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  • Also Separated at Birth?

    Posted by Mitch Townsend on July 8th, 2006 (All posts by )

    I’ve been working from time to time on the issue of where the Anglosphere differs from the rest of the West, and where the US differs from the rest of the Anglosphere. While I was doing that, I thought it might be interesting to compare the central documents that came out of the twin revolutions in America and France. Both had to deal with the problems of avoiding both anarchy and despotism; reconciling the interests of the individual with those of the collective interest; and the inherent tension between liberty and equality. What follows is my attempt to match the first 10 amendments to the US Constitution, called the Bill of Rights after its English predecessor from 1689, with its French counterpart, the Rights of Man.

    The French Rights of Man compared to the American Bill of Rights

    Amendment I

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

    10. No one shall be disquieted on account of his opinions, including his religious views, provided their manifestation does not disturb the public order established by law.

    11. The free communication of ideas and opinions is one of the most precious of the rights of man. Every citizen may, accordingly, speak, write, and print with freedom, but shall be responsible for such abuses of this freedom as shall be defined by law.

    Comment: Emphasis supplied. Note how the statement of individual right is immediately qualified by the state’s interests in limiting them.

    Amendment II

    A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

    Comment: There is no corresponding provision in the Rights of Man.

    Amendment III

    No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

    Comment: There is no corresponding provision in the Rights of Man. This provision seems to have been inserted in response to a specific British policy of billeting troops at the householders’ expense, often as a punitive measure.

    Amendment IV

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Comment: There is no corresponding provision in the Rights of Man.

    Amendment V

    No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

    5. Law can only prohibit such actions as are hurtful to society. Nothing may be prevented which is not forbidden by law, and no one may be forced to do anything not provided for by law.

    7. No person shall be accused, arrested, or imprisoned except in the cases and according to the forms prescribed by law. Any one soliciting, transmitting, executing, or causing to be executed, any arbitrary order, shall be punished. But any citizen summoned or arrested in virtue of the law shall submit without delay, as resistance constitutes an offense.

    17. Since property is an inviolable and sacred right, no one shall be deprived thereof except where public necessity, legally determined, shall clearly demand it, and then only on condition that the owner shall have been previously and equitably indemnified.

    Comment: The right of trial by a jury of one’s peers is rare outside of English traditions. The grand jury system is even more rare.

    Amendment VI

    In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

    Comment: There is no corresponding provision in the Rights of Man.

    Amendment VII

    In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

    Comment: There is no corresponding provision in the Rights of Man. See comment regarding Amendment V.

    Amendment VIII

    Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

    8. The law shall provide for such punishments only as are strictly and obviously necessary, and no one shall suffer punishment except it be legally inflicted in virtue of a law passed and promulgated before the commission of the offense.

    9. As all persons are held innocent until they shall have been declared guilty, if arrest shall be deemed indispensable, all harshness not essential to the securing of the prisoner’s person shall be severely repressed by law.

    Comment: The right to bail is not mentioned.

    Amendment IX

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    4. Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights. These limits can only be determined by law.

    Comment: These provisions are in direct contradiction. The Rights of Man provides for the law to establish limits to individual rights, where the Bill of Rights limits the scope of the law to the areas specified.

    Amendment X

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

    3. The principle of all sovereignty resides essentially in the nation. No body nor individual may exercise any authority which does not proceed directly from the nation.

    Comment: These provisions are also in direct contradiction. Under the Rights of Man, all authority proceeds from the nation. Under the US method, all authority not specifically granted to the nation remain outside its competence.

    There were also several provisions in the Rights of Man which had no correlates in the Bill of Rights:

    1. Men are born and remain free and equal in rights. Social distinctions may be founded only upon the general good.

    2. The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression.

    Comment: Analogous, but more limited than the second paragraph of the Declaration of Independence.

    6. Law is the expression of the general will. Every citizen has a right to participate personally, or through his representative, in its foundation. It must be the same for all, whether it protects or punishes. All citizens, being equal in the eyes of the law, are equally eligible to all dignities and to all public positions and occupations, according to their abilities, and without distinction except that of their virtues and talents.

    Comment: Covered and made explicit in Amendments XIV & XV.

    12. The security of the rights of man and of the citizen requires public military forces. These forces are, therefore, established for the good of all and not for the personal advantage of those to whom they shall be intrusted.

    Comment: This seems to be a right held by the government.

    13. A common contribution is essential for the maintenance of the public forces and for the cost of administration. This should be equitably distributed among all the citizens in proportion to their means.

    Comment: Note that means-based taxation is considered a right.

    14. All the citizens have a right to decide, either personally or by their representatives, as to the necessity of the public contribution; to grant this freely; to know to what uses it is put; and to fix the proportion, the mode of assessment and of collection and the duration of the taxes.

    Comment: Compare Amendment XVI, Sections 7 and 8 of Article I.

    15. Society has the right to require of every public agent an account of his administration.

    Comment: There is no analog in the US Constitution, except perhaps Article II, Section 4, regarding impeachment.

    16. A society in which the observance of the law is not assured, nor the separation of powers defined, has no constitution at all.

    Comment: There is no analogous text in the US Constitution, as it seems to be a statement of general principle.

     

    11 Responses to “Also Separated at Birth?”

    1. James R. Rummel Says:

      I’ve been working from time to time on the issue of where the Anglosphere differs from the rest of the West, and where the US differs from the rest of the Anglosphere.

      One of the great advantages to the Internet is that it allows people from different countries and time zones to communicate easily and at low cost.

      One would think that this would promote a better understanding between people from distinct cultures, but that doesn’t happen very often. A good example is one of the many debates that I have become involved with online concerning the right to self defense. There really are only two positions to choose from.

      On one hand are people who are proud that they have the ability to provide for their family’s defense, and they view any attempts to regulate access to the tools needed for this activity with deep suspicion. Even if they don’t think that the government wants to screw them over by taking away their guns, they are convinced that can’t trust politicians because they are so removed from common everyday concerns that they can’t possibly have a clear idea about what is best for the average family. Those decisions are better left to the people who will have to live with the consequences.

      Those who don’t agree with this view are generally horrified that individuals are allowed to make this decision on their own. They think that only politicians, distanced as they are from common everyday concerns, are best suited to control access to arms because they have a godlike detachment that allows them to remove emotion from the equation. Only the elite who don’t have to live with the consequences can think clearly enough to decide what is best.

      It is purely subjective, but it has been my experience that just about everyone who aligns themselves with the first position are from the United States while those from foreign lands just about always take the 2nd.

      There are a fair number of Americans who will declare their agreement with the 2nd position, it is true. But what is really interesting is how difficult it is to find even a single non-American who thinks such an important and personal decision should be left to the individual, and how horrified they are by the very thought.

      I think that pretty much sums up the difference between the US and the rest of the Anglosphere. My country is made up of individuals that allow themselves to be counted as citizens, while the rest of the ‘sphere is made up of governments that don’t see their citizens as individuals.

      James

    2. Jim Bennett Says:

      James, the interesting question there is why the attitudes in, say, Britain and Canada changed so quickly by historical standards. for most of the history of the countries their laws on self-defense and weapons possession were the same as ours — at the turn of the last century it was easier to carry a pistol in London than in New York. I suspect it was because of the success of policing in very coherent communities, which then created the illusion that policing itself created safety — an illusion that is becoming unmasked as that coherence has broken down.

      My own take on Mitch’s question is here.

    3. Lex Says:

      Mitch, good post. Note also that virtually all of the provisions in the Bill of Rights were really based on longstanding English law. Hence, lawyers and judges knew what to do to enforce them. They were enunciations of principles that people know, and that they were able to pretty easily put into concrete operation. In particular, in the English case, there was a long-established principle that public officers who went beyond the scope of their duties were subject to suit in the civil courts, or even criminal prosecution.

      For example, consider the Riot Act was passed, which required the reading aloud of an order to disperse to an unlawful gathering, from which we get the expression “read them the riot act”. This specific language ordering the crowd to disperse had to be read before force could be used. And if it was, and if the crowd did not disperse, and if any of them were killed or injured the soldiers involved could not be prosecuted. Prior to the Riot Act, troops could not be induced to use force to disperse mobs because they correctly feared that they would be prosecuted for battery or murder, and that juries would convict them.

      While America did not adopt the Riot Act, it did enjoy a similar conception of limitations on State power except where clearly delineated, and they understood how to enforce those limits using the regular courts.

      The French did not have any of these advantages. To the contrary, their conception of public officers was on people with special privileges who were beyond the reach of the ordinary courts.
      And they certainly did not see limitations on State power as a key consideration.

      They guy to read to get a feel for this stuff is A.V. Dicey, Introduction to the Law of the Constitution

    4. Lex Says:

      James, your comment points out the perils of an unwritten Constitution. The English once had a robust conception of the right to keep and bear arms. But since their so-called Constitution consists of regular legislation, easily repealed or amended beyond recognition, and “custom”, a critical right like self-defense eroded quietly. The USA is blessed with a true Constitution which is very difficult to amend, and our gun rights are the despair os so-called progressives, but to a large degree lie beyond their reach to destroy.

      The English bit by bit allowed themselves to be disarmed, and are now bearing the consequences. And are in denial that they are bearing the consequences.

      The author who seems to be the expert on the roots, rise and decline of English freedom to keep and bear arms is Joyce Lee Malcolm. I have her book To Keep and Bear Arms: The Origins of an Anglo-American Right which is good. I see she also has one called Guns and Violence : The English Experience, which looks interesting.

    5. Bruce Chang Says:

      Does anyone else find it ironic that common law developed as a way of creating a standard for a Norman elite to govern the conquered Anglo-Saxons?

    6. John Says:

      Bruce – no more ironic than the fact that the tongue we speak is the result of Norman soldiers trying to get dates with Saxon barmaids. And is no more legitimate than the other results. ;-)

      That’s a paraphrase from H. Beam Piper, BTW.

    7. GFK Says:

      Mitch, great post and great follow-up comments guys! Who needs a Sunday paper when I can read ChicagoBoyz and drink my coffee!

      I don’t like seeing the french and american “revolutions” thrown in together. You did a great job of showing how different they were.

      Although we refer to it as the American Revolution, it really wasn’t. It was a War for “Independence.” We were not fighting ourselves internally and we were not fighting for a change of gov’t. We were fighting a foreign power and we were fighting so that our pre-existing gov’ts would not be subject to foreign influence.

      It bears little similarity to France’s Revolution, which was an internal, political, class related and rather than giving birth to 200+ years of constitutional gov’t, gave birth to Napolean in only a couple decades.

      Regarding rifts in the anglo-sphere: does anyone think that, with it’s large french speaking (Quebecouis) population, Canada should be set apart? Certainly, if Quebec seceded from Canada, it wouldn’t be included in the sphere, and with such a large non-anglo contingent as part of the country not just in population, but institution and tradition, how anglo could it be?

    8. Jim Bennett Says:

      GFK, it’s not quite accurate that “we didn’t fight each other” — American Loyalist troops were a large part of Crown forces, even the Founders calculated that a third of the population was loyalist in sentiment (and only a third firmly pro-independence). At the end of the war, there were more Loyalist refugees, per-capita, leaving America than Royalist refugees fled the French Revolution.

      A very good book on this question is Kevin Phillips’ The Cousins’ Wars, which compares the three big civil wars of the Anglosphere — the English Civil War, the War of Independence, and the American Civil War.

      From my viewpoint, I agree that it was not primarily a social Revolution of the French variety. It was a civil war, and a restructuring of the Anglosphere. Patriots like Franklin tried very hard between the end of the Seven Years’ War and the outbreak of the Revolution to negotiate a new Lockean bargain creating a structure that Americans and Britons could all live with. But he did not find willing negotiators in power in London, and moved on to work with the independence and federation option.

      As for Canada, its fundamental law and structure, its parliamentary system, is all Anglosphere. Even Quebec law has taken on substantial common-law features and is now considered a “mixed” system by legal scholars. It’s hard to spend any time in any part of anglophone Canada without coming to this conclusion.

    9. Shannon Love Says:

      Mitch,

      Excellent post. My only quibble is that I think the Rights of Man(ROM) and the Constitution represent different stages of each country’s political evolution.

      The Constitution arose from people trying reassert a traditional rule of law. The ROM, by contrast, was an attempt by a society without a history of strong rule of law some semblance of it. In this regard, the ROM is more comparable to the Magna Carta. The ROM sought to lay the groundwork to overturn the claim of the Bourbon monarchs that, “The State, it is I.”

      The ROM sought to create a state based on laws not individuals. Unfortunately, they could not seemingly conceive of a limited state.

    10. GFK Says:

      Jim, While there were loyalists joining the british army, we were still fighting the british army.

      I think I’ve heard the book mentioned before. I’ll put it on my amzn wishlist and hopefully read it sooner rather than later.

    11. POUNCER Says:

      I know nothing about this except what you’ve posted here. But the 2nd Amendment does seem to bear some correspondence to RoM statement 12;

      “A well regulated militia, being necessary to the security of a free state,” and “The security of the rights of man and of the citizen requires public military forces”

      Both seem to acknowledge that a well armed and hierarchially organized military / militia (rather than individuals mobbing around with pitchforks and torches, I suppose…) is necessary to both individual and societal freedom.

      The distinction is that the 2nd amendment does seem to apply to people individually, (at least, there is a plausible reason for a non-insignificant fraction of those people to think so.) while the RoM 12 seems to deny that personal and individual forces are intrinsically untrustworthy; that only the intrusted commanders of duly constituted militias may choose and deputize members of a posse to be issued arms.