Constitutionalism: French and American Contributions

The United States Constitution is celebrated this week with Constitution Week, which includes Constitution Day and Citizenship Day. These events attest to the Constitution’s achievement as one of the first written constitutions. They also encourage citizens to reflect on the rights that they enjoy.

But the spirit of American constitutionalism is not limited to the Constitution’s text. This ethos encompasses several texts between 1776 and 1791, as historian George Billias rightly notes: the Declaration of Independence, state constitutions, Articles of Confederation, Federalist Papers, and the Bill of Rights. American constitutionalism’s plural sources “reflect the revolutionary republican constitutionalism of the founding era.”¹

American constitutionalism, though singular in some respects, is part of a longer tradition of Western constitutionalism. With roots in ancient thinking on higher law, Western constitutionalism extends through the Glorious Revolution, American Revolution, and French Revolution. Additionally, the Constitution was not the first constitution in the Americas. State constitutions preceded it, while the Articles of Confederation are often considered the first national constitution. But the Articles created a weak central government that could not levy taxes, regulate commerce, or enforce laws, so they were ultimately superseded by the Constitution, whose complex amendment process has resulted in few changes over the centuries.

Furthermore, as nineteenth-century political theorist Alexis de Tocqueville notes, the United States was not the first state to exist as a confederation, though it eventually became a strong federal republic. Other confederations in modern Europe existed, such as Switzerland, the German Empire, and the Republic of the Netherlands. Through the Constitution’s achievement, the American republic was singular in comparison to these. For Tocqueville, “the federal government in these different peoples has almost always remained feeble and powerless, whereas that of the Union conducts affairs with vigor and ease.”²

Accordingly, Tocqueville rightly observes that the Constitution “rests on an entirely new theory that will be marked as a great discovery in the political science of our day.”³ He takes this to be the strong powers the Constitution accords to the federal government, particularly that the federal government could dictate the people’s laws and execute them on its own. This contrasts with other confederations where the people retained the right to ordain and oversee laws’ execution. That said, a government strong enough to dictate good laws could also be strong enough to surpass its enumerated powers.

Even with a strong federal government, the Constitution has become a lodestar for constitutional democracies worldwide, valorized as an exemplar of constitutionalism in its modern meaning. This has to do with the way it delineates institutional constraints on sovereign power that preserve individual rights. We see these constraints in the text’s provisions for separation of powers,⁴ federalism,⁵ checks and balances,⁶ judicial review,⁷ and a bicameral legislature.⁸ Together with the array of civil and political rights recognized by the Bill of Rights, these mechanisms constrain state power to better serve citizens’ freedom.

But reality attests that the commitments of America’s written constitution have not always actualized. One can look to the existence of slavery and increased executive power throughout American history, including the presidencies of Abraham Lincoln, Woodrow Wilson, Franklin Delano Roosevelt, as well as the current regime. Overall, official constitutional documents may not consistently translate into legitimate exercises of sovereign power that respect rights and preserve peace and order through rule of law, whether in the United States, France, Russia, or elsewhere. Nevertheless, the Constitution remains an influential model for nations worldwide, though political practice has, at times, deviated from its idea.

While constitutional ideas of a higher law and institutional constraints had previously existed, especially in the natural law ideas of Cicero and Aquinas and the natural rights thinking of social contract theorists like John Locke, the Constitution was the first to put these ideas into practice. Accordingly, F. A. Hayek rightly observes the American Founders’ singularity on this front. Though “the conception of a higher law governing current legislation is a very old one,” Hayek recognizes, “the idea of making this higher law explicit and enforceable by putting it on paper . . . was for the first time put into practice by the Revolutionary colonists.⁹

Due to the Constitution’s novelty, the idea of a written constitution became influential. The Constitution influenced constitution-building “not only as models for foreign constitutionalists but also as catalysts.”¹⁰ Following its ratification in 1788, a wave of constitutional development took place worldwide, especially in Poland and France in 1791, Haiti in 1805, Argentina in 1853, and Brazil in 1891. Given constitutionalism’s close relation to popular sovereignty through mechanisms of accountability, which constrain executive power in service of rights, democracies worldwide largely have written constitutions with the exceptions of the United Kingdom, Israel, and New Zealand.

Negative Liberty and Rationalist Insight in the Constitution and French Declaration

In reflecting on the achievement of American constitutionalism and the way it catalyzed a movement worldwide, we can place it in dialogue with a similar text of French constitutionalism: the Declaration of the Rights of Man and of the Citizen. Both texts were ratified around the same time, the Constitution in 1788 and the Declaration in 1789, and both arose from similar revolutionary moments, the American Revolution and French Revolution.

But the French Revolution had significantly more violence and instability. Further, while the French Declaration may appear to have a higher degree of philosophical sophistication than the Constitution, especially in its inclusion of abstract ideas like the harm principle and its sacralization of natural right, one could argue that its rationalism contributed to the violence that ensued. This contrasts with the relative peace of American constitutional order in its more pragmatic outlook, given the Constitution’s focus on the operations of good governance.

Both texts valorize negative liberty. Notably, the enumerated rights in the Constitution and the French Declaration both put the focus on negative rights, also known as civil and political rights, which are rights that the state must uphold solely by non-interference in citizens’ freedom. In particular, the First Amendment to the Constitution enumerates rights of religious freedom, speech, press, assembly, and petition, all of which are negative rights.¹¹ But these are rights that citizens frequently take for granted until the state violates them, often using “states of exception” or emergencies to justify those violations.

Meanwhile, the French Declaration’s preamble cites the “natural, unalienable and sacred rights of man,” where “the aim of every political association is the preservation of the natural and imprescriptible rights of Man.” These insights reflect the natural rights and social contract thinking that prevailed in early modernity, in addition to being reflected in the ideas of the Declaration of Independence. The French Declaration goes on to specify these natural rights as “Liberty, Property, Safety and Resistance to Oppression,”¹² aligned with negative liberty.

The French Declaration invokes John Stuart Mill’s idea of the harm principle, though several decades before Mill formulated it. “Liberty consists in being able to do anything that does not harm others,”¹³ while “the Law has the right to forbid only those actions that are injurious to society.”¹⁴ The text notably affirms the harm principle’s relation to freedom more explicitly and ardently than the Constitution. The Constitution, though it enumerates a series of rights reflective of negative liberty, does not ally them to a broader discourse on what human freedom consists in.

But the French Declaration is imperfect in other respects. It renders the legislator both guarantor and definer of rights, informed by Jean-Jacques Rousseau’s notion of the general will. Though the French Declaration does valorize the harm principle in article 4, the article goes on to say that the harm principle’s bounds “may be determined only by law.” Law exercises an arguably supreme role in the French Declaration, limiting the exercise of rights like religious freedom and speech.¹⁵ This constraint on negative liberty, which gives significant power to the lawmaker, contrasts with the American vision in the First Amendment to the Constitution: “Congress should make no law” that abrogates civil liberties.¹⁶

Both texts further stress separation of powers, a defining feature of modern constitutionalism theorized by Montesquieu in The Spirit of Laws (1748).¹⁷ Indeed, the French Declaration asserts that “any society in which no provision is made for guaranteeing rights or for the separation of powers, has no Constitution,”¹⁸ a strong claim about the meaning of constitutional government. The French Declaration’s constitutionalism involves rights and separation of powers, emblematic of modern constitutionalism and closely aligned with the American political vision.

The French Declaration goes on to emphasize private property: “Since the right to Property is inviolable and sacred, no one may be deprived thereof, unless public necessity, legally ascertained, obviously requires it, and just and prior indemnity has been paid.”¹⁹ Likewise, in the Constitution, the Fifth Amendment states that private property cannot be taken by the state for public use without just compensation.²⁰ But it does not speak of private property with the same degree of rhetorical force or sacralization as the French Declaration does.

Hence, while the Constitution similarly protects private property against sovereign overreach, it refrains from making a moral assertion about private property the way the French Declaration does, with the latter specifying its right as “inviolable and sacred.” That said, another text of American constitutionalism—the Declaration of Independence—mentions natural rights to “life, liberty, and the pursuit of happiness,”²¹ where Americans of the Founding era understood this to encompass property rights, though the text does not expressly state that property is a natural right.

Taken together with the French Declaration’s articulation of the harm principle, one could infer that the French Declaration is more philosophically grounded than the Constitution. The text of the French Declaration is more confidently philosophical and rationalist than the text of the Constitution, which tends toward pragmatism in outlining the mechanics of good governance. Tocqueville’s observation of the American political spirit in contrast to the French vindicates this assessment. As Tocqueville puts it:

Political bodies in the United States have never been as enamored of general ideas as were our Constituent Assembly and Convention; never has the whole American nation become passionate for these sorts of ideas in the same manner as the French people in the eighteenth century, nor has it displayed as blind a faith in the goodness and absolute truth of any theory.²²

Tocqueville rightly notes that allegiance to general ideas or theories, the province of the French political vision through the general will, can become all-encompassing—though this need not discount the role of ideas altogether. And despite its high philosophical language, there was a revolutionary violence in the French Revolution which might speak tragically to the French Declaration’s rationalist assertions about human freedom and injury to society.

Indeed, in making universal statements, those who opposed those conceptions could be seen as adversaries. Further, the French empirical reality contradicted the ideas of the French Declaration. Rather than upholding private property, the state confiscated and nationalized the Church’s lands soon after the French Declaration’s ratification, possibly due to the text’s deference to the law, general will, and nation, where the nation had sovereignty in a way that the individual did not.

Accordingly, the tyranny of the ancien régime was replaced by the Jacobin tyranny, while violence to the same extent did not arise from the Constitution. And when considered within the larger body of American constitutionalism, including the Declaration of Independence’s discourse on natural rights, the Constitution can be seen in its philosophical clarity.

Concluding Remarks

The spirit of American constitutionalism, through its ideals of freedom and equal rights, remains compelling, though it was deeply contested by the existence of slavery and challenged by heightened executive power throughout history. Given progress in the extension of equality, the Constitution is still worth reflecting on today. In its innovation as one of the first written constitutions, it productively synthesized an existing discourse on higher law and separation of powers. It has affinities with the French Declaration on the Rights of Man and of the Citizen, which originated around the same time and in a similar revolutionary milieu, but with greater violence.

The Constitution remains influential for the ways it has constrained power in service of rights and catalyzed a wave of constitutional development worldwide. Even if it does not possess the seeming philosophical depth of the French Declaration, which more clearly stresses the harm principle’s relation to freedom and the inviolability of natural rights, like property, though contradicted by the French empirical reality of violence and expropriation, when considered as part of the broader tradition of American constitutionalism we can appreciate the philosophical note. The Constitution’s institutional mechanisms, together with the relative lack of violence in its origins compared to the French Declaration, stand out as powerful testaments to the achievement of American constitutional democracy.