things we do down here on earth. That Thomas Jefferson ultimately finds to be an alienable rights. Well, let's move then to the British. I mean the Roman Empire, as you say, times poses as a republic, spreads its influence across the continent, has an impact on the British government. But let's talk about the Roman Empire for a moment first. Remember Britain was way at the edges of the empire. And the British were considered barbarian by the Romans. They were so far away and so shaggy.

What happened in Rome with the Stoic idea of natural law is that the Romans who were geniuses at developing particular laws, what we call positive law, black letter law, they had laws for everything. They led to have things tied down. They were very critical of the Athenians who loved to innovate and didn't like to be constrained by being tied down. But Roman law was so elaborate and extensive that by the time of Cicero, someone like Cicero in the first century BC could say, well, the laws of any other peoples on the face of this earth are all but ridiculous. And it was Cicero more than anyone else who married the Stoic idea of natural law with the Roman idea of particular laws. And with the Middle Ages, Roman law was considered natural law and applicable to everyone. And so that was the legacy then that both dead and did not play a role in far away England.

You mentioned Magna Carta. There are two views about the Bill of Rights. One is that most of those ideas can be traced back to Magna Carta. Another is that these ideas really are, for the most part, unique to the United States. Now, my proposition, of course, is that the ideas are older than either Magna Carta are the colonial experiments. What was happening in England was that those feudal barons were ganging up on each other. And finally, enough of them got powerful enough to send King John running. So he agreed that running meat in 1250 to sign a contract with them. But it was only with them. Only maybe 10% of the population in England would have been freeholders, that is, property owners, who would have benefited from this. And there was never an idea of natural rights. I suppose when they confronted him there on the field at running meat, it was really an effort to put down what might have become a rebellious crowd of barons.

He himself, a baron, had to sit still and listen to him as you point out in the book. It's then the genius of Jefferson, it seems to me, and the other founders that translates all of this history, which we have encapsulated in a two-brief period. It was only their genius, the founders' genius, that was able to find the words and the spirit to establish the cause of an alienable rights. Well, of course, Jefferson, even though we might want to give him credit for everything, did not invent the idea altogether. A major player in this story is John Locke. Yes.

Now, what Locke did, unlike his predecessors, who had come up with the social contract, with Montesquieu Hobbes, Rousseau, for example, already the individual has enhanced status if individuals are able to make agreements with each other, those contracts are between peers. But it was Locke who said, wait a minute, even apart from the social arrangements we make among ourselves, we are born with rights, which no person has the right to aggregate. And so he really was a thoroughgoing liberal in the sense that he believed we were born that way. I have a writer friend who liked to say it's a hard path down that birth canal and anybody who makes it has a right to be here. And that's Locke's idea and became Jefferson. You know, I was preparing for a speech not long ago. And I ran across, in my research, little anecdote from colonial Massachusetts in which the governor was complaining about the seminaries of sedition. These students were being taught revolutionary ideas and frightened the governor.

And they brought charges against one headmaster, whose students wrote a letter, said he had only taught them the masters they were supposed to learn. Rocious and poof-and-door. And I said to myself, who in blazes are those two? I know I must have run across them somewhere, but it's buried in my subconscious by this time. And you tell me, I said it's been a relearning experience. Well, it was a new learning experience for me to come across Rocious and poof-and-door. If they were great legal thinkers in the 17th century preceding Locke and the social contractarians, but they played a major part in the transition from the late middle ages and the reformation into the enlightenment. You deal, when it finally comes our time in this country, you deal with great clarity as you point out that the fight between the Federalists and the Anti-Federalists was a fight that was granted in the same idea. And the same ideal.

That was fascinating. We all know that James Madison did not originally support the idea of a Bill of Rights. He quickly learned, he learned partly from his friend Jefferson, that this whole revolution would be in vain if we did not make sure to secure the rights for which we fought. Now, the reason Madison initially, and the Anti-Federalist all along the way, thought we didn't need or should not have a Bill of Rights, is because they assumed that these things didn't need to be written down. Of course, they're true. Of course, we're endowed by nature with certain ideas. Who would have a challenge such a thing? But the wiser heads it turned out prevailed, and Madison had to lobby hard in the state ratification conventions, for ratification of the Constitution, to promise that he would introduce a Bill of Rights in order for the states to ratify the Constitution. And Madison's always been a great hero of mine, and you give him credit for having the courage and the vision to say, I will not sign that document. And then you take us to an analysis of each of the Ten Amendments. And at this point, I suppose I'm wondering where a classicist got the idea.

Where are the basis for this ingenious idea for what's its roots? Where did the idea come from? Because it's very dear to me. I have been interested for years and years in classical influences in the United States. But I had pursued every idea I had when, in 1989, I was asked to present a paper in honor of a retiring colleague, whom I admired greatly. And I was out of ideas until I remembered that he had been blacklisted during the McCarthy Era, because he refused to testify against his colleagues. And I thought of the Fifth Amendment, and I thought I will make this paper attribute to my friend. And the idea grew from that. There are 27 provisions altogether in the First Ten Amendments. And what I discovered is that all but one of them has not roots necessarily, but analogies in the political practice and theory of ancient Greece and Rome.

And so you take us in chronological sequence through first all the clauses in the First Amendment. Except one. I hate to tell you that there's no freedom of the press. There is no freedom of the press. That's right. That of course was before that great man gave us a press. That's right. But the whole idea of speech is embodied in it. Yes, and that is a story that we can tie down with some certainty. In 508 BC, a political reformer and legislator named Clys the Knees proposed legislation for Athens. That would grant every citizen the right to speak equally in the assembly. The Greek word is Esago Ria. And it meant that anyone who wanted to could speak at any length, any number of times on any subject.

Now there were thousands of people in these assemblies. The Romans were quite scornful of the Athenians that they would sit and talk all day. In the Roman assemblies, the citizens stood up and never spoke. They were just sort of passed around. The Athenians believed, though, that this freedom of speech in the assembly made for a good city. So that in the fourth century the Orator de Mastini says the difference between Athens and Sparta is that in Athens we are afraid to praise the Spartan Constitution. But in Sparta, one can praise no Constitution other than the Spartan. Well, you deal with the issue of freedom of religion in an interesting way. Talk a little bit about that. Well, I think the two religious freedom clauses of the First Amendment concern us profoundly. Now in a society that is far more diverse than the framers could ever have imagined.

The Romans were very religiously tolerant. And this comes as a surprise to us who think of them as throwing Christians to the lions and whatnot. But we might be able to learn some things from the religious toleration at Rome. There's some things we'll have to be sure not to learn from them, and not just persecution of those with whom they disagree. There never was a real belief that religious liberty was a good thing in terms of one spiritual life. Cicero says that we honor Jupiter not because he makes us wise and just and good, but because he makes us successful and prosperous. And so there was a real disjuncture between religious practice and personal morality for the most part. But one of the things that made the Romans so successful for hundreds of years as an imperial power is that they never imposed their religion on the people they conquered. Religious practices could continue uninterrupted as long as everyone was sure to pay tribute to the emperor in a religious way.

And that worked fine for everybody, including interestingly the Jews in Rome had an arrangement that they were exempted from that. They sort of paid their way out of the draft, not the Jews in Judea. That worked fine until the Christians. And then that thoroughgoing monotheism meant to conflict with the Roman imperial. Second and third amendment, you say we're rooted in the revolution, and that's why we have them. The fourth. Talk about the roots of the fourth. Supreme Court Justice Brennan said that the whole American revolution could be said to have been fought over the Fourth Amendment, a legal search and seizure. I've discovered that one of the oldest stories behind the Bill of Rights is the story behind the Fourth Amendment. Before the 12 tables in Rome, which were promulgated in 451-450 BC, there was a practice throughout the ancient world of safeguards against illegal search of one's home.

The idea that our home is our castle has a very long history, and the practice seems amusing to us, anyone who accused someone of theft would have to get permission first to search his home. And then he could enter the home only if he were wearing only a loin cloth and carrying a bowl. The theory behind this was that if you weren't wearing a big toga, you couldn't bootleg something into the house and then claim that it had been stolen from you. Well, that's fascinating concept, because I think that most Americans look upon search and seizure as coming to us largely from the revolution. As being one of those areas where we separated ourselves from the right of the king to move in on your dearest possessions, then you take four amendments and put them together under the rubric of the judicial process.

And once again, the roots are easily traced. They are traceable. I spent many hours in the Vanderbilt Law School tracing those roots, going back to the fifth amendment of which there are several provisions, but the one that started me on this journey about self-incrimination was even more protected among the Romans. Not only did you not have to give evidence against yourself, but neither did your third cousin, your uncle, your father-in-law, your slave, or your patron or client. So there were protections. The idea is that the government has to make the case against you and you don't have to help them make it. Well, I thought the interesting thing was that you cited in a number of cases language from documents obscure in history, but the verbiage is replicated almost verbatim.

We did, for the most part, excluding the state of Louisiana, eventually adopt the British system of common law, but the Romans gave us a legal way of thinking. And it's been said that after the Bible, Justinian's law codes had more influence on the West than any other book. Fascinating to me that this book would come along at a time when the country, if you believe the polls, really having second and third thoughts about, well, these rights are really so precious. I mean, oh, isn't the First Amendment only a vehicle that's used by an abusive, intrusive press or by pornographers, or isn't the right of assembly just these radicals on both sides of the abortion issue, screaming each other in the middle of the street and in peaceable assembly. The joke anyway, since a doctor can be shot down in the aftermath of what was supposed to be peaceable assembly are, our look where freedom of religion as it's stayed in the Constitution goddess.

I mean, we have separation church in state, can't teach our children. I mean, this is the world people are fighting for the very rights we take for granted. And at that very moment, you come along and say, look, these rights go back so far. And we have, we have really, I think if you read the book, you conclude, we have really perfected the instincts and the impulses that were there in the early days of recent Rome. Not entirely accidental, but this book came along when it did, because I have read the same polls you have. How many people would willingly give up the Bill of Rights to win the war on drugs or whatever their current passion is abortion or AIDS? I did come out of this exercise with a greatly enhanced appreciation for the extraordinary accomplishment that the framers were able to fashion in that little sliver of time at the end of the 18th century.

When we still believed that there were some things that were universally true, and they had the nerve to write them down. 10 or 20 years later, we didn't believe that anymore. The idea of progress had taken over, and we were all sort of out for ourselves. But the framers figured this out, and they got by with it. And my hope, of course, is that we will all continue to get by with it because the Constitution is the glue. It's the only document that all of us is American share, and it sets up some ways of living, some ways of thinking that mean that we don't all have to be the same to get along. Do you think that if we had a debate or a dialogue about these issues would enhance their value in the eyes of the American public? I think so. I think we all learn from storytelling, and I think the story behind the Constitution and for me, especially behind the Bill of Rights, is so engaging because of the long traditions, the framers were drawing on, and the nerve they had, the passion they had to make something here that would work.

Susan Ford Wiltshire, author of Grease, Rome, and the Bill of Rights, has been our guest on a word on words. Your host has been John Sagan-Thawler. This program was produced in the studios of WDCN Nashville.