Curran on Disentangling the U.S. Declaration of Independence and the French Declaration of the Rights of Man and Citizen

Vivian Grosswald Curran, University of Pittsburgh School of Law, has published Disentangling the U.S. Declaration of Independence and the French Declaration of the Rights of Man and Citizen. It is forthcoming in the Duke Journal of Comparative & International Law. Here is the abstract.

The American Declaration of Independence and Revolution are linked to the French Declaration of the Rights of Man and Citizen and its Revolution through the mutual, strong influences of the Enlightenment philosophes whom both the American Founding Fathers and the French revolutionaries read. They also were linked through acquaintance and ongoing communication, with the American Declaration serving as a model for the first, but not final, draft of the French one. Both Declarations and Revolutions were to follow divergent paths through time, however, a cause for great concern in nineteenth-century France when intellectuals such as Laboulaye, Tocqueville and Taine, fearful for France’s future in yet another new régime, looked to America’s foundational documents and governmental system to uncover the secrets of America’s stability and of France’s failure to safeguard the principles of 1789. This article proposes that the answers were far less to be found in the U.S. documents or bicameral legislative structure than in a comparative, contextual examination of the two societies, their populations and their political histories. Those were the differences which led France to sink into a Reign of Terror within a few years of its Revolution and to proceed to seesaw among various forms of government thereafter, while the United States was able to enjoy a single Constitution and general political stability. The aims of each Revolution differed, as did the consequences of those differences, including how each nation perceived and dealt with freedom of religion, the abolition of slavery and the struggle for women’s equality. In France, the Revolution was intended to achieve a total rupture with the past, but France unwittingly fell prey to its past, as the absolutist tradition of the monarchy permeated its ranks in new ways, transforming egalitarianism into repression. In America, the colonists’ chief complaint had been their lack of representation in the British Parliament, not a wish to change a constitutional form of government which allowed for freedom of representation and had a king who bowed to the will of Parliament. After the American Revolution, the French looked to the new country overseas, often both idealizing and distorting it, with a view to how it could be a model for a new France. The two nations had a common point of departure in the literature of the philosophes which had deeply inspired and captured the imagination of the American Founding Fathers and the French revolutionary thinkers alike. Even a written text, however, is interpretive, such that the texts themselves were a function of what they meant to their readers. Some have thought that the Founding Fathers understood Montesquieu’s intentions better than the French. This article hopes to illuminate twists and turns from a shared point of departure, and to address ongoing debates concerning their nature.

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Green on What the Declaration Didn't Do

Jonathan Green, University of Florida College of Law, is publishing What the Declaration Didn't Do in volume 101 of the Notre Dame Law Review. Here is the abstract.

What did the Declaration of Independence do? Today, the Declaration figures in our "constitutional memory" as the text that created the United States, and that set out the essential principles that define us as Americans. But when the Declaration first appeared, neither of those claims was self-evident. Whether the Declaration actually created thirteen "Free and Independent States" on July 4, 1776, turned on whether, before 1776, Britain's American colonies had their own constitutional rights against the Crown--that is, corporate rights that were conceptually severable from the rights of their English contemporaries. Because that question was essentially insoluble, the Declaration's legal effects weren't clear in 1776. By extension, whether there were an independent, self-directing American "People"--one that could corporately agree to a set of shared principles and announce them in the Declaration--wasn't clear either. Bringing the Declaration's initial indeterminacy back into view, I argue, illustrates how our memories of the past sometimes diverge from our history. We can choose to be ruled by myths, if we want. But we shouldn't fool ourselves into conflating the past we'd prefer with the one we actually have. 

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Muñoz on The American Revolutions of 1776

Vincent Phillip Muñoz, University of Notre Dame, Department of Political Science, has published The American Revolutions of 1776. Here is the abstract.

Through the Declaration of Independence, the founders set in motion three interrelated revolutions: They put forth a new understanding of the foundations of political authority, crafted a new conception of government's purpose, and recognized the existence of religious truth and the legitimacy of religious authority. In this way, America's founding was animated by both the spirit of liberty and the spirit of religion.

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Bilder on Hater of Kings: Catharine Macaulay's Constitutional Regicide and the Declaration of Independence

Mary Sarah Bilder, Boston College Law School, has published Hater of Kings: Catharine Macaulay’s Constitutional Regicide and the Declaration of Independence as Boston College Law School Legal Studies Research Paper No. 654.

The American Revolution was a constitutional regicide. At first glance it does not much resemble a regicide. Charles I had been executed in 1649. George III went on to live nearly half a century beyond 1776. But read the Declaration of Independence carefully and notice how large the king looms. The “present King of Great Britain” aimed to establish “an absolute Tyranny.” The eighteen usurpations each began with He, the king. The king embodied two particular political typologies: Prince and Tyrant. As such, he was “unfit to be the ruler of a free people.” This constitutional justification for regicide had been developed by British historian Catharine Macaulay in the fourth volume of her History of England. Macaulay’s history from James I to the execution of Charles I provided a historical model, theoretical explanation, and blueprint for would-be patriots. Because of Macaulay, on the far side of the Atlantic, American revolutionaries renounced their allegiance to the king–and to any king–without the complications and consequences of executing one.

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Roosevelt on A Tale of Two Americas @kroosevelt93 @PennJCL @pennlaw @RebeiroBradley

Kermit Roosevelt, University of Pennsylvania Law School, has published A Tale of Two Americas at 25 Journal of Constitutional Law 939 (2023). Here is the abstract.

This article responds to Brad Rebeiro’s review of The Nation That Never Was. Professor Rebeiro offers a reading of the Declaration of Independence as focused on equality. I agree that this is what the Declaration means to us now, but I claim that is not what it meant in 1776. A close reading of the Declaration reveals that it is focused, as the title suggests, on independence, and its assertions about equality are deployed to defend that argument against the divine right of kings. Because the Declaration’s equality exists in the state of nature and is part of an argument about the origins of legitimate political authority, it is not relevant to the state of society and has no implications for the institution of slavery, which is not an exercise of legitimate political authority.

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The Declaration of Independence, Constitutional Meaning, and Affirmative Action

Katie R. Eyer, Rutgers School of Law, Camden, is publishing The Declaration of Independence as Bellwether in the Southern California Law Review. Here is the abstract.

As scholars have long observed, the Declaration of Independence serves as one of the principal points of popular engagement with constitutional meaning. In particular, the Declaration’s introductory passages regarding liberty and equality provide a key entry-point for the general public in engaging with the purpose and meaning of those core constitutional values. As such, claims about the Declaration’s meaning — and appropriation of its terms — have long pervaded public debates over core areas of constitutional contestation. This essay suggests that this unique role of the Declaration may render it an especially useful subject of study for understanding shifts in popular constitutional understandings. To the extent that popular invocations of the Declaration have shifted over time, this shift may signal broader changes in public understandings of how the constitution should be understood. Moreover, to the extent one credits popular constitutionalism as a descriptive theory (i.e., a theory of how, ultimately, Constitutional law evolves), such shifts may provide an important bellwether of the redirection of constitutional doctrine. This essay explores this idea in the context of a historical examination of the shifting invocation of the Declaration of Independence in the context of affirmative action. As such a historical account demonstrates, invocations of the Declaration's equality principles in the context of affirmative action have shifted profoundly over time, from the early years when such invocations are found predominantly in the context of pro-affirmative action statements, to the present, in which such invocations are largely made in opposition. As this essay explores, this shift has accompanied broader shifts in the equality discourse of both proponents and opponents of affirmative action; shifts that have profoundly changed the dominant discourse of affirmative action’s relationship to equality. The essay concludes by discussing the troubling implications for proponents of a particular vision of equality or liberty of the disassociation of their project with popular understandings of equality and liberty as represented by the Declaration.

Download the essay from SSRN at the link.