The Declaration of the Rights of Man and of CitizensJellinek, Georg
History
The Declaration of the Rights of Man and of Citizens
Jellinek, Georg
Constitutional history -- France; Constitutional history -- United States; Natural law
Assuredly the remembrance of these celebrated English enactments, which
the Americans regarded as an inherent part of the law of their land, had
a substantial share in the declarations of rights after 1776. Many
stipulations from Magna Charta and the English Bill of Rights were
directly embodied by the Americans in their lists.
And yet a deep cleft separates the American declarations from the
English enactments that have been mentioned. The historian of the
American Revolution says of the Virginia declaration that it protested
against all tyranny in the name of the eternal laws of man's being: "The
English petition of right in 1688 was historic and retrospective; the
Virginia declaration came directly out of the heart of nature and
announced governing principles for all peoples in all future times."[49]
The English laws that establish the rights of subjects are collectively
and individually confirmations, arising out of special conditions, or
interpretations of existing law. Even Magna Charta contains no new
right, as Sir Edward Coke, the great authority on English law, perceived
as early as the beginning of the seventeenth century.[50] The English
statutes are far removed from any purpose to recognize general rights of
man, and they have neither the power nor the intention to restrict the
legislative agents or to establish principles for future legislation.
According to English law Parliament is omnipotent and all statutes
enacted or confirmed by it are of equal value.
The American declarations, on the other hand, contain precepts which
stand higher than the ordinary lawmaker. In the Union, as well as in the
individual states, there are separate organs for ordinary and for
constitutional legislation, and the judge watches over the observance of
the constitutional limitations by the ordinary legislative power. If in
his judgment a law infringes on the fundamental rights, he must forbid
its enforcement. The declarations of rights even at the present day are
interpreted by the Americans as practical protections of the
minority.[51] This distinguishes them from the "guaranteed rights" of
the European states. The American declarations are not laws of a higher
kind in name only, they are the creations of a higher lawmaker. In
Europe, it is true, the constitutions place formal difficulties in the
way of changing their specifications, but almost everywhere it is the
lawmaker himself who decides upon the change. Even in the Swiss
Confederacy judicial control over the observance of these forms is
nowhere to be found, although there, as in the United States, the
constitutional laws proceed from other organs than those of the ordinary
statutes.
Public-domain text, read in full here on John Shaqi.
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