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

AuthorRosen, Mark D.
PositionIntroduction into II. Two Alternatives to Rights Absolutism B. Pure Rights Non-Absolutism, p. 1535-1573

Table of Contents INTRODUCTION I. RIGHTS ABSOLUTISM, PAST AND PRESENT A. The First Generation: Black and Meiklejohn B. Dworkin's Rights as Trumps 1. Dworkin I a. Is a "Higher Trump" Conceptually Consistent with Dworkin's Framework? b. What Qualifies as a Dworkinian "Higher Trump"? 2. Dworkin II C. Three Arguments Against Rights Absolutism 1. Inter-Rights Conflicts: Rights Absolutism Wrongly Presumes that Rights Cannot Conflict 2. Right-Interest Conflicts: Rights Absolutism Wrongly Presumes that Rights Should Categorically Trump Non-Rights Interests 3. Widespread Practice II. TWO ALTERNATIVES TO RIGHTS ABSOLUTISM A. Hybrid Absolutism: Rawls's Political Liberalism 1. Three Types of Liberty . 2. Conflicts, and Rights Non-Absolutism, Among the Basic Liberties 3. Does Rawls's Hybrid Overcome the Deficiencies of Rights Absolutism? B. Pure Rights Non-Absolutism 1. Rights as Shields 2. Rights as Devaluers of Non-Rights Considerations. 3. Rights as Principles a. Are Rights Principles? b. Decision-Making with Principles 4. Rights as Values, the Building Blocks of Constitutional Culture a. Adaptation and Growth b. Constituting Public Culture 5. Rights as Heuristics III. THE SUFFICIENCY QUESTION A. Intra-Right and Inter-Rights Conflicts B. Right-Interest Conflicts . IV. TOWARDS A SUFFICIENCY METHODOLOGY V. MCCUTCHEON REVISITED INTRODUCTION

In McCutcheon v. Federal Election Commission (FEC), the Supreme Court struck down the aggregate limits provision of the Bipartisan Campaign Reform Act of 2002 (BCRA), which capped the total amount of money a donor was permitted to contribute to all candidates and political committees during a single election cycle. (1) Chief Justice Roberts's four-Justice plurality opinion concluded that the provision ran afoul of free speech, because it violated the "right to participate in democracy through political contributions." (2)

Why precisely was the law unconstitutional? Not simply because the law restricted political contributions; the plurality acknowledged the right to participate through contributions "is not absolute," and that other cases had upheld contribution restrictions. (3) Rather, the plurality concluded the law did not further the only legitimate purpose--prevention of quid pro quo' corruption or its appearance" (4)--they thought could justify restricting the First Amendment right. (5) The four dissenting Justices thought a broader range of governmental goals could justify such restrictions--including "maintaining the integrity of our public governmental institutions" (6)--and that the BCRA's aggregate limits advanced that interest. (7) Justice Thomas, writing in a separate concurrence, agreed that the First Amendment right implicated by the BCRA was not absolute, but thought it properly subject to strict scrutiny. (8)

In short, all nine Justices agreed the constitutional right at issue was not absolute, but disagreed as to what purposes might justify the right's limitation. This Article asks a basic general question: What criteria appropriately determine what qualifies as a sufficiently important reason to limit a constitutional right? Call this the "Sufficiency Question."

The Sufficiency Question is not limited to the First Amendment, but applies generally insofar as virtually no constitutional rights are absolute under contemporary doctrine. For instance, most fundamental constitutional rights are protected by strict scrutiny and can be regulated to achieve a "compelling governmental interest." (9) Many constitutional rights can be regulated for even less pressing reasons--indeed, the McCutcheon plurality applied something less than strict scrutiny, demanding only a "sufficiently important interest." (10) Furthermore, even under strict scrutiny, a compelling governmental interest need not rise to the level of a constitutional interest. For example, under contemporary doctrine, a state's interest in fetal life is sufficiently important to allow a flat proscription of abortion after viability, despite the facts that abortion is a constitutional right and that protecting fetal life is not of a constitutional dimension. (11) This means that even strict scrutiny--generally recognized as the most difficult constitutional test for protecting rights--permits constitutional rights to be limited to achieve subconstitutional goals.

Surprisingly, the legal academy has given little attention to the Sufficiency Question. Though courts and scholars have spent substantial time arguing that a particular policy does or does not constitute a compelling government interest for purposes of a specific previous paragraph, and also generates insights that will prove useful to our analysis of the Sufficiency Question.

Part III argues that the very considerations that count against Rights Absolutism strongly suggest it is neither possible nor desirable to generate principled, a priori answers to the Sufficiency Question. But an implication of Part II's analysis is that it may be possible to generate what might be called a Sufficiency Methodology--a relatively thick framework that identifies the considerations that properly inform, and the institutions that properly participate in generating, answers to the Sufficiency Question. Part III then cashes out the Sufficiency Methodology, and shows that it identifies multiple deficiencies in the McCutcheon majority. More than this, the Sufficiency Methodology isolates the empirical and normative factors that the Court should have considered in deciding the case.

A final point before proceeding. Though this Article discusses an array of scholars, three figure most prominently: Dworkin, Rawls, and Alexy. I focus on these scholars not because they exhaust the range of political and constitutional theorists (they clearly do not), but because all three have seriously wrestled with the questions with which this Article is engaged. Careful consideration, and critique, of their well-considered positions generates important insights and analytical concepts that will advance our appreciation of the Sufficiency Question.


    To determine what interests can justifiably limit constitutional rights, it is helpful to ask the logically antecedent questions of whether--and if so, why--it is normatively proper to limit a constitutional right. A well-pedigreed line of American legalists forcefully argued "no": Justice Black and Alexander Meiklejohn famously contended that constitutional rights are "absolute," meaning they can never be limited or "open to exceptions." (14) Call this Rights Absolutism.

    Descriptively, these absolutists lost the day doctrinally. (15) But normatively, explaining why constitutional rights are not absolute is not so easy--and arguably still has not been done. (16) Indeed, one of this generation's most important accounts of constitutional rights, that of Ronald Dworkin, is much in the spirit of Rights Absolutism. (17) Identifying what is wrong with these important accounts will be the first step in addressing the Sufficiency Question.

    1. The First Generation: Black and Meiklejohn

      To say there is something wrong with Rights Absolutism is not to suggest there is no power to the position. Quite the contrary, most of the U.S. Constitution's text concerning rights is consistent with Rights Absolutism, (18) and some text literally seems to call for it. (19) History and political theory also can be, and have been, invoked in its support. (20) Rights Absolutism sits well with the conception of rights as pre-commitments intended to serve as checks on the majority. In Justice Black's words, "the very object of adopting the First Amendment ... was to put the freedoms protected there completely out of the area of any congressional control." (21) Justice Black pitted his position against that of Justices who called for "balancing"--like Justice Harlan who advocated an "appropriate weighing of the respective interests involved" when a governmental action impaired a constitutional right. (22) In response to the balancers, Justice Black asserted that "the First Amendment's unequivocal command that there shall be no abridgment of the rights of free speech and assembly shows that the men who drafted our Bill of Rights did all the 'balancing' that was to be done in this field." (23)

      To be clear, advocates of Rights Absolutism did not claim government could never regulate speech. Rather, the First Amendment forbids abridgments of the "freedom of speech," and Rights Absolutists argued that not all speech fell into that category. Thus, for Rights Absolutism, determining what speech government could regulate was the interpretive, definition-oriented process of ascertaining the meaning of "freedom of speech." (24) If an activity lay outside that category--like, on Meiklejohn's reading, Justice Holmes's example of falsely shouting "fire" in a crowded theater--then government was free to regulate it. (25) But whatever fell within the category of "freedom of speech" was to receive "absolute" constitutional protection; it simply could not be regulated by government, with no exceptions. (26)

      Though no Justices presently on the Court are full-throated Rights Absolutists, contemporary doctrine sometimes operates like Rights Absolutism's definitions-based approach, flatly defining some speech to fall outside the scope of the freedom of speech. (27) Justice Scalia's opinion for the Court in Nevada Commission on Ethics v. Carrigan is an example. (28) Nevada law prohibits state and municipal legislators from "vot[ing] upon or advocating] the passage or failure of" any "matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by ... [h]is commitment in a private capacity to the interests of others." (29) The Court upheld the law, concluding that the regulations did not come within the scope of "freedom of speech." (30) Justices Kennedy and Alito each wrote separate...

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