Revolutionary Constitution Making: The US and French Experiences

Some constitutions are written by the people who already hold power, working within rules that already exist. Others are born from rupture, when an old political order is swept away and a group of people sit down to design a new one from the ground up. The American and French revolutions of the late eighteenth century gave us the clearest examples of this second path, often called the revolutionary mode of constitution making. The US Constitutional Convention of 1787 and the French National Assembly of 1789 both set out to build new frameworks of governance after breaking with the past. Their methods overlapped in surprising ways, yet their results could hardly have been more different. Understanding why tells us a great deal about how constitutions actually come to life.

What is the revolutionary mode of constitution making? 🔗

A constitution can be created in several ways. It might evolve gradually, as in Britain, where no single document exists. It might be granted by a ruler from above. Or it might be drafted within an existing legal process, following rules already in place. The revolutionary mode is different. It involves a deliberate break with the previous regime, after which a new political authority claims the right to design a fresh order from a clean slate.

At the heart of this idea sits the concept of constituent power. Constitutional theorists, drawing on the French revolutionary thinker Emmanuel-Joseph Sieyès, distinguish between two kinds of authority. There is the original, unlimited power to make a constitution, and there is the limited power that operates within the rules a constitution sets up. The revolutionary mode rests on the claim that the people hold the sovereign power to remake their constitutional order through special bodies that exist outside the normal legal system. This is why the approach is so closely tied to the right to revolution. The new framework does not need permission from the old one. It draws its legitimacy from the people themselves.

Scholars sometimes describe these as constitutional moments, periods when the public is intensely mobilised and engaged with the fundamental questions of how they should be governed, as opposed to the quieter rhythm of ordinary politics. This thinking gave legitimacy to revolutionary movements seeking to break away from monarchy, colonialism, and authoritarian rule and to build new constitutional orders in their place. For students of comparative politics, the American and French cases are the founding templates.

The American path: a convention with a quiet revolution 🔗

The American story begins not with the constitution itself but with a failure. After winning independence from Britain, the thirteen states governed themselves loosely under the Articles of Confederation. This first framework created a weak central government with little ability to tax, regulate commerce, or maintain order. By the mid-1780s, financial crisis and unrest, including the uprising known as Shays’ Rebellion in Massachusetts, convinced a group of leaders that something more substantial was needed.

From revision to reinvention 🔗

The Confederation Congress called a convention in Philadelphia with a narrow instruction: revise the failing Articles of Confederation. Fifty-five delegates, chosen by their state legislatures, gathered beginning on May 25, 1787. But almost immediately, the leading figures decided that revision was not enough. Madison of Virginia and Hamilton of New York, among others, pushed to create an entirely new frame of government rather than patch up the old one.

This is the revolutionary character of the convention hiding in plain sight. The delegates exceeded their mandate. They rejected the Articles of Confederation altogether and produced the first written constitution for any nation in history. Two delegates from New York actually left the convention in protest once it became clear that the Articles were being abandoned for a completely new plan. The decision to start fresh, rather than amend, was the clean slate in action.

A structured approach to power 🔗

What makes the American case distinctive is the discipline of its design. The framers were students of history and political philosophy, deeply influenced by thinkers like Montesquieu. They built numerous safeguards into the document to divide and restrain power. They included separation of powers, checks and balances, federalism, and bicameralism, building a new order rooted in the lessons of the past. This was a revolution that looked backward as much as forward, drawing on experience to avoid concentrating authority in any single set of hands.

After a summer of debate, the delegates signed the final text on September 17, 1787. The document then went to the states for ratification, a process that added another layer of popular consent. The result was a relatively compact, enduring framework that has survived, with amendments, for more than two centuries.

The French path: an assembly that became a government 🔗

France in 1789 faced a crisis of its own, but of a different scale. The monarchy was bankrupt. King Louis XVI summoned the Estates-General, the traditional assembly of the three orders of society, to approve financial reforms. The three estates were the clergy, the nobility, and the commoners, known as the Third Estate, who represented the overwhelming majority of the population.

The Tennis Court Oath and the birth of the assembly 🔗

The crisis turned revolutionary over a procedural dispute about voting. The Third Estate demanded voting by head rather than by order, because the traditional method allowed the privileged two estates to outvote the commoners despite representing a tiny fraction of the people. Frustrated by deadlock, on June 17, 1789, the Third Estate broke away and declared itself the National Assembly.

When they found their meeting hall locked a few days later, the deputies gathered on a nearby indoor tennis court. There, on June 20, 1789, they swore the famous Tennis Court Oath. They vowed never to separate until they had given France a constitution grounded on solid foundations. This moment is widely seen as a founding act of French democracy and a direct claim to constituent power against the king’s authority.

An assembly that did far more than draft 🔗

Here the French path diverged sharply from the American. The National Assembly did not simply draft a document and submit it for approval. After the storming of the Bastille on July 14, 1789, it effectively became the government of France. The French National Assembly acted not only as a proposing body but as a provisional government with the power to pass laws and disband existing institutions even before a new constitution existed. This is the radical, unbounded version of revolutionary constitution making.

The Assembly moved quickly. On August 26, 1789, it issued the Declaration of the Rights of Man and of the Citizen, a sweeping statement of principles such as liberty, equality before the law, and popular sovereignty. This Declaration eventually became the preamble to the constitution adopted on 3 September 1791. That first French constitution established a constitutional monarchy with a separation of powers, but it limited full political rights to so-called active citizens, men over twenty-five who paid a certain level of taxes.

Instability and radical turns 🔗

The 1791 constitution proved short-lived. The revolution kept moving, passing through the violent phase known as the Reign of Terror and eventually the rise of Napoleon Bonaparte. France would go through multiple constitutions in a few decades. The revolutionary energy that built the new order also kept tearing it apart and rebuilding it. The principles survived even when the documents did not, laying foundations for modern French democracy, but the path was turbulent.

Comparing the two experiences 🔗

Both revolutions exemplify the revolutionary mode, yet a careful comparison reveals why their outcomes differed so much. The parallels are real. Both the American Constitutional Convention and the French National Assembly exceeded their original mandates and set about writing a constitution in the name of the people. Both rejected the legitimacy of the old framework. Both invoked popular sovereignty and natural rights.

Different goals, different starting points 🔗

The objectives differed in a crucial way. The Americans wanted to break away and form a government separate from Britain, while the French focused on replacing or transforming their existing government from within. The Americans wrote their constitution after their war for independence had concluded, in a setting of relative calm. The French were drafting theirs while a monarch still sat on the throne and as war loomed, a far more volatile context.

Restraint versus rupture 🔗

Perhaps the deepest contrast lies in attitude toward power. The American framers were preoccupied with limiting and balancing authority, learning from the weaknesses of the Articles of Confederation to build robust checks and balances. The French structure, by contrast, concentrated authority in a unicameral assembly. John Adams predicted as early as 1790 that the single-chamber French legislature would lead to lasting trouble. The American Revolution offered a model of natural rights republicanism, while the French Revolution unleashed forces of secular nationalism that shaped a violent twentieth century.

Why the outcomes diverged 🔗

The American convention produced a stable and enduring constitution, while the French experience brought instability, multiple constitutions, and dramatic shifts in power. This difference flows from the varying contexts and the intensity of revolutionary fervour. The Americans built on a clean slate but with materials borrowed from history. The French sought a more complete break with the corrupt institutions of the old regime, including the monarchy, nobility, and clergy, which made their task both more ambitious and more prone to upheaval.

Why this matters for studying constitutions 🔗

The two cases are not just historical curiosities. They established the template for how new nations across the world, including those emerging from colonial rule in the twentieth century, would think about writing their own constitutions. The idea that a sovereign people, gathered through a special assembly, can lawfully break from the past and author a new political order traces directly back to 1787 and 1789.

The comparison also offers a lasting lesson. A clean slate is an opportunity, but it is not a guarantee. The structure of the constitution-making body, the degree of restraint built into the design, and the surrounding political conditions all shape whether a revolutionary moment produces durable institutions or repeated crisis. The same revolutionary mode, applied in different circumstances and with different philosophies of power, can yield a constitution that lasts for centuries or one that is replaced within a few years.

What do you think? If a constitution drafted in the heat of revolution must balance the energy of radical change against the need for stable, restrained institutions, which of the two approaches strikes the better balance? And in a society building a new framework today, would you prioritise a complete break with the past or a careful preservation of what already works?

References

1. https://academic.oup.com/icon/article/15/4/955/4872573
2. https://www.cambridge.org/core/journals/global-constitutionalism/article/looking-beyond-the-constituent-power-theory-the-theory-of-equitable-elite-bargaining/354DBFEA0F515D7A8A21A2F40F421CA7
3. https://constitutioncenter.org/the-constitution/drafting-table/item/drafting-the-united-states-constitution
4. https://constitutioncenter.org/the-constitution/white-papers/the-constitutional-convention-of-1787-a-revolution-in-government
5. https://constitutingamerica.org/90day-aer-american-revolution-principles-of-natural-rights-republicanism-constitutionalism-vs-french-revolution-and-reign-of-terror-guest-essayist-tony-williams/
6. https://en.chateauversailles.fr/discover/history/key-dates/jeu-paume-oath-1789
7. https://en.wikipedia.org/wiki/French_Constitution_of_1791
8. https://ageofrevolutions.com/2024/01/22/should-we-compare-the-french-and-american-revolutions/
9. https://constitutingamerica.org/90day-aer-american-founding-observations-of-the-french-revolution-that-influenced-the-united-states-constitution-and-governing-guest-essayist-daniel-a-cotter/