A Comparison of Constitutionalism in France and the United States

In the American legal system, the Constitution is the fundamental legal document. All law, and in fact any exercise of public power in any form, is evaluated for validity by constitutional standards. The Constitution deals with such crucially important matters as the structure and operation of government and the fundamental rights of the governed. The Constitution is also the most important symbol of American national life and the perceived repository of the most cherished values of the American people.

In France, in marked contrast, a comprehensive code of private law, the Code civil, has for a long time occupied a similar central place in legal and national life, and constitutions have had far less practical and symbolic importance. My experience teaching in both French and American law schools convinces me that it is often difficult for persons brought up in American legal culture to understand and appreciate the historical and contemporary importance of the Code civil in the French legal system and the relative lack of importance of the Constitution; likewise, persons educated in France often have similar difficulty in understanding and appreciating the centrality of the Constitution (and the role of judges in applying the Constitution) in the American legal system and the unsystematic and fragmented state of our private law. It is the purpose of this Essay to describe and account for the differing conceptions of constitutionalism in the United States and France. My central thesis is that both the United States Constitution and the French Code civil represent the incarnation in legal form of national movements that emerged triumphant from revolutionary struggles.