The Impact of the Enlightenment on American Constitutional Law

Abstract

In this essay I shall discuss, first, the contrast between certain religious and philosophical ideas reflected in the system of constitutional law which emerged from the French Revolution of the eighteenth century and certain religious and philosophical ideas reflected in the system of constitutional law which emerged from the English Revolution of the seventeenth century; and second, the tensions between those two contrasting sets of ideas as reflected in the system of constitutional law which emerged from the eighteenth-century American Revolution. The contrast between these two sets of ideas, and also the contrast between the English system of constitutional law which developed after 1640 and the French system of constitutional law which developed after 1789, have been obscured by the use of the term "Enlightenment" to embrace both sets of ideas as reflected in both types of constitutional law. Prior to the mid-twentieth century, this English term was used only occasionally. In recent decades, however, it has been used indiscriminately to refer to philosophies and times as far apart from each other as those of the early seventeenth-century France of Descartes and the mid-eighteenth-century France of Diderot, as well as the England of John Milton or Matthew Hale and the England of Thomas Paine or Jeremy Bentham over a century later. Indeed, some American historians have even spoken of an "American Enlightenment," which is surely a distortion.