The 'Bill of Rights' and the 'Declaration of the Rights of Man and of the Citizen': A Comparison and Contrast

The Bill of Rights and the Declaration of the Rights of Man and of the Citizen A Comparison and Contrast* Constitution Day Commemorative Lectures Series Florida Atlantic University (September 19, 2012) Marina Paola Banchetti-Robino Florida Atlantic University

On June 8, 1789, Mr. James Madison of Virginia, one of the members of the Philadelphia Constitutional Convention that ratified the United States Constitution in 1787, submitted to the first Congress of the United States a series of legislative articles to the Constitution. After much discussion and even some controversy, these articles were ultimately adopted by the House of Representatives as amendments to the Constitution and came into effect in 1791. These were the first ten amendments to the Constitution, which are also known as the Bill of Rights. On August 26 of the same year 1789, the National Constituent Assembly, which was the French legislative body during the period of social and political upheaval known as the French Revolution (1789-1799), adopted a series of seventeen articles, collectively known as the Declaration of the Rights of Man and of the Citizen. These articles were eventually revised in 1793 and would serve as the foundation for the constitution of the first French republic. At first glance, it may seem ____________________________________

This paper was presented as part of the Constitution Day Commemoration Lecture Series, at Florida Atlantic University, on September 19, 2012. ** This lecture is unpublished at this time and should not be cited. *

The Bill of Rights and the Declaration of the Rights of Man and of the Citizen

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that the American Bill of Rights and the French Declaration of the Rights of Man and of the Citizen are very similar documents, not only written at approximately the same time and in the same philosophical spirit but also with the intent of protecting approximately the same rights and freedom. However, despite certain similarities between these two documents, there are also striking differences that cannot be ignored, both in terms of the concrete rights that are guaranteed and in terms of the spirit of these documents. For example, though the Bill of Rights restricts itself to guaranteeing that individual rights would not be infringed by the state, the Declaration of the Rights of Man and of the Citizen not only advocated against the infringement of individual rights but also defined the interdependent relationship between individuals and society, the role of government in protecting the general welfare, and the responsibility of government to provide for education and protection of the poor. I hope to show that these differences in detail and in spirit are due, in large part, to the distinct philosophical traditions that influenced the development of each of these documents.

The Bill of Rights was designed to protect specific individual freedoms in the context of an implementable and amendable Constitution that established the concrete workings of a representative democratic government. The Declaration of the Rights of Man and of the Citizen, written during the height of the French Revolution, was designed instead to reflect a certain utopian conception of republic, as well as to legislate the concrete details of how such a republic would be structured. I will, at this time, begin by addressing the obvious parallels between the Bill of Rights and the Declaration of the

Marina Paola Banchetti-Robino

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Rights of Man and of the Citizen and later address some of the differences. First of all, both documents provide for separation of powers, for broadly similar principles with regard to equality before taxation, and for the need for common defense.

Both

documents prohibit arbitrary arrests and ex post facto application of criminal law, both proclaim the presumption of innocence and prohibit undue duress to the person arrested, and both assert the rights of property, while reserving a public right of eminent domain. Both documents also provide for freedom of speech, of the press, and of religion, although the French Declaration qualifies freedom of religion with the proviso that the manifestation of religious opinion “does not trouble the public order established by the law.” However, when examining these documents more closely, one notes that this is where the similarities end, both in terms of the details of the documents themselves and of the spirit under which they were written.

I will therefore, at this time, address the distinct philosophical traditions that informed the spirit of the Bill of Rights (and of the Constitution) and of the Declaration of the Rights of Man and of the Citizen. First of all, it is generally agreed that the members of the American Constitutional Congress and the French National Assembly had been influenced by the philosophical and political ideas of the Enlightenment, ideas regarding toleration, equality, individual freedom, just government, and the elimination of tyranny.

However, recent scholarship has demonstrated that what we call the

Enlightenment was not a monolithic intellectual movement but was, in fact, divided into two radically distinct and irreconcilable camps, that is, the Moderate


Enlightenment and the Radical Enlightenment.†

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The Moderate Enlightenment was

represented by figures like Voltaire, Montesquieu, John Locke, David Hume, Immanuel Kant, and Jean-Jacques Rousseau, among others.

The Radical Enlightenment was

represented by figures like Thomas Paine, Denis Diderot, Pierre Bayle, Condorcet, Helvétius, and the Baron d’Holbach, among others. The intellectual inspiration for Radical Enlightenment was to be found in the philosophical and political writings of the Dutch philosopher Baruch Spinoza, which explains why Radical Enlightenment thinkers were often referred to as ‘spinozists’.

Furthermore, the Moderate

Enlightenment was most appealing to several French and to most English thinkers, to the point that one is hard-pressed to find any Radical Enlightenment figure in England besides Thomas Paine.

The Radical tendency, on the other hand, was not only

appealing to some French thinkers but was self-consciously an internationalist movement that influenced Enlightenment thought from Spain, Italy, the Netherlands, Germany, and Russia, to both South and North America and the Caribbean.

For

example, one can clearly detect Radical Enlightenment influences on the ideas and ideals of Toussaint L’Ouverture, Henri Christophe, and Jean-Jacques Dessalines, the

____________________________________ For the most detailed, scholarly, and exhaustive historical and philosophical accounts of the Moderate and Radical Enlightenments, see: Jonathan Israel, Radical Enlightenment: Philosophy and the Making of Modernity, 1650-1750 (Oxford: Oxford University Press, 2001); Enlightenment Contested: Philosophy, Modernity, and the Emancipation of Man, 16701752 (Oxford: Oxford University Press, 2006); Democratic Enlightenment: Philosophy, Revolution, and Human Rights: 1750-1790 (Oxford: Oxford University Press, 2011); Revolutionary Ideals: An Intellectual History of the French Revolution from The Rights of Man to Robespierre (Princeton: Princeton University Press, 2014); A Revolution of the Mind: Radical Enlightenement and the Intellectual Origins of Modern Democracy (Princeton: Princeton University Press, 2009).

†


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leading figures of the Haitian Revolution of 1791 that led to the formation of the Haitian republic, then known as Saint-Domingue.

The Moderate and Radical Enlightenments embraced distinct and irreconcilable ideas regarding the nature of reality, society, freedom, rights, equality, education, property, and just government. It is these fundamental differences that are reflected in the spirit of the Bill of Rights and of the Declaration of the Rights of Man and of the Citizen. There is no doubt that the ideas that inspired the revolutionary National Assembly in Paris were primarily informed by Radical Enlightenment thought. There is also little doubt that one can see the influence of the Radical Enlightenment in the Declaration of Independence. However, the Bill of Rights and the Constitution, to the extent that they were philosophically informed, seem to reflect primarily Moderate Enlightenment ideas. This is not surprising since, according to recent scholarship, Thomas Jefferson was the only one of the American political leaders who was in any significant way influenced by Radical Enlightenment ideas. His central role in the writing of the Declaration of Independence and his absence at the Constitutional Congress, thus, explain the differences between the rights expounded in the Declaration of Independence and those proclaimed in the Bill of Rights. It is also not surprising that the first article of the Declaration of the Rights of Man and of the Citizen sounds very similar to the Declaration of Independence: “Men are born and always continue free and equal in respect of their rights. Civil distinctions, therefore, can only be founded on utility.”


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Clearly, to the extent that both Moderate and Radical Enlightenment thinkers were fundamentally concerned with a general program of spiritual, intellectual, social, and political emancipation, they did agree on a number of fundamental points. First, both the Moderate and the Radical Enlightenments were concerned with the advancement of reason and with the application of rational principles to the reformation of religion, society, and government. To this end, both groups railed against superstition and in favor of a rational assessment of religious belief and religious institutions. Both groups supported, though to varying degrees, the idea that diversity of religious opinion should be respected. This is what they referred to as ‘toleration’. Both groups argued in favor of the idea of ‘freedom’, though again to varying degrees. And, finally, both groups sought to reform government so as to eliminate political tyranny and replace it with the sovereignty of legitimate authority. Clearly, these general Enlightenment ideas inform the spirit of both the Bill of Rights and the Declaration of the Rights of Man and of the Citizen. However, when one examines the details of the Moderate and the Radical Enlightenments’ conceptions of ‘freedom’, ‘toleration’, reason, human nature, and legitimate authority, irreconcilable differences begin to emerge.

As mentioned earlier, the majority of the ideas that define the Radical Enlightenment were derived from the philosophical, ethical, and political writings of Baruch Spinoza particularly as expounded in his Tractatus Theologico-Politicus. The implementation of these ideas entailed a radical reform of all existing institutions and a complete emancipation of all human beings, based entirely on rational principles and radical


egalitarianism.

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Moderate Enlightenment thinkers, on the other hand, completely

rejected what they called ‘spinozistic’ ideas and, in many regards, sought to preserve the structure of traditional religious, social, and political institutions while, at the same time, reforming them to some degree in accordance with rational principles. At this time, I will not discuss all of the areas of disagreement between these two branches of the Enlightenment but will concentrate only on those that directly pertain to the obvious philosophical differences between the Bill of Rights and the Declaration of the Rights of Man and of the Citizen. I will, therefore, focus on the notions of legitimate authority, equality, and freedom.

As already mentioned, the majority of Moderate thinkers wanted to reform traditional monarchy in order to eliminate tyranny, to introduce some degree of accountability with regard to the sovereign, and to ensure that the sovereign embraced Enlightened ideas. Moderate thinkers, however, did not favor a complete reform of governmental institutions nor did they favor outright democratic republicanism. Both direct and representative democracy were distasteful to Moderate Enlightenment thinkers such as Voltaire, Locke, Kant, and Hume because these philosophers did not believe that the people either could or should be treated as complete political equals or allowed to exert complete sovereignty over themselves.

Kant, for example, believed that if

enlightenment was possible for the majority of people, it could only be achieved under the rule, the care, and the watchful eye of an enlightened despot, such as Frederick II of Prussia or Catherine the Great of Russia. Voltaire, on the other hand, did not think that


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the masses were capable of governing themselves and greatly admired the English system of constitutional monarchy, primarily due to the checks and balances provided by the veto power of the monarch and by the House of Lords against the possible excesses of the ‘commons’.

Radical Enlightenment thinkers, on the other hand,

considered that democratic republicanism, in which the people are sovereign, was the only legitimate and rationally justifiable form of government. In this regard, we note that both the American Constitution and the Declaration of the Rights of Man and of the Citizen reflect this fundamental aspect of Radical Enlightenment thought, since each document provides for a representative constitutional democracy.

Another area of fundamental and irreconcilable disagreement between the Moderate and Radical Enlightenments was over the issue of equality.

Although Moderate

thinkers believed that God endowed people with reason, moral conscience, and inalienable rights to some degree, they drew sharp distinctions between races and genders. Rousseau, for example, did not attribute to women the same degree of reason as men, believing that women were primarily governed by emotion and that their domain should be restricted to the home, since education would have been wasted on them. Women should, therefore, not actively participate in the social contract and should not form part of the sovereign body. With regard to race, Moderate thinkers, such as Voltaire, Rousseau, Kant, Locke, and Hume believed that equality among people was really equality among white men.

Thus, for them, rational capacity,

intelligence, and moral awareness were most clearly manifested in white men and


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gradually decreased as the darkness of a person’s skin increased.

We note that,

although this aspect of Moderate Enlightenment thought is not manifested in the wording of the Bill of Rights, this idea was certainly embedded in the original framing of the Constitution to the extent that this document did not provide for the elimination of slavery, despite the debate over the issue of slavery that took place at the Constitutional Congress. We also note that, though Jefferson respected many Radical Enlightenment ideas, this respect did not extend so far as to lead him to free his own slaves or to recognize the legitimacy of the Haitian republic.

In this regard, Moderate

Enlightenment had a stronger impact on Jefferson.

Radical Enlightenment thinkers, on the other hand, endorsed the notion of complete and unadulterated equality among all human beings, regardless of gender or race. For the Radical Enlightenment, all human beings are equal in their ability to reason, have the same desire for happiness, dignity, and freedom and, therefore, have the same rights to happiness, dignity, and freedom. Unlike Moderate thinkers who did not believe that everyone could or should benefit from equal education, Radical thinkers advocated universal education for all people as a way of reforming society.

In

connection with this, they fully endorsed Spinoza’s belief that women should be granted equal rights to men, as well as equal sexual freedom, that they should share in sovereign power with men, that they have equal rights to property, and that they should receive the same education as men. Pertaining to sexual freedom, Spinoza and Radical Enlightenment thinkers also explicitly supported the right of consenting adults


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to live their sexuality, including homosexuality, in privacy and free from religious or governmental persecution. Spinoza and ‘spinozist’ Radical thinkers like Diderot, Bayle, Condorcet, and others also advocated for the total eradication of slavery and colonial rule.

These Radical Enlightenment beliefs in the equality of all people and in a

universal right to freedom, dignity, and education imbue the Declaration of the Rights of Man and of the Citizen of 1789 which states that “men are born and remain free and equal in rights” and are even more explicitly emphasized in the 1793 revision which states, for example, that “there is oppression against the social body when a single one of its members is oppressed” and that “education is needed by all. Society ought to favor with all its power the advancement of the public reason and to put education at the door of every citizen.” This great admiration for public education and, by the way, for the taxing of property to secure such public education was a Radical Enlightenment idea completely supported by Thomas Jefferson.

The sharp distinctions drawn by Moderate Enlightenment thinkers between races and genders were also reflected in distinctions that they drew between social and economic classes. Although Moderate thinkers believed in some degree of social and political reform, it is clear that Moderate thinkers had no interest in advocating for the elimination of social and economic castes or for the elimination of the landed aristocracy. Moderates continued to hold a deep-seated belief that the social order was a reflection of the will of God as embedded in nature and, therefore, regarded social egalitarianism as unnatural and ungodly. It is, therefore, not surprising that economic


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reform is never seriously considered or discussed in the writings of Voltaire, Locke, Kant, Montesquieu, or of any other Moderate Enlightenment thinkers..

The Radical Enlightenment, on the other hand, rejected the idea that hierarchical social order was either divinely sanctioned or part of the natural order of things. In fact, as Thomas Paine made clear, Radical thinkers believed that the hierarchical distinctions between social and economic classes were an abominable affront to reason and were primarily due to unjust usurpation of land, wealth, and power at the tip of a sword. For them, complete reform and the creation of a just social order could only be achieved when extreme differences in wealth had been eradicated, since such distinctions in wealth would ultimately corrupt and endanger any constitutional provisions for shared political power among all the people. Diderot, in fact, warned about this danger in 1776, exhorting American revolutionaries to guard against vast distinctions in wealth in the United States, as these would surely endanger democracy in the newly formed American republic. Thus, the Declaration of the Rights of Man and of the Citizen of 1789 clearly states that “social distinctions may be based only on considerations of the common good”, while the revision of 1793 goes even further by claiming that “public relief is a sacred debt.

Society owes maintenance to unfortunate citizens, either

procuring work for them or in providing the means of existence for those who are unable to labor.”


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One final point of disagreement that I will discuss, between the Moderate and Radical Enlightenments, has to do with their different conceptions of ‘freedom’.

While

Moderate thinkers viewed freedom in strictly negative terms, Radical thinkers embraced both negative and positive conceptions of freedom.

Negative freedom

represents the absence of obstacles, barriers, or constraints upon one’s actions. Positive freedom represents the possibility of acting in such a way as to take control of one's life and realize one's fundamental purposes. While negative freedom is usually attributed to individual agents, positive freedom is often attributed to individuals considered primarily as members of social collectivities.

While Moderate thinkers were upholding a primarily atomistic and individualistic conception of society, in which the social order is conceived as the collection of private individuals who are only accidentally and contingently connected to one another by way of social contract, Radical thinkers were upholding an organic conception of human society directly derived from the writings of Spinoza. Under this view, though society certainly consists of individual members endowed with negative rights, these individual members are organically and necessarily connected to each other in such a way that, in order to achieve their positive rights, each individual and the government as a whole must work towards the ‘common good’. Furthermore, negative and positive rights are inextricably connected, so that good government meant ensuring both that people’s negative rights were respected and that the ‘common good’ was implemented. There is no contradiction here, according to Diderot, because ultimately the happiness


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and freedom of each individual is truly achieved only when everyone works also for the ‘common good’. And this also happens to be one of the most striking differences between rights as conceived in the Bill of Rights and rights as conceived in the Declaration of the Rights of Man and of the Citizen, particularly in its 1793 revision.

This is most obvious when one considers that the rights enumerated in the Bill of Rights are strictly negative rights to freedom of speech, religion, the press, etc., that is, rights that cannot be constrained by the state. On the other hand, the 1793 revision to the Declaration of the Rights of Man and of the Citizen enumerates both negative rights, such as freedom of speech, of the press, of religion, etc. But it also describes positive rights such as the right to education and to public relief, meaning the right to have work procured for one or to have the means of existence provided for if one is not able to work. Additionally, the 1793 Declaration states that “the aim of society is the common welfare”. It also states that not only is there “oppression against the social body when a single one of its members is oppressed”, which is an expression of individual freedom, but also that “there is oppression against each member when the social body is oppressed”, which is an expression of the organic and necessary unity and interdependence between the individual and the social organism.

These are key

notions in Radical Enlightenment thought.

What is interesting in all this is that, although historically, the Moderate Enlightenment seems to have been most influential in the framing of the Bill of Rights and the


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Constitution as a whole, there has been a consistent tension between Moderate Enlightenment and Radical Enlightenment since these documents were framed and, to some extent, these tensions persist to this day. Radical Enlightenment ideas persist as people continue to struggle to amend the Constitution in order to make it a more egalitarian document and to the extent that we continuously work to make our society a more just and inclusive society, one that is not only concerned with protecting individual negative freedoms but that is also concerned with caring for those who are least able to care for themselves, to provide universal quality education for all citizens, and to maintain a degree of economic fairness that mediates between the extremes of wealth and poverty that endanger democratic institutions. In sum, to the extent that people everywhere struggle for equality, dignity, justice, and freedom, without regard to gender, race, religion, or creed, the spirit of the Radical Enlightenment and of Baruch Spinoza, Thomas Paine, and Denis Diderot continues to inspire the world.

The 'Bill of Rights' and the 'Declaration of the Rights of Man and of the Citizen': A Comparison and Contrast

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