The 'Horizontal Effect' of Constitutional Rights

Abstract

This article proposes a rethinking of the U.S. position on the reach of constitutional rights into the private sphere, both in domestic and comparative terms. This issue is standardly deemed resolved by the state action doctrine: with one exception, constitutional rights bind only governmental and not private actors. This, however, provides only a partial answer to the general issue for the fact that private actors are not bound by constitutional rights is consistent with various different positions on the extent to which such rights govern their legal relations with one another, and thereby impact what they can lawfully be permitted or required to do. The U.S. answer to this important, second dimension of the scope of individual rights is to be found not in the interpretive labyrinths of the Fourteenth Amendment's state action requirement but more simply and straightforwardly in the Supremacy Clause, which mandates that all law, including private law, common law, and the law relied on in litigation between private actors, is directly, fully, and equally subject to the Constitution. Accordingly, there should be no separate threshold issue of state action when the constitutionality of any law - private or public - is challenged, the only genuine issue is the substantive one of whether that law violates the Constitution. This full answer does not render private actors bound by the Constitution but it does mean that in governing their legal relations with one another, constitutional rights have significant impact upon them - limiting which of their interests, preferences, and choices may be protected by law. Comparatively, this position is in fact quite radical and belies the conventional understanding of the United States as creating a rigid public-private distinction in constitutional law. Indeed, in this important structural respect, the scope of constitutional rights provisions is greater than, for example, in Canada and no less than in Germany, two countries standardly viewed as taking a more horizontal approach than the purely vertical United States. This insight provides the basis for a revised and clarified spectrum of possible positions on vertical and horizontal effect in comparative constitutional law. The article concludes by analyzing the substantive issue on a comparative basis to assess the constitutionality of various actual and hypothetical laws touching on private race and sex discrimination, and regulating speech between such private actors as employers and employees. The upshot is that the actual impact of constitutional rights on private actors in the United States is not fixed, as the state action axiom suggests, but will vary with changes in their substantive interpretation. For example, a change in the disparate impact rule under the Equal Protection Clause would not merely have significant effects on tax, regulatory and other public laws but would also substantially increase the Clause's impact on private actors. This, finally, suggests the deep interconnection between the structural issue of scope and the substantive issue of the content of constitutional rights.