Constitutional Topic: Rights and Responsibilities
The Constitutional Topics pages at the USConstitution.net site are presented to delve deeper into topics than can be provided on the Glossary Page or in the FAQ pages. This Topic Page concerns Constitutional Rights and Responsibilities.
Generally speaking, governments are set up to make society a better, more orderly place to live. They do so by providing rules for conduct, by providing punishments for disobeying the rules, and by providing services to the citizenry. These tasks are typical of all governments. For example, in ancient Rome, murder, robbery, rebellion, and treason were all illegal - a common punishment, especially for slaves and non-citizens, was death by crucifixion. The Roman government also provided public entertainment as well as water and sewage services. Today, there are many things that are crimes, with various fines and jail terms, and sometimes even death, defined as penalties. And the services that are provided are myriad, from road maintenance to food stamps. To do all of these things, governments must be vested with a certain degree of power. It is this power that can be most dangerous to the liberties of the people. To find out who committed a certain crime, police must be able to question suspects and witnesses, and be able to search for evidence. In a society where the government is omnipotent, the powers of the police to detain, question, and search, are unlimited. In fact, the power to determine guilt would be unlimited.
When the Framers of the Constitution met to to establish a new form of government, they were very careful about the powers they gave the government. Many of the Framers were political scholars, and the speeches given at the Convention are sprinkled with references to governments from ancient times right up to the then-current ones in Europe.
The Framers were concerned with a few things over all. They wanted to create a national government that was effective and powerful, but which did not infringe upon the rights of the individual, nor upon the powers of the states.
Individual rights in the original Constitution
Though there were some who pushed hard for a bill of rights in the new Constitution, there wasn't one specifically added in the Constitution. However, in what some have termed a "mini-Bill of Rights," some rights were guaranteed by the original Constitution.
In Article 1, Section 9 of the Constitution, there are three key individual rights that are protected:
"The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
"No Bill of Attainder or ex post facto Law shall be passed."
The latter two, in Article 1, Section 10, are also prohibited of the states.
Habeas corpus, which requires an authority to prove to a court why it has cause to hold someone, is a key individual right. A bill of attainder is a bill written to punish one person or group of people. An ex post facto law is one which retroactively makes an act a crime. Though most of the Framers were skeptical of "paper barriers" to excess in governmental powers, these three prohibitions were seen to be important enough to be included from the beginning.
Article 3, Section 3 is also very specific about how a charge of treason can be brought, and that only a person convicted of treason can be punished for treason (no "corruption of blood").
There are a few other rights that are not directly protected, but which can be protected. Specifically, in Article 1, Section 8, Congress is granted the power to protect the "Writings and Discoveries" of individuals by legislation. These are better known as copyright and patent.
Some other rights are also not directly protected but are inherent. The members of the House of Representatives, for example, are to be elected "by the People of the several States." There must, therefore, be an inherent right of the people to elect Representatives. The 17th Amendment expanded this inherent right to the election of Senators.
The Bill of Rights
The Bill of Rights, which is recognized as the first ten amendments to the Constitution, lists many rights of individuals. It is important to note here why the a bill of rights was not originally included in the Constitution. Most of the Framers felt that any power to infringe upon individual rights would not be legal under the Constitution, since the power to infringe was not granted to the United States by the Constitution. But the arguments of the people who supported a bill of rights eventually prevailed, and guarantees were added to the Constitution within a few years. It is also important to note that the Bill of Rights does not grant people the listed rights. The Bill of Rights simply guarantees that the government will not infringe upon those rights. It is assumed that the rights pre-exist. It is an important distinction.
The Bill of Rights as a topic is discussed in much more detail elsewhere, but it is appropriate to list the individual rights that are included in the Bill of Rights. These are:
1st Amendment: Freedom of (or from) religion. Freedom of speech. Freedom to assemble. Freedom to petition the government.
2nd Amendment: Right to bear arms.
3rd Amendment: Freedom from quartering soldiers.
4th Amendment: Freedom from unreasonable searches and seizures. Warrants must only be issued upon probable cause, and shall be specific.
5th Amendment: Criminal indictments must be by grand jury. Freedom from double jeopardy. Freedom from testifying against oneself. Right to face accusers. Right to due process. Right of just compensation for takings.
6th Amendment: Right to speedy trial. Right to impartial jury. Right to be informed of the charges upon which the accused is held. Right to face accusers. Right to produce witnesses for the accused. Right to legal counsel.
7th Amendment: Right to jury trial in civil cases. Facts found by a jury cannot be reexamined by another court.
8th Amendment: Freedom from excessive bail or fines. Freedom from cruel or unusual punishment.
9th Amendment: The listing of a right in any other part of the Constitution does not imply that other unlisted rights do not exist. Supreme Court decisions have found a handful of important rights that fall under the 9th Amendment, such as the right to privacy.
The Bill of Rights covered most of the most important rights that had been left out of the original Constitution. However, only time could reveal other important rights that had not been covered - or time allowed enough minds to be changed to allow other rights to gain enough popularity to be protected by an amendment.
13th Amendment: Right to not be a slave.
14th Amendment: Right to citizenship of any person born in the United States. Right to equal protection of the national and state laws. Right to be free of any law that abridges the privileges or immunities of a citizen. Right to be free of any law that deprives a person of life, liberty, or property without due process.
15th Amendment: Right to vote regardless of race or color.
17th Amendment: Right to vote for Senators.
19th Amendment: Right to vote regardless of gender.
23rd Amendment: Right to vote for presidential electors if a resident of Washington, D.C.
24th Amendment: Right to vote even if a poll tax or any other tax is unpaid.
26th Amendment: Right to vote guaranteed for any person at least 18 years old.
Responsibilities under the Constitution
With all these rights listed and guaranteed by the Constitution, many believe that the Constitution must impose a great number of responsibilities upon the individual as well. This is not the case. No where will you find an explicit list of responsibilities that the Constitution imposes.
However, the Constitution assumes some civil duties, and these are inherent in the Constitution.
For example, the Constitution presumes lawfulness. It is a responsibility, then, to obey the law. For those who do not, there are protections, but the presumption of lawfulness is apparent.
The Constitution sets rules for a conviction for treason against the United States. This presumes loyalty to the United States. It is a responsibility, then, to be loyal to the United States
The Constitution presumes juries, particularly an impartial one. It is a responsibility, then, to serve as an impartial juror when called.
The Constitution presumes an army and a navy, and provides the Congress with the power to raise armies. Service during war is also mentioned. It is a responsibility, then, to serve in the armed forces when called.
The Constitution is peppered with amendments that expanded the right to vote - many people, over several centuries, have worked hard to bring the vote to as many people as possible. With few exceptions, all persons, 18 or older, can vote in any public election. It is a responsibility, then, to vote.
The Constitution Society Web Site has a large, exhaustive list of constitutional rights, powers, and responsibilities at several levels, including personal and those of the government.
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"Cherish, therefore, the spirit of our people, and keep alive their attention. If once they become inattentive to the public affairs, you and I, and Congress and Assemblies, judges and governors, shall all become wolves. It seems to be the law of our general nature."
- Thomas Jefferson (Letter to Edward Carrington January 16, 1787)
Background And Original Intent"A good constitution is the greatest blessing which a society can enjoy." So said James Wilson, in his oration at Philadelphia on July 4, 1788, celebrating the adoption of the Constitution of the United States. Wilson, who signed both the Declaration of Independence and the Constitution, preached startlingly democratic theories - more democratic than the ideas of any other delegate to the Constitutional Convention. Yet Wilson emphasized the duties, as well as the rights, of citizens:
"Need I infer, that it is the duty of every citizen to use his best and most unremitting endeavours for preserving it [the Constitution] pure, healthful, and vigorous? For the accomplishment of this great purpose, the exertions of no one citizen are unimportant. Let no one, therefore harbour, for a moment, the mean idea, that he is and can be of no value to his country: let the contrary manly impression animate his soul. Every one can, at many times, perform, to the state, useful services; and he, who steadily pursues the road of patriotism, has the most inviting prospect of being able, at some times, to perform eminent ones."
Wilson's argument is quite as sound now as it was two centuries ago. The success of the American Republic as a political structure has been the consequence, in a very large part, of the voluntary participation of citizens in public affairs - enlisting in the army in time of war; serving on school boards; taking part unpaid in political campaigns; petitioning legislatures; supporting the President in an hour of crisis; and in a hundred other great ways, or small-assuming responsibility for the common good. The Constitution has functioned well, most of the time, because conscientious men and women have given it flesh.
The Premises of Americans' Responsibility Under the Constitution of 1787
- The Framers' first assumption was that all just authority for government comes from the people, under God; not from a monarch or a governing class, but from the innumerable citizens who make up the public. The people delegate to government only so much power as they think it prudent for government to exercise. Government is the people's creation, not their master. Thus, if the people are sovereign, it is the citizens' responsibility to take upon their shoulders the task of seeing that order, justice, and freedom are maintained.
- The Framers' second assumption was that American citizens would undertake responsibility for the ordinary functioning of the civil social order and that local communities would manage their own affairs. Under their system, the roles of the various levels of government would be minimal and would not unnecessarily intrude into the day-to-day lives of the citizens.
- America's citizens, most of them, have believed in a moral order ordained by divine wisdom; and so they have assumed moral responsibilities, including personal responsibility for constitutional government. The more thoughtful citizens have seen society as primarily moral in origin: a community of souls. Behind the outward forms of American political structure lie the old convictions that citizens have duties toward a Creator and toward other members of the society, and that a just government must recognize moral law.
- In family, church, and school, until the middle of the twentieth century, the rising generation of Americans were taught that they must be personally responsible for their own welfare, for the care of their aging family members, for the security and prosperity of their community, for their patrimony of order and justice and freedom, A sense of responsibility is developed by severe lessons, by private risk and accountability, by a humane education, by religious understanding, by knowledge of the past. Once upon a time, this sense of responsibility was diffused throughout the American nation. If it drains away, the consequences will be dreary.
A republic whose citizens - whose leaders, indeed - are concerned chiefly with "looking out for Number One," and ignoring their responsibilities of citizenship, soon cannot "insure domestic tranquillity, provide for the common defense, promote the general welfare" - or carry on the other major duties of the state. When the crisis comes, the people may turn in desperation to the hero-administrator, the misty figure somewhere at the summit. But in the end, that hero-administrator will not save the republic, although he may govern for a time by force. A democratic republic cannot long endure unless a great many of its citizens stand ready and willing to brighten the corner where they are, and to sacrifice much for the nation, if need be.
Has The Consciousness of Responsibility Withered in America?For the past five or six decades, several perceptive observers have remarked, an increasing proportion of the American population has ceased to feel responsible for the common defense, for productive work, for choosing able men and women to represent them in politics, for accepting personal responsibility for the needs of the community, or even for their own livelihood. Unless this deterioration is arrested, the responsible citizens will be too few to support and protect the irresponsible. By 1978 there were more people receiving regular government checks than there were workers in the private sector. What follows, if we are to judge by the history of fallen civilizations, is described by Albert Jay Nock in his book Memoirs of a Superfluous Man (1943):
"... closer centralization; a steadily growing bureaucracy; State power and faith in State power increasing; social power and faith in social power diminishing; the State absorbing a continually larger proportion of the national income; production languishing; the State in consequence taking over one 'essential industry' after another, managing them with ever-increasing corruption, inefficiency, and prodigality, and finally resorting to a system of forced labor. Then at some point in this process a collision of State interests, at least as general and as violent as that which occurred in 1914, will result in an industrial and financial dislocation too severe for the asthenic [weak] social structure to bear; and from this the State will be left to 'the rusty death of machinery' and the casual anonymous forces of dissolution."Modern civilization offers a great variety of diversions, amusements, and enticements - some of them baneful. But modern civilization does not offer many inducements to the performance of duties, except perhaps monetary payment, and certainly it does not teach people that the real reward for responsible citizenship is the preservation of a free society. It is not money that can induce citizens to labor and sacrifice for the common good. They must be moved by patriotism and their attachment to the Constitution. And patriotism alone, ignorant boasting about ones native land, would not suffice to preserve the Republic. Thus it is that on the occasion of the Bicentennial celebrating of the Constitution, a mighty effort ought to be made to restore the American public's awareness of the principles of their government, of their responsibilities toward their country, their neighbors, their children, their parents, and themselves to be sure that their patriotism is based on this solid foundation. No one knows how late the hour is; but it is later than most people think. Love of the Republic shelters all our other loves; and that love is worth some sacrifice.
Responsibilities Are Readily ForgottenNearly all of us are quick to claim benefits, but not everybody is eager to fulfill obligations. We have become a nation obsessed with rights, forgetful of responsibilities. In an age of seeming affluence, a great many people find it easy to forget that all good things must be paid for by somebody or other - paid for through hard work, through painful abstinence, sometimes through bitter sacrifice. Below we set down some of the causes for the decline of a sense of responsibility among some American citizens.
- The growth of an American welfare state, over the past half-century, has produced in the minds of a good many men and women the illusion that somehow somebody in Washington can provide for all needs: so why make much effort to fulfill what used to be considered personal responsibilities? As Alexis de Tocqueville remarked, a century and a half ago:
"Democracy in the United States will endure until those in power learn that they can perpetuate themselves through taxation."
In other words, the temptation of public men in Washington is always to offer to have the federal government assume fresh responsibilities - with consequent decay of local and private vigor (it might be argued that, at least in part, a failure in the proper exercise of citizens' responsibility permitted the development of the welfare state syndrome - that the government owes them a living. In any event, once it got under way and the welfare state grew, the sense of citizens' responsibility and rugged individualism deteriorated).
- The increase of the scale of society and the size of government has bewildered many Americans, inclining them to think that the individual can accomplish little or nothing in a responsible way, engulfed as he seems to be by the overwhelmingness of it all. It was easier to see ones personal responsibilities in a Massachusetts township or next door to a Virginia courthouse, in 1787, than it is to perceive what one's duties to country and community may be in the New York or Los Angeles of 1987. When one contemplates the enormous size of the federal government, then the exercise of individual citizen responsibility seems almost hopeless.
- Until the 1930s, and in many schools later than that, young people learned their responsibilities through the lively study of history, government, and especially imaginative literature that taught them about human dignity and human duties. But in recent decades, especially during the 1960s and 1970s, the disciplines of history and government have been supplanted by a vague social stew," and the study of great literature and philosophical ideas has given way to anthologies of relevant" - and often depressing - third-rate recent writing. So the function of the schools as places where responsibility would be taught - an expressed hope of several of the Framers of the Constitution, John Dickinson among them - has been ignored.
- Of all social institutions, formerly the family was most active and successful in teaching young people their responsibilities. But since the Second World War particularly, the American family has been weakened by economic changes, both parents being gainfully employed (often to pay for increases of taxation, in large part), the triumph of the television set over family conversations, the influence of periodicals read by young people, and a considerable range of challenges to parental authority - many times encouraged by judicial decisions and actions of the education establishment. At the same time, the influence of school teachers and of the clergy in perpetuating this strong sense of responsibility has diminished. So, in some degree, the restoration of a sense of responsibility depends upon the family's recovery of authority.
- The fundamental impulse to accept responsibilities and perform duties, in every society, has been religious in origin. Individuals obey moral laws and do their duty because of awareness of duties toward God. Religion teaches that there exist natural laws; and that if individuals try to ignore those natural laws, they find themselves in peril, individually and as a society. People who deny the reality of the Divine tend to shrug off their responsibilities to other men and women. Thus, weakness in religious awareness commonly leads to the decay of personal responsibility in many walks of life.
These are only some of the reasons why a 'permissive" society speaks often of rights and seldom of responsibilities. A time comes, in the course of events, when abruptly there is a most urgent need for men and women ready to fulfill high and exacting and dangerous responsibilities. And if there are no such citizens, then liberty can be lost. It must be remembered that the great strength of the Signers of the Declaration and the Framers of the Constitution was that they knew their classical history, and how the ancient Greek cities had lost their liberties, and how the Roman system had sunk to its ruin under the weight of proletariat and military state.
Prospects For The Renewal Of ResponsibilityWhat may be done by way of remedy? Although America's social difficulties are formidable, probably they are less daunting than those of any other great nation today. The economic resources of the United States remain impressive; and the country's intellectual resources are large. This essay cannot offer, in its small compass, a detailed program for the popular recovery of devotion to duty. Here we can only suggest healing approaches:
- Like moral virtue, responsibility is first acquired in family and home. Nobody does more to injure a sense of responsibility than a parent who abandons children to the television set and the peer group, "liberating" them from household chores and study at home. Assigning and enforcing duties within home and family, though it may seem stern at first, is kindness to everybody in the long run.
- In the family, as well as in the school, the imagination and the intellect can be introduced to the literature of responsibility - for such does exist, and young people are much taken with this literature if they have not already been absorbed into a juvenile "counter-culture." It was not many years ago that boys read, for instance, Theodore Roosevelt's and Henry Cabot Lodge's Hero Tales from American History, with its stirring descriptions of George Washington; of George Rogers Clark conquering the Northwest; of the battles of Trenton, Bennington, King's Mountain, and Stony Point - to confine ourselves to Revolutionary fighting - of Gouverneur Morris, the most brilliant delegate to the Constitutional Convention, with his one leg and his crippled arm, refusing to flee from the Jacobins in Paris. In such true tales one learns what responsibility requires. And it was not many years ago that girls were reading about the heroines of ancient times and modern - about Hypatia, Joan of Arc, Abigail Adams. We learn our duties from learning about men and women who did theirs. One recalls James Wilson's words, quoted at the beginning of this essay: "He, who steadily pursues the road of patriotism, has the most inviting prospect of being able, at some times, to perform eminent ones."
- In schools, the pupils need to be rescued from the sham subjects of "social studies" and "civics," ordinarily the most boring and empty disciplines in school curriculum, and introduced instead to real history and to the Constitution and American political institutions. From studying genuine historical figures and genuine politics and literature of the past, young people can come to apprehend what a citizen can do for his country.
- Perhaps the best way to renew responsibility in American society is to assume responsibilities one's self. It may be difficult to find the time, and painful to fight one's way into politics at any level; nevertheless, some honest men and women must do so if the Republic is to endure another two centuries - or perhaps to the end of the twentieth century. From running for Congress to campaigning for the office of drain commissioner; from publishing a newspaper to writing a letter to the editor - there is no end to the responsibilities that may be undertaken, to the general benefit. The apparatus for doing one's political duty still exists, thanks to our Constitution.
- To fulfill one's moral responsibilities through the agencies of a church, neighborhood, and personal charity may not be exciting; yet the example of duty does win converts, and one lays up treasure in a place unaffected by manipulated currency. To give aid and comfort to fugitives from Communist lands, say, is such an act as the Signers and the Framers would have approved heartily; and it teaches moral responsibility to one's children.
- Ultimately, the recovery of a sense of responsibility is bound up with the recovery of the old concept and virtue of piety - gratitude toward God for his gift of life, gratitude toward one's ancestors, concern for one's children and descendants. Such a sense of responsibility is in keeping with the philosophy upon which the nation was built - Creator-endowed rights and responsibilities.
In your own circumstances, you may encounter opportunities for the renewal of responsibility more promising where you live than any suggested here. In any society, it always has been a minority who have upheld order and justice and freedom. If only one out of every ten citizens of the United States of America should vigorously fulfill his responsibilities to our civil social order - why, we would not need to fear for the future of this nation.
- In all previous cultures, children ordinarily accepted responsibility for the well-being of their parents in old age; and in various societies, the children were so held accountable in law. Why has this form of responsibility decayed in the twentieth century? Can you think of political and social causes for the care of elderly parents being turned over to public agencies?
- Can you name seven or eight voluntary associations or organizations, not subsidized or directed by government, that perform important services in your community or in America generally? Explore the benefits from this kind of involvement as opposed to "letting the government do it."
- Responsible citizenship sometimes brings risks - all the way from unpopularity in some local dispute to pushing forward under enemy fire in military action. How may schools help to teach the rising generation the high importance of performing duties that may be dangerous?
- Are you and I personally responsible for our decisions and actions, or are we simply creatures of our environment, "conditioned" to respond in one way or another to events and challenges? Marshal the arguments on either side of this question, and then consider the probable social consequences of believing in freedom of the will, or believing that society, rather than the individual person, is responsible for citizen's actions.
- What are you doing to help preserve the great principles on which this nation and your personal freedoms are based?
Our Ageless Constitution, W. David Stedman & La Vaughn G. Lewis, Editors (Asheboro, NC, W. David Stedman Associates, 1987) Part VII: ISBN 0-937047-01-5
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