John W. Welch: Time to embrace our constitutional Bill of Duties

By John W. Welch

Published: Sunday, Nov. 13 2011 12:00 a.m. MST

In this compact, written in the first person, "We the people" reserved to ourselves certain powers, and at the same time, we assumed certain duties.

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Americans have made significant legal and social progress over the last century. Certainly, that century will rightly go down in history as the century of rights: voting rights, women's rights, workers' rights, civil rights, human rights, privacy rights, disability rights and many more.

With those rights significantly in place and looking now ahead, I hope that the 21st century will go down in history as the century of duties and responsibilities: civic duties, fiduciary duties, professional responsibilities, intellectual duties, humanitarian duties, environmental duties, responsibilities to future generations and many more.

As resources become scarcer, and as needs for cooperation make all communities and nations more interdependent, people everywhere will need to make duties a more significant part of public discourse, political decisions and legal analysis. In this connection, I yearn for the day when we will have a Bill of Duties as potent as our Bill of Rights.

But what might a Bill of Duties look like? Looking for an answer, I turned to our nation's founding documents. And there it was. Just as the Constitution ends with our Bill of Rights, it begins with our Bill of Duties. Only we don't call it that. We call it the Preamble.

The Preamble is familiar to most Americans. Many have memorized it at some time in their life. Here is our national mission statement. Here are the principles that give us our deepest reserve of social and political capital. But like the air we breathe, we don't think about it, until we start to gasp for breath.

It bears repeating: "We the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

The importance of the Preamble should not be overlooked. Although the Preamble is hardly ever cited today in judicial opinions, that was not the case in early American jurisprudence. One early legal authority stated, "Every grant of power in the Constitution has reference to the one or the other of these general objects."

The Preamble should not be treated as mere window dressing or literary prologue. It states the sum and substance of our united objectives that we, the People, have collectively assumed. In this compact, written in the first person, "We the people" reserved to ourselves certain powers, and at the same time, we assumed certain duties.

Those duties are:

To perfect our union. Unity is the constant objective, more important than prosperity, partisanship, regional or special interests, which are not even mentioned. Achieving unity takes everyone's concerted effort.

Establish justice. Justice is our collective goal. It requires everyone's best efforts to obey the law, honor the rule of law, follow due process, seek equity and justice for all and to be fair and honest by nature and not compulsion.

Insure domestic tranquility. Tranquility is the product of calm respect given to others in society — listening, caring and cooperating in every part of civic life.

Provide for the common defense. Defense has always been crucial, for the bold American experiment is risky and uncertain. Surrounded at first by England in Canada, France on the Mississippi and Spain in Florida, protection was critical. Still facing our share of challenges, it remains the duty of all Americans to contribute to the common defense.

Promote the general welfare. Well-being is the vision, and the mission here is to support programs that serve the general population as a whole. "Promoting" means something less than "guaranteeing," and all citizens are enlisted in this campaign.

Secure the blessings of liberty to ourselves and our posterity. Long-term results are the mandate. "Securing" means more than just "obtaining." We are duty-bound to garner the blessings not only for ourselves now, but also to safeguard them for generations to come — "our posterity."

The Preamble sets forth the essence of the Constitution. The job of the other provisions in the Constitution is none other than to accomplish the purposes set forth in the Preamble. No federal law should be enacted or construed without reference to these objectives, which can and should remind us of our national objectives; set governmental boundaries and purposes; and recommit us to fulfill these duties.

On these principles we are all agreed, at least in principle. It may take a century of sustained effort to define what these principles allow and require of all citizens and governmental officials. But for such a project, we have time. In the long run, it matters less where we stand than what direction we're moving in.

Here is our constitutional Bill of Duties, if we will only embrace it.

John W. Welch is a professor of Law at the J. Reuben Clark Law School at Brigham Young University.

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