SOVEREIGNTY
In this section, I shall argue that the default vertical approach’s central concern with constraining the state’s powers depends upon identifying and isolating a set of distinctive attributes (of the state), which are normatively salient from the perspective of whom a bill of rights should be addressed to.
I will further argue that it is the conception of sovereignty and sovereign power - uniquely located within the state, and distinct from other forms of power - that appears to be the most plausible candidate for the job.The manner in which this emerges is set out by Frank Michelman (among others). Michelman outlines a four-step process that concludes with the establishment of the default vertical approach:
A demand for effective imposition, on powers that form and roam in society, of peace- and order-keeping by means of the issuance of positive laws backed by sufficient force (a legally ordered society) which implies, second, for each self-standing territory or population, the concentration in a single institutional nexus (the state) of these positive-legislating, order-keeping powers and functions; and so implies also, third, a vesting in that same institutional nexus of the sole, final disposition over deployments of coercive powers (state monopoly of lawful force); and then, finally and recursively, fourth, a demand for subjection of these state concentrated powers - which themselves now appear as an imposing instance of powers forming and roaming - to positive legal controls: in other words, constitutional government, government under law. (emphasis added)[37]
In other words, the default vertical approach depends upon a clean separation between ‘state’ and ‘society’, where, in the words of Dieter Grimm, ‘society was stripped of all ruling authority... the authority to rule was completely deprivatized, but needed to be legally constrained precisely on account of its concentration in the state’ (emphasis added).[38] It is this concentration of power in a ‘single institutional nexus (the state)’ that we commonly understand as the modern concept of ‘sovereignty’.
The doctrinal role played by sovereignty in the construction of the default vertical approach can be illuminated by how it has been articulated in some of the judgments that refer to it, even though it is not spelt out in its entirety. Consider, for example, Flagg Bros Inc v Brooks[39] - an often-studied judgment, and one of the foundational ‘state action’ cases in the USA. In Flagg Bros, the respondent-individuals were evicted from their homes, and their goods were warehoused by the petitioner-storage company. On the respondents’ failure to settle their accounts, the petitioner proposed to sell the goods. This action - which was sanctioned by the law of the State of New York - was challenged on the basis that it violated the due process clause of the Fourteenth Amendment. The respondents, in short, had been deprived of their property without adequate process. Rejecting the challenge, Chief Justice Rehnquist - writing for the majority - held that there was no ‘state action’, as the New York law, ‘recognizing the traditional place of private arrangements in ordering relationships in the commercial world, can hardly be said to have delegated to Flagg Brothers an exclusive prerogative of the sovereign’ (emphasis added).[40]
Chief Justice Rehnquist differed from the finding of the Court of Appeals, which had held that through its law, the State of New York had ‘delegated to the warehouseman a portion of its sovereign monopoly power over binding conflict resolution’ (emphasis added).[41] He also differed from Justice Stevens, who, in his dissenting opinion, observed that ‘the... power to order binding, nonconsensual resolution of a conflict between debtor and creditor’[42] was, indeed, a function ‘historically’, ‘traditionally’, or ‘uniquely’ ‘associated with sovereignty’ (emphasis added).[43]
What united all three opinions, however, was a consensus that the Fourteenth Amendment was limited to acts that were characteristic of sovereignty.
The Court of Appeals and Chief Justice Rehnquist insisted that only acts that were the exclusive prerogative of sovereignty were covered, while Justice Stevens adopted a more generous formulation, covering actions traditionally or historically associated with sovereignty.[44] The unified judicial vision, nonetheless, was that there was something about the concept of sovereignty, and a set of core acts that were uniquely associated with sovereignty, which attracted constitutional concern. These acts could not be performed by non-state actors, unless the state authorised them to do so through an act of delegation of sovereignty. In those - and only in those - cases would the state action doctrine apply, and the non-state actor be made subject to the relevant provisions of the bill of rights.[45]This understanding of sovereignty explains the structure of the Flagg Bros judgment(s). Chief Justice Rehnquist held that the challenge to the New York statute was, effectively, a challenge to the State of New York’s acquiescence (through the statute) to the private recourse Flagg Brothers took to recover its debts. But because what Flagg Brothers was doing was a private act, which did not involve any delegation of sovereignty on the part of the State of New York, the challenge under the Fourteenth Amendment had to fail. On the other hand, Justice Stevens’s dissent rested upon the finding that a challenge could be brought under the Fourteenth Amendment precisely because, through its acquiescence, the New York statute in effect delegated a function of sovereignty to a private party to perform.
What is so distinctive about sovereignty - and the powers uniquely attached to it - that justifies this view? As shown in the paragraph above, Michelman suggests that it lies in the classical understanding of sovereignty, which views the state ‘as the monopolist of lawful force, the sole power from the reach of whose command there is virtually no exit’ (emphasis added).[46] I will now unpack that summary.
It is important to understand that a significant part of the work in this articulation is being done by the word ‘lawful’. It is trite to note that, as an empirical matter, the state does not possess a ‘monopoly’ over the use of force. This was recognised by Chief Justice Rehnquist in Flagg Bros itself, when he noted that, hypothetically, a stronger party could physically deprive a weaker party of its property and sell it, and that this would not constitute a violation of the Fourteenth Amendment.[47] In other words, therefore, as Chief Justice Rehnquist discussed extensively in the first part of his judgment, if the State of New York itself (through one of its officials) had deprived the respondents of their property, it would have been an exercise of sovereignty that would have been hit by the Fourteenth Amendment. However, the same act, when it was performed by Flagg Brothers (a private party), was exempt from Fourteenth Amendment scrutiny - unless, of course, it could be traced back to the state in some relevant way, such as sovereign delegation. On this point, as we have seen, the majority held that it could not, while Justice Stevens held that it could. Thus, the issue is not that the state exercises a monopoly over force (it does not); rather, as Michelman suggests above, it is that the state, in its capacity qua the sovereign, exercises a monopoly over the legal authority to stipulate when and how force could be used.Indeed, this very distinction formed the heart of the reasoning in the Civil Rights Cases, which, as we have seen above, inaugurated the state action doctrine. The majority judgment in the Civil Rights Cases drew a crucial conceptual distinction between an ‘impairment’ of a (constitutional) right and an ‘invasion’ of that right:
[C]ivil rights, such as are guaranteed by the Constitution against State aggression, cannot be impaired by the wrongful acts of individuals, unsupported by State authority in the shape of laws, customs, or judicial or executive proceedings.
The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect his person, his property, or his reputation; but if not sanctioned in some way by the State, or not done under State authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the State for redress. (emphasis added)[48]Consequently, as specified in the context of Flagg Bros, the same action (as a factual matter) would either be an impairment of a constitutional right or a ‘mere’ invasion (with the right remaining intact), depending upon the actor. This should make it clear, therefore, that the US Constitution is concerned not with the actual power exercised by the state (a power that is exercised by non-state parties to different degrees as well), but by its normative character (which is exclusively an attribute of the state, flowing from sovereignty).
This normative character - as I discussed above - refers to the state’s monopoly over the lawful (or ‘legitimate’[49]) use of force. The idea is refined further by Kay, who (like Michelman) argues that ‘the unique power of the State’ lies in its acts of law-making - that is, the ‘authority to prescribe rules of conduct binding on individuals’.[50] It is this exercise of power that Kay sees as ‘qualitatively different from any other in society’,[51] and therefore the subject of constitutional concern.
We are now in a position to link this up with the articulation of sovereignty in Flagg Bros. The state action doctrine is based upon a conception of sovereignty that vests in it a specific and defined set of attributes, and a set of acts that are unique to and characteristic of it. The difference between sovereign and non-sovereign powers or acts (flowing from those powers) is what accords normative salience to limiting constitutional bills of rights to addressing only the state.
As an aside, this argument is congruent with (although it does not depend upon) accounts that trace the development of the concept of sovereignty in intellectual history. According to these accounts, for a variety of historical reasons, sovereignty came to be clothed with the attributes of indivisibility and supremacy, linked with legislative authority and concentrated within the state, in the political thought before and leading up to the revolutionary period and the drafting of the first modern constitutions.[52] Jean Thomas notes, therefore, that the ‘philosophical understanding’ of rights was (and in some respects, still is[53]) ‘tied to the social contract tradition [of Hobbes, Locke, and Rousseau] in... [which] the moral universe is defined by the relationship between a single ruler and the ruled’.[54] Of course, this did not necessarily end with the US revolution: the lingering shadow of sovereignty in political theory was perhaps best summed up by Foucault’s famous injunction to ‘cut off the King’s head’.[55]
Characterising sovereignty as a unitary - rather than a dispersed - concept, and as the sole attribute of the state, is essential, as we saw at the beginning of this section, to Michelman’s four-step analysis of the default vertical approach. Without committing to the correctness of the above account as a matter of history, or as a matter of the historical development of political thought, the key idea remains the same: it is the concept of sovereignty that seems to drive the normative wedge between the exercise of state power (salient with respect to constraints established by bills of rights) and the exercise of non-state power (subject to state-made ‘ordinary law’, but not constrained by bills of rights).
However, there remains a final part of the analysis that is missing. Michelman’s four-step account brings us to the justification for limiting the (centralised, concentrated) power of the state through a bill of rights, but it does not tell us why only state power ought to be so constrained. In other words, while the concept of sovereign power is a necessary condition for the default vertical approach, it cannot be a sufficient condition as well. It cannot, by itself, answer critics who point to how exercises of other kinds of power can also affect vital interests that would go unprotected without the shield of a bill of rights.
An answer, of sorts, was provided in the Civil Rights Cases, where the majority noted that individuals affected by private power could always seek their remedies under statute or common law.[56] As Erwin Chemerinsky points out, this argument has a respectable vintage. At the time of the framing of the US Constitution (according to Chemerinsky), existing common law was deemed sufficient to protect rights from private invasion. The purpose of the bill of rights was simply to extend those common law rights to the domain of state action, and fill in the legal vacuum. This would, effectively, make the domain of rights gapless.[57]
However, as the majority’s own reference to statute (in addition to common law) shows, a few decades after the framing of the US Constitution, it had already become clear that the bill of rights and the common law did not, by themselves, make the domain of rights gapless. Consequently, a few decades further on, the argument of the Civil Rights Cases was developed further by Frankfurter J in a dissenting opinion, when he conceded that private actors and institutions could offend the rights of others, but that ‘government can either regulate these or create distinct bodies for the protection of human rights and the advancement of human dignity’.[58]
Thus, the argument, put in the broadest way, holds that while the state - being the sovereign lawmaker - needs to be constrained through a bill of rights because it is by definition above (ordinary) law, private parties fall under the purview of the state. Consequently, remedies against their acts must be sought by taking recourse to the state’s (ordinary) law-making power. This completes Michelman’s argument by providing the flip side to the fourth step, and combining the argument for why the state should be constrained by a bill of rights with the argument for why non-state parties should not - ie the default vertical approach.
IV.