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The "Bill of Rights" and the "Declaration of the Rights of Man and of the
Citizen": A Comparison and Contrast

Conference Paper · September 2012

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Constitution Day Commemoration Lecture Series

Florida Atlantic University

September 19, 2012

The Bill of Rights and the Declaration of the Rights of Man and of the Citizen:
A Comparison and Contrast

Marina Paola Banchetti

Florida Atlantic University

On June 8, 1789, Mr. James Madison of Virginia, one of the members of the

Philadelphia Constitutional Convention that ratified the United States Constitution in

1787, submitted to the first Congress of the United States a series of legislative articles to

the Constitution. After much discussion and even some controversy, these articles were

ultimately adopted by the House of Representatives as amendments to the Constitution

and came into effect in 1791. These were the first ten amendments to the Constitution,

which are also known as the Bill of Rights. On August 26 of the same year 1789, the

National Constituent Assembly, which was the French legislative body during the period

of social and political upheaval known as the French Revolution (1789-1799), adopted a

series of seventeen articles, collectively known as the Declaration of the Rights of Man

and of the Citizen. These articles were eventually revised in 1793 and would serve as the

foundation for the constitution of the first French republic. At first glance, it may seem
 2

that the American Bill of Rights and the French Declaration of the Rights of Man and of

the Citizen are very similar documents, not only written at approximately the same time

and in the same philosophical spirit but also with the intent of protecting approximately

the same rights and freedom. However, despite certain similarities between these two

documents, there are also striking differences that cannot be ignored, both in terms of the

concrete rights that are guaranteed and in terms of the spirit of these documents. For

example, though the Bill of Rights restricts itself to guaranteeing that individual rights

would not be infringed by the state, the Declaration of the Rights of Man and of the

Citizen not only advocated against the infringement of individual rights but also defined

the interdependent relationship between individuals and society, the role of government

in protecting the general welfare, and the responsibility of government to provide for

education and protection of the poor. I hope to show that these differences in detail and

in spirit are due, in large part, to the distinct philosophical traditions that influenced the

development of each of these documents.

The Bill of Rights was designed to protect specific individual freedoms in the context

of an implementable and amendable Constitution that established the concrete workings

of a representative democratic government. The Declaration of the Rights of Man and of

the Citizen, written during the height of the French Revolution, was designed instead to

reflect a certain utopian conception of republic, as well as to legislate the concrete details

of how such a republic would be structured. I will, at this time, begin by addressing the

obvious parallels between the Bill of Rights and the Declaration of the Rights of Man and

of the Citizen and later address some of the differences. First of all, both documents

provide for separation of powers, for broadly similar principles with regard to equality
 3

before taxation, and for the need for common defense. Both documents prohibit arbitrary

arrests and ex post facto application of criminal law, both proclaim the presumption of

innocence and prohibit undue duress to the person arrested, and both assert the rights of

property, while reserving a public right of eminent domain. Both documents also provide

for freedom of speech, of the press, and of religion, although the French Declaration

qualifies freedom of religion with the proviso that the manifestation of religious opinion

“does not trouble the public order established by the law.” However, when examining

these documents more closely, one notes that this is where the similarities end, both in

terms of the details of the documents themselves and of the spirit under which they were

written.

I will therefore, at this time, address the distinct philosophical traditions that informed

the spirit of the Bill of Rights (and of the Constitution) and of the Declaration of the

Rights of Man and of the Citizen. First of all, it is generally agreed that the members of

the American Constitutional Congress and the French National Assembly had been

influenced by the philosophical and political ideas of the Enlightenment, ideas regarding

toleration, equality, individual freedom, just government, and the elimination of tyranny.

However, recent scholarship has demonstrated that what we call the Enlightenment was

not a monolithic intellectual movement but was, in fact, divided into two radically

distinct and irreconcilable camps, that is, the Moderate Enlightenment and the Radical

Enlightenment.1 The Moderate Enlightenment was represented by figures like Voltaire,

1
For the most detailed, scholarly, and exhaustive historical and philosophical accounts of
the Moderate and Radical Enlightenments, see: Jonathan Israel, Radical Enlightenment:
Philosophy and the Making of Modernity, 1650-1750 (Oxford: Oxford University Press,
2001); Enlightenment Contested: Philosophy, Modernity, and the Emancipation of Man,
1670-1752 (Oxford: Oxford University Press, 2006); Democratic Enlightenment:
Philosophy, Revolution, and Human Rights: 1750-1790 (Oxford: Oxford University
 4

Montesquieu, John Locke, David Hume, Immanuel Kant, and Jean-Jacques Rousseau,

among others. The Radical Enlightenment was represented by figures like Thomas

Paine, Denis Diderot, Pierre Bayle, Condorcet, Helvétius, and the Baron d’Holbach,

among others. The intellectual inspiration for Radical Enlightenment was to be found in

the philosophical and political writings of the Dutch philosopher Baruch Spinoza, which

explains why Radical Enlightenment thinkers were often referred to as ‘spinozists’.

Furthermore, the Moderate Enlightenment was most appealing to several French and to

most English thinkers, to the point that one is hard-pressed to find any Radical

Enlightenment figure in England besides Thomas Paine. The Radical tendency, on the

other hand, was not only appealing to some French thinkers but was self-consciously an

internationalist movement that influenced Enlightenment thought from Spain, Italy, the

Netherlands, Germany, and Russia, to both South and North America and the Caribbean.

For example, one can clearly detect Radical Enlightenment influences on the ideas and

ideals of Toussaint L’Ouverture, Henri Christophe, and Jean-Jacques Dessalines, the

leading figures of the Haitian Revolution of 1791 that led to the formation of the Haitian

republic, then known as Saint-Domingue.

The Moderate and Radical Enlightenments embraced distinct and irreconcilable ideas

regarding the nature of reality, society, freedom, rights, equality, education, property, and

just government. It is these fundamental differences that are reflected in the spirit of the

Bill of Rights and of the Declaration of the Rights of Man and of the Citizen. There is no

doubt that the ideas that inspired the revolutionary National Assembly in Paris were

Press, 2011); Revolutionary Ideasl: An Intellectual History of the French Revolution from
The Rights of Man to Robespierre (Princeton: Princeton University Press, 2014); A
Revolution of the Mind: Radical Enlightenement and the Intellectual Origins of Modern
Democracy (Princeton: Princeton University Press, 2009).
 5

primarily informed by Radical Enlightenment thought. There is also little doubt that,

although one can see the influence of the Radical Enlightenment in the Declaration of

Independence, the Bill of Rights and the Constitution, to the extent that they were

philosophically informed, seem to reflect primarily Moderate Enlightenment ideas. This

is not surprising since, according to recent scholarship, Thomas Jefferson was the only

one of the American political leaders who was in any significant way influenced by

Radical Enlightenment ideas. His central role in the writing of the Declaration of

Independence and his absence at the Constitutional Congress, thus, explain the

differences between the rights expounded in and left out of the Declaration of

Independence and those proclaimed in the Bill of Rights. It is also not surprising that the

first article of the Declaration of the Rights of Man and of the Citizen sounds very similar

to the Declaration of Independence: “Men are born and always continue free and equal in

respect of their rights. Civil distinctions, therefore, can only be founded on utility.”

Clearly, to the extent that both Moderate and Radical Enlightenment thinkers were

fundamentally concerned with a general program of spiritual, intellectual, social, and

political emancipation, they did agree on a number of fundamental points. First, both the

Moderate and the Radical Enlightenments were concerned with the advancement of

reason and with the application of rational principles to the reformation of religion,

society, and government. To this end, both groups railed against superstition and in favor

of a rational assessment of religious belief and religious institutions. Both groups

supported, though to varying degrees, the idea that diversity of religious opinion should

be respected. This is what they referred to as ‘toleration’. Both groups argued in favor of

the idea of ‘freedom’, though again to varying degrees. And, finally, both groups sought
 6

to reform government so as to eliminate political tyranny and replace it with the

sovereignty of legitimate authority. Clearly, these general Enlightenment ideas inform

the spirit of both the Bill of Rights and the Declaration of the Rights of Man and of the

Citizen. However, when one examines the details of the Moderate and the Radical

Enlightenments’ conceptions of ‘freedom’, ‘toleration’, reason, human nature, and

legitimate authority, irreconcilable differences begin to emerge.

As mentioned earlier, the majority of the ideas that define the Radical Enlightenment

were derived from the philosophical, ethical, and political writings of Baruch Spinoza.

The implementation of these ideas entailed a radical reform of all existing institutions and

a complete emancipation of all human beings, based entirely on rational principles and

radical egalitarianism . Moderate Enlightenment thinkers, on the other hand, completely

rejected what they called ‘spinozistic’ ideas and, in many regards, sought to preserve the

structure of traditional religious, social, and political institutions while, at the same time,

reforming them to some degree in accordance with rational principles. At this time, I will

not discuss all of the areas of disagreement between these two branches of the

Enlightenment but will concentrate only on those that directly pertain to the obvious

philosophical differences between the Bill of Rights and the Declaration of the Rights of

Man and of the Citizen. I will, therefore, focus on the notions of legitimate authority,

equality, and freedom. As already mentioned, the majority of Moderate thinkers wanted

to reform traditional monarchy in order to eliminate tyranny, to introduce some degree of

accountability with regard to the sovereign, and to ensure that the sovereign embraced

Enlightened ideas. Moderate thinkers, however, did not favor a complete reform of

governmental institutions nor did they favor outright democratic republicanism. Both
 7

direct and representative democracy were distasteful to Moderate Enlightenment thinkers

such as Voltaire, Locke, Kant, and Hume because these philosophers did not believe that

the people either could or should be treated as complete political equals or allowed to

exert complete sovereignty over themselves. Kant, for example, believed that if

enlightenment was possible for the majority of people, it could only be achieved under

the rule, the care, and the watchful eye of an enlightened despot, such as Frederick II of

Prussia or Catherine the Great of Russia. Voltaire, on the other hand, did not think that

the masses were capable of governing themselves and greatly admired the English system

of constitutional monarchy, primarily due to the checks and balances provided by the

veto power of the monarch and by the House of Lords against the possible excesses of the

‘commons’. Radical Enlightenment thinkers, on the other hand, considered that

democratic republicanism, in which the people are sovereign, was the only legitimate and

rationally justifiable form of government. In this regard, we note that both the American

Constitution and the Declaration of the Rights of Man and of the Citizen reflect this

fundamental aspect of Radical Enlightenment thought, since each document provides for

a representative constitutional democracy.

Another area of fundamental and irreconcilable disagreement between the Moderate

and Radical Enlightenments was over the issue of equality. Although Moderate thinkers

believed that God endowed people with reason, moral conscience, and inalienable rights

to some degree, they drew sharp distinctions between races and genders. Rousseau, for

example, did not attribute to women the same degree of reason as men, believing that

women were primarily governed by emotion and that their domain should be restricted to

the home, since education would have been wasted on them. Women should, therefore,
 8

not actively participate in the social contract and should not form part of the sovereign

body. With regard to race, Moderate thinkers, such as Voltaire, Rousseau, Kant, Locke,

and Hume believed that equality among people was really equality among white men.

Thus, for them, rational capacity, intelligence, and moral awareness were most clearly

manifested in white men and gradually decreased as the darkness of a person’s skin

increased. We note that, although this aspect of Moderate Enlightenment thought is not

manifested in the wording of the Bill of Rights, this idea was certainly embedded in the

original framing of the Constitution to the extent that this document did not provide for

the elimination of slavery, despite the debate over the issue of slavery that took place at

the Constitutional Congress. We also note that, though Jefferson respected many Radical

Enlightenment ideas, this respect did not extend so far as to lead him to free his own

slaves or to recognize the legitimacy of the Haitian republic. In this regard, Moderate

Enlightenment had a stronger impact on Jefferson.

Radical Enlightenment thinkers, on the other hand, endorsed the notion of complete

and unadulterated equality among all human beings, regardless of gender or race. For the

Radical Enlightenment, all human beings are equal in their ability to reason, have the

same desire for happiness, dignity, and freedom and, therefore, have the same rights to

happiness, dignity, and freedom. Unlike Moderate thinkers who did not believe that

everyone could or should benefit from equal education, Radical thinkers advocated

universal education for all people as a way of reforming society. In connection with this,

they fully endorsed Spinoza’s belief that women should be granted equal rights to men,

as well as equal sexual freedom, that they should share in sovereign power with men, that

they have equal rights to property, and that they should receive the same education as
 9

men. Pertaining to sexual freedom, Spinoza and Radical Enlightenment thinkers also

explicitly supported the right of consenting adults to live their sexuality, including

homosexuality, in privacy and free from religious or governmental persecution. Spinoza

and ‘spinozist’ Radical thinkers like Diderot, Bayle, Condorcet, and others also

advocated for the total eradication of slavery and colonial rule. These Radical

Enlightenment beliefs in the equality of all people and in a universal right to freedom,

dignity, and education imbue the Declaration of the Rights of Man and of the Citizen of

1789 which states that “men are born and remain free and equal in rights” and are even

more explicitly emphasized in the 1793 revision which states, for example, that “there is

oppression against the social body when a single one of its members is oppressed” and

that “education is needed by all. Society ought to favor with all its power the

advancement of the public reason and to put education at the door of every citizen.” This

great admiration for public education and, by the way, for the taxing of property to secure

such public education was a Radical Enlightenment idea completely supported by

Thomas Jefferson.

The sharp distinctions drawn by Moderate Enlightenment thinkers between races and

genders were also reflected in distinctions that they drew between social and economic

classes. Although Moderate thinkers believed in some degree of social and political

reform, it is clear that Moderate thinkers had no interest in advocating for the elimination

of social and economic castes or for the elimination of the landed aristocracy. Moderates

continued to hold a deep-seated belief that the social order was a reflection of the will of

God as embedded in nature and, therefore, regarded social egalitarianism as unnatural

and ungodly. It is, therefore, not surprising that economic reform is never seriously
 10

considered or discussed in the writings of Voltaire, Locke, Kant, Montesquieu, or of any

other Moderate Enlightenment thinkers..

The Radical Enlightenment, on the other hand, rejected the idea that hierarchical

social order was either divinely sanctioned or part of the natural order of things. In fact,

as Thomas Paine made clear, Radical thinkers believed that the hierarchical distinctions

between social and economic classes were an abominable affront to reason and were

primarily due to unjust usurpation of land, wealth, and power at the tip of a sword. For

them, complete reform and the creation of a just social order could only be achieved

when extreme differences in wealth had been eradicated, since such distinctions in wealth

would ultimately corrupt and endanger any constitutional provisions for shared political

power among all the people. Diderot, in fact, warned about this danger in 1776,

exhorting American revolutionaries to guard against vast distinctions in wealth in the

United States, as these would surely endanger democracy in the newly formed American

republic. Thus, the Declaration of the Rights of Man and of the Citizen of 1789 clearly

states that “social distinctions may be based only on considerations of the common

good”, while the revision of 1793 goes even further by claiming that “public relief is a

sacred debt. Society owes maintenance to unfortunate citizens, either procuring work for

them or in providing the means of existence for those who are unable to labor.”

One final point of disagreement that I will discuss, between the Moderate and Radical

Enlightenments, has to do with their different conceptions of ‘freedom’. While Moderate

thinkers viewed freedom in strictly negative terms, Radical thinkers embraced both

negative and positive conceptions of freedom. Negative freedom represents the absence

of obstacles, barriers, or constraints upon one’s actions. Positive freedom represents the
 11

possibility of acting in such a way as to take control of one's life and realize one's

fundamental purposes. While negative freedom is usually attributed to individual agents,

positive freedom is often attributed to individuals considered primarily as members of

social collectivities. While Moderate thinkers were operating with a primarily atomistic

and individualistic conception of society, in which the social order is conceived as the

collection of private individuals who are only accidentally and contingently connected to

one another by way of social contract, Radical thinkers were operating with an organic

conception of human society directly derived from the writings of Spinoza. Under this

view, though society certainly consists of individual members endowed with negative

rights, these individual members are organically and necessarily connected to each other

in such a way that, in order to achieve their positive rights, each individual and the

government as a whole must work towards the ‘common good’. Furthermore, negative

and positive rights are inextricably connected, so that good government meant ensuring

both that people’s negative rights were respected and that the ‘common good’ was

implemented. There is no contradiction here, according to Diderot, because ultimately

the happiness and freedom of each individual is truly achieved only when everyone

works also for the ‘common good’. And this also happens to be one of the most striking

differences between rights as conceived in the Bill of Rights and rights as conceived in

the Declaration of the Rights of Man and of the Citizen, particularly in its 1793 revision.

This is most obvious when one considers that the rights enumerated in the Bill of Rights

are strictly negative rights to freedom of speech, religion, the press, etc., that is, rights

that cannot be constrained by the state. On the other hand, the 1793 revision to the

Declaration of the Rights of Man and of the Citizen enumerates both negative rights, such
 12

as freedom of speech, of the press, of religion, etc. But it also describes positive rights

such as the right to education and to public relief, meaning the right to have work

procured for one or to have the means of existence provided for if one is not able to work.

Additionally, the 1793 Declaration states that “the aim of society is the common

welfare”. It also states that not only is there “oppression against the social body when a

single one of its members is oppressed”, which is an expression of individual freedom,

but also that “there is oppression against each member when the social body is

oppressed”, which is an expression of the organic and necessary unity and

interdependence between the individual and the social organism. These are key notions

in Radical Enlightenment thought.

What is interesting in all this is that, although historically, the Moderate

Enlightenment seems to have been most influential in the framing of the Bill of Rights

and the Constitution as a whole, there has been a consistent tension between Moderate

Enlightenment and Radical Enlightenment since these documents were framed and, to

some extent, these tensions persist to this day. Radical Enlightenment ideas persist as

people continue to struggle to amend the Constitution in order to make it a more

egalitarian document and to the extent that we continuously work to make our society a

more just society, one that is not only concerned with protecting individual negative

freedoms but that is also concerned with caring for those who are least able to care for

themselves, to provide universal quality education for all citizens, and to maintain a

degree of economic fairness that mediates between the extremes of wealth and poverty

that can endanger democratic institutions. In sum, to the extent that people here and

everywhere struggle for equality, dignity, justice, and freedom, without regard to gender,
 13

race, religion, or creed, the spirit of the Radical Enlightenment of Baruch Spinoza,

Thomas Paine, and Denis Diderot continues to inspire the world.

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