Computers, Privacy & the Constitution

Constitutional Obligations

-- By MitchellKohles - 08 Mar 2021

Introduction

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.

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.

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.

The coercive alternative, for perspective

At the outset, it’s worth noting that the US Constitutional model is distinguishable from organizing documents that explicitly express individual obligations.

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.

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.

Moral institutions and symbolic duties

The Founding Era included various institutions that filled in what the Constitution left unsaid vis--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.

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.

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.

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.

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.

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).

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”).

Conclusion

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.


[1] Steven G. Calabresi & Gary Lawson, Foreword: The Constitution of Responsibility, 77 Cornell L. Rev. 955, 956 (1992) (quoting a different translation).

[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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