ALTERNATIVE BASES FOR DEFAULT VERTICALITY
It is important to acknowledge that the three assumptions outlined above do not exhaust the range of accounts that have been offered as potential justifications for default verticality.
It may be argued, for example, that a constitution’s focus upon the state flows not from assumptions about sovereignty, freedom and responsibility, but, more simply, from the presumption that a constitution’s role is to allocate public power between different institutions and not beyond (a point buttressed by the fact that in the international and supranational domain, the addressee of laws and norms is the state).While this is true on its own terms, I suggest that at the root of this presumption is, again, the idea of indivisible sovereignty, located within the state. That constitutions are assumed to address themselves only to one form of power is itself drawn from prior assumptions about which forms of power are normatively salient, back to the conception of the public/private divide with which I began this chapter. That divide, I suggested, was most plausibly explained by a certain conception of sovereignty, which, when taken in conjunction with conceptions of abstract freedom and individual responsibility, provided a justification for prioritising public power over non-public power (as far as constitutional bills of rights are concerned).
It may also be argued that the tradition of political liberalism provides an alternative justification for default verticality: liberal neutrality is founded upon the premise that there is a qualitative distinction between state action and nonstate action when it comes to issues such as the public stigma associated with state disfavour - or favour - towards certain basic goods and forms of life. The purpose of bills of rights, therefore, is to ensure state neutrality between different visions of the good.
Three responses can be made to this. The first is that, to an extent, the argument from liberal neutrality is already contained within the second of default verticality’s assumptions: abstract freedom. As discussed above, abstract freedom contains a set of arguments that posit state action as a unique and uniquely salient threat to human flourishing. However, while this is a necessary condition for default verticality, it is not a sufficient one.
This is because, and secondly, while the argument from liberal neutrality arguably explains why some rights ought to be presumptively addressed to the state (for example, the right to non-discriminatory treatment), it does not explain why this is true for rights in general. In chapter five, for example, I will consider the horizontal application of the right against forced labour. This right is not connected to ideas of liberal neutrality and anti-perfectionism. Consequently, the argument from state neutrality is only a partial explanation for default verticality.
Thirdly, it is also partial in another sense. Liberal neutrality justifies a heightened focus - or concern - with state action when it comes to the application of constitutional rights. It does not, however, explain the flip side: why constitutional rights should not presumptively apply to private relations (especially if other reasons, independent of liberal neutrality, exist). In this context, it is important to recall that the three interlocking assumptions outlined above do not exist in silos, but reinforce each other, and together constitute the foundation of default verticality: that is, they justify not only a heightened concern for state action, but also - through abstract freedom and individual responsibility - the presumption against extending constitutional rights to private relations (and consequently require special justification when this is done).
In sum, therefore, it is true that there exists a range of arguments that may be advanced to support default verticality. However, what I have tried to show in this section is that while these arguments explain certain aspects of default verticality - or come at the problem from one angle - it is the three interlocking assumptions of sovereignty, abstract freedom and individual responsibility that possess significant explanatory force when it comes to assessing default vertical- ity as a whole.
VII.