Constitutionalism and Rights in the American and French Revolutions

The Foundations of Modern Rights and Revolutions

Contrasting Revolutionary Ideals

The need to build a new world and a new political system based on two eminent values—individual natural rights—did not exclude the fact that the protagonists of this operation were proud Englishmen, sons of a historical constitutional tradition that had offered first-class contributions to the cause of rights and freedoms.

The root of the difference lay in an oppressive reality against which individual rights were asserted in both the American and French Revolutions.

• In the French Revolution, rights asserted themselves against the past of the Ancien Régime.
• In the American Revolution, there was no need to destroy any estates; it did not have to assert the rule of law generally and abstractly over old sources of law; nor encode a modern private law founded on the single subject against the old common law; nor ultimately destroy a previous practice of corporate-type representation.

The American Revolution: Taxation and Representation

Going back in time from 1776 to 1765, delegates from 9 of the 13 colonies met in New York in the famous Stamp Act Congress to contest a series of tax provisions that had been imposed by the motherland on certain internal consumption within the colonies. This was the old formula: "no taxation without representation." On balance, the 1765 protest was also an act of fidelity.

Constitutionalism and the Priority of Rights

The monarch who wished to tax the inhabitants of a colony should obtain the consent of the representative assembly of the people of that colony, not the British Parliament (as was the case in 1765). A significant thread would be great distrust of lawmakers, particularly given their claim to embody the general will, in the manner of the French Revolution.

And so, rights and freedoms were secured by the Constitution, i.e., the possibility of limiting the legislature with a higher-order rule. Iusnaturalism, historicism, and an individualistic approach became intertwined, forming a single doctrine of Rights: the priority of rights over public authorities.

The Historicist Component of the American Revolution

The American Revolution stemmed from the conviction that this traditional meaning of constitution must change if it was not to ultimately degenerate into parliamentary omnipotence. There was a need to strengthen its capacity to guarantee rights (separated from its usual identification as an undifferentiated heritage of principles existing in many written texts emanating from different times, always from the Magna Carta of 1215, and stated in custom or law).