Rome did not have a written constitution as the United States or Australia do. It did not even appear to have a Westminster style one such as Britain's or Tasmania's which exists across multiple non-contiguous acts. It seems to be purely a mix of convention and tradition. Which was probably why it was easy for Sulla, Caesar and Augustus to subvert it.

We mainly know the Senate as the Roman political body, but prior to 510BC Rome was ruled by a monarch until (King) Tarquin was run out of town. This led to a fear of unitary or supreme power and Roman political institutions established themselves to stop such an outcome. What replaced it was effectively a Senate led oligarchy. For most of Rome's early history approximately twenty families dominated the Senate and it was rare that outsiders were able to establish themselves sufficiently to become Senators - Cicero was one of those rarities.

Since Montesquieu it has been firmly established that the three branches of government are executive, legislative and judicial. The Roman system does not really fit into those categories; the Senate being problematic again; but the Roman institutions are near enough that modern Australians would recognize executive, legislative and judicial functions in the Roman political bodies.

The main Executive position was the Consul. Rome solved the issue of absolute power and sovereignty in this position by electing two Consuls each term who would alternate month to month. A Consul's term was twelve months and they could not be re-elected Consul after serving in the position.

This pluralistic or power-sharing aspect of Roman politics may have been why would-be emperors such as Caesar, Augustus, Antony, Pompey, Crassus, Lepodus etc were happy dividing the Roman Empire up and ruling it as triumvirates - however transitory the arrangements were; ie Caesar crushed Pompey, and Augustus crushed Antony.

After a Consul's term was up they became a Proconsul and were sent off to govern a province such as Spain, Africa, Macedonia, Cisalpine Gaul etc. Anywhere that was far away from Rome. For the Proconsuls there was the added advantage of being able to extort the provinces for money as Roman elections were usually quite expensive - what with all the bribing and whatnot.

There was no civil service or bureaucracy in Roman times, that was a technology that was invented during English and French dominance in the 1700s as they required organisational technologies to support their highly militaristic and capital intensive war machines; such as a navy and continental army.

Roman politicians carried the burden of the civil service as they would take their own people with them to their appointed position and the cost tended to be defrayed by the wealth that a Roman could make in such a position. There was also no tax department either; especially not in the provinces. Tax collection was sold off, or bidded for. Tax Farmers were a wealthy and politically influential special interest group that rivalled the merchants for the ears of Roman politicians.

The Roman system carried checks and balances everywhere, and achieving the position of Consul required serving in several political positions first. An aspiring Roman public figure had to first serve as a Quaester. These were like provincial tax collectors. Cicero, for instance, served his period as Quaester on Sicily.

After serving as a Quaester the individual was eligible to become an Aedile of which they were only four in Rome. This wasn't absolutely necessary to become a Consul as it was an expensive position to hold. Most of the civic improvements came out of the Aedile's own pocket. Crassus apparently made the comment in his later life that you "Weren't rich unless you could afford to pay an army." Which gives an idea of how oligarchic the Roman system was. Only the Bill Gates, Warren Buffet's etc of Rome could afford politics; George Bush would be too poor to be part of the Roman oligarchy.

The final position before Consulship was as a Praetor. This position held real executive power as they executed the law in provinces and stood as judges. The Roman judicial system is different to our form. For instance all cases, criminal or civil, were brought by individuals against another. Again, there was no civil service, no police force, and no real penitential system. So most decisions were fiscal in nature. Capital punishment was extremely rare even in times of emergency.

The Roman lawyers used to act like TV attorneys. They would be the interviewer, the detective, the collector of evidence and then would represent their client in the Forum, defending their case with a speech full of rhetoric, innuendo and facts. This would be done infront of a public audience, who would react to the speech with cheers and boos. It is hard to believe that mob justice didn't have an influence on Roman law cases in such an environment.

The Senate was an unusual body. It wasn't really legislative, as it didn't make laws, however it controlled money supply and made policy. It also reviewed any legislation that came from the Assemblies, effectively giving it the yay or nay. Probably the closest analogy to their function in a modern democracy is the committee system in the Australia. But even that is a bad analogy.

Senators were appointed for life, and because of the high turnover of Consuls and their power-sharing requirements, the real power of Rome was in the Senate. It dominated what an executive could do, what was political achievable in the system, and how policy was conducted. It was a permanent institution, consequently it was very conservative in its political operation.

The Consuls and Tribunes were far more temporary institutions and it is a not a surprise that most radicalism came from those bodies such as Sulla, Caesar and Augustus. Than again Caesar during his period as dictator/tyrant managed to appoint so many Senators that it became a body pliant to his executive will.

The other positions in the Roman executive were the Censors and the Tribunes. The Censors were like public servants, they conducted administrative functions such as keeping the census up to date, enrolling citizens, purging the Senate of deadwood (!). There were only two Censors and the individual had to have been a Consul to become one.

The final position is the Tribune. This position came into being when the people (plebs) removed their labor from Rome in 493BC and basically conducted a strike over debt relief by camping en-masse on a nearby hill. To placate the plebs and have them return to Rome a voice of the people, the Tribune, was established. The Tribunes could propose legislation and could convene a Senate meeting to respond to the concerns of the people, but their main power was the veto.

The veto was the ultimate Roman power of check and balance. Consuls could veto, Praetors could veto and Tribunes could veto. The veto was final too, and only required one Consul, Praetor or Tribune to shoot down a proposal. It seems the idea was that it covered an executive veto, a kind-of judicial veto and a popular veto to place a check on absolute power.

One of the criticisms of the Roman system was that this overlapping check and balance created stasis in the system such that good governance could not occur; and consequently a unitary executive was required to come in and plow through these obstructions to government. When Caesar established himself as dictator he basically did an end-run around these checks and balances, however he made the other positions weak or pliant to his executive will. Augustus did similar. So this is not necessarily a good argument.

There is an argument that all the overlapping made the constitution and conventions difficult to change. Which was an issue successive Roman reformers discovered. The loophole in the Roman constitution was the position of dictator, and this is what reformers such as Sulla, Caesar and Augustus used to get around the Senate. The Dictator was a formal position, established through law, where a Consul had supreme power for six months.

This law was enacted through the Final Act which the Senate would vote into being. This would establish tumultus where civil law falls down and laws becomes the arbitrary whim of the Dictator. This is where the state of emergency and state of exception, as well as Agamben's work on homo sacer come from.

Roman politics were militaristic. Consuls and Senators were expected to be generals as much as they were required to be politicians. A quick method for an aspiring Roman politician to become a public figure was to be a successful general. For instance Pompey rose to public prominence through raising an army illegally and leading it to success during a civil war. He was twenty-three when he did that.

There were two legislative bodies in the Roman system during Cicero's time, or its most powerful age. There was the Centuriate Assembly which was a military body, and the General Assembly which was tribally based and called comitia tributa in Latin. The General Assembly approved bills, but it didn't debate them. It could also declare war. The General Assembly was territorially based rather than the oligarchic nature of the Senate which only included the wealthy families. But all democracy was constrained in Rome by transport and communications.

Enfranchisement in Rome was for male citizens and elections were held in Rome, so only those that were within travel distance of Rome could vote. Given the size of the Roman Empire, and the lack of a representative system of government, this meant that citizens in Rome wielded a great deal of power over the politics of the Empire.

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The Roman system, rather than having a Montesquieu system of separation of powers, had the organisational structure of provincia - which was separation of magistrates. Provincia seems to mean an area that requires administration, which presumably demands executive attention, but it appears it could be an area that would be allotted a magistrate to be conquered and administered. Which is not surprising as the political positions of consul were martial executives and heavily involved in military matters including conquest. Andrew Lintott makes the comment that this led to the provincial magistrates becoming more powerful than those in Rome.

Lintott writes in The Constitution of the Roman Republic:

It is preferable in my view, to treat the increase in magistracies [any executive/judicial position such as consul, praetor, tribune etc] at its face value - an indication that, as the Republic went on, the Romans became subject to more government. It remains true, however, that this increase in government did not add to the authority of the supreme magistrates in the city [Rome].

Moreover, the growth of Roman military power and empire, which ultimately allowed a single Roman commander discretion over territory which in the present day forms more than one nation-state, made the powers of a consul in Rome insignificant compared with those of a consul or proconsul abroad.

Which is an important point in my opinion of the ongoing civil wars in the later republic as consuls, such as Sulla, Pompey, Caesar etc could camp an army in Gaul, and draw upon all the resources of the western empire, while directly threatening Rome. When Caesar crossed the Rubicon, Pompey's strategic decision to remove all republican/loyalist troops to Greece and Macedonia, while popularly and morally crippling, was strategically sensible as it meant he would have the eastern Roman empire to draw upon - in troops, resources and money through taxes.

Part of the destabilisation of Rome may have been the increased power the ever-growing in size provinces gave consuls over the central government in Rome.

From the book:

In one respect this is a return to the status of the consulship in the pre-Sullan period, when major wars were fought by consuls, not pro-consuls with long-term commands.

Sulla was a dictator who effectively took over civil and military rule of Rome, suspending the Republic, and causing consternation amongst the Senators, patricians and other oligarchic members that he wouldn't relinquish his dictatorial powers. Sulla did. But political control had been recast and now came with the sword and dictatorship.

This is the problem with a non-written constitution it leaks constantly as new constitutional precedents and conventions are established with each successive emergency. It ends up being hacks upon patches which inevitably get used for other than what they were originally intended.

The Bush Administration was able to appoint two Supreme Court justices. Bush wanted diversity in the choices, such as a woman or a minority. Both his picks, Gonzalas and Miers, were shot down by both conservatives and public opinion.

Cheney, however, wanted justices that supported his view of the unitary executive in order to back up his actions in areas such as emergency, terror, torture, executive privilege, etc. Cheney led the panel that selected the final five candidates. Gellman writes:

Collectively, the group [of candidates] saw executive power in expansive terms and congressional authority more narrowly.

The media concerns and political showmanship over abortion was a furphy as it turned out - more suited to scandal than judicaturial scholarship. With Roberts and Alito the Supreme Court of the USA became more executive friendly.

The unitary executive is a cherry picked view of the Federalist Papers, namely Hamilton's No.70 where he argues that a vigorous executive is essential to good government. Hamilton writes:

That unity is conducive to energy will not be disputed. Decision, activity, secrecy, and despatch will generally characterize the proceedings of one man in a much more eminent degree than the proceedings of any greater number; and in proportion as the number is increased, these qualities will be diminished.

This unity may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority; or by vesting it ostensibly in one man, subject, in whole or in part, to the control and co-operation of others, in the capacity of counsellors to him.

Hamilton then goes on to argue against the Roman Consul system which was a two President style system. In reality though the Consuls were warrior kings and were off fighting the wars of Rome pretty much constantly, enough that new magistracies had to be made in Rome with imperium to deal with the domestic issues of the city.

Cheney's view on executive authority is very similar to Thomas Jeffersons which is known as the Doctrine of Higher Obligation. I have often wondered if they would not have got more popular traction by claiming they were operating under Jefferson's view of executive power than the 'unitary president'.

The presidential doctrine of executive power we know today is more Madison's and stems from his time as President when he pretty much over-rode Jefferson's machinations through practice and convention.

Hamilton's argument doesn't bear for Cheney, especially not when it is backed by the whacko and extreme writings of John Yoo as legal precedent, and leaves the citizen wondering if the last eight years wasn't just an excuse for maximal power.

The ultimate test is if the 'unitary executive' brought good government. It did not. This is already recognized as one of the worst Administrations in the history of the United States. For that reason alone the doctrine of the unitary executive is a failed one.