INTRODUCTION
In chapter one of this book, I set out three conceptual assumptions that underlie the default vertical approach to constitutional bills of rights: sovereignty, freedom and individual responsibility.
In chapter two, I examined one archetypal model that exemplifies a ‘departure’ from verticality, namely, ‘state action’, or the ‘functional equivalence’ approach, and pointed out its shortcomings. In this chapter, I will address a second archetypal model of departure (indirect horizontality), which holds that the state’s pervasive presence within a territory implicates it in ‘private’ transactions, whether through its legal order or through its acquiescence or inaction. Consequently, rights are to be applied to the ‘private’ domain, with principles such as proportionality being used to adjudicate situations where both private parties invoke (competing) rights. I argue that this approach continues to characterise private relationships through the paradigm of the contract between individual parties situated in the same horizontal plane - a characterisation that creates difficult problems. Now, one intuitively plausible response to the problems presented by this approach is to erase the distinction between state and non-state parties altogether (‘direct horizontality’) and apply constitutional rights across the board regardless of the nature of the putative rights violator. However, I argue that this does not resolve all existing issues. Furthermore, it throws up new issues of its own. Direct horizontality, then, must be supported by a principled framework that both defines and limits its scope and application. I conclude by arguing that elements of the two existing archetypes discussed in the last chapter and in this one - a focus on the impact upon rights by private bodies from functional equivalence and a focus on the background framework that enable private acts from indirect horizontality - provide important insights that can assist in developing the principled framework flagged above. What that framework might look like will be the subject of chapters four and five.In chapter two, I discussed the ‘state action doctrine’ as one approach that departs from default verticality and imposes constitutional obligations upon
non-state parties in certain circumstances. It was found, however, that whatever form it took, the state action doctrine remained committed to the founding assumptions of default verticality. Its central questions - whether and when actions of a private party can be ‘attributed' to the state - continued to place the state at the normative heart of the constitutional rights framework. Thus, it entrenched - rather than displaced - the ideas of sovereignty, abstract freedom and individual responsibility, which were critiqued in chapter one.
In this chapter, I shall engage with a second set of contemporary responses to the problems of default verticality, broadly grouped under the heading of ‘hori- zontality'. I shall begin with a typology of horizontal rights frameworks, setting out the concepts of indirect horizontality and direct horizontality. While indirect horizontality imposes constitutional obligations upon existing legal regimes (and thereby indirectly reaches private conduct governed by those legal regimes), direct horizontality makes private conduct itself subject to the constitutional framework (section II).
I then take each approach in turn. Indirect horizontality can take two forms: the ‘third party effect', which originated in German constitutional law and was subsequently exported elsewhere; and the US legal realists' argument about the pervasive presence of the state in private orderings. I argue that these approaches - which seek to impose constitutional obligations on private parties by going through the state - suffer from a number of problems. These include issues such as vagueness, infringement upon the separation of powers, and ‘transplanting' a rights framework from a state-individual relationship to one between private parties, without accounting for the difference between the two (section III).
If indirect horizontality is an insufficient response to the problems of default verticality, then why not simply prescribe that all rights shall apply horizontally, leaving the courts to determine when and how to balance competing concerns in concrete cases (‘direct horizontality')? I argue that while direct horizontality resolves some of the problems with indirect horizontality, in other respects, it suffers from the very issues that indirect horizontality is designed to address: in particular, an overlap with existing regimes of private law and a persistence of the transplant problem. For this reason, courts and scholars that have had an occasion to engage with direct horizontality have been forced to limit its scope and application (section IV).
I conclude with observing that certain insights that underlie both the state action approach and indirect horizontality can be put to use in constructing a principled limited model of direct horizontality. These include focusing upon the ability of the private actor to violate rights (as discussed in the last chapter), as well as the background that structures the private relationship in question. What such a model or approach might look like will be discussed in chapters four and five (section V).
II.
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