John Marshall Law Review
constitutional law, legal history, Greek law, originalism, comparative law
This article provides a fresh perspective on the originalism debate by undertaking a comparative study of constitutional interpretation in the United States and ancient Athens. By observing how the ancient Athenians resolved the same interpretational problems that face the Supreme Court today, we are able to gain a better understanding of the issues that drive the originalism debate. The study focuses on Athenian practice in 350 B.C., which falls late in the history of the Athenian democracy, well after the legal system had achieved its final form. Like the United States, Athens had a strong tradition of judicial review and several of the courtroom speeches delivered in actions for unconstitutionality have been preserved to the present day. These speeches provide valuable evidence, which are analyzed in this study, about how the Athenians approached the same fundamental question that faces the members of the Supreme Court: Should the constitution be read narrowly in accordance with its original meaning or should the courts interpret the constitution in a manner that implements its underlying principles and purpose without being constrained unduly by the text? In the end, this Article shows that the Athenians had a surprisingly flexible living constitution that protected the underlying principles of the constitution and accommodated the changing needs of a society that, like the United States, evolved in breathtaking ways over the course of hundreds of years.
Mark J. Sundahl, The Living Constitution of Ancient Athens: A Comparative Perspective on the Originalism Debate, 42 John Marshall Law Review 463 (2009)