Academic journal article Washington and Lee Law Review

The American Founders' Responsibility

Academic journal article Washington and Lee Law Review

The American Founders' Responsibility

Article excerpt

Well, might you ask, what can the American Founders tell us about responsibility that is worth listening to today? We surely owe thank to those singular individuals who led the struggle for this people's independence. Nor can we look back with indifference at their efforts to shape the political institutions of the states and the nation. For their legacy, with all its strengths and shortcomings, is our own. We continue to live with the consequences of the choices they made for us in the eighteenth century. But again, why prick up our ears when they speak of responsibility?

My first approximation of an answer to this question will be short and direct. The Founders thought about responsibility; they wrote about it, and they embodied it. If we think of responsibility as somehow lying at the intersection of practical wisdom, moral judgment, and a capacity for presenting good reasons for what one has done, then we should regard the American Founders as virtuosos. Their virtuosity goes beyond the fact that as political men, they encountered events that forced them to confront the problem of responsibility day in and day out. They also were exceptional men because of their talents, their education, their public spiritedness, and the opportunities they sought and made for themselves. The features that set them apart fostered in them an unusual degree of self-awareness. As they struggled in countless ways to guide the thoughts and actions of others, they hardly could be blind to the issue of their own responsibility. Indeed, given the precarious and unprecedented feat of statesmanship they were undertaking, it is unlikely that their ambitions would have allowed others to claim the credit or glory, hence the responsibility, for what they themselves had done.

I. Institutionalizing Responsibility

A good place to begin exploring the Founders' understanding of this concept is their most coherent exposition, the collective work known as The Federalist. It is, to be sure, a collection of essays in persuasion, not a treatise, and written, moreover, under great pressure during the campaign to secure the ratification of the constitution that the Philadelphia convention proposed in 1787. Yet the political and polemical setting in which Alexander Hamilton, James Madison, and John Jay composed these essays cannot diminish the weightiness of their reasonings. These Founders meant to make themselves understood and to impart their understanding to their fellow citizens. Because their own understanding was in important respects off the beaten path and at odds with then-common opinions, they thought themselves obliged to indicate the important theoretical considerations that informed their reasonings. It is in this context that responsibility became an overt theme for them.

It is a fact - and a curious one as well - that the Oxford English Dictionary records no appearance of the word "responsibility" earlier than Hamilton's use of it in The Federalist.1 This is not to say that the political phenomenon itself is new. One need only recall the intensity with which the ancient Athenians held their magistrates hyperaccountable. Nor is it to say that the term "responsible" and its synonyms, "accountable" and "answerable," are newcomers to the English language. And of course the phenomenon of legal responsibility antedates that language. On and off throughout legal history, law has held persons responsible - e.g., for negligence, nuisance, trespass, nonpayment of debt, and breach of contract generally, as well as for criminal conduct. And persons have been thought, from time to time, morally responsible - e.g., for ill treatment of one's children, or for failure to lend a hand to people in peril. The state, or one's tribe, or some plaintiff, or one's conscience will hold one responsible. I will have to answer for what I did or failed to do, or for the manner in which I have behaved. And in explaining myself, I must have good reasons as I address the public, or a legal tribunal, or my friends and family, or God. …

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