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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. |
| | -- By MitchellKohles - 08 Mar 2021 |
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< | [I haven't yet incorporated footnotes or hyperlinks into this draft (they're sitting in my Word document). I will do so as I revise the draft and develop my thesis.] |
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> | First draft 3/12/21 |
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> | Last edited 3/18/21
[need to figure out anchors and footnotes] |
| | Introduction |
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< | Ours is a constitution of rights. Increasingly, those rights appear in the negative—freedom from governmental action that infringes on one or another right, rather than an affirmative duty of government to ensure certain rights or freedoms by providing individuals with what's necessary to savor what's secured. |
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> | Ours is a constitution of rights. Increasingly, those rights appear in the negative—freedom from governmental action that infringes on one or another right, rather than an affirmative duty of government to ensure certain rights or freedoms by providing individuals with what’s necessary to savor what’s secured.[NoteOne] Several scholars have proposed pushing the latter view through the courts, especially as to state provision of education. |
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< | Several scholars have proposed pushing the latter view through the courts, especially as to state provision of education. But could a theory of constitutional obligations—not of the government but of persons—hold more promise in achieving much-needed constitutional aims, including privacy (in all its component parts) in the networked world? What would result from a constitutional duty to, for example, safeguard one another’s anonymity amid the environmental forces of the Internet? Is there any basis for locating individual obligations in the U.S. Constitution? If so, how might those obligations drive new constitutional ends? This paper explores these questions. |
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> | But could a theory of constitutional obligations—not of the government but of persons—hold more promise in achieving much-needed constitutional aims, such as political participation or privacy in the networked world? |
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< | A Potentially Dangerous Path |
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> | A Dangerous Path |
| | At the outset, we should be cautious in seeking individual obligations in the Constitution, given the danger that such obligations can easily be refracted through the state’s centralized power and become a coercive force that prescribes individual thought or livelihood. |
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< | The Soviet Union’s constitutional analog imposed such duties as to “safeguard and strengthen socialist property,” and to be “intolerant of anti-social behavior.” The comparable document of the People’s Republic of China, in its second Chapter, “The Fundamental Rights and Duties of Citizens,” reaches further in imposing a “duty to practise family planning” (Art. 49), a “duty to work” (Art. 42), and a duty “to safeguard the security, honour and interests of the motherland” (Art. 54). The Chinese Communist Party, of course, reserves the right to define those “interests” and identify threats to that “security.”
But our existing (and much older) constitutional guarantees of freedom from governmental coercion provide a strong bulwark against these dangers, should individual obligations arise in some form.
Signs of (Non-Public) Obligations
Contra certain textualists and those hewing to a “negative rights” view of the Constitution, individual obligations are not alien to our founding document. This is true even after putting to the side obligations of public officials, for example, to “take care” that laws be “faithfully executed.”
Jury duty (under the 5th, 6th, and 7th Amendments) is a strong candidate. A duty to vote, especially after the Reconstruction Amendments, may be even stronger, given the necessity for “the People of the several States” to gather and select their government.
But historically, State constitutions have done the work of imposing explicit individual obligations to one’s community. In my home State, militia enrollment is a constitutional requirement for “[a]ll able-bodied male persons, residents of this state, between the ages of eighteen and forty-five years,” with a peacetime exception for those with “conscientious scruples against bearing arms.” Idaho Constitution, Art. XIV, § 1. Education appears here, too—Idaho includes a constitutional right to education from the State (like most other States ) but also the possibility of a corresponding obligation: “The legislature may require by law that every child shall attend the public schools of the state, throughout the period between the ages of six and eighteen years, unless educated by other means, as provided by law.” Idaho Constitution, Art. IX, § 9.
Of course, reflection on these and similar provisions reveals that—like China’s constitutionally granted rights—they are symbolic. They enable not judges to find individuals in constitutional violation, but legislators to pursue certain policies that may nevertheless burden rights otherwise guaranteed, for example, a draftee’s right to protest the war. |
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> | The Soviet Union’s constitutional analog imposed such duties as to “preserve and protect socialist property,” and to be “uncompromising toward anti-social behavior.”[NoteTwo] The comparable document of the People’s Republic of China, in its second Chapter, “The Fundamental Rights and Duties of Citizens,” imposes a “duty to practise family planning” (Art. 49), a “duty to work” (Art. 42), and a duty “to safeguard the security, honour and interests of the motherland” (Art. 54), among others. The Chinese Communist Party, of course, reserves the right to define those “interests” and identify threats to that “security.” |
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< | The Appeal of Obligations |
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> | But our existing (and much older) constitutional guarantees of freedom from governmental coercion provide a strong bulwark against these dangers, should we find individual obligations of some kind. |
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< | As Professors Calabresi and Lawson argue, the Constitution certainly presupposed that private institutions—familial, religious, civic—would foster each individual’s sense of responsibility and impose corresponding obligations. |
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> | Precedent, and New Potential |
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< | However, full incorporation of the Bill of Rights has limited the permissible role of private institutions, especially religious ones, to act in concert with the States in fostering those communal responsibilities. |
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> | Contra certain textualists and those hewing to a “negative rights” view of the Constitution, individual obligations are not alien to our founding document. This is true even after putting to the side myriad constitutional obligations of public officials (for example, to “take care” that laws be “faithfully executed”). Jury duty under the 5th, 6th, and 7th Amendments is a strong candidate. A duty to vote, especially after the Reconstruction Amendments, may be stronger, given the absolute necessity for “the People of the several States” to gather and select their governments. |
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< | Meanwhile, the court has entered into tortured discussions about what might be the proper balance of “Our Federalism.” |
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> | But State constitutions often do the work of imposing explicit obligations to one’s community on individuals. In my home State, militia enrollment is a constitutional requirement for “[a]ll able-bodied male persons, residents of this state, between the ages of eighteen and forty-five years,” with a peacetime exception. Idaho Const. art. XIV, § 1. Education appears here, too—like most other States, Idaho includes a constitutional right to education from the State but also the possibility of a corresponding obligation: “The legislature may require by law that every child shall attend the public schools of the state, throughout the period between the ages of six and eighteen years, unless educated by other means, as provided by law.” Idaho Const. art. IX, § 9. Illinois takes an omnibus approach, reminding its population that the “blessings cannot endure unless the people recognize their corresponding individual obligations and responsibilities.” Ill. Const. art. I, § 23. International human rights documents often express similar duties, e.g., “that the individual . . . is under a responsibility to strive for the promotion and observance of the rights” recognized therein. International Covenant on Civil and Political Rights, preamble (“ICCPR”). |
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< | The result is a vacuum. The necessary response, I think, is not judicial discovery but a new symbolic articulation of our collective values. |
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> | Of course, reflection on these and similar provisions reveals that—like China’s constitutionally granted rights—they are symbolic. They enable not judges to find individuals guilty of constitutional violations, but legislators to pursue certain policies (requiring militia service) that may nevertheless burden rights otherwise guaranteed (a draftee’s right to protest the war). |
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> | But the effect of individual obligations on courts can nevertheless be real. |
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< | Corporate Obligations |
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> | As Jamal Greene’s recent book argues, US courts, when faced with cases of conflicting rights, have increasingly played the role of picking winners and losers and, in doing so, favoring certain rights over others. The result, when courts evaluate legislation, is an increased tendency to strike down legislation as violative of the favored rights (viewed as absolute guarantees) rather than to defer to the political process that birthed it and may have balanced exactly the competing rights claims that court trample through. |
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< | [TBD] |
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> | Citizens United is a striking example. The Court favors the First Amendment right to spend money as speech (a complicated proposition, but Buckley v. Valeo’s mammoth opinions remain) as unyielding to legislative efforts to limit corporate and other association spending on political communications. And it left on the cutting room floor Austin v. Michigan Chamber of Commerce, which had struck a middle path and approved a state scheme aimed at reducing moneyed interests’ distorting effects on political discussion, while nevertheless permitting corporate political expenditures from a segregated fund. |
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< | [Corporate "persons" and their rights have blossomed in the past century. Perhaps they are most suited to shoulder corresponding obligations. Note how state constitutions are themselves based on company charters] |
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> | A constitutional individual obligation—for example, to participate in the selection of one’s political representative—may be just the wrinkle necessary to dislodge the problem Greene identifies. Such obligations would emphasize that when legislatures act, they necessarily do so (1) in service of diffuse obligations to better the community that makes up the legislature and (2) in ways that balance inevitably competing claims to rights cognizable within that community. That is, such obligations could counterbalance the judicial fixation on rights by giving cover to legislatures to enact laws, like campaign finance regulations, that fulfill and further the duties of the individual. |
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> | Article 19 of the ICCPR explicitly articulates this balancing. After establishing various First Amendment-like rights, including “to seek, receive and impart information and ideas of all kinds,” paragraph 3 declares that: |
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< | Objections |
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- The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary [to respect others' rights or protect national security and public health].
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< | [TBD] |
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> | Of course, this balancing is precisely what Congress, upon ratification, chose to explicitly reject in declaration III(2), favoring the constitutional baseline. |
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< | [America’s early myths of the Frontiersman’s “rugged individualism” and the modern “right to be left alone” combine to make an obligation emanating from the government nearly unpalatable. |
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> | (987 words, excluding footnotes below)
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< | And would a vision of constitutional obligations be any different from those seeking to establish affirmative governmental duties? Ultimately, I think not.] |
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> | [1] The project for positive rights appears to face a steep uphill battle. For a long-term roadmap to establishing one such positive right, see Erwin Chemerinsky, Making the Case for a Constitutional Right to Minimum Entitlements, 44 Mercer L. Rev. 525 (1993). |
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> | [2] See also Steven G. Calabresi & Gary Lawson, Foreword: The Constitution of Responsibility, 77 Cornell L. Rev. 955, 956 (1992) (quoting a different translation). Interestingly, the authors assert that the U.S. Constitution says "virtually nothing about the obligations of citizens to one another or to the government. The one exception is the Thirteenth Amendment." |
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