Off the usual beat here since this blog basically reflects my hobby “Kolchaking,” but let me reveal a little classical education. For those who watched the Republican debates last night, this may give you some insights on why the sudden death of Antonin Scalia (or any supreme court justice) is so significant.
Many of you know the political system. In knowing this you know that a supreme court justice rules upon laws as pertaining to the Constitution, that is, they weigh all laws coming before them to see if they conform to the Constitution. Many, however, do not know the origins of this power.
It is called tribunican potestes or, that is, the power of the tribune. It originates with the Tribunis Plebis of the Roman Republic.
The fledgling America had no real precedence for Republic since ancient Rome, and ancient Rome was not so distant in the minds of the Neoclassical Age in which the American revolution took place. At the time of the late 18th century ancient Rome was still a giant model of efficiency and origination. No nation had ever equaled her ability to unite and govern so many people. At her height Rome was a city of a million people governing an empire of hundred million people. To this date, no nation had surpassed that. That would only come with the latter half of the 19th century.
No political system of due process can really be that dynamic. All must take into consideration human nature and political efficiency. Thus even if the founding fathers did not have it utmost in their mind, they created a system that in many respects mirrored the Roman Republic.
The greatest power in the Republic was not the Consulate, as we often think. When it came to legislature it was the power of the tribune. Ten tribunes sat in the Senate. They had the power to call out Veto! over any legislation. That is power. In Latin it means “I forbid!”
Power is not ultimately had in what you set in order. True power is maintained by the unchallenged ability to forbid. You can let everybody else go about and do good things, but when they start doing something bad, you can say Veto! That is an ideal snapshot of veto, of course. The power to forbid can be used for any reason.
In the Roman Republic, a politician could not hold a public office for over a year or year and a half, and he could not hold the same office twice in a row. Senators scrambled to try and get the office of Tribunis Plebis– Tribune of the People; that precious power to cry out I forbid! and halt the legislation before the Senate.
When Imperators evolved in Rome to become what we today call Emperors, their power was not based on being conferred with the powers of Consul. They were granted lifelong power of Tribunis Plebis, that precious power to forbid.
Likewise the American Republic saw the power to forbid as being the big deal. But the idea of it being unlimited was not so appealing. The idea of Senators holding the office seemed impractical since there were only two per state. Members of the House of Representative holding such power seemed foolhardy since anybody could be elected to that job.
The American Republic was also heavily influenced by British parliament and its two house concept. This was quite different from the Romans. America, however, was more influenced by its national attitude of suspicion against the concept of Government. The Constitution put in place the system of government. The Amendments put in place the restrictions on this government.
Instead of 10 members, the Supreme Court was given 9 members so there could be no tie in voting. They were given tribunican potestes, that precious power to forbid. But instead of unlimited power they were bound to the Constitution. If any law came in conflict with the Constitution, they could veto it. They don’t use that word. They don’t cry out I forbid! They declare the Constitution forbids– true tribunican power, anchored, however, to a document.
The Supreme Court. A purely Roman building, from the tiles out front (inspired by basic Roman marble designs) to the tiles on the roof.
You can understand now the power of the Supreme Court. It is ancient, though adapted in the 18th century. Chained to a document though they are, the justices have the unquestioned power to forbid on its behalf any legislation or lower court ruling. Add to this an element that many find increasingly disturbing. Unlike the Roman tribunes who held elected office for a relatively short time, a Supreme Court Justice sits for life.
Since the beginning of civilization, all law is written against he perpetrator. All law has this in common. “Thou Shalt Not.” No law is written against he victim. There is no law that says “thou shalt not be killed.” It is written “thou shalt not kill.”
The Amendments to the American Constitution took this form. Rights came from Nature and Nature’s God, as the Deists of the time put it. The Constitution’s amendments were written in the negative to forbid the government, which was viewed as the potential perpetrator, from interfering with natural rights; in other words, the healthy instincts in humans. Law’s purpose was to forbid the unhealthy instincts and passions.
The Supreme Court with its tribunican potestes was to preserve this document, unchanging from the point of its ratification, and forbid any legislation or legislature that attempted to interfere with them.
The 7 Articles of the Constitution are greeted with a shrug. The States greeted them with a collective moan. But the addition of the Amendments, those that do so much forbidding and those that demand the government recognize rights, put the Constitution over and got it passed.
This is why the document is so famous to Americans. It forbids the government to mess with the people’s natural rights and it requires that other rights be specified as guaranteed. With this you can see why the Supreme Court, the American incarnation of the Tribunis Plebis, is so powerful and crucial. The Constitution is ultimately defended by only 9 persons.