Secundum Civilis: The Constitution As an Enlightenment Code

Abstract

The American Constitution has been the subject of heated debate since its formation. This article simply introduces a new argument. It suggests that there exists a “form”1 of an Enlightenment era code, which is met by the Constitution, and that the requirements of this form can be derived from inspection of the three great codes of the time: the Prussian, the Austrian, and the French. It further notes that these requirements are (1) Roman law influence; (2) natural law influence; and (3) that they perform the same functions—they abrogate the prior laws on their respective subjects and they are “complete” in themselves, covering the whole aspect of a legal field. In the process of doing so, the essay shows that the common law was not the only source of inspiration for the framers of the Constitution; it also shows heavy civil law influences. The article opens with a “preliminary title”, which introduces the subject, its sources, and instructs the readers as to how to read the article itself. The whole closes by laying forth a few broad possible consequences of accepting this view, while leaving a full discussion on the consequences of this understanding to a later article.