CONCLUSION
More than two centuries after the framing of the US Constitution’s bill of rights, in a world that has changed beyond recognition, the default vertical approach continues to exercise a powerful sway over constitutional imagination.
For example, Section 8 of the Constitution of South Africa (adopted in 1996) provides that the bill of rights shall bind ‘all organs of state’,[122] and shall bind natural or juristic persons ‘if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right’.[123] Thus, while it is taken for granted that a bill of rights, by its very nature, applies to the state, there is only a qualified recognition that in some (undefined) cases, it might apply in some sense to non-state parties.In this introductory chapter, I have attempted to account for the (continuing) normative plausibility of the default vertical approach. I have argued that the three interlocking conceptions of sovereignty, freedom and individual responsibility combine to isolate the state as a uniquely significant centre of power, which must therefore be constrained by a bill of rights. Sovereignty vests in the state a monopoly over legitimate coercion (expressed primarily through the authority of law-making), and therefore qualitatively differentiates between state and non-state power. The existence of this power presents a unique threat to abstract freedom, narrowly defined as the absence of coercion. And the uniqueness of the threat flows from the fact that while natural and juristic persons interact with each other from a position of formal legal equality - and are thus individually responsible for shaping their relationships with each other - the state (through its exercise of sovereign power) stands above this plane of interaction.
The three conceptions, therefore, are mutually reinforcing,[124] and together place the state at the centre of constitutional imagination, as the primary subject of a bill of rights. In the next two chapters, I shall argue that prevailing judicial models that depart from the default vertical approach nonetheless continue to subscribe to one or more of its foundational assumptions. For this reason, the solutions they offer to the problems of the default vertical approach remain partial and unsatisfactory. This, then, sets the stage for chapter five, where I shall discuss the ‘institutional approach’. I will argue that by repudiating each of the three foundational assumptions, the institutional approach can potentially make up for these shortcomings, and provide a model of constitutional rights that has liberated itself from the shackles of the state.