Making of a German Constitution : a Slow Revolution

104 • The Making of a German Constitutionpolitical opinions in my work are formed, there is not one that may not be found inMontesquieu or Burke.’ 38While Savigny had articulated a theory of constitutional transformation, in hislectures and Römische Geschichte Niebuhr offered a classical example of it in practice.His Roman history focused on the history of laws and institutions. Influenced byVician theory, perhaps through Savigny, it told a history of a progressive struggle forequality in sociopolitical relationships. Ancient Rome’s history, in this regard, wasone marked by temporary constitutional setbacks for disfranchised groups strugglingfor civil rights and equality, but the struggle was successful in the long term.More than anything else, at every possible point in his lectures and books, Niebuhrshowed that violent means only produced short-term and fleeting gains. Rather, thesecurity of full civil equality and rights was obtained through a gradual but consciouspursuit of the introduction of legislation—rogations—by those demanding full civilrights.Niebuhr’s emphasis on gradualism was the embodiment of constitutional transformation,and, in reality, it was focused on fostering such development in the Germanlands. This was evident, first, in his account of The Beginning of Rome and ItsEarliest Tribes. ‘In every nation of antiquity’, Niebuhr wrote, ‘there was a peculiarimmemorial mode of division into a stated number of tribes,’ and, where ‘the citizensof a state, whether the whole body of them, or a portion of that body, enjoyedan equality of civil rights, and at the same time did not live united together in acentral capital ... these were subjected to the same principle arrangement.’ 39 In thecase of the union of the original Romans, who had emerged from two distinct tribes,it had become ‘firmer’, and, ‘in the course of time, when the feeling that citizens ofthe two towns were one people had been fostered by intermarriages and a commonreligious worship, they came to an agreement to have but one senate, one popularassembly, and one king, who was to be chosen alternately by the one people out ofthe other.’ 40 Although the union remained, the establishment of this equality, in theimmediate term, was thwarted ‘by a usurpation on the part of the Romans’. 41 Evenafter the distinctions between the Romans and the ancient Quirites ceased, accordingto Niebuhr, the term Quirites was synonymous with plebeians, although the plebeianswere later composed of different tribes. 42 The first two original tribes becameknown as the patricians, while a third tribe, the Luceres, were kept ‘below them’,distinguished by their ‘difference in civil rights’. 43In Niebuhr’s account, the story of the expulsion of the Tarquins was, predominately,that of the patricians struggling for rights against the tyranny of the Tarquinkings, with the exception of the reformer, Servius Tullius. It should also be emphasized,at this juncture, that Niebuhr’s political argument continued to reflect thetraditional organization of political thought around juridical concerns. ‘Among themeasures of Servius for promoting freedom,’ he wrote, ‘he established judges forprivate actions [civil cases].’ 44 However, a later ‘counter-revolution’ of Tarquiniusand the patricians drove back ‘the commonality so far from the fair right it had