1、本科毕业设计（论文） 外 文 翻 译 原文 ： A Reasonable Public Servant: constitutional foundations of administrative conduct in the United States The constitution and a reasonable public servant In November 2004, the U.S. Office of Personnel Management (OPM) arranged for seventy federal executives to visit the Nationa
2、l Constitution Center on Independence Mall in Philadelphia, Pennsylvania. The executives were on a management retreat. What could they gain from visiting a museum dedicated to the U.S. Constitution? What does the Constitution have to do with public management? OPM Director Kay Coles James gave a sho
3、rt answer. The executives visit was part of a wider initiative to bring “heightened awareness and respect” to the oath all federal employees take to “support and domestic”. A long answer is that today “a reasonably competent” public servant “should know the law governing his or her conduct”. Much of
4、 that law is constitutional law, that is, law made by federal judges in the course of interpreting the Constitutions words and applying them in individual court cases. Similarly, state judges make state constitutional law through their interpretation of the state constitutions. Today, constitutional
5、 law comprehensively regulates the public service at all levels of government in the United States. As James suggest, public servants should be guided by the Constitution in their decision making and other actions. Understanding what the Constitution demands of them is a matter of basic job competen
6、ce for public servants. This fundamentally sets them apart from the world of private sector management, whether for profit or not profit. The Constitution regulates public servants dealings with clients, customers, subordinate employees, prisoners, patients confined to public mental health facilitie
7、s, contractors, and individuals involved in “street-level” encounters (such as police stops, public school disciplinary actions, and health and workplace safety inspections). By contrast, the Constitution has no application to purely private relationship and activities other than 1) barring slavery
8、and involuntary servitude (Thirteenth Amendment) 2) restricting the actions of a limited class of private entities that are considered state (“governmental”) actors for constitutional purposes. When a public manager disciplines a subordinate-even a probationary one-for his or her speech, association
9、s, religious displays in the workplace, or other constitutionally protected conduct, it raises constitutional issues that are completely alien to management in the private sector. Private sector employees might learn constitutional law in order to be good citizens； public servants must know it to be
10、 competent employees. A corollary is that because constitutional law plays a major role in the public service, so do the judges who make that law. Achieving competence in the constitutional aspects of public service requires at least two types of significant study and effort. First, one must underst
11、and the broad principles on which constitutional law rests. Second, and a more comprehensive challenge, one must learn the constitutional requirements that currently govern public service in the United States. Parts one and two of this book provides the analysis and information necessary to understa
12、nd how constitutional law has to be factored into the reasonable public servants job performance. They explain the potential liability of public servants and their employers for violating individuals constitutional rights and what constitutional procedural due process, free speech, privacy, and equa
13、l protection require. Although “the Constitution is largely a document of the imagination”, gaining an understanding of a few of its fundamental principles goes a long way toward making constitutional law relatively concrete and accessible. These principles are especially important: incursions on co
14、nstitutional rights must be necessary and bounded, and the Constitution is always a work in progress. Personal responsibility In the United States, all pubic servants, elected or appointed, enter the public service by taking an oath that they will uphold the Constitution of the United States. Taking
15、 an oath is an act of commitment. The Constitution is ordained, as declares the Preamble, “in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of liberty to ourselves and our Post
16、erity.” In the Bill of Rights adopted by the First Congress and ratified less than three years later in 1791, the Constitution contractually guarantees to the people that while carrying out these utilitarian objectives, the government will protect the inalienable rights of the people, enumerated or
17、not, with fundamental fairness. In the large sense, the oath-taking is an act of making a moral and legal commitment that the public servant will conduct public affairs in constitutional terms. The bottom line in any guarantee is “damages or nothing”. During the First Congress, the Bill of Rights wa
18、s conceived with an “implicit” understanding that the administration of governmental affairs might cause the deprivation of rights guaranteed to individual citizens, and when such transgressions occur, the government would be responsible for the injuries. In Marbury v. Madison, Chief Justice Marshal
19、l expressed his understanding of this contractual responsibility, “The very essence of civil libertyconsists in the right of every individual to claim the protection of the laws, whenever he or she receives an injury”. It should be mentioned in haste, though, that throughout the history of the repub
20、lic, individuals seeking constitutional damages against the government and public servants have encountered an enormously difficult legal barrier. This was due, in part, to the common law doctrine of sovereign immunity and in part to the absence of specific, enabling legislation. Fast forwarding, co
21、urts today recognize an unrestricted cause of action for damages against local governmental bodies and restricted cause of action against federal and state governments. Courts, however, recognize a full cause of action against all public servants engaged in executive functions (possibly with the exc
22、eption of the president), federal, state, and local, under the Constitution and statutory schemes. A reasonable public servant taking an oath, therefore, understands that while the Constitution grants the power and authority to discharge the official duties vigorously, it also holds individuals “per
23、sonally” or “officially” responsible for the civil damages, should they arise from the transgression of others constitutional rights? The distinction between personal and official accountability is of critical importance to the life of a reasonable public servant who carries out the day-to-day publi
24、c affairs at the street level. Official accountability applies when a public servant has caused the deprivation of a constitutional right of an individual while acting as an agent of the principal, that is, the government. Under the doctrine of respondent superior liability, the agents tort is vicar
25、iously imputed to the principal that he represents. Personal accountability comes into play when a public servant strays beyond the scope of authorized duty-that is, outside the principal agent context, subsequently causing the deprivation of others constitutional rights. Since the alleged misconduct has occurred outside the scope of duty, the damages may not be vicariously attributed to the government (ultimately the taxpayers) but to the public
