INTRODUCTION
In this opening chapter, I set out the foundational assumptions that underlie a common and widespread intuition in contemporary constitutionalism: the intuition that constitutional bills of rights are primarily addressed to the state, and aim to constrain its power.
The purpose of this chapter is to provide the necessary context, in relation to which the arguments of the succeeding chapters can be assessed. In chapters two and three, I examine how certain jurisdictions have attempted to extend the reach of bills of rights to non-state parties and whether - and to what extent - the methods they have used remain wedded to the foundational assumptions set out in this chapter. I find that existing approaches remain tied to one or more assumptions, and that the alternative - ‘direct horizontality’ - is unworkable unless constrained in certain ways. In chapter four, I consider two contemporary scholarly models of horizontality, and argue that while they provide us with certain important insights, there remain gaps. Finally, in chapter five, I advance an alternative model of horizontality (‘the institutional model’), and argue that this model is attractive in large part because it successfully jettisons these foundational assumptions, which are no longer of normative relevance in today’s world. Part II of this book - chapters six, seven and eight - explores the application of the institutional model to certain existing, real-world situations.Most commonly we think of the Constitution as the law that defines and limits the reach of the State’ (emphasis added).[1] This sentence - including the qualifier at the beginning - is likely to command reflexive agreement from most students of contemporary constitutionalism.[2] The qualifier suggests that while constitutions are no longer thought of exclusively in terms of state power, the state remains firmly at the centre of constitutional imagination.[3] A constitution may well perform ancillary tasks, but its ‘most critical and distinctive function [remains]...
to provide law for the lawmaker’.[4] This ‘essential dichotomy... between deprivation [of rights] by the State... [and deprivation by] private conduct’,[5] the former presumptively the subject of constitutional concern and the latter presumptively not, ‘is the basis for the distinction between public and private activities’[6] - ie the public/private divide - in the sense that shall be discussed in this book. This divide, it is often argued, is ‘constitutive for constitutionalism’.[7]The public/private divide is visible most starkly in bills of rights, which - despite occasional departures[8] - are overwhelmingly directed at the state. As Dieter Grimm points out, in a historical analysis of the origins of bills of rights, ‘fundamental rights excluded those areas from the state’s authority to rule... in which the private and not the public interest was primary. They thus marked the boundary between the state and society.’[9]
This is no longer exclusively true, as the second and third chapters shall discuss. However, the ‘vertical’ character of bills of rights (applicable against the state), along with the public/private divide that is constituted by, and constitutive of, this character, remains the default mode of thinking across jurisdictions.[10]
In this opening chapter, I identify three conceptual assumptions that I believe are integral to this approach to constitutionalism (for the purposes of this book, I shall call it the ‘default vertical approach’, or ‘default verticality’). These assumptions shall be studied in the context of the constitutional jurisprudence of the USA and the scholarly debates around it. There are two reasons for (largely) limiting the enquiry in this opening chapter to the USA. First, the default vertical approach - as legal doctrine - had its origins in US constitutional jurisprudence.[11] It has been subsequently exported across the globe,[12] but remains closely associated with the USA through the ‘state action doctrine' (ie a doctrine that, in a certain set of narrow circumstances, treats the actions of private parties as those of the state; this will be discussed in more detail in chapter two). And secondly, by the time that the other jurisdictions studied in this book came to grapple with issues surrounding the vertical and horizontal character of rights, the state action doctrine was already long established and well developed.
For these reasons, in isolating the conceptual foundations of the default vertical approach, the focus will be on the USA.I shall begin with an account of the Civil Rights Cases of 1883, a set of cases widely accepted as representing one of the first substantive judicial articulations of the default vertical approach (section II). I shall go on to discuss the conceptual underpinnings of the default vertical approach, which I believe can be reduced to three core concepts, articulated in specific and concrete terms: sovereignty (section III), freedom (section IV) and individual responsibility (section V). I do not claim that these concepts were consciously incorporated by the framers of the US Constitution into the text of the document, or specifically in the minds of judges while interpreting it.[13] What I do claim, however, is that these concepts represent a plausible and persuasive justification for the default vertical approach. As scholars have noted, on its own terms, the default vertical approach is counterintuitive and remains unconvincing without a further, underlying normative foundation.[14] Intuitively, why should constitutional rights be limited to constraining the state, when non-state parties also seem to frequently be in positions to affect precisely those interests that the rights are designed to protect? It is these assumptions, I will argue, that constitute that normative foundation.
Two caveats are in order. First, it may be pointed out that the three interlocking assumptions do not form the only plausible bases of default verticality. It could be argued, for example, that a constitution's concern is with the allocation of public power between public institutions; or that political liberalism's vision of state neutrality is founded on the premise that there is a special valence to state-sanctioned denigration of certain forms of life. To this, I will flag two responses: (i) that some of the alternative bases - on closer scrutiny - are similar to one or more of the three assumptions that I discuss; and (ii) that while some of them do justify a heightened concern with state action, they do not justify why - at least presumptively - constitutional rights ought not to apply to private relations.
The strongest source of that justification, I will argue, is located in the three assumptions of sovereignty, abstract freedom and individual responsibility (section VI).Secondly, it is not my case that the three assumptions outlined above continue to be followed, even in the USA.[15] It is clear that jurisdictions across the world are increasingly moving away from them, in different ways and to different degrees: whether by constitutionalising horizontal rights, or - which is more frequent - legislatively intervening in the ‘private sphere’ (through, for example, civil rights laws). The purpose of the following enquiry is to isolate these assumptions so that they can serve as measures for jurisdictions and models that, to various extents, have begun to question or interrogate the default vertical approach.
Lastly, it is now well accepted that the default vertical approach arose out of a specific set of historical circumstances and that, for all its intellectual dominance, as well as dominance in terms of global constitutional design, it is not the only way to think about constitutionalism.[16] I will conclude this chapter, therefore, by taking a brief look at India, a jurisdiction where, for historical reasons, the state did not always monopolise the thinking about constitutions and rights. The text of the Indian Constitution, with its unusually concrete horizontal rights provisions, reflects the contingent character of the default vertical approach, and the possibility of imagining a different model altogether (section VII). This model will be taken up in detail in chapter five.
II.