Constitutional Law
Part 2: “What Were They Thinking?”
Digression: “A History of Government in 6 Revolutions: From the Paleolithic to Philadelphia”
Pg 131: “Athenian Segue”
PANEL 1
Above a map of Europe, the Levant, and North Africa, Average Joe addresses the reader.
AVERAGE JOE:
And so we’ve reached the point where we must leave the African and Near-Eastern cradles of civilization…
…and turn to the next big revolution in the history of government.
A uniquely European revolution.
PANEL 2
Sis, wearing an ancient Greek chiton and her red sneakers, jumps and makes a victory punch. Average Joe looks on, startled. Behind them is a doodle of a stereotypical Greek temple.
SIS:
YES!
On to Athens!
JOE:
Eh?
PANEL 3
Sis gives Joe a wary, questioning glance. Joe points off the page behind her.
SIS:
What do you mean, “eh”?
We’re finally getting to the birth of democracy, ain’t we?
JOE:
Don’t be silly.
We passed Athenian democracy about, oh, four hundred years back thataway.
PANEL 4
A line drawing of a tribal gathering, with one man asking the others “all in favor?” Sis and Joe are speaking from offscreen.
SIS:
Yes, but-
JOE:
Anyway, democracy was hardly a revolutionary new development—how do you think tribe and village assemblies worked before kings came along?
Or Paleolithic bands, for that matter? If anything, democracy’s our default.
PANEL 5
Joe continues his thought, while Sis, The State, and Lady Justice react with shock and confusion.
JOE:
More to the point, Athenian democracy isn’t all that important to our story.
SIS:
ExCUSE me?
THE STATE:
Athenian democracy?
LADY JUSTICE:
Not important?
PANEL 6
Joe explains calmly, and Sis responds with a “gotcha” look.
JOE:
Not really, no.
It only existed what, 170 years?
And I bet you can’t name a single country that ever copied their system.
SIS:
Oh, like America?
I bet the Framers of the Constitution might disagree with you on that one.
PANEL 7
The Framers, interrupted during the Constitutional Convention, address the reader.
GEORGE WASHINGTON:
On the contrary, one of the few things we all agreed on was that we shouldn’t be inspired by Athens.
JAMES MADISON:
The Athenian way of doing things would have been the surest guarantee of folly, injustice, and oppression!
VOICES:
Hear! Hear!
GOUVERNEUR MORRIS:
Even if every voter was smarter than Socrates, we’d still wind up governing ourselves as a mob of morons… led by demagogues.
ALEXANDER HAMILTON:
Our Constitution needed to prevent such democracy, not promote it!
PANEL 8
INSET:
Sis makes puppy-dog eyes, welling up with tears. Joe remains adamant.
SIS:
But… but… democracy.
JOE:
No.
Now, as I was saying-
FULL PANEL:
The State and Lady Justice interrupt, towering high over Joe and Sis. The State is wielding her giant hammer, and Lady Justice is slapping her sword on the palm of her hand. Joe is startled, while Sis pounds a fist into her other hand.
THE STATE:
A-hem?
JOE:
Uh… As I was, uh…
THE STATE:
Pray, continue.
LADY JUSTICE:
Yes.
Pray.
JOE:
Ah.
Right!
As I was saying, it’s time for us to head on over to Ancient Greece!
And see what we can learn from Athenian democracy!
…Governing by force isn’t the innovation either, is it?
Looks like bald person got outvoted by majority of both heads and arms.
Arms, yes!
I mean, what good is democracy if you can’t force the minority to comply with the majority’s vote?
[Note: That’s a call for discussion, not an assertion. Sometimes I don’t make that clear.]
To answer your question directly: It’s not democracy that needs to be able to enforce its decisions, it’s clans, tribes, and states – whether democratic or not. One difference between Athenian democracy and band democracy is that Athens was a state.
During humanity’s band phase, democracy didn’t have any coercive power, nor did it need it. If you didn’t want to go along with the band’s decision, you were free to strike out with the people you agreed with (or on your own if you thought you could go it alone). Emotional ties to the family and the practical necessity of having people to cooperate with kept the band together. So democracy was a tool for expressing the group’s decisions and building consensus.
Athens was much larger than Dunbar’s Number, and had a state. It had to have some method of resolving disputes between citizens and coercing them to contribute to Athens’ empire (primarily through military service), as well as controlling its noncitizen and slave population. So Athens’ democracy (and modern democratic republics) need some kind of fist to enforce the majority’s decision on minorities. Otherwise you get the “make me” scene from the part where clan-tribe societies were figuring out dispute resolution.
Athenian Democracy maxed out at what, maybe 30,000 voters? all adult free male citizens?
And Plato claimed that the ideal size for the number of “Citizens who actually matter” was about 5040…. or one working male per plot of land. Assuming a family of 4, that’s about 20,160 total people in his “utopian state”.
And George Washington argued very strongly for 30,000 total constituents per house district. (although slaves only counted as 3/5ths of a constituent. I had to check on that)
Interesting enough… Dunbars number squared, 150^2, is 22,500. So if you assume that you can get 150 people to all agree on the same local party ‘organizer’, and to feel like they can talk to that ‘organizer’ about political things as needed…. then a room full of 150 such organizers, all of whom already know each other, should be able to spend a few days debating the issue, and then pick the duly elected representative for 22,500 voters. And if any of those 150 organizers can talk to the duly elected representative whenever he’s back home in the district, that’s about right for making a long-term decision about whether or not to stick with the incumbent representative during the next election.
Good points here, especially your insight about a Dunbar’s number of representatives, scaling up by a power of 2 at each level!
One clarification: Slaves weren’t 3/5 of a constitutent. Slaves were 0/5 of a constituent. They were not constituents, as they were not citizens. Slaves were a vote multiplier for free whites, an extra three-fifths of a white person. If a state had 30,000 free citizens and 30,000 slaves, then it would get two representatives and four presidential electors, instead of the one rep and three electors it ought to have had. The purpose was to make sure white voters in the north couldn’t out-vote the white voters in the south to limit or eliminate slavery. I touched on it on this page. (Washington’s argument comes up some pages after that.)
as I understand it, in the 1790 census, Virginia had about 442,000 free whites and 292,000 Slaves. Total of 734,000
For purposes of house representation, that was 442,000 + 3/5 * 292,000 = 617,200 “effective” persons. Virginia had 19 house districts, so 617,200 / 19 = 32,484 “effective” persons per district.
As I’m reading the districting rules, districts were to be drawn based on population of “effective” persons within the district, NOT be “human bodies” and NOT by “White bodies” : by “mathematically effective persons”, with a slave counting as 3/5ths of an effective person.
So, if the most slave-heavy district in Virginia had 2,484 white slaveowners and 50,000 slaves, (number invented for illustration purposes), that was 1 house district. 3/5*50,000 + 2,484 = 32,484.
And if the least slave-heavy district in Virginia had no slaves and 32,484 white persons, that was another district.
So, if you assume all white families contain 1 adult husband, 1 adult wife, and two minor children….
A Hypothetical Virginia 1st District would have 2,484/4= 621 actual voters a house representative has to keep happy in order to retain his seat…
and a Hypothetical Virginia 2nd District would have 32,484/4= 8,121 voters their house representative has to keep happy to retain his seat.
So, in theory, a slave-owner in a district full of slaves has an individual vote which is 13 times more powerful than his neighbors in a district with zero slaves.
At least, I THINK that’s how it worked.
For example, if you pull up the Virginia historical election database, they only retained results from some districts, but….
1795, six district records retained.
total number of votes cast by district:
128, 185, 409, 347, 1123, 185
Lowest number of votes cast in a district: 128
Highest number of votes cast in a district: 1123
1797, 12 districts records retained
total number of votes cast by district:
676, 2235, 2346, 30, 306, 1222, 395, 830, 1333, 414, 317, 197
Lowest number of votes cast in a district: 30
Highest number of votes cast in a district: 2346
So I’m pretty sure SOMETHING hinky is going on there…. But I could be wrong…
arrghh. can’t edit post with links. but anyway, some of what I was reading:
https://teachingamericanhistory.org/resource/the-constitutional-convention-free-and-slave-populations-by-state-1790/
1790 census
https://historical.elections.virginia.gov/
old district totals.
https://csac.history.wisc.edu/2021/02/12/the-impact-of-the-three-fifths-clause-on-representation-in-u-s-house-of-representatives-1793/
Although I think that prior to 1842, each state was allowed to make it’s own decision on whether or not to have single-member districts or some other system, so maybe I’m just reading something wrong?
https://fairvote.org/archives/a-history-of-one-winner-districts-for-congress/#chapter-3-the-1842-apportionment-act
The new site navigation doesn’t have any links to the blog from the main site. It was included in the top bar before, but the new “Contents” menu doesn’t link to it, nor does any other part of the site.
Hmm, let me see if I can do something about that. Fix one thing, break another: that’s me!
Also, I see that Justice still has her sword even while the State has her hammer. I wonder in which part of history does Justice put her sword down and let the State be the only one with a weapon, and what historical event does that represent? (Justice and the State do seem more antagonistic in the future.)
I think there’s a discontinuity in the narrative. Since about 20 pages you’ve explained that with increasing organisation came increasing centralisation, priests, rulers, kings, etc… and now you state that Democracy is default? That was like several thousand years ago. A democratic -state-, and a super-powerful one at that, was not part of the narrative.
I also think you’re confusing anarchy and democracy. Indeed earlier forms of tribe-level stuctures may have had some loose version of voting for course of action, but democracy isn’t actually that, it’s the people forming part of the government and delegating the rest. Furthermore, democracy comes in general with a whole set of attitudes and cultures that are antithetic to tribalism. For once, Athenian democracy at least did not care much about the gods. They have no political power there.
I am a little bit disappointed here. Did you lose the thread?
That one character is saying that, but the others don’t exactly agree with him. Perhaps that’s setting us up for an interesting discussion?
But it’s not hard to see where they’re all coming from. “Democracy” simply has too many meanings, making it too easy for people to talk past each other. It can refer to informal or customary processes where everybody has a say in group decisions. It can refer to various formal, structured processes of institutional government in which certain defined categories of community members vote on proposed civic actions. It can mean the concept of majority rule, or a very different concept that the citizenry are competent to act collectively. It can refer to systems where citizens vote to elect officials, and to systems where officials are assigned by lot from the citizenry. It can refer to systems politically organized by tribe and clan, and it can refer to systems politically organized by geographic boundaries, or even some more creative ways of organizing different collectives which each then have their say in the larger collective. It can refer to systems where each person’s vote carries the same weight, and to systems where some people’s votes count for more than others. It can be a pejorative term for mob rule by the ignorant and irrational masses, and it can be a laudatory term for an idealized system. Some picture “democracy” as a broad spectrum of practices ranging from participatory democracy to institutional democracy, from group equality to political equality to citizen equality to choice of leaders to elections to political rights to human rights etc… and others say that approach’s focus on the individual misses the point entirely. And so on and so on, you get the point.
The biggest reason why I’m spending so much time laying this groundwork for the history of government is because Constitutional Law is filled with heated arguments on important topics where everybody is talking past each other. That’s because their positions stem from incompatible underlying principles. The arguments get so heated and seemingly deadlocked when they’re not generally aware of what their incompatible principles actually are (otherwise they’d realize that though they’re using the same words they’re talking about different things). These differences often stem from unspoken, even unseen assumptions about what government is, what it’s proper role is, how it relates to the people being governed, and how the people themselves relate to one another. All of these have antecedents in different historical paths in the evolution of government. The hope is that, when we start getting into issues of free speech, human rights, the regulatory state, gun control, abortion, etc., we’ll all have a common understanding of the various competing principles and where they come from, so we can have an actually useful conversation when we all inevitably disagree with each other.
Believe me, there is method to my madness. I’m just sorry it’s taking so damn long.
It seems obvious to me that the innovation of democratic Greek city states was making democracy work (to some extent) on a larger scale than a village of at most a few hundred. Going to the next larger scale of a nation of millions required some more innovations such as the British parliamentary system.