The "horizontal effect" of constitutional rights.

• Author: Gardbaum, Stephen

INTRODUCTION I. VERTICAL AND HORIZONTAL EFFECT OF INDIVIDUAL RIGHTS: THE SPECTRUM OF POSITIONS IN COMPARATIVE CONSTITUTIONAL LAW A. The Two Poles B. Indirect Horizontal Effect II. RECONCEIVING THE CONSTITUTIONAL POSITION IN THE UNITED STATES A. The State Action Doctrine B. Transcending the State Action Doctrine C. Transcending Versus "Refocusing" the State Action Inquiry D. Application to the Leading Cases E. Towards a Normative Defense III. A REVISED SPECTRUM OF POSITIONS ON THE SCOPE OF CONSTITUTIONAL RIGHTS IV. WHICH LAWS REGULATING RELATIONS BETWEEN PRIVATE ACTORS ARE UNCONSTITUTIONAL? A. General Considerations B. The Impact of Specific Constitutional Rights on Private Actors 1. Free Speech 2. Equal Protection C. How the Impact of the Equal Protection Clause on Private Actors Might Be Substantially Increased CONCLUSION INTRODUCTION

Among the most fundamental issues in constitutional law is the scope of application of individual rights provisions and, in particular, their reach into the private sphere. This issue is also currently one of the most important and hotly debated in comparative constitutional law, where it is known under the rubric of "vertical" and "horizontal effect." These alternatives refer to whether constitutional rights regulate only the conduct of governmental actors in their dealings with private individuals (vertical) or also relations between private individuals (horizontal). In recent years, the horizontal position has been adopted to varying degrees, and after systematic scholarly and judicial debate, in Ireland, Canada, Germany, South Africa, and the European Union, among others. (1) The issue has also been the topic of sustained debate in the United Kingdom following enactment of the Human Rights Act of 1998, (2) for it remains an open and arguable question whether, and to what extent, the rights it protects will have horizontal as well as vertical effect. (3)

In the United States, by contrast, this fundamental issue has long been deemed fully and definitively resolved by a constitutional axiom: the state action doctrine. With the exception of the Thirteenth Amendment, (4) both the text and authoritative precedent (5) make clear that with respect to its individual rights provisions, the Constitution binds only governmental actors and not private individuals. End of story.

In fact, this is far from the end of the story. For several of the countries that have accepted some form of horizontal effect of individual rights provisions also accept that such rights impose constitutional duties only on governmental and not on private actors. But how is this possible? Doesn't this statement express a contradiction? The answer is no, and it is a significant cost of the state action shibboleth that it has prevented this answer from being systematically and self-consciously appreciated in the United States, as it has elsewhere. The fact that private actors are not bound by constitutional rights in no way entails that such rights do not govern their legal relations with one another, (6) and thereby impact what they can lawfully be authorized to do and which of their interests, choices, and actions may be protected by law. Although to be sure, the state action doctrine forecloses the most direct way in which a constitution might regulate private actors--by imposing constitutional duties on them--it does not rule out other, indirect ways. To take two famous examples: L.B. Sullivan, the losing plaintiff in New York Times v. Sullivan, (7) certainly was adversely affected by the First Amendment that was deemed to govern his legal relations with the newspaper, even though suing in his private capacity, Sullivan was not bound by its provisions. Similarly, although the private actors seeking to enforce their racially restrictive covenants in Shelley v. Kraemer (8) were not bound by the Equal Protection Clause, this did not prevent the Clause from substantially affecting them.

Accordingly, the state action doctrine gives only a partial answer to the foundational question of the reach of constitutional rights into the private sphere in the United States, and in this Article I attempt to provide the complete one. The full answer, however, can only be appreciated when viewed through a comparative lens because this supplies the necessary perspective and analytical framework for identifying the true distinctiveness of the U.S. position. Ironically, this distinctiveness that comparative materials enable us to see turns out to be almost exactly the opposite of what it is standardly understood to be within the discipline of comparative constitutional law itself. For, taking the conventional American answer provided by the state action doctrine at face value, comparativists almost universally view the United States as the paradigm of the polar, strictly "vertical" approach to constitutional rights on the spectrum of possible positions. (9) By explaining why the U.S. position is in fact far more horizontal than supposed, I hope also to sharpen and revise the existing spectrum of positions for the entire topic. In this way, the Article seeks to make a contribution to both domestic and comparative constitutional law.

In order to provide the full U.S. position on the scope of constitutional rights and their impact on private actors, it is necessary to bypass the notorious labyrinth of state action jurisprudence altogether and instead focus directly on the following set of fundamental threshold questions that other constitutional systems have self-consciously addressed: (1) Do constitutional rights apply to the actions of courts, or only to the legislative and executive branches of government? (2) Is private law subject to the Constitution, or only public law? (3) Is common law subject to the Constitution, or only enacted law? (4) Does the Constitution apply to litigation between private individuals, or only to litigation between a private individual and the state? (10) Even absent private actors being bound by the Constitution, different answers to these four questions result in differing degrees to which private conduct is indirectly subject to constitutional norms.

Although these are somewhat unfamiliar constitutional questions in the United States due to the axiomatic and preemptive status of the state action doctrine, their individual answers are for the most part not controversial and collectively they provide a resolution of the general issue that is quite clear and uncomplicated. All law, including common law and the law at issue in litigation between private individuals, is directly and fully subject to the Constitution. The exclusive focus on the Fourteenth Amendment's state action requirement as the source for determining the scope of constitutional rights has obscured this more basic and fundamental proposition, (11) which I will argue derives not from the Fourteenth Amendment at all but is a straightforward implication of the Supremacy Clause. (12)

Moreover, since this clause renders all law fully, directly, and equally subject to the Constitution--including contract, property, employment, trespass, and testamentary law--there should be no separate threshold issue of state action, as currently exists, to be resolved on a case-by-case basis whenever the constitutionality of a law invoked in litigation between private actors is challenged. (13) The only genuine issue is the substantive one of whether that law violates the Constitution. This analysis straightforwardly and parsimoniously disposes of the controversial state action issue in cases such as Shelley. (14) It also explains why it is absurd to distinguish among laws as to the kind or degree of state action involved, as the Court now does, so that some laws are subject to constitutional scrutiny and others are seemingly immune. (15)

This full answer does not render private actors bound by the Constitution but it does mean that individual rights provisions have a significant impact on them. By governing their legal relations with each other, such rights limit what private actors can lawfully be empowered to do and which of their interests, preferences, and actions can be protected by law. This indirect effect of constitutional rights on private actors is actually quite radical by comparative constitutional standards, placing the United States far closer to the horizontal end of the spectrum than the vertical. In this important structural respect, the scope of individual 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. (16)

To say that all laws regulating relations between private actors are subject to the Constitution is not, of course, to say which laws of this sort violate it. This, the only genuine constitutional issue in every case, is a matter of substantive constitutional law. I will consider this substantive issue in the context of assessing the constitutionality of two paradigmatic categories of laws regulating private relations: laws touching on private race and sex discrimination, and laws regulating speech between individuals. By explaining which types of actual and hypothetical laws potentially relied on by private employers, speech-penalizers, racists, and sexists are and are not constitutional under current doctrine, I will be demonstrating when such private actors are effectively regulated by the constitutional rights of others.

In exploring this issue in the American context, I also look at comparative treatments of similar laws in Germany and Canada. This comparison will suggest whether the structural issue of the general reach of constitutional rights or the substantive one of their content appears to play a larger role in terms of the actual impact of the rights on private actors. Finally, in support of the proposition that both matter, I demonstrate how, given the...