When are constitutional rights non-absolute? McCutcheon, conflicts, and the sufficiency question.

• Author: Rosen, Mark D.
• Position: Continuation of II. Two Alternatives to Rights Absolutism B. Pure Rights Non-Absolutism through Conclusion, with footnotes, p. 1573-1611

1. Rights as Shields

   In a brief but important account two decades ago, Fred Schauer proposed an intriguing master metaphor for rights: that rights function as shields rather than Dworkinian trumps. (169) Just as shields provide substantial, but less than absolute, protection, rights have a "susceptibility to override by a sufficient aggregation of mere interests." (170) Schauer recognized that his account presumed a "psychology of decision-making" in which the decision-maker can

   presumptively, but not conclusively, ignore some factor, or even the universe of factors but one. She thus remains open to the possibility that some factor might be relevant in a few extraordinary cases, but still does not take it into account unless it appears to a particularly great degree. This account recognizes the potential of override by factors presumptively but not conclusively excluded from the decision-making process and so recognizes that factors normally off the table and not under active consideration may on occasion present themselves with sufficient force that they cannot be avoided. (171) As a description of contemporary American practice, Schauer's account is a substantial improvement over Rights Absolutism. After all, the doctrinal tests of strict and intermediate scrutiny, which operationalize most of our country's most important rights, do not declare that rights never can be regulated, or that they can be regulated only in the face of emergencies or catastrophes, but instead allow regulation to achieve compelling or important governmental interests. (172)

   But as good as it is, rights as shields understates the degree of rights-regulation found in contemporary American constitutional law: overrides in the form of regulation are found far more frequently than only "on occasion." (173) Also, it is questionable whether Schauer's hypothesis that rights presumptively exclude non-rights interests accurately captures how rights operate in practice. (174) Finally, rights as shields does not explain why rights properly operate this way, or provide much traction in answering the Sufficiency Question. (175)

2. Rights as Devaluers of Non-Rights Considerations

   Schauer has recently proposed yet another way of understanding rights (176): "Rights do not necessarily win against non-rights considerations.... [A]nd rights do not exclude non-rights considerations. Rather, rights devalue non-rights considerations, such that there need to be more of such considerations in order to prevail than would be the case were rights not part of the picture." (177) In short, "rights are typically, even if not necessarily, non-absolute," but still "are worth more than non-rights protected interests." (178)

   Schauer's rights as devaluers approach has several advantages over rights as shields. Rights-limitations are not as unusual as the rights as shields metaphor suggests. Further, that rights demand a sizable aggregation of non-rights interests to justify their limitation more accurately describes the contemporary American practice of rights than the rights as shield's notion that rights presumptively exclude non-rights interests. Finally, rights as devaluers has a very different normative valence from rights as shields. A shield's inadequacy to stop incoming fire is always to be bemoaned, whereas the presence of a sufficient aggregation of devalued interests to justify a right's limitation is, well, normatively justifiable.

   But as good as it is, Schauer's rights as devaluers account gets us only so far. (179) It does not explain why rights properly function that way, and accordingly does not on its own have the resources to answer Hume's Law (180) and establish that Rights Absolutism is wrong. Rights as devaluers also does not provide traction for answering the Sufficiency Question.

3. Rights as Principles

   A third master metaphor for rights consistent with Rights Non-Absolutism might be called rights as principles. Understanding it requires an appreciation of the distinction between rules and principles. "Rules are applicable in an all-or-nothing fashion," (181) meaning that, "[i]f a rule is valid and if its conditions of application are fulfilled, it is definitively required that exactly what it demands be done." (182) "Principles, by contrast, are norms that, when relevant, are not conclusive but must be considered in reaching a decision.

   Decision-makers may balance them against other considerations, and sometimes the principle does not prevail." (183) "Principles have a dimension that rules do not--the dimension of weight or importance." (184) Furthermore, principles may "intersect" with competing principles, and "one who must resolve the conflict has to take into account the relative weight of each." (185)

   In other words, principles are non-absolute. While Dworkin's argument in TRS that law contains principles and rules is now widely accepted as correct, his discussion there did not primarily concern constitutional law. (186) The question for our purposes is whether constitutional rights may be principles. Dworkin considered the possibility, without definitively deciding, that free speech might be a principle. He recognized that such a possibility conflicted with the views of Justice Black and Meiklejohn, "who claim that the first amendment is 'an absolute,"' that is to say, "a rule." (187) In what surely will be an immensely influential work, the prominent constitutional theorist Jack Balkin contends that many of our country's most important rights--including free exercise, free speech, and equal protection--are principles. (188)

   Once it is accepted that constitutional rights are principles rather than rules, it automatically follows that rights are non-absolute. Furthermore, "rights as principles" likely licenses more rights-restrictions than would Schauer's metaphor of rights as shields, and perhaps his "non-rights devaluers" as well.

   1. Are Rights Principles?

      The crucial first question therefore is whether the premise that rights are principles is correct. The answer turns on one's theory of constitutional interpretation. A literal interpretation of constitutional text on its own seems to counsel against the conclusion that rights generally are principles. After all, the First Amendment states "Congress shall make no law ... prohibiting the free exercise" of religion "or abridging the freedom of speech," (189) and the Fourteenth that "[n]o state shall make or enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the laws." (190) To paraphrase Justice Black and Alexander Meiklejohn, this constitutional language does not instruct that freedom of speech and equal protection are relevant but non-conclusive considerations, (191) and probably is most naturally read as calling for Rights Absolutism. (192)

      German constitutional theorist Robert Alexy has taken a different tack, arguing on the basis of purely conceptual analysis that rights must be principles. (193) Alexy rejects the view that whether rights are principles depends on positive law, and hence can vary from polity to polity. He instead claims that constitutional rights, properly understood, necessarily--and hence universally--are principles. Even without endorsing his conceptualist methodology, (194) it is illuminating to observe the crux of his argument. And it is this: because constitutional rights are "abstract"--meaning that "[t]hey refer simpliciter to objects like freedom and equality, life and property, and free speech and protection of personality"--they "inevitably collide with other human rights and with collective goods like protection of the environment and public safety." (195) On account of these inevitable conflicts, constitutional rights "stand in need of balancing," and hence must be principles. (196)

      Alexy's explanation for why rights must be principles constitutes the core conceptual justification for Rights Non-Absolutism. It is, in fact, what I earlier referred to as the Conflict Thesis: no single right can be absolute because (1) there are multiple rights, which may conflict with one another (Inter-Rights Conflicts), and (2) a right may conflict with important countervailing interests that should not be categorically trumped (Right-Interests Conflicts). (197)

      To these, a third type of conflict can be added: conflicts within a single right, what might be called Intra-Right Conflicts. (198) McCutcheon is one such example, at least according to Justice Breyer's dissent. Justice Breyer argued that the challenged contribution limits presented a "potential for conflict between (1) the need to permit contributions that pay for the diffusion of ideas, and (2) the need to limit payments in order to help maintain the integrity of the electoral process." This conflict, says Justice Breyer "takes place within, not outside, the First Amendment's boundaries." (199)

      As will be seen shortly, Alexy advances powerful arguments on behalf of the Conflicts Thesis. But this does not mean Alexy has proven his thesis that constitutional rights must, as a conceptual matter, be principles. For it does not automatically follow that rights must be principles from the fact that rights are non-absolute. Another possibility, explored in the next subsection, is that rights are values. Below, I not only identify this possibility, but argue that rights are better conceptualized as values than as principles. It nevertheless will prove to be very useful to carefully study Alexy's discussion of principles, because both principles and values have "basically the same conceptual structure" (200) with regard to the nature of the decision-making process they call for. So let us now turn to Alexy's method for resolving conflicts in relation to principles.

   2. Decision-Making with Principles

      The core claims in Alexy's book A Theory of Constitutional Rights are that (1) rights are principles; (2) principles are to be "optimized" pursuant to a balancing...