This article is derived from The Sacred Fire of Liberty: Republicanism, Liberalism and the Law (Macmillan and N.Y.U. Press, 1998) and reprinted with permission.
When George Washington gave his inaugural speech as first President of the United States under the new Federal Constitution, he asserted that the “preservation of the sacred fire of liberty, and the destiny of the republican model of government” were “deeply” and perhaps “finally” dependent on “the experiment entrusted to the hands of the American people.” 1 Today we have lost touch with the nature and history of the “sacred flame” that Washington sought to preserve, and its association with republican government. This justifies a brief review of the origins of “republican liberty” to examine the arguments of its leading supporters and to identify the sources and central elements of the republican ideology that animated the revolutionary era and inspired the United States Constitution.
The republican conception of liberty, like the words “republic” and “liberty” themselves, originated in Rome and developed much of its modern meaning in the partisan rancor and class conflict that culminated in the principate of Augustus. The patrician nostalgia of Roman historians under the early empire perpetuated a sense of “libertas” that associated Roman liberty with annual elections, the rule of law and other central elements of the Roman constitution instituted by Lucius Junius Brutus in 509 BC. This constitution came to an end, and Roman “servitude” (“servitium”) began five hundred years later, when Caesar and Augustus ended government by “the senate and people of Rome” and usurped for themselves the functions of “the senate, the magistracy and the laws.” At this point, Roman historians agreed, “equality” (“aequalitas”) under law was gone, and with it the res publica. 2 Roman liberty and the republic were born together in the ouster of the kings and died together with the return of the emperors five hundred years later.
This was the state that subsequent “republicans” hoped to revive when they adopted the Latin word “liberty” to describe their political agenda. Donato Giannotti put it clearly in a passage 3 adopted by James Harrington in England in 1656 4 and again by the American John Adams in 1787. 5 Gianotti divided the history of government into two periods - the “ancient prudence,” or government “de jure” ending with the liberty of Rome, and the “modern prudence,” or government “de facto,” beginning “with the arms of Caesar” which “extinguish[ed] liberty” and “deformed the whole face of the world” with the “ill features” of despotic government. 6 The translation of this passage from Italy to England, and finally to America, illustrates the modern history of republican liberty, and its three major triumphs in the political institutions of western government, each inspired by Rome. Republicanism enjoyed a further (and somewhat anomalous) victory in France, where Camille Desmoulins attributed the French revolution to the influence of Cicero's ideal of the Roman republic. 7 Examining the history of liberty in each of the first four seats of republican thought reveals the guiding principles that republicanism contributed to modern jurisprudence and why republican liberty remained so successful as a slogan of revolution on two continents for over two thousand years.
The essential and original meaning of libertas was status in the political community as a free or “liber” person (not a slave). The word derives from the Indo-European root *leudheros, and is related to similar German, Greek and Lithuanian words for the people or members of a political community. This led naturally to a broader understanding of the word that embraced the essential attributes of Roman citizenship-what it means to be a free Roman and not a slave-and thus to the close association between libertas and the res publica. Libertas embraced the rights that one could expect to exercise simply by virtue of being a Roman citizen.
Popular sovereignty and the rule of law were the first and fundamental attributes of Rome's republican liberty, protected by the popular election and limited terms in office of Rome's governing magistrates. This required the expulsion of the kings, and Livy described the first act of Rome's new consuls as the imposition of an oath on the people that they would never tolerate a monarch again. 8 The spirit of monarchy for Livy was the license (“licentia”) of the elite, while the essence of republican government was to give the people equal rights (“aequare ius”). Livy observed that republican laws should be blind and inexorable, while the justice of kings is subject to personal influence. Rome's first consuls, Lucius Junius Brutus and Publius Valerius Publicola demonstrated their dedication to equal laws and popular sovereignty by executing Brutus's own sons for treason, and lowering the symbols of sovereignty (imperium) to the people in recognition of the superiority and power of the populus. 9
The next great exponents of republican liberty were the turbulent city-states of the Italian renaissance and late middle ages. The Roman Caesars had given way to German emperors to the North of Italy, and imperial Popes in Latium and Romagna. Tuscany fell between the two and was the constant battleground in which Popes and emperors pursued their rival claims to universal empire. At first no one sought or offered liberty in the republican sense of the word. But slowly cities began to assert their civic “liberty” or independence, from outside domination. This led gradually to claims of internal liberty by citizens of the Tuscan “republics,” and particularly of Florence, which had led the Italian resistance to imperial pretensions, and benefitted from the weakness of the city's nominal allies in the papacy. Italian “liberty” began as a fight for civic independence and self-determination. This came to imply certain internal rights for citizens, and eventually a specific form of government.
No such balanced republican government was every fully secured or maintained in Italy, but Italian idealism revived the “ancient prudence” in Europe. Niccol' Macchiavelli elaborated this new way of thinking in his writings, and particularly his Discorsi sopra la prima deca di Tito Livio. Machiavelli wrote his Discourses like Cicero's books on the Laws and the Republic, during a period of political quiescence enforced by an emerging prince. As Florentine politics came down to a conflict between democrats and despots, republicans lost heart. Florence's troubled history became an embarrassment to the republican cause, and republican authors, such as John Adams, repudiated the “series of alternate tragedy, comedy, and farce, which was called the liberty of Florence.” 10 But later republicans still read Machiavelli carefully, as “the great restorer of true politics,” despite his excessive partiality to “popular” (unbalanced) government.
When John Adams set out in his Defence of the Constitutions of the United States of America to give examples of the reading and reasoning that produced the American republics, he began with Cicero and Rome and devoted most of his second volume to Machiavelli and the Italians. His third volume came at last to England whose “theory of government” and “present liberties” had “more merit with the human race than any other among the moderns.” 11 Adams identified three periods in the history of England which had produced political writings that inspired the American republics: first, the Reformation which generated John Ponet's Short Treatise of Politicke Power (1556); then “the whole interval between 1640 and 1660” which produced “Harrington, Milton and the Vindiciae contra Tyrannos,” and finally, “the Revolution in 1688” which led to the writings of “Sidney, Locke, Hoadley, Trenchard, Gordon, [and] Plato Redivivus.”
The history of republican liberty in England comprises a strange and fragmented evolution, in which the words “liberty” and “republic” became separated, without losing their mutual imprint and related ideological foundations. Regal government managed to survive in Britain, but only by adopting many republican institutions, and embracing (or at least tolerating) a largely republican conception of liberty, with its implied condemnation of hereditary honors and kings. The modern history of British jurisprudence, from Hobbes through Hume to Austin and Hart, is deeply influenced by the natural conflict between liberty and regal authority. Already under the Tudors British monarchs had begun to adopt the rhetoric of liberty and balanced government, and Charles I lost his life and crown when he repudiated the rule of law and challenged the ultimate sovereignty of the people. At last Charles II was forced to concede the value of a “free parliament” and balanced constitution, provided that the king presided in its execution. Most Englishmen could support this arrangement, and would do so permanently, after the “Glorious Revolution” of 1688.
The United States began their political history as English colonies, and participated in the development of the English sense of “liberty” through the legal disagreements and civil conflicts that did so much to shape the British constitution. Many Americans, particularly in Pennsylvania and the Northern colonies, traced their ancestry to the old English Commonwealthmen in Oliver Cromwell's armies. On the eve of their revolution, Americans shared in the English conception of “liberty,” with greater conviction and personal commitment than most of their British cousins. The development of American constitutional ideas after the Revolution reflects a gradual (and chronologically inverted) progression from English ideas back to the Italian and Roman republics which stand as an example of the largest and most successful previous experiments in government without a king.
By the time of the constitutional convention, virtually no American politician questioned the importance of balancing three branches of government in a divided legislature to protect liberty and justice as in England and Rome. If anything, opponents of the Constitution thought the checks insufficient and the balance too weak. The central question was not the desirability or proper structure of republican liberty and government, but whether and to what extent the separate republics of the United States should be consolidated into one. Some hoped that power would remain in the states, and Congress would be little more than a “diplomatic” assembly. But if the United States were to be a unified nation, in which Congress would have real power, then liberty would need the protection of fully republican institutions. As finally approved and implemented, the United States Constitution guarantees “to every State in this Union a Republican Form of Government” 12 and rests its authority on the ratification and consent of the people. 13
Influential centers of republican politics in Rome, Italy, England, America, and France all took their inspiration and conception of liberty from the same brief period in Roman life between 509 and 133 BC. Yet the history of republican liberty before the French Revolution was less a natural progression than a series of variations on the same Roman material and themes. “Rome's republic recognized the necessity of popular sovereignty, the election of magistrates, and equality before the law. It ended with a civil war over the spoils of empire, and relative power of the people and senate to distribute foreign wealth.” This left the question of how to reestablish Roman liberty without suffering Rome's fate. Italy revived the Roman idea of liberty, without resolving its proper boundaries, or acceptable controls on popular sovereignty. England settled for the rule of law and balanced government under an hereditary monarch. America sought to strengthen the Senate against the excesses of popular enthusiasm. France hoped that republican virtue would preserve public liberty. Their common core remained popular sovereignty, and governmental protection against the arbitrary exercise of any individual or collective will.
Republican liberty is a theory of law, which understands the purpose of law as pursuit of the common good. For republicans since Cicero there can be no liberty without law, and no valid law or legal system when liberty is disregarded. Republican liberty required a specific political structure (the republican constitution) and constitutional protections (liberties), including the right to vote, because the controlled deliberation of elected representatives best determines the scope of the common good. Republican writers agreed that simply doing what one wants without legal restraint is not liberty, but licence, because this inevitably invades the liberty of others. Legal restraints are not legitimate unless they serve the common good, determined by public deliberation, and ratified by popular elections. Checks and balances, popular sovereignty, the rule of law, and pursuit of the common good together constitute the “sacred flame” that George Washington embraced in his first inaugural address, as “guaranteed” to all Americans by the United States Constitution. The mixed and balanced structures of the Constitution reflect republican ideals of government as old as Cicero and Rome. Republicans could not imagine liberty without its ancient safeguards.