2026 marks the 250th anniversary of the United States Declaration of Independence (1), promulgated in the midst of the American colonies’ war against the British Empire. Since then, the history of France and the American nation has been closely intertwined. On the other side of the Atlantic, Americans have never forgotten the decisive role played by the Kingdom of France in the fight for their independence, notably through the Marquis de Lafayette.
More than forty-four cities and seventeen counties still bear his name, and the American Congress granted him honorary citizenship in 2002. In France, this “hero of both worlds” remains paradoxically little known, despite an attempt at pantheonization by Nicolas Sarkozy in 2007 (2).
Lafayette is not, however, the only Frenchman to have left his mark on American history. The prestige that our country still enjoys across the Atlantic owes much to the lasting influence of our thinkers on American philosophy. Montesquieu and his theory of the separation of powers deeply inspired the Constitution of the United States, Alexis de Tocqueville remains one of the major analysts of their democracy, often studied more there than here. More recently, certain French authors – Michel Foucault in particular – have also exerted considerable (and unfortunate) intellectual influence, often considered one of the sources of contemporary radical progressivism. Many Americans also found Paris a fertile host for their ideas. Benjamin Franklin and Thomas Jefferson stayed there in the 18th century, while the “Lost Generation” of the early 20th century, led in particular by Hemingway, drew creative energy from Parisian intellectual life which it brought back to the United States.
Transatlantic dialogue
The political and cultural influence of the American Republic on France is also undeniable, even if it is accompanied by an ambivalent relationship tinged with fascination and rejection, since it freed us from the German occupation. Whatever happens, we must make the most of this historic relationship. Today, initiatives such as the Tocqueville Scholarship, which allows future French officials to discover American institutions, or the Academia Tocqueville, which offers American students an immersion in French political thought, actively contribute to nourishing this transatlantic dialogue.
It is in this spirit that the visit to Paris of the judge of the Supreme Court of the United States, Samuel Alito (3), for an unprecedented conference. All things considered, this event continues the tradition of mutual observation and offers a welcome space for dialogue while diplomatic relations between our two countries are going through a period of tension.
The Constitutional Council is regularly criticized for its political positions
So what can the American judicial system and its Supreme Court teach us? Some will say that America is a young nation (4) and that our judicial institutions draw on traditions that are too different (common law Anglo-Saxon law for the United States and Roman civil law for France) to be able to be compared. And yet, on both sides of the Atlantic, the debate on the government of judges rages. In the United States, many jurists have considered, since Montesquieu, that the judge must limit himself to being “the mouth of the law” and stating the law as it is and not as it should be. This concern gave rise several decades ago to the doctrine of originalism (5). According to this approach, the Constitution must be interpreted in accordance with the meaning it had at the time of its adoption (by the representatives of the people) and not in the light of contemporary values and realities which the judge exegesizes according to his personal ideological preferences. A lesson that our French judges would undoubtedly benefit from meditating on, with a copy of The Spirit of Laws at hand.
A necessary source of inspiration
Another American singularity worthy of interest: the drastic method of appointing judges to the Supreme Court. Nominated by the president, the candidates are subject to in-depth public hearings before the Senate which must approve their nomination by simple majority. Their personal and professional journey is carefully examined, under the watchful eye of the national media. The academic training of the Court’s judges is also noteworthy: the nine current members of the Court are all graduates of elite universities (Harvard and Yale in the lead) and have solid practical legal experience. If this process does not exclude political games, it at least guarantees a high level of academic and professional standards.
The contrast with the French situation is striking. Who knows in France that the members of the Constitutional Council are appointed for nine years, in thirds, by the President of the Republic, the President of the Senate and the President of the National Assembly? Committee hearings exist, but they can only defeat a nomination by a three-fifths majority. As for training, there is no requirement for a degree or legal experience. Result: our constitutional jurisdiction is today mainly composed of senior civil servants and former political leaders, with a few magistrates and even a professor of history and geography.
While the Constitutional Council is regularly criticized for its political positions, it would undoubtedly benefit from taking inspiration from its American counterpart, both in terms of transparency and the requirement for competence. Otherwise, its very legitimacy will continue to erode. If our principles once inspired the American Founding Fathers, today it is up to us to know, in our turn, how to benefit from their experience, with moderation.
*Thibault Mercier is a lawyer, essayist and president of the Cercle Droit & Liberté
(1) of July 4, 1776
(2) before an obscure historian managed to bury the project by qualifying the marquis as anti-republican (“La Fayette au Panthéon? Holà!”, by Jean-Noël Jeanneney, The WorldNovember 8, 2007)
(3) invited by the Cercle Droit & Liberté
(4) “passed directly from barbarism to decadence without ever having known civilization”, according to the established formula
(5) under the leadership of the very influential association of conservative jurists, The Federalist Society
