*73 FUNDAMENTAL CONSTITUTIONAL RIGHTS IN THE NEW CONSTITUTIONS OF EASTERN

                                     AND CENTRAL EUROPE [FNa1]


                                    Rett R. Ludwikowski [FNaa1]


                    Copyright © 1995 by Yeshiva University; Rett R. Ludwikowski


I.    INTRODUCTION ......................................................... 74
II.    THE PLACEMENT OF RIGHTS IN THE CONSTITUTION ......................... 75
        A. The Origins of the Constitutional Protection of Human Rights .... 75
           1. Drafting the First Bills of Rights ........................... 75
           2. The French Declaration and the American Bill of Rights ....... 79
        B. Bills of Rights in Modern Constitutions of the Nineteenth and
        Twentieth Centuries ................................................ 83
        C. The Socialist Concept of Constitutional Rights .................. 87
III.    BILLS OF RIGHTS IN THE NEW CONSTITUTIONS OF COUNTRIES OF FORMER
        SOVIET DOMINANCE ................................................... 90
        A. Albania: Drafting the Bill of Rights ............................ 92
           1. Human Rights Practices in Albania ............................ 96
        B. Bulgaria: Constitutional Transformation ........................ 104
           1. Political Changes After the Adoption of the Constitution .... 109
           2. Human Rights Situation in Bulgaria .......................... 113
        C. Romania: Post-communist Communism .............................. 119
           1. Constitutional Development .................................. 121
           2. Human Rights Practices in Romania ........................... 124
        D. Czech Republic and Slovakia: The Velvet Divorce of the Czechs
        and the Slovaks ................................................... 130
           1. The Constitutions of the Slovak and Czech Republics Compared  131
           2. Human Rights Situation in Czech Republic and Slovakia ....... 134
        E. Hungary: Amending the Constitution ............................. 140
           1. The Constitution in Operation ............................... 145
        F. Poland: The Interim Constitution ............................... 149
           1. Human Rights Practices in Poland ............................ 154
IV.     CONCLUSION: BETWEEN THE WEST AND EAST ............................. 158

*74 I. INTRODUCTION

Within the past two years, several Eastern and Central European countries, and almost all former
republics of the Soviet Union, began drafting their new constitutions. Bulgaria, Czech Republic,
Estonia, Kazakhstan, Lithuania, Romania, Russia, and Slovakia, have already adopted new basic laws.
Additionally, Albania and Poland approved interim constitutions, and amendments introduced to the
Hungarian Constitution have purged it entirely of the remnants of its Stalinist legacy. Also, the
new Belarusian and Ukrainian constitutions were expected in Spring 1994. One might even say that
East-Central Europe has become a major laboratory of constitutional works.

When several countries in the same region engage in constitution drafting, comparative dimensions
underlie the procedure. Constitutions do not emerge in a political vacuum. Countries naturally
borrow from each other, and borrow heavily during transitional periods when new political entities
are emerging. Thus, experts studying the process of transplantation of various constitutional
features must consider whether they witnessed the formation of a new constitutional model in
East-Central Europe. These experts assessed the extent to which the new constitutions were based on
American, European, East or West liberal and democratic traditions, and how much of the communist
legacy would be absorbed by the new acts.

A clear response to these questions is particularly important regarding fundamental constitutional
rights. The socialist constitutions contained impressive bills of rights; yet, the records of these
countries in actually protecting citizens' rights and freedoms were extremely poor. Both the
socialist East and the capitalist West claimed that the other's approach to human rights protection
was "formalistic." For the socialist jurisprudence, the lack of appropriate protection for
economic, social, and culture rights, typical of Western constitutionalism, meant no protection at
all. Socialist jurists *75 professed that equality of political rights and equality before the law,
without equivalent guarantees for social and economic rights, created an environment conducive to
social inequality, enslavement and exploitation of people, and general social injustice. According
to capitalist Western doctrine, the "formalistic" socialist approach to human rights meant only "a
paper protection," with no significance whatsoever in reality. An elaborate socialist bills of
rights, without an enforcement mechanism, were only decoration, merely resembling a book jacket,
and lacking substance.

The drafters of the new post-socialist constitutions faced a difficult task. They tried to
implement Western ideals while simultaneously satisfying a people strongly influenced by a
socialist upbringing.

The goal of this article is to review the efforts of the drafters. This study analyzes the process
of drafting the new bills of rights against the background of the Western experience. The paper
consists of two parts. The first examines the genesis of American and European constitutional
protection of human rights, including the socialist concept of the bill of rights. The second is an
analysis of basic constitutional rights as provided in several new constitutions and constitutional
drafts of the countries of former Soviet dominance. The article also examines the actual records of
these countries in human rights protection. The conclusions provide some observations on the
likelihood of whether the drafters of new constitutions will reach some identifiable consensus, the
possibility of a new constitutional model of human rights protection surfacing, and the
applicability of the Western concepts of human rights to the East-Central European experience.


II. THE PLACEMENT OF RIGHTS IN THE CONSTITUTION


A. The Origins of the Constitutional Protection of Human Rights


1. Drafting the First Bills of Rights

The concept of natural rights has its foundations in antiquity and was developed in numerous
political and legal theories during the Enlightenment. Although many of the ideas on the origin of
human rights originated in continental Europe, the belief that a well-governed society should have
one framework document providing an extensive coverage for citizens' rights and freedoms is *76
deeply rooted in the British tradition. [FN1] At the end of the eighteenth century, this idea
buttressed the American constitutional experience.

The formation of the American Bill of Rights was, in fact, an uneasy process. Although declarations
of rights were incorporated into the constitutions of several states, the Philadelphia Convention
of 1787 adopted the Federal Constitution without a bill of rights annexed to it.

The struggle to ratify the Constitution quickly proved that the Convention erred in not adopting a
bill of rights. The public demanded a bill of rights, and the lack of one became a main point in
the anti-federalist attack on the Constitution. [FN2] Thomas Jefferson, in his letters from France,
argued strongly that the absence of a statement of rights would result in the "elective despotism"
of the Congress. [FN3] James Madison favored a bill of rights, although he did not believe the
omission to be a major defect of the Constitution. [FN4]

In drafting the Bill of Rights, Madison referred to precedents such as the American Declaration of
Independence, state constitutions and bills of rights, ratifying conventions, and British
constitutional documents: the Magna Carta of 1215, the 1628 Petition of Rights, and the 1689 Bill
of Rights. [FN5] Though the concept of a bill of rights originated from attempts to limit the power
of the British crown, Madison claimed Americans had to develop a more advanced *77 bill as the
British Constitution did not secure freedom of the press and liberty of conscience, rights highly
regarded in America. [FN6] Madison made no reference to the French constitutional experience, and,
with the exception of the consular convention and the letter to the French National Assembly
announcing Franklin's death, France was hardly mentioned during the first year of debate in the
first United States Congress.

The adoption of the French Declaration of Man and Citizen on August 27, 1789, almost two and half
years before the ratification of the American Bill of Rights on December 15, 1791, often puzzles
researchers looking for the origin of constitutional bills of rights. The passage of the French
document before the American one trivialized the American contribution to French constitutional
development. The notion of a bill of rights, which could be used as a preamble to a constitution,
is an American concept. Americans translated this idea into the concept of a constitution, a single
document providing a basic law superior to any legislative act or statute. [FN7]

On the one hand, it is unquestionable that the preambles of American state constitutions, such as
those of Virginia, Massachusetts, and Maryland, as well as their prototype -- the American
Declaration of Independence -- strongly influenced the authors of *78 the French Declarations.
[FN8] On the other hand, the record demonstrates that the drafting of the American Bill of Rights
and the French Declaration of the Man and the Citizen almost paralleled each other. On May 4, 1789,
the day before the French Estates General met for the opening plenary session in the great Salle
des Menus Plaisirs, Madison informed Congress of his intention to address the subject of amending a
bill of rights to the Constitution. [FN9] He submitted his draft on June 8, 1789 while Lafayette
presented his proposal to the French Assembly on July 11 of that same year. [FN10] On August 13,
1789, the United States House of Representatives convened as a Committee of the Whole and discussed
the report of the Committee of Detail, the working group that took the general principles adopted
during the first stage of the proceedings and molded them into a draft document. Then, the
Committee of Style, charged with refining the form and style of the draft document and
incorporating changes previously made in Convention debate, submitted the report with the third
draft of the amendments on August 24-25, 1789, two days before the French Assembly adopted the
Declaration of the Rights of Man on August 27, 1789. [FN11] The amendments passed Congress on
September 25, 1789.

The American Bill of Rights was not ratified until 1791, but the drafting process was completed
before the adoption of the French Declaration. Thus, the draftsmen of the American version of the
bill were not influenced directly by the final text of the French document. They may have been
familiar with the early drafts of the Declaration and inspired by the French constitutional
debates, but a thorough examination of the record does not confirm this thesis. It is true that the
American public was enthusiastic about the French Revolution, and the founding fathers were well
informed about the European events. There is, however, no evidence *79 that the American draftsmen
drew their ideas from French constitutional thought.


2. The French Declaration and the American Bill of Rights

An extensive examination of the French Declaration and the American Bill of Rights reveals
similarities and differences between these documents. Both texts emphasize "freedoms from" and
rights of the criminally accused. While the American Bill of Rights is solely oriented toward the
protection of individual rights, the French Declaration makes meaningful reference to "the common
good."

The parallel development of the French Declaration and the American Bill of Rights makes the search
for mutual interdependencies between the two acts difficult. To discover the roots of present and
future differences in European and American concepts of human rights, it is necessary to take a
closer look at: (1) the French Declaration; (2) the American Declaration of Independence; and (3)
American state and federal bills of rights. It was in these documents that confluence began, and
where both similarities and differences in European and American concepts of human insecurities
were revealed.

The French Declaration more notably attached equality to liberty and stressed the importance of
this conjunction than did either the American Declaration of Independence or the Virginia Bill of
Rights. [FN12] "By bringing the resounding collapse of privileges and feudalism, the [French]
popular revolution highlighted equality as the Anglo-Saxons had not done." [FN13] Article 1 of the
French Declaration proclaims, "men are born free and equal in rights." [FN14] Equality *80 is also
referred to in several of the subsequent articles. [FN15] The French Declaration guarantees equal
rights in courts, equal access to governmental positions, and fiscal equality. Even with all of the
egalitarian provisions, equality, although emphasized more firmly than in the Anglo-American
doctrine, holds "a lesser place than freedom in the [French] Declaration." [FN16]

Among the fundamental principles embodied in the French and American documents, liberty is the most
important right. Men are declared free from arbitrary persecution and free to communicate their
opinions, provided they respect the same liberty in others. Liberty, property, security, and
resistance to oppression are recognized as fundamental individual rights stemming from the nature
of human beings. [FN17] Equality was not considered part of these sacred and imprescriptible
rights. The French Assembly focused on the condemnation of the unequal position of estates and
privileges of minorities, and following Sieyes' argument, decided not to include social equality
among the rights protected by the French Declaration.

*81 Contrary to the second French Constitution of 1793, which stressed the significance of social
equality, the majority of the Constitutional Assembly in 1788-1791 was satisfied with the
protection of equal freedom. The right of equal freedom was formulated more clearly in the French
Constitution of 1791 than in the Virginia Bill of Rights. On the other hand, the Virginia
Declaration placed greater emphasis on the frequency of elections, and the right to a jury trial.
It was also more concrete in its warning against excessive bail and more explicit in its reference
to general warrants, suspension of laws, and standing armies. [FN18]

Religious liberty and tolerance are other areas where the French and American Declarations diverge.
A number of deputies of the French Assembly, led by Robespierre, were dissatisfied with the
inadequate treatment of religious liberty and religious toleration in the French Declaration. The
mild reference to religious toleration was recognized as a failure of the Voltairians during this
phase of the Revolution. As a result of these sentiments, at the end of 1789 and in 1790, the
French Assembly adopted several acts drastically limiting the dependence of the French Catholic
Church on the Pope and tying the clergy to the State's policy. [FN19]

Contrariwise, the American instruments seemed more religiously oriented. The Declaration of
Independence refers to "the Creator," and the Virginia Bill of Rights contains references to
Christian and moral virtues. [FN20] Americans were not only more dedicated to religion than the
French, they were also especially determined not to grant priority to any particular creed. France
remained a predominantly Catholic country, but with an "air of atheism."

As is often suggested, the populistic character of the French Declaration of Rights was more
specious than real. While the American Declaration of Independence states that governments derive
"their just Powers from the Consent of the Governed," [FN21] the French text is more explicitly
Rousseauistic by proclaiming that *82 "law is the expression of the general will." [FN22] However,
both declarations are Rousseauistic only in these phrases. [FN23] They were manifestos of
developing liberalism proclaiming a victory for individualistic philosophy, and recognizing the
individual to have certain fundamental rights. Individual autonomy was proclaimed as being worthy
of constitutional protection, an individual was declared the best judge of his own well-being, and
the interests of the community were recognized as the sum of individual interests.

The framers of both declarations followed Rousseau's concept of the general will only in name. The
American Declaration of Independence focused on the reasons why the original thirteen States of the
Union severed their colonial allegiance. The interpretation of the principle of the popular origin
of power is left to constitutional regulation, which fully recognizes a representative form of
government. The French Declaration, which was itself conceived as a preface to the Constitution,
more explicitly explains the idea of representation. For most of the deputies, sovereignty was
indivisible and inalienable, but the sovereign people could exercise their power through elected
representatives. Sieyes' opinion, that deputies were representatives rather than simply
"intermediaries," prevailed in the Assembly. He stressed that the will of the majority of the
deputies meant the sum of the individual wills. It was Sieyes who, in his popular pamphlet Quest-ce
le Tiers Etat? argued, "individual wills are the sole elements of the general will . . . [and] it
is useless to talk reason if, for a single instant, this first principle, that the general will is
the opinion of the majority, and not of the minority, is abandoned." [FN24]

In summary, the resemblance between the French and American declarations is remarkable. Both acts
recognize that society should be organized on principles of liberty, individual autonomy,
representative government, and the power of the majority combined with the rights of minorities.
However, even with these similarities, *83 the declarations differ in the emphasis given to
particular rights.

Analyzed against this background, the American Bill of Rights is a pragmatic act deprived of
theoretical divagations on the meaning and limitations of liberty, interrelations between liberty
and equality, and interdependencies between liberty and the idea of limited government. The
American document is simply a list of civil liberties [FN25] or "negative rights" which the
individual citizen may assert against the government. As Judge Posner states, "[Our] Constitution
is a charter of negative rather than positive liberties . . . The men who wrote the Bill of Rights
were not concerned that the federal government might do too little for the people, but that it
might do too much to them." [FN26] In time, the American Supreme Court developed a system to
enforce constitutional rights. The United States seemed to monopolize the export of the ideas of
constitutional protection and judicial enforcement of human rights.

The French Revolution generated a multiplicity of emotions and focused public attention on the
struggle for civil rights and liberties; yet, French constitutionalism seemed to deemphasize the
role of Constitutional rights. The Constitution of 1795 supplemented the Rights of Man with nine
paragraphs on the duties of the citizen, while subsequent Napoleonic constitutions were more
pragmatic, eliminating the sections on the Rights of Man along with a great quantity of the
ideology that had sanctioned them. [FN27] However, for decades to come, the French Declaration
still remained a philosophical manifesto for a free world. Its vital influence stemmed from the
assertion that "all men are born free and equal in rights" and that their rights are inalienable.


B. Bills of Rights in Modern Constitutions of the Nineteenth and Twentieth

Centuries

In the nineteenth century, the recognition of the fundamental rights of man influenced the
development of European constitutionalism. [FN28] The first European constitutions [FN29] seemed to
follow *84 the American structure by providing a list of typical "Thou Shall Nots." For example,
the Constitution of Sweden, adopted in 1809, stated in a single article that

The King . . . shall not deprive anyone nor cause anyone to be deprived of life, honor, personal
liberty, or well-being unless he has been legally tried and condemned; he shall not deprive anyone
nor permit anyone to be deprived of any real or personal property without trial and judgment in
accordance with the provisions of Swedish law; he shall not disturb or cause to be disturbed the
peace of any person in his home; he shall not banish any person from one place to another; he shall
not constrain nor cause to be constrained the conscience of any person, but shall protect every-one
in the free exercise of his religion. . . . [FN30]

The Swedish constitution also guaranteed freedom of the press, within the limits determined by the
law, and prohibited the establishment of preventive censorship. [FN31] Similar civil liberties were
listed in the Constitution of Spain in 1814, and in a separate chapter in the Constitution of
Norway of 1814. [FN32] The drafters of the Constitution of Belgium of 1831 moved the chapter on
"Belgian Citizens and Their Rights" to the very beginning of the text and delineated a detailed
list of rights. [FN33] Bills of rights were also incorporated into the constitutions of Liberia in
1847, the Kingdom of Sardinia in 1848, Denmark in 1849, Prussia in 1850, and Switzerland in 1874.
After the First World War, bills of rights were adopted by most of the new European states, the
Latin-American countries, and the Asiatic states. [FN34]

*85 Although there was a general preoccupation with constitutional protection of human rights, the
American and European approaches to fundamental rights differed in the second half of the
nineteenth century. This is exemplified in the differences between the American Bill of Rights and
the French Declaration. Following the American and the French revolutions, the other European
countries developed their own concepts of fundamental constitutional rights.

Despite numerous efforts, the Europeans did not adopt a successful model of constitutional review
until the second decade of the twentieth century, [FN35] forcing the idea of inalienable rights to
remain a philosophical abstraction in Europe. [FN36] In the United States the prevailing opinion
was that fundamental rights were not a gift from society, but were rather natural and inherent. The
Europeans believed that rights were granted only by the constitution. [FN37] As Wiktor Osiatynski
correctly observed, "[a]nother important difference between American and European constitutional
orders which is worth discussion is that the American order rests on the principle that power is a
grant of freedom and the European order rests on the principle that freedom is a grant of power."
[FN38]

The European constitutions of the nineteenth century declared rights were constitutionally
protected within the boundaries of the laws. The constitutional guarantees of rights meant
protection against the arbitrariness of governmental decisions, but not against limitations imposed
by the legislature. By the end of the nineteenth century, the Europeans were inclined to accept the
concept of the division of powers. They believed the powers were not equal, and the legislature,
being supreme, could judge the limitations on fundamental rights. Thus, the European constitutions
provided elaborate lists of rights which might be exercised only "in the manner expressly provided
by law." [FN39]

*86 Following the tradition of French constitutionalism, the European basic laws stressed the
social duties of citizens, and became replete with positive rights which the individual might claim
against the government. The citizens had certain obligations including: military duties, the duty
to educate children, and the duty to perform personal service for the state and the municipalities.
[FN40] While under the American Constitution the government does not provide economic and social
benefits to the citizens, the constitutions of the European welfare states impose numerous positive
obligations on the governments. "It shall be the duty of the state and the municipalities to
maintain the purity, health, and social welfare of the family. Families of many children shall have
the right to compensatory public assistance." [FN41] The Constitution of Finland (1919) provides,
"The state shall support, or in case of need shall give grants-in-aid to, institutions for
instruction in the technical professions, in agriculture and its allied pursuits, in commerce and
navigation, and in the fine arts." [FN42] As Louis Henkin concluded,

economic-social rights generally are not constitutionally protected [ [ [in the United States]. The
United States has set an example of commitment and growth in civil and political rights, and has
followed Europe in respect of economic-social rights; although President Franklin Roosevelt
proclaimed that the commitment of the United States to "freedom from want" would be equal with
other freedoms, economic-social rights have not achieved constitutional status in the United
States. [FN43]

Furthermore, Europeans showed a greater amount of sensitivity than Americans to the idea of
equality of rights. The Constitution of the United States, in its original version, neither
guaranteed universal suffrage nor equal rights to women nor prohibited slavery. In 1788, Condorset
lead the French Societe des Amis des Noirs (The Society of the Friends of Blacks), whose purpose
was to disseminate the idea of the abolition of both the slave trade and slavery. Denmark was the
first European state to abolish the slave trade by a royal order in 1792. Most European states
followed *87 Denmark's lead in prohibiting the slave trade after the Congress of Vienna in 1814.
Before the Nineteenth Amendment to the United States Constitution, granting women the right to
vote, became law on August 26, 1920, numerous European countries such as Finland (1906), Norway
(1913), Denmark (1915), the Netherlands and the Soviet Union (1917), and Austria, Czechoslovakia,
Germany, Poland, and Sweden (1920) enacted legislation guaranteeing a woman's right to suffrage.

The American concept of fundamental constitutional rights served as a model for other countries in
the 1920's, when the United States Supreme Court actively developed the philosophy of the First and
Fourteenth Amendments. The American interpretation of human rights became particularly influential
in several major areas such as due process of law, the right of the criminally accused, the right
to freedom of expression, and the right to privacy. After a modest beginning, American courts began
producing a significant number of decisions relating to the right of equality of treatment without
unfair discrimination. [FN44] American law also had a remarkable impact on the development of the
increasing body of international human rights law traceable to World War II and President
Roosevelt. As Louis Henkin observed,

A new wave of influence traceable to the United States came with World War II. President Roosevelt
encapsulated the idea of rights in his Four Freedoms address, and the United States and its Western
Allies incorporated the idea of rights into the aims of the Second World War, into the Nuremberg
Charter and the UN Charter, and then into the Universal Declaration of Human Rights and the series
of international covenants and conventions that followed. [FN45]


(…)


FN[FNaa1]. Professor of Law, The Catholic University of America, Columbus School of Law.


FN[FN1]. HERSCH LAUTERPACHT, INTERNATIONAL LAW AND HUMAN RIGHTS 80-88 (1963).


FN[FN2]. See MELANCTHON SMITH, AN ADDRESS TO THE PEOPLE OF THE STATE OF NEW YORK OF 1788 reprinted
in PAMPHLETS ON THE CONSTITUTION OF THE UNITED STATES PUBLISHED DURING ITS DISCUSSION BY THE PEOPLE
1787-1788, at 114 (Paul L. Ford ed., 1988). The Anti-federalist Whitehill argued in the
Pennsylvania Ratifying Convention of 1787 that "he anticipates annihilation of the state
governments which would destroy civil liberties." A. T. MASON, FREE GOVERNMENT IN THE MAKING IN
AMERICAN POLITICAL THOUGHT 267-73 (1965). For the arguments of the Anti-federalist Lenoir in the
North Carolina Ratifying Convention, see Id. at 275.


FN[FN3]. Letter from Thomas Jefferson to James Madison (Dec. 20, 1788) in FREE GOVERNMENT IN THE
MAKING 329-30 (Alpheus Thomas Mason ed., 3d ed. 1965). See also Charles Warren, The Making of the
Constitution 81 (1931).


FN[FN4]. WARREN, supra note 3.


FN[FN5]. THE DEBATES AND PROCEEDINGS IN THE CONGRESS OF THE UNITED STATES, 1 ANNALS OF CONG. 431-42
(1934) [hereafter ANNALS]. Hannis Taylor wrote: "If

anything is certain in the history of any country it is that the essence of the English
constitutional system as reformed by the Revolutions of 1640 and 1688 and as defined by Blackstone
in 1758, passed into our first state constitutions, whose bill of rights set forth, for the first
time, in a written and dogmatic form, the entire scheme of civil liberty as it existed in England
in 1776"; HANNIS TAYLOR, THE ORIGIN AND GROWTH OF THE AMERICAN REVOLUTION 361 (1911).


FN[FN6]. ANNALS, supra note 5, at 436. The British Bill of Rights of 1689 did not proclaim freedom
of speech. It provided only that "the freedom of speech and debates or proceedings in Parliament
ought not to be impeached or questioned in any court." EMLYN C.S. WADE, CONSTITUTIONAL LAW 8
(1970). The American founding fathers correctly viewed the origins of the bills of rights in the
procedures and institutions established to limit the power of government. From this point of view,
it is quite natural that they looked for precedents in British constitutional traditions rather
than in the history of French absolutism. In fact, however, they overlooked the constitutional
experience of other European countries which, like Poland, had a four and a half century tradition
of struggle to restrain the king's power and to create institutions fundamental to a constitutional
government. The Polish nobility had its "Habeas Corpus Act" much earlier than did the nobility in
other

European countries, and had its due process clause well established at the beginning of the
fifteenth century. See Rett R. Ludwikowski, Two Firsts: A Comparative Study of the American and the
Polish Constitutions, 8 MICH. Y.B. INT'L L. STUD. 121 (1988). See also Wiktor Osiatynski,
Constitutionalism and Rights in the History of Poland, CONSTITUTIONALISM AND RIGHTS: THE INFLUENCE
OF THE UNITED STATES CONSTITUTION ABROAD 284-314 (Louis Henkin and Albert J. Rosenthal eds., 1990).


FN[FN7]. For a more profound analysis of the American contribution to the French Declaration of the
Rights of Man and Citizen see Rett R. Ludwikowski, The Beginning of the Constitutional Era: A
Bicentennial Comparative Study of the American and French Constitutions, 11 MICH. J. INT'L L. 167
(1989).


FN[FN8]. As Bernard Fay wrote, "A detailed comparison of the French Declaration of Rights of Man
and Citizen with the preambles of these three constitutions brings out a striking resemblance."
BERNARD FAY, THE REVOLUTIONARY SPIRIT IN FRANCE AND AMERICA 266 (1927). Blaustein, supporting this
opinion wrote, "[t] hus, while the famous French Declaration of the Rights of Man and the Citizen
of August 1789, was officially the work of LaFayette, Mirabeau, and Jean Joseph Mounier, it also
had claim to American parentage." A. BLAUSTEIN, THE INFLUENCE OF THE UNITED STATES CONSTITUTION
ABROAD 16 (1986).


FN[FN9]. ANNALS, supra note 5, at 247.


FN[FN10]. Id. at 424-48; THE PAPERS OF THOMAS JEFFERSON 230-31 (J. Boyd ed., 1959).


FN[FN11]. ANNALS, supra note 5, at 88, 913; DOCUMENTARY SURVEY OF THE FRENCH REVOLUTION 112-14
(F.N. Thorpe ed., 1951).


FN[FN12]. The comments on the comparison of the American Bill and the French Declaration are a
lightly edited version of the author's remarks published in The French Declaration of the Rights of
Man and Citizen and the American Constitutional Development, 38 AM. J. COMP. L. 445, 453 (1990
Supp.).


FN[FN13]. See G. LEFEVRE, THE FRENCH REVOLUTION FROM ITS ORIGINS TO 1793 146 (1962). For the most
exhaustive comparison of the French Declaration and the Virginia Bill of Rights, see ROBERT R.
PALMER, THE AGE OF DEMOCRATIC REVOLUTIONS 518-21 app. IV (1959). The comparison brings Palmer to
the conclusion that "there was in fact a remarkable parallelism" between both acts. Id. at 487.


FN[FN14]. Declaration des Droits de l'Homme et du Citoyen reprinted in J.M. Roberts, 1 FR. REV.
DECL. (1966) [hereinafter French Declaration]. The American Declaration of Independence states,
"all men are created equal, that they are endowed by their Creator with certain inalienable
Rights." THE DECLARATION OF INDEPENDENCE para. 1 (U.S. 1776). The Virginia Bill of Rights of 1776
declares that "all men are by nature equally free and independent, and have certain inherent
rights." 7 THE FEDERAL AND STATE CONSTITUTIONS 3813 (F. Thorpe ed., 1909) [hereinafter VA. BILL OF
RTS.].


FN[FN15]. French Declaration, supra note 14, at 171-73.


FN[FN16]. JACQUES L. GODECHOT, LES REVOLUTIONS 1770-1799 96 (1963). On the one hand, the idea of
equality appealed to an American sense of justice; on the other hand, the forefathers feared that
in practice it would collide with individual freedom. Generally, they were satisfied with equality
before the law and felt uncomfortable with the French attempts to extend equality to social and
economic relations. As John Adams wrote,


By the law of nature all men are men not angels - men and not lions - men and not whales - men and
not eagles - that is, they are of the same species. And this is the most that the equality of
nature amounts to. But man differs by nature from man almost as much as man from beast. The
equality of nature is

moral and political only and means that all men are independent.


Quoted in CHARLES D. HAZEN, CONTEMPORARY AMERICAN OPINION OF THE FRENCH REVOLUTION 274-75 (1964).
On the limits of American dedication to the creation of an egalitarian society, see RICHARD B.
MORRIS, THE EMERGING NATIONS AND THE AMERICAN REVOLUTION 21-22 (1970).


FN[FN17]. In 1789, the French Assembly generally showed a greater sensitivity to egalitarian values
than did the framers of the American Declaration. Still, it took several years to turn this
sensitivity into a fully expressed egalitarian program. Attacks on private property from such
socialists as Mably or Morelly, or Rousseau's well known criticism of law as an instrument of
exploitation and his accusation of excessive accumulation and unequal distribution of property, did
not find an endorsement in 1789. The Assembly recognized property as sacred in article XVII of the
French Declaration, and established a representative system, based on a property qualification. For
more exhaustive comments see KINGSLEY MARTIN, FRENCH LIBERAL THOUGHT IN THE EIGHTEEN CENTURY 220-58
(J. P. Mayer, 2d ed. 1954).


FN[FN18]. See ROBERT R. PALMER, THE AGE OF DEMOCRATIC REVOLUTION: THE CHALLENGE 518-20 (1959).


FN[FN19]. The French Assembly issued a series of acts relating to ecclesiastical reorganization.
The Decree of December 2, 1789 on the confiscation of Church property and the Civil Constitution of
the Clergy, which bound the clergy with the state through prescribed oaths, salaries, and
newly-established ecclesiastical districts, were the most significant of these. J. STEWART,
DOCUMENTARY SURVEY OF THE FRENCH REVOLUTION 167-89 (1951).


FN[FN20]. See PALMER, supra note 18, at 250.


FN[FN21]. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).


FN[FN22]. French Declaration, supra note 14, at art. VI.


FN[FN23]. The concept of "general will" (la volonte generale) was anti-individualistic. It was
discussed by Montesquieu, Holbach, Diderot, and other philosophers, but Rousseau was recognized as
its main proponent. For Rousseau, the general will was indivisible and inalienable, and embodied
the interests of society as a whole. For Rousseau's influence on the French Revolution, see J.
MCDONALD, ROUSSEAU AND THE FRENCH REVOLUTION 1762-1791 (1965); J. TALMON, THE ORIGINS OF
TOTALITARIAN DEMOCRACY (1960); A. MEYNIER, JEAN-JACQUES ROUSSEAU: REVOLUTIONNAIRE (1911).


FN[FN24]. SIEYES, QUEST-CE LE TIERS ETAT?, translated in STEWART, supra note 19, at 50.


FN[FN25]. See Norman Dorsen, Civil Liberties, in Encyclopedia of the Constitution 263-70 (Leonard
Lavy ed., 1986).


FN[FN26]. Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983) (citations omitted).


FN[FN27]. See Geoffrey Bruun, The Constitutional Cult in the Early Nineteenth Century, in THE
CONSTITUTION RECONSIDERED 263 (Conyers Read ed., 1938). For the texts of the Constitutions of 1795
and 1799, see STEWART supra note 19, at 571-612, 768-79 (1951).


FN[FN28]. LAUTERPACHT, supra note 1, at 89-90.


FN[FN29]. The first written European constitution, and the world's second, was the Polish
Constitution of May 3, 1791, and it did not have a separate bill of rights. The Constitution
changed the rights of the Polish nobility slightly and recognized the rights of the burgers and
peasants. Generally speaking,

however, the drafters of the Polish constitution were more concerned about the excessive amount of
political freedom that the noblemen had, than about the lack of civil liberties of the rest of the
Polish population. See Ludwikowski, supra note 6; see also Leslaw Kanski, Human Rights in Poland
from a Historical and Comparative Perspective, in CONSTITUTIONALISM AND HUMAN RIGHTS: AMERICA,
POLAND AND FRANCE 121 (Kenneth W. Thompson & Rett R. Ludwikowski eds., 1991).


FN[FN30]. Swed. Const. (1809) art. XVI, translated in 2 Modern Constitutions 223-24 (Walter F. Dodd
ed., 1909).


FN[FN31]. Swed. Const. art. LXXXVI.


FN[FN32]. The constitution of Norway provides, "the Evangelical Lutheran religion [to] remain the
public religion of the state." NOR. CONST. (1814), translated in 2 MODERN CONSTITUTIONS 123 (Walter
F. Dodd. ed., 1909).


FN[FN33]. BELG. CONST. (1831), translated in 2 MODERN CONSTITUTIONS 127 (Walter F. Dodd ed., 1909).


FN[FN34]. LAUTERPACHT, supra note 1, at 89-90.


FN[FN35]. For an analysis of early experiments with judicial review in Europe see Louis Favoreu,
Constitutional Review in Europe, in CONSTITUTIONALISM AND RIGHTS: THE INFLUENCE OF THE UNITED
STATES CONSTITUTION ABROAD 38 (Louis Henkin & Albert J. Rosenthal eds., 1990) [hereinafter
CONSTITUTIONALISM & RIGHTS].


FN[FN36]. Helmut Steinberger's comments on fundamental rights in nineteenth century Germany. Id. at
202.


FN[FN37]. Id. at 385.


FN[FN38]. Osiatynski, supra note 6, at 156.


FN[FN39]. See Spain Const. (1876) art. IV, VI, IX, XII, translated in 2 Modern Constitutions 81
(Walter F. Dodd ed., 1909); Neth Const. (1887) art. V-VII, translated in 2 Modern Constitutions
200-01 (Walter F. Dodd ed., 1909).


FN[FN40]. For other examples, see the constitution of the German Reich of (1919) arts. CXIX,
CXXXII, CXXXIII, translated in HOWARD L. MCBAIN & LINDSAY ROGERS, THE CONSTITUTIONS OF EUROPE 199
(1922) [hereinafter Const. of Ger.

Reich (1919)]; Fin. Const. (1919), art. LXXV, translated in Howard L. McBain & Lindsay Rogers, The
Constitutions of Europe 482 (1922).


FN[FN41]. Const. of Ger. Reich (1919) art. CXIX, supra note 40, at 199.


FN[FN42]. Fin. Const. art. LXXXI, supra note 40, at 483.


FN[FN43]. CONSTITUTIONALISM & RIGHTS, supra note 35, at 8-9.


FN[FN44]. For more extensive comments on the growing influence of American jurisprudence in the
twentieth century see Anthony Lester, The Overseas Trade in the American Bill of Rights, 88 COLUM.
L. REV. 537 (1988); Roger Errera, The Freedom of the Press: The United States, France, and Other
European Countries, in CONSTITUTIONALISM & RIGHTS, supra note 35, at 63-93; John Paul Stevens, The
Bill of Rights: A Century of Progress, in THE BILL OF RIGHTS IN THE MODERN STATE 13 (Geffrey R.
Stone et al. eds., 1992).


FN[FN45]. CONSTITUTIONALISM & RIGHTS, supra note 35, at 13; Richard B. Lillich, The Constitution
and International Human Rights, 83 AM. J. INT'L L. 851 (1989).