For, placed at the head of the Constitution, as well as of the decrees which are attached to it, stands the Declaration of the Rights of Man. According to this, and by the avowal of the legislators themselves, there are two parts to be distinguished in the law, the one superior, eternal, inviolable, which is the self-evident principle, and the other inferior, temporary, and open to discussion, which comprehends more or less exact or erroneous applications of this principle. No application of the law is valid if it derogates from the principle. No institution or authority is entitled to obedience if it is opposed to the rights which it aims to guarantee. These sacred rights, anterior to all society, take precedence of every social convention, and whenever we would know if a legal order is legitimate, we have merely to ascertain if it is in conformity with natural right. Let us, accordingly, in every doubtful or difficult case, refer to this philosophic gospel, to this incontestable catechism, this primordial creed proclaimed by the National Assembly. - The National Assembly itself invites us to do so. For it announces that"ignorance, neglect, or contempt of the rights of man are the sole causes of public misfortune, and of the corruption of governments."It declares that"the object of every political association is the preservation of natural and imprescriptible rights."It enumerates them, "in order that the acts of legislative power and the acts of executive power may at once be compared with the purpose of every political institution." It desires "that every member of the social body should have its declaration constantly in mind." -Thus we are told to control all acts of application by the principle, and also we are provided with the rule by which we may and should accord, measure, or even refuse our submission to, deference for, and toleration of established institutions and legal authority.
What are these superior rights, and, in case of dispute, who will decide as arbitrator? - There is nothing here like the precise declarations of the American Constitution,[36] those positive prescriptions which serve to sustain a judicial appeal, those express prohibitions which prevent beforehand certain species of laws from being passed, which prescribe limits to public powers, which mark out the province not to be invaded by the State because it is reserved to the individual.
On the contrary, in the declaration of the national Assembly, most of the articles are abstract dogmas,[37] metaphysical definitions, more or less literary axioms, that is to say, more or less false, now vague and now contradictory, open to various interpretations and to opposite constructions, These are good for platform display but bad in practice, mere stage effect, a sort of pompous standard, useless and heavy, which, hoisted in front of the Constitutional house and shaken every day by violent hands, cannot fail soon to tumble on the heads of passers by.[38] - Nothing is done to ward off this visible danger. There is nothing here like that Supreme Court which, in the United States, guards the Constitution even against its Congress, and which, in the name of the Constitution, actually invalidates a law, even when it has passed through all formalities and been voted on by all the powers; which listens to the complaints of the individual affected by an unconstitutional law; which stays the sheriff's or collector's hand raised against him, and which above their heads gives judgment on his interests and wrongs. Ill-defined and discordant laws are proclaimed without any provision being made for their interpretation, application or sanction. No means are taken to have them specially expounded. No district tribunal is assigned to consider the claims which grow out of them, to put an end to litigation legally, peacefully, on a last appeal, and through a final decision which becomes a precedent and fixes the loose sense of the text. All this is made the duty of everybody, that is to say of those who are disposed to charge themselves with it, - in other words, the active minority in council assembled. - Thus, in each town or village it is the local club which, by the authorization of the legislator himself, becomes the champion, judge, interpreter and administrator of the rights of man, and which, in the name of these superior rights, may protest or rebel, as it seems best, not only against the legitimate acts of legal powers, but also against the authentic text of the Constitution and the Laws.[39]
Consider, indeed, these rights as they are proclaimed, along with the commentary of the speaker who expounds them at the club before an audience of heated and daring spirits, or in the street to the rude and fanatical multitude. Every article in the Declaration is a dagger pointed at human society, and the handle has only to be pressed to make the blade enter the flesh.[40] Among "these natural and imprescriptible rights" the legislator has placed "resistance to oppression." We are oppressed : let us resist and take up arms.