Addressing Historical and Modern Flaws in the Judiciary:

An Analysis of Athenian Graphe Paranomon

in the Schema of the United States Constitution

Sammy Carey
CLA 150 - Driscoll
Fall 2017
Introduction

Most Americans are ignorant of the origins of judicial review, not realizing it was rooted
in the most democratic government in history, Athens. Many citizens from the United States hold
judicial review to be one of the most undemocratic processes in our republic democracy, making
it hard to believe that this process began as a democratic institution. In reality though, judicial
review, otherwise known as graphe paranomon, was one of the established practices of the
developed fourth century Athenian democracy that granted citizens the opportunity to conduct
themselves as judges over the democratic principles of their government.1 As Keith Werhan
coins it, judicial review was a ‘fail-safe mechanism’2 that the American Founders took note of.
Regardless of the original practice of judicial review though, America has not felt the need to
maintain graphe paranomon in the way the Athenians practiced it. Instead, the Founders’
modified judicial review to fit their own view of how it could protect the democratic institutions
of the United States’ government. However, upon evaluation of the Athenian practice of graphe
paranomon as well as the evolution of the American judiciary, it becomes evident that this
ancient government has served as a model more so in recent times than during the Founding as
judicial review has transformed into a more democratic institution that responds to the people
and societal changes rather than being the rigid structure with slow development that the
judiciary was at the birth of our nation.
This essay will guide the reader through an exploration of graphe paranomon in the
Athenian democracy including the procedure, the argument types deployed by litigants, how the
demos came to a decision, and the role politics played. Beyond just this, an analysis of the
function of graphe paranomon as an insurance for democracy will be provided to get a grasp on
its effectiveness as an institution for the maintenance of a democratic government. Once enough
background has been provided to suffice for an analysis of the Athenian institution of judicial
view, it will be shown that the success of graphe paranomon can be provided as a model to those
who believe that our government is doomed if the judiciary takes on an approach that is more in
tune with the public opinion of the demos. It will be shown that graphe paranomon has
influenced our current practices of judicial review in America, for justices have realized the
shortcomings of not relying on public opinion and sought to adapt to a system with a more living
approach to the Constitution that binds its decisions.

Graphe Paranomon in Athenian Democracy

Graphe paranomon was developed in fifth century Athenian society after the citizens
recognized the democracy’s inability to respond to the constitutionality of laws passed by the
Assembly. This procedure was developed to act as a process where decrees not aligned with
Athenian nomoi could be stricken down3 and the politician who proposed the bill punished for

1 Werhan, 96.
2 Werhan, 115.
3 Canevaro, 28.
leading the demos astray.4 Any Athenian citizen was allowed to indict legislation if he believed
that this newer decree contradicted existing law or underlying principles of Athenian
democracy.5 It would then be brought to the dikasteria to be decided upon by a jury of 500 or
more composed of Athenian citizens over the age of 30 who were sworn in by oath. 6 These jurors
would listen to arguments presented by two litigants - one defending the decree (usually the one
who proposed the decree) and one declaring its unconstitutionality - followed by a vote on the
matter that required no justification on behalf of the citizen voting.7 The process of graphe
paranomon8 granted the Athenian citizens a second chance to review legislation passed by the
ekklesia that might not have been with the greatest foresight due especially to the increasing
number and capacity of rhetores to sway the public assembly in the late fifth century.9
During graphe paranomon cases, litigants were expected to deliver legal and political
arguments in defense of the constitutionality or unconstitutionality of the decree proposed. Legal
arguments in Athenian court are similar to those used today in American appellate cases. These
arguments were set up to show that the decree was not compatible with existing law because
either the defendant had not followed the correct procedure in introducing the law or that the
decree itself violated the nomoi.10 The ways in which Athenians tried to determine legislative
intent was through the writings of Greek historians, literary sources (such as Aristotle), oral
traditions, analysis of other laws, plain language of the decree, and their own personal
experiences in the ekklesia.11 The litigants were able to be flexible in their legal arguments due to
the lack of a complete written constitution as well as Athenians’ emphasis on the motive behind
principles in their constitution to support democracy.12 Furthermore, the Athenians lack of
binding precedent, which happens to be an important aspect of American judicial review, gave
the litigants more ability to interpret and apply the statues as they needed to advance their
arguments.13 Historian Sundahl summarizes it best when he stated “taken together, these aspects

4 Hansen, 53.
5 Canevaro, 30.
6 Hansen, 50.
7 Vermeule and Lanni, 12.
8 There were two procedures in Athens for challenging legislation passed through the Assembly: graphe
paranomon and graphe nomon me epitedieion theinai. In this essay, I will only be exploring graphe
paranomon which was limited to challenging decrees while graphe nomon me epitedieion theinai allowed
for challenges to laws. The reason I made this choice is because there is more scholarly evidence about
graphe paranomon. If this was not so short of an essay, I would explore both and their relevance to
American judicial review.
9 Werhan, 115.
10 Sundahl, 485.
11 Sundahl, 497-498.
12 Sundahl, 487-488 & 493.
13 Sundahl, 490.
of Athenian law created a living constitution that protected the fundamental principles embodied
by the standing law.”14
Political arguments, on the other hand, were those that attacked the character of the
defendant, argued against the _______.15 One of the main theories amongst academics is that
graphe paranomon was more of a tool used for political rivalries than for the actual preservation
of Athenian democracy. Hansen is the main scholar who backs up this theory with quantitative
and theoretical evidence. He shows that twenty of the thirty-nine graphe paranomon cases that
we survived from antiquity are concerning honorary decrees.16 Hansen argues that due to the
intense rivalries of the time, these challenges to the honorary decree are most likely due not to
the unconstitutionality of the issue but rather due to the individual who enacted the decree or the
person who would be honored by the decree.17 Lanni also weighs in making the false claim that
“all of our surviving law court speeches in constitutional cases appear to be motivated first and
foremost by political rivalry, rather than a desire to protect the Constitution.”18 There were some
cases that were motivated by actual constitutional and democratic principles, such as the attempt
to stop the Arginusae affair, but the assumption may be made that all the indictments against
honorary decrees, at least, were made as a result of the political bitterness prevalent at the time.
With this knowledge though, it is important at the very least to examine the relevance of the two
types of arguments in the minds of the jurors to understand if graphe paranomon was intended to
stop the degradation of democracy or to stop one’s political enemies.
Amongst the scholarly community, there is quite a debate over whether the legal or the
political speech mattered more in these constitutional cases. Some, such as Wolff, believe only
the legal issues were of importance while the political speech was merely an attempt to bias the
jury. 19 On the other hand, some, including Hansen, argue that the political argument must have
been of greatest importance since the most time was devote to these arguments.20 While, most
scholars, in particular Yunis and Lanni, contend that both arguments were necessary for the
verdict and the weight of the argument depended upon the type of statute the jury was dealing
with in the given case.21 In the end though, what matters most is that the Athenian jurors were
introduced to legal and political arguments in the procedure of graphe paranomon that fostered
the principle of a living constitution in Athens according to legislative intent, political rivalries,
and accordance with Athenian principles.

14 Sundahl, 488.
15

16 Hansen, 62.
17 Hansen, 51 & 62-64.
18 Lanni, 235.
19 Lanni, 238.
20 Lanni, 238-239.
21 Lanni, 239.
 In all court decisions, the jury made the absolute and final decision, which for the
constitutional cases meant that the Athenian jurors had the complete discretion to interpret and
rule on the constitutionality of any given law brought before them.22 The Athenian juries in
graphe paranomon cases were given the difficult task of interpreting a written constitution that
had unwritten principles necessary to uphold for the maintenance of their democracy.23 Jurors
were given broad discretion in the understanding of their government’s institutions and
foundation as a result of the vague wording of Athenian statutes, lack of binding precedent,
legally and politically motivated arguments, and permission to “apply equity where the law was
not clear.”24 Lanni also discussed that the jury was allowed to “disregard the law in favor of
policy or other extra-statutory norms” due to the lack of authoritative processes in the
determining of a decrees constitutionality. 25 Ultimately, this procedural freedom for jury
decisions in graphe paranomon cases is what allowed Athens to promote a living constitution
that adapted to the cultural values and the societal norms of the Athenian demos.26
This leads to a discussion of the mechanisms of the graphe paranomon that enables it to
ensure the maintenance of democracy in Athenian society. Many of the speakers of the time
showed graphe paranomon as being a safeguard to democracy with most of the legal arguments
focusing on the threat that the new decree made to the democratic nature of the legislative and
judicial processes of Athens.27 Vermeule and Lanni advance an argument that graphe paranomon
was a form of “precautionary constitutionalism” that sought to “safeguard against political
reisks, limiting the downside and barring worst-case political scenarios.” 28 It is important to note
that graphe paranomon was not as concerned with social and moral values or consistency with
the law as our process of judicial review often is, but rather their attention was directed towards
the upholding of the democratic principles as highlighted by the constitution and nomoi.29 This
process of judicial review was also used to protect the Assembly from individuals who sought to
challenge the norms of the community by attaching a criminal charge against the rhetores who
proposed a decree that was deemed unconstitutional by the courts.30 Hansen believes that
“graphe paranomon was primarily a safeguard against corrupt politicians and not against the
sovereignty of the people.”31 It can be concluded though that graphe paranomon had a dual

22 Werhan, 82.
23 Sundahl, 484.
24 Sundahl, 477-478.
25 Lanni, 240-241.
26 Sundahl, 491.
27 Lanni, 256.
28 Vermeule & Lanni, 1.
29 Lanni, 244.
30 Werhan, 100.
31 Hansen, 54.
function in the Athenian system to protect the ekklesia from the influences of rising demagogues
who played on the passions of the common people as well as providing a check on the
constitutionality and upholding of democratic principles within any given law passed by the
Assembly.
Graphe paranomon had many moving parts within Athenian democracy, and this brief
yet in depth overview was an attempt to introduce all the relevant pieces of judicial review in
Athenian society. The two real benefits of graphe paranomon were its democratic insurance and
living interpretation of the Athenian constitution. Hopefully, as graphe paranomon is applied to
the American form of judicial review, one will begin to see how the Athenian model has served
as model to address the shortcomings of American judicial review while also avoiding the
shortcomings of the graphe paranomon.

Adapting the American Judicial Branch with graphe paranomon in Sight

Before delving into the evidence of graphe paranomon in our modern system, it is
important to begin with an introduction to the American judicial branch as it was founded. The
functions of our judiciary are outlined in Article III of the United States Constitution. Within this
article, it is explained that there will be a federal appellate court, known to us as the Supreme
Court, to decide on all cases concerning both fact and law. Although there is more within this
article such as jurisdictional concerns and legislative prerogative to establish lower courts, for
our purposes today it will be enough to know that the Constitution gives authority to the
Supreme Court to be the last step for all constitutional appeals. Over the first few decades, the
idea of judicial review was first explained in Federalist Paper #78 and then granted precedent by
Justice John Marshall in Marbury v. Madison. It was deemed that the Supreme Court, made up of
justices, would be the highest authority of the land to decide upon the constitutionality of all
legislation brought before the court through the appeal process. Unlike in Athens, this meant that
professional judges would be the new “people” deciding the constitutionality of laws rather than
the jurors of a demos, limiting the realm of those who had a voice in the process to simply the
elite.
The reason the Founders created a judiciary that was made up of elite professionals rather
than lay citizens was rooted in their fear of the excesses of democracy. To the Framers, this check
on legislation was designed to save American democracy from itself rather than from a specific
class of people.32 The Founding Fathers safeguarded the independence of the judicial branch by
ensuring life tenure for the justices, fixed salaries, and an appointment system.33 They
understood the judges to be “an intermediary body between the people and the legislature,”
checking the people’s representatives when they overstepped their boundaries, obeyed the
passions of the people or created a new law that did not uphold the Constitution.34 For these
reasons, the justices of the Supreme Court held more of a loyalty to the Constitution than to

32 Werhan, 88-89.
33 Hamilton, 136-141.
34 Hamilton, 136-141.
legislative acts or even to the people.35 To the Anti-Federalists though, these were huge red flags
that went against the principles of democracy. This new process removed the power to decide
constitutionality from the hands of the people, did not allow them to check any abuse of power
through elections, and kept the judiciary independent from the important opinions of the time.36
As time has passed over the last two hundred years, these flags have been thrown up in the air
from time to time reminding America readdress the judiciary and its constitutional boundaries.
The judicial branch has faced a remodel, over the last one hundred years as presidents,
Congress, and the people have sought to curb its powers and influence over the nation. Franklin
Roosevelt was the first president to threaten the Supreme Court with a court-packing plan after it
refused to accept legislation for the New Deal that was passed by Congress.37 His court-packing
plan fortunately was never passed through Congress, but many argue this was only after the
justices began accepting through some of the legislation being passed.38 As Barry Friedman
points out, it was made clear to the United States government that “the American people would
grant the justices their power, so long as the Supreme Court’s interpretation of the Constitution
did not stray too far from what a majority of the people believed it should be.”39 Since Roosevelt,
the American judiciary, especially the Supreme Court, has been more cautious of the people and
their interpretations of the Constitution as well as their desires for their government.
As the American judiciary evolves, it is important to remember two things: the purpose of
our judicial review and the flaws of the Athenian graphe paranomon. The Athenians sought after
their own form of judicial review to stop individuals from transforming the communities nomoi;
the Founding Fathers, on the contrary, wanted out judiciary to protect the rights of an individual
from being encroached upon by the legislative.40 Since these two systems both have the same
function to view the constitutionality of law but different purposes, it should not be urged that
our system move towards the Athenian model but rather that we should take into consideration
its strengths and weaknesses to determine what we should incorporate and what we should avoid.
The shortcomings of judicial review in Athens are important to review to evaluate what
elements of the American judiciary must be upheld as it progresses towards a more democratic
institution. The Athenian form of judicial review in many ways was unpredictable and
inconsistent in its application of the laws due to its reliance on popular decision-making by a lay
body of citizens.41 Most of the jurors, although assumed wiser and more experienced than the
rest of the Athenian population due to the age requirement, were not aware of, nor could they
have been, of all the laws of Athenian society or the precedent set before them due to the many

35 Werhan, 110.
36 Brutus, 121-126.
37 Friedman, 1-4.
38 Friedman, 1-4.
39 Friedman, 4.
40 Werhan, 72.
41 Werhan, 108.
unwritten elements of the Athenian constitution.42 This led Athens to never establish a doctrine
that could be relied upon.43 The United States in many ways has remedied these specific
problems through their establishment of a professional judiciary that is versed in the law and
bound by written precedent. Another flaw that is staunchly noticeable in the Athenian democracy
was the political influence on the process of constitutionality that was not explicitly separated
from the legal arguments.44 America has addressed this by ensuring the independence of the
judiciary through life tenure preventing them from feeling the need to be tied to their political
party as well as preventing political arguments from entering the court room in direct explicit
ways. From these flaws, it must be drawn what elements cannot fade from the American
judiciary: binding precedent, independence from party politics, and professional judges aware of
the intricacies of law.
As pointed out earlier, the assets of the Athenian graphe paranomon were its ability to
ensure that democracy was not being thwarted by individuals or minorities as well as its
interpretation of the constitution as a document that was living and adapting to the societal
changes. Currently, our system does see itself hindered by individuals and precedent, and both
these are the largest complainants of proponents for a more relaxed judiciary. Even though these
flaws of the American judiciary are evident, they both seem hard to remedy due to the functions
we must maintain to avoid the shortcomings of the Athenian system. Some popular
constitutionalists advocate for the average citizens to vote on the constitutionality of issues as
Athenians did, but this is not a solution that is compatible with our constitutional system of
government. America must maintain an independent judiciary to sustain the purposes of the
Founders.45 Others may propose for the amendment process of our constitution to become easier
to allow more legislation to become our supreme and binding law, but this would cause more
situations for amendments to contradict each other which the Founders sought to avoid. 46 They
saw value in keeping the Constitution minimalistic in wording.47 There are many other solutions
that are floating around amongst the citizens of America as well as in the international
community.
In my opinion though, the best solution lies in the justices ability to interpret the opinions
of the masses in accordance with the Constitution. There is merit in valuing what the people want
and adapting to societal chances, but there is also a need to stick to the roots of the Constitution.
The Athenian system was too reliant upon the passions of the people rather than the reason in
law, leading it to not always be used for constitutional purposes. On the other hand, the American
system sticks too closely to the exact wording of the Constitution to be able to interpret the
Constitution in a living way that fosters growth amongst the American community. As our

42 Hansen, 50-51.
43 Sundahl, 491.
44 Hansen, 51, 62-64.
45 Werhan, 70-71.
46

47
justices continue to determine the balance of the rule of law and responsiveness to the people, it
be best if they heeded to the advice of Friedman when he stated: “the value of judicial review in
the modern era is that it… serves as a catalyst for the American people to debate as a polity some
of the most difficult and fundamental issues that confront them. It forces the American people to
work to reach answers to these questions, to find solutions - often compromises - that obtain
broad and lasting support. And it is only when the people have done so that the Court tends to
come into line with public opinion.”48

Conclusion

48 Friedman, 16.