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| | | -- By MitchellKohles - 08 Mar 2021 | |
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< | First draft 3/12/21
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.[NoteOne] 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, such as political participation or privacy in the networked world?
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.
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.”
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.
Precedent, and New Potential
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. | >
> | Ours is a Constitution of rights. Those rights sometimes appear in the negative—freedom from governmental action that infringes on one or another right—and sometimes in the affirmative—the 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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< | 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”). | >
> | Such a social contract can obscure a difficult question: What affirmative obligations do I, as an individual, owe my country? It’s a question on which the law offers little explicit guidance. There is the mundane (taxes) and the occasional or never (jury duty, the draft). Laws may offer enticements of various kinds (tax breaks), and politicians may offer rhetoric to inspire us to action (“Ask not what your country can do for you…”). But in the end our system largely leaves it to each individual to make their own way and contribute what they see fit to the collective. | | | | |
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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). | >
> | But it’s an essential question, not only morally but politically: a functioning system of government depends on at least some individuals fulfilling at least certain basic obligations: to deliberate, to vote, to perform public service. | | | | |
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< | But the effect of individual obligations on courts can nevertheless be real. | | | | |
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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. | >
> | The coercive alternative, for perspective | | | | |
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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. | >
> | At the outset, it’s worth noting that the US Constitutional model is distinguishable from organizing documents that explicitly express individual obligations. | | | | |
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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. | >
> | The Soviet Union’s constitutional analog imposed such duties as to “preserve and protect socialist property,” and to be “uncompromising toward anti-social behavior.” [1] 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. | | | | |
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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: | >
> | The Chinese Communist Party, of course, reserves the right to define those “interests” and identify threats to that “security,” because the CCP, not the Chinese people, embody the nation’s political power. Thus, the US Constitution’s silence as to individual responsibilities avoids the danger that such obligations will be refracted through the state’s centralized power into a despotic force that prescribes individual thought or livelihood. Such protection is crucial to a free society. | | | | |
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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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< | Of course, this balancing is precisely what Congress, upon ratification, chose to explicitly reject in declaration III(2), favoring the constitutional baseline. | >
> | Moral institutions and symbolic duties | | | | |
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< | (987 words, excluding footnotes below) | >
> | The Founding Era included various institutions that filled in what the Constitution left unsaid vis-à-vis obligations. As Professors Calabresi and Lawson argue, the Constitution presupposed that private institutions—familial, religious, civic—would foster each individual’s sense of responsibility and impose corresponding obligations. | | | | |
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> | In 1831, Delaware constitutionalized this presumption, protecting the free exercise of religion but including a “duty of all men frequently to assemble together for the public worship of the Author of the universe, and piety and morality, on which the prosperity of communities depends, are thereby promoted.”[2] Other state constitutions included similar language. | | | | |
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What is the actual subject here? The federal constitution creates a government of limited powers which, in the mind of its drafters, was intended not to act directly on citizens. It isn't the constitution of the Soviet Union or the People's Republic of China for this reason, among others, nor is it the Constitution of Idaho. Rights, in the Hohfeldian sense, imply duties. In general, as you say, the US constitutions, state as well as federal, begin from citizen's rights and government's duties. But the legislative powers created by those instruments can and do impose duties on citizens, though not, as you seem repeatedly to propose, the duty to vote. | >
> | As to religious institutions, incorporation of the Bill of Rights has limited their ability to act in concert with the States in general, including in fostering communal responsibilities—under anti-Establishment doctrine, states may not establish an official religion. Of course, religious life across America remains relatively strong, compared to other wealthy countries in the West. But those institutions may not receive any particular treatment in a state’s constitution. | | | | |
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< | I think the best route to improvement, then, is clarity about the generality of your argument. Obligations imposed by laws constitutionally made are not different from duties constitutionally imposed, so what is the real point of the argument? If the subject is why our federal constitution should be replaced by one involving different theories of the distinction between "constitution" and "law," that's a worthy subject, but it should not be presented as an interpretation of existing constitutional provisions. If the distinction between plenary state power and limited federal power is no longer relevant in your view, which is certainly a tenable argument, it should be stated and the reasons given. | >
> | But incorporation leaves a gap in the original constitutional design. If states were originally permitted to hard-code religious teachings—including the demands they placed on individuals—into state constitutions, but
now can’t, perhaps other individual obligations in state constitutions deserve reevaluation. | | | | |
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> | Notably, state constitutions sometimes still do express individual obligations. In addition to constitutionalizing an obligation to enroll in militia service, Idaho’s Constitution 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. | | | | |
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> | However, specific individual obligations in even state constitutions are rare. 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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> | Illinois reflects this symbolic approach, reminding its population that the “blessings cannot endure unless the people recognize their corresponding individual obligations and responsibilities.” Ill. Const. art. I, § 23. Illinois is akin to certain international human rights documents that 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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< | Mitchell: In revision, I'll make clear that I am not interpreting existing constitutional provisions. I'm trying to imagine judicial interpretation that accounts for duties implicit in constitutional rights and makes something of those duties in assessing an individual's relationship to the state (and the state's power to make laws). Maybe that does mean a serious distinction between constitution and law. That's something I'll think more about. | >
> | Conclusion | | | | |
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> | For better or worse, the federal constitution leaves it to individuals to decide which rights, and which correlative duties, they retain, even where the functioning of government depends on it. The lesson is simple: in the US, citizens themselves embody the nation’s political power, and only their continued dedication to those duties necessary for its operation will keep the country running. | | |
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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). | >
> | [1] Steven G. Calabresi & Gary Lawson, Foreword: The Constitution of Responsibility, 77 Cornell L. Rev. 955, 956 (1992) (quoting a different translation). | | | | |
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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." | >
> | [2] Steven G. Calabresi & Sarah E. Agudo, Individual Rights Under State Constitutions when the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 Tex. L. Rev. 7, 35 (2008). | | |
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