Horizontal effect

Abstract: This article examines the horizontal effect of constitutional norms (or the “state action” problem) in several constitutional systems. It argues that the difficulty of the issue varies depending on two features of such systems, their structures and their ideological commitments. Systems with generalized and centralized constitutional courts will find the issue of horizontal effect easier than systems with specialized constitutional courts, and particularly systems with strongly federal arrangements. Systems with greater commitments to social democratic norms will find the issue easier than systems with weaker social democratic commitments. The article also examines ways of resolving the state action problem, either through substantive constitutional doctrine or through weak forms of judicial review as illustrated by the Grootboom decision of South Africa’s Constitutional Court. Liberal constitutions identify human rights that ought not be violated. But by whom? An important strand in liberalism focuses on creating political structures that simultaneously empower and limit governments. Put crudely, this strand leads constitutionalists to pay primary attention to the threats to human rights that government poses. Another strand takes the human rights themselves as a focus. It notes that corporations and nongovernmental actors can threaten human rights, too. Governments and corporations can discriminate on the basis of race; governments and corporations can fire employees for speech with which the employer disagrees. The two strands come together when one observes that the people or corporations exercising “private” power are actually exercising power conferred on them by laws creating and regulating market behavior. Thus, government is always somehow implicated in private decisions. What, though, are the constitutional implications of that observation? That is, is the way in which the government is implicated in decisions by private employers to discriminate and the like sufficient to place some duties on either

Abstract: This article covers all four of the four fundamental freedoms enshrined in the EU Treaties (goods, persons, services and capital). Seven themes cutting across these freedoms are considered: whether they constitute fundamental rights; to what extent discrimination must be shown to establish a breach of one of the relevant provisions; whether export restrictions are sui generis; horizontal effect; measures internal to a Member State; the principles relating to justification; and whether there is convergence between the four freedoms.

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.