Calabresi, Steven G.

Lawson, Gary

English

Scholarship @ Cornell Law

Cornell Law ReviewVolume 77Issue 5 July 1992 Article 2Foreword: The Constitution of ResponsibilitySteven G. CalabresiGary LawsonFollow this and additional works at: http://scholarship.law.cornell.edu/clrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted forinclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, pleasecontact jmp8@cornell.edu.Recommended CitationSteven G. Calabresi and Gary Lawson, Foreword: The Constitution of Responsibility , 77 Cornell L. Rev. 955 (1992)Available at: http://scholarship.law.cornell.edu/clr/vol77/iss5/2SYMPOSIUMFOREWORD: THE CONSTITUTIONOF RESPONSIBILITYSteven G. Calabresi tGary Lawson ttThe American legal academy is decidedly nationalistic. Com-parative law tends to be a minor part of the law school curriculum,and discussion of alternative legal systems almost never finds its wayinto mainstream courses like constitutional law. As a result, muchthat is distinctive about American constitutionalism, and the Ameri-can legal system in general, is often taken for granted. The federalConstitution, for example, says much about governmental structure,power, and limitations, but virtually nothing about the obligationsof citizens to one another or to the government.' This feature ofthe American Constitution starkly sets it apart from many of its for-eign counterparts. On the international scene, the responsibilitiesof individual citizens are a major topic of constitutionalconversation.A few examples will illustrate the point. The 1947 Italian Con-stitution expressly guarantees to citizens "the inviolable rights ofman," but also "imposes the performance of unalterable duties of apolitical, economic and social nature."'2 More particularly, article 4declares that "[e]very citizen shall undertake, according to his pos-sibilities and his own choice, an activity or a function contributing tothe material and moral progress of society"; 3 and Part One of thedocument, entitled "Rights and Duties of Citizens," proclaims anumber of specific citizen obligations, such as the duty to supportand educate one's children, 4 the duty to vote,5 and the duty to con-t Assistant Professor, Northwestern University School of Law.tt Associate Professor, Northwestern University School of Law.1 The one exception is the Thirteenth Amendment. There is plainly nothingabout citizen obligations in the constitutional text or the Bill of Rights.2 COSTrrUZIONE art. 2 (Italy), translated in CONsTrrLrrxONS OF THE COUNTIES OF THEWORLD 47 (Albert P. Blaustein & Gisbert H. Flanz eds. & Gisbert H. Flanz trans., 1987).3 Id. art. 4.4 Id. art. 30.5 Id. art. 48.955CORNELL LA W REVIEWtribute to public expenditures in proportion to one's resources. 6The 1978 Spanish Constitution similarly contains a section on "TheRights and Duties of Citizens,"' 7 which specifies such civic obliga-tions as the duty to work,8 the duty to support one's children,9 andthe duty to preserve "an environment suitable to the developmentof the person."' 10 And perhaps the best-known example is the con-stitution of the former Union of Soviet Socialist Republics, whose1977 version proclaims that "[t]he exercise of rights and freedomsis inseparable from the performance by the citizen of his duties '"'and lists such obligations as the duties to "safeguard and strengthensocialist property,"12 to be "intolerant of anti-social behavior,"' 8 to"protect nature and safeguard its riches,"' 14 and to "promote thedevelopment of friendship and cooperation with peoples of othercountries and the maintenance and strengthening of worldpeace."15The obvious conclusion is that the American Constitution isless concerned with responsibility than are the fundamental docu-ments of other nations. The obvious conclusion, however, is wrong.One should not expect our Constitution of 1787 to speak openly ofcitizen responsibilities, even of responsibilities that are more consis-tent with Western liberal traditions than some of the more extrava-gant obligations described in European or Communistconstitutions. The American charter is a constitution of governmentrather than a constitution of society-unlike some of its twentieth-century foreign counterparts which self-consciously seek to define6 Id. art. 53. See also id. art. 52 (duty to defend the country); id. art. 54 (duty offealty).7 CONSTrrUCION, tit. I, ch. 2, § 2 (Spain), translated in CONSTITUTIONS OF THE COUN-TRIES OF THE WORLD 49 (Albert P. Blaustein & Gisbert H. Flanz eds. & Gisbert H. Fanztrans., 1991).8 Id. art. 35.9 Id. art. 39.10 Id. art. 45. See also id. art. 30 (duty to defend the country); id art. 31 (duty tocontribute to public expenditures according to economic capacity).11 KONSTrrrUTSUA SSSR art. 59 (Union of Soviet Socialist Republics), translated inTHE CONSTITUTIONS OF THE COMMUNIST WORLD 352-68 (F.MJ. Feldbrugge & WilliamB. Simons trans., 1977).12 Id. art. 61.13 Id. art. 65.14 Id. art. 67.15 Id. art. 69. See also id. art. 59 (duty to uphold law and comply with standards ofsocialist conduct); id. art. 60 (duty to work); id. art. 62 (duty to defend the State); id. art63 (duty to serve in the military); id. art 64 (duty to respect the national dignity of othercitizens); id. art. 65 (duty to help maintain public order); id. art. 66 (reciprocal duties ofparents and children); id. art. 68 (duty to preserve historical monuments and culturalvalues).956 [Vol. 77:955the entire social fabric. 16 But precisely for this reason, one shouldnot mistake silence for disregard.The Framers made no such mistake. While they sought tostructure the federal government to avoid reliance on the good mo-tives of either the citizens or the governors,' 7 the Framers recog-nized that their constitutional order presupposes concepts ofresponsibility. George Washington eloquently expressed these sen-timents in his farewell address in 1796, in words that still havepower even for those who do not share his view of the connectionbetween morality and religion:Of all the dispositions and habits, which lead to political pros-perity, Religion and Morality are indispensable supports. In vainwould that man claim the tribute of Patriotism, who should laborto subvert these great pillars of human happiness, these firmestprops of the duties of Men and Citizens. The mere politician,equally with the pious man, ought to respect and to cherish them.A volume could not trace all their connexions with private andpublic felicity. Let it simply be asked, Where is the security forproperty, for reputation, for life, if the sense of religious obliga-tion desert the oaths, which are the instruments of investigation inCourts ofjustice? ...It is substantially true, that virtue or morality is a necessaryspring of popular government. The rule, indeed, extends withmore or less force to every species of free government. Who, thatis a sincere friend to it, can look with indifference upon attemptsto shake the foundation of the fabric?' 8The fact that these moral values did not find expression in the fed-eral Constitution does not detract from their imortance. Without ageneral cultural insistence on a sense of personal honor-and, moreimportantly, on a sense of shame-any form of social organization isdoomed. This obviously does not mean that one should charge thefederal government, or government at any level, with fostering a so-cial ethic of individual responsibility; private institutions like fami-lies and churches are surely the appropriate conveyors of socialvalues. Much less does it mean that the content of individual obliga-tions should follow the Italian, Spanish, or Soviet models. But oneat least would hope that the government, through the legal system,16 The preamble to the 1977 Soviet Constitution declares that the document's pur-pose is to "affirm the foundations of the social system and the policies of the USSR,establish the rights, freedoms, and obligations of citizens, and the principles of organiza-tion and the aims of the socialist all-people's state, and proclaim them in this Constitu-tion." Id. pmbl. Modem European constitutions are a bit subtler, but on the wholefollow that path to a much greater extent than does our own Constitution.17 See THE FEDERALIST Nos. 10 & 51 (James Madison).18 George Washington, Farewell Address, in DocUMErs OF AMERICAN HISTORY,vol. I, 173 (Henry S. Commager & Milton Cantor eds., 10th ed. 1988).1992] FOREWORD 957CORNELL LA W REVIEW [Vol. 77:955would not actively undermine the fundamental sense of individualresponsibility that is the necessary precondition for a civilized legalorder.We suspect, however, that the modem American legal systemhas become, and is becoming, increasingly hostile to the idea of in-dividual responsibility in a wide variety of private and public lawcontexts. The possible causes of such a movement are many: un-due focus on the federal Constitution as the foundation for publiclife; relativism and nihilism, especially among the intellectualclasses; and the fascination of intellectuals with socialism, whichsupports a view of law as a device for central planning rather thanlaw as a tool for facilitating coordination. This Conference will testour suspicions against a broad range of legal topics. If we are rightabout the extent and consequences of the erosion of individual re-sponsibility in the law, identification of the problem is the necessaryfirst step towards rescuing the concept of individual responsibilityimplicit in the Founders' legal and constitutional order.958

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