Our Conflicting Liberty Heritage from England and France

Abstract

INTRODUCTION|The original tension of the United States of America is that it was formed based on the highly conservative nature of the English Common Law, made manifest in the Constitution of the United States, but also in the highly progressive spirit of the French Enlightenment, made manifest in the Declaration of Independence. The English Common Law looks back at past authority and embraces it by relying on precedent. The French Enlightenment looked back at past authority and rejected it in full. The Constitution is a legal document. The Declaration is an aspirational one. The word liberty appears in both. The Fifth and Fourteenth Amendments of the Constitution state that the government shall not deprive any person of “life, liberty, or property, without the due process of law.” The Declaration states that “Life, Liberty and the pursuit of Happiness” are among the inalienable rights possessed by human beings.

Abraham Lincoln believed the Declaration and Constitution must always be viewed together and that the Declaration was the more important document, the Constitution being merely the first rough draft of making manifest the ideals of the Declaration. It has been noted that at Gettysburg, Lincoln improved the Constitution for all time, implicitly changing its meaning “by appeal from its letter to the spirit.” But what was the origin of this spirit?

At a time when Substantive Due Process may be one United States Supreme Court vote away from disappearing, I defend a progressive interpretation of the liberty interest of Substantive Due Process by arguing that the spirit of the French Enlightenment and the Declaration must instruct the interpretation of the Constitution with its English Common Law basis. Part II provides a legal background for the twin streams of constitutional interpretation that have defined our legal history. Part III examines in detail England, the Common Law, and its impact on the Constitution. Part IV examines the French Enlightenment, its aspirations and historical accomplishments, and its impact on the Declaration of Independence. Part V concludes that the progressive spirit of the Enlightenment must instruct the understanding of liberty as originally received from the English Common Law.