FREEDOM
However, whatever the merits of the fifth step as a textual exegesis of the US Constitution, as a conceptual claim, it falls short. This is because it has no answer to why a constitution should leave crucial rights to the mercies of nonconstitutional law.
To put the point another way: the fact that sovereign power stands uniquely above and beyond the reach of ordinary law provides us with good reasons to constrain the exercise of that power through, for example, a constitutional bill of rights. However, the fact that the exercise of non-sovereign power could be constrained through ordinary law does not provide us with a reason not to protect rights against non-sovereign actors, especially given that protective laws may often not exist.What is required, therefore, is an additional affirmative reason in support of the default vertical approach. This reason was articulated by the US Supreme Court in stark terms in Lugar v Edmondson Oil Co, where it noted that the state action doctrine ‘preserves an area of individual freedom by limiting the reach of federal law’ (emphasis added).[59] This justification, based on individual freedom or personal autonomy, has been accepted by both scholars[60] and courts[61] as one of the normative bases (whether right or wrong) of the default vertical approach: that is, limiting or constraining the power of the state ipso facto promotes the values of freedom and autonomy,[62] or a ‘concept of a private sphere... [that] preserves a space for individual flourishing that the state might otherwise destroy’.[63] As Gardbaum frames the argument: ‘limiting the scope of constitutional rights to the public sphere enhances the autonomy of citizens, preserving a heterogeneous private sphere free from the uniform and compulsory regime constructed by constitutional norms’.[64]
According to this argument, therefore, freedom (or autonomy) is the second axis along which the public/private divide turns.
The domain of the private sphere - which is defined by the quality of freedom - is constructed by the set of rights that constrain the state from acting in that domain. The concern of the state, in other words, is limited to establishing ‘public order’ within which the autonomous society could remain ‘free’.[65]Of course, this articulation of freedom has been extensively criticised as being internally incoherent, apart from long being eroded by extensive civil rights legislation, across jurisdictions, that imposes obligations on private parties[66] (albeit accomplished through the parliamentary or congressional route). Nonetheless, its role as one of the supporting pillars of the default vertical approach to constitutionalism makes it worthwhile to examine it further. It is clear that the conception of freedom at stake here is a de-materialised one - ie it is an abstract conception that pays no heed to the socio-economic conditions of the actors, which determine if the freedom they enjoy is meaningful in any sense.[67] This is accomplished - to draw upon an old and venerable tradition of thinking about the concept, going back at least to Hobbes[68] - by limiting freedom to that gained from the exercise of coercive state power, and not considering freedom to act in a certain way.
Cass Sunstein deepens the analysis by pointing out that this conception of freedom takes the existing distribution of resources as natural, and mandates individuals to exercise their freedom within the boundaries of that distribution[69] (or, in Grimm’s words, within ‘an existing condition of liberty’[70]). Once again, this point is made - with candour - within US constitutional doctrine. In the Civil Rights Cases, both the majority and the dissenting minority agreed that it was not open to the government to ‘adjust social rights’[71] (the dissenters simply argued that that was not what the Civil Rights Act was doing).
The argument was framed even more clearly a few years before the Civil Rights Cases, in another Reconstruction-era judgment called United States v Cruikshank, where the Supreme Court noted that the Fourteenth Amendment protected ‘the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice’ (emphasis added).[72] But perhaps most tellingly, almost a century after the Civil Rights Cases, the Supreme Court found an absence of ‘state action’ with respect to a regulated corporation delivering electricity to a city-wide area on the basis (inter alia) that it was a ‘natural monopoly’.[73] The juxtaposition of the words ‘natural’ and ‘monopoly’ - which resulted in the entity being held to be unconstrained by the bill of rights - suggests a normative theory according to which the outcomes of unregulated markets are deemed ‘natural’ (and therefore non-salient) and constitutive of the normative baseline. From this baseline, state action is then treated as a departure, and consequently subjected to the bill of rights.As in the case of sovereignty, this argument is supported by (although it does not depend upon) studies in the historical development of political thought. On one set of accounts, for example, the American Revolution (culminating in the drafting of the US Constitution[74]) was fuelled by a rising bourgeoisie arrayed against the old feudal order and an absolutist state.[75] In this context, one of the ideological drivers of the period (and not just in the USA) was the belief that freedom could be best achieved by constraining the power of the sovereign to interfere with the ‘autonomy of social sub-systems... allow[ing] them to develop according to their own criteria of rationality free from political direction. Equal individual freedom for all served as the medium for this autonomy.’[76] In other words, the deprivatisation of rulership (as discussed in the previous section on sovereignty) was accompanied by a corresponding privatisation of society.[77] It is therefore unsurprising that the conception of abstract freedom that is constitutive of the public/private divide leaves - as discussed above - the existing social and (particularly) economic order intact (or, as Atiyah puts it, ‘equal freedom before the law and in the marketplace’ (emphasis added)[78]).
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