The Almost French Thirteenth Amendment

Here is a story that ought to fill don’t – cite – foreign – law – to – construe – the – constitution conservatives with horror. Of late I have been reading the legislative history of the Thirteenth Amendment. The language ultimately adopted was lifted virtually verbatim from the Northwest Ordinance of 1787. Senator Sumner of Massachusetts, however, did not like this langauge and proposed instead that the amendment should read:

All persons are equal before the law, so that no person can hold another as a slave; and the Congress shall have power to make all laws necessary and proper to carry this declaration into effect everywhere within the United States and the jurisdiction thereof.

The “all persons are equal before the law” language, however, also had a history. Sumner traced it back to the various declarations of rights contained in the constitutions of the French Revolution. He went on to note that “this article has been adopted in the charters of Belgium, Italy, Greece; so that is is now a well-known expression of a commanding principle of human rights.” Sumner’s language was defeated, of course, but not before Senator Howard had taken a swipe at Sumner’s Francophilia (and his knowledge of French history):

The learned Senator from Massachusetts, I apprehend, has made a very radical mistake in regard to the application of this language of the French constitution. The purpose for which this language was used in the original constitution of the French republic of 1791, was to abolish nobility and privileged classes. . . . It was never intended there as a means of abolishing slavery at all. The Convention of 1794 abolished slavery by another and separate decree expressly putting an end to slavery within the dominions of the French Republic and all it colonies.

Now, sir, I wish as much as the Senator from Massachusetts in making this amendment to use significant language, language that cannot be mistaken or misunderstood; but I prefer to dismiss all reference to French constitutions or French codes, and go back to the good old Anglo-Saxon language employed by our fathers . . . .

Indeed.

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1 Response

  1. Simon says:

    Nate,

    I’m not sure how serious you are here, but why would those who are opposed to citing foreign law to explain the meaning of the Constitution be any more worried that Senator Sumner would have borrowed the language of French revolutionaries than they are that the Framers were influenced by (among other things) the writing of the Frenchman Montesquieu, for example? The argument isn’t that it’s improper to look to foreign law to decide what legislation or constitutional amendments to adopt, the argument is that once those provisions have been adopted, one must look to what those provisions meant when they were adopted, not to what the world thinks today if it was approaching the issue anew. Thus, the bill of rights borrowed concepts from the common law, and in the fourth amendment, for example, we might permissably look to how the common law treated an issue (e.g. Wilson v. Arkansas), but we wouldn’t look at, for example, how the Morrocan courts have understood a “search” in the last decade.