Fifteen Eighty Four

Who is responsible for your constitutional rights? The traditional answer is that constitutions create obligations for the state. So, state or government actors are responsible for upholding rights, from respecting the freedom of speech to promoting the right to education. However, courts and constitution-makers across the globe sometimes extend this understanding, creating constitutional duties for non-state actors as well. Thus, private actors ranging from businesses and hospitals to private schools and individuals may have duties to uphold rights under the Constitution. Perhaps a landlord may have duties to his or her tenants or a sports club to its fans. Lawyers refer to this extension of constitutional duties to private actors as the “horizontal” application of rights.

Whether or not private actors have constitutional duties is not simply an obscure academic matter. Contemporary political issues demonstrate more clearly than ever the urgency and implications of how we answer this question. Take, for example, ongoing debates concerning social media—what, if any, duties do these platforms have to their users and the Constitution? In conventional understandings, tech companies may be regulated through ordinary laws passed by legislatures, but not necessarily through constitutional law since they are not state actors. Therefore, rather than maintain constitutional duties, these companies are more likely simply to enjoy a broad range of rights.

Horizontal application invites a rethinking of this conventional wisdom. It introduces the possibility that private actors do bear some responsibilities under the constitution, per se, and that the language of duty may appropriately apply to them, at least in some cases. Accordingly, citizens and political actors may ask whether social media’s influence over political life does warrant ascribing certain duties to accompany these platforms’ vast power. The contrast between Europe’s ambitious strides and the United States’ stilted efforts in regulating social media maps onto their different legal environments fostered, in part, by an openness to horizontal understandings of rights.

This is not necessarily to argue for horizontal application in social media or more broadly. The point of this post and of my book, Constitutionalizing the Private Sphere, is more basic, more analytic. By employing concepts from republican political theory, the book illuminates how horizontal application prompts different kinds of questions and news modes of deliberating the space private actors occupy in a constitutional order. In the context of specific places—the United States, India, Germany, South Africa, and the European Union—the book examines how horizontal application has fostered alternative approaches to constitutional politics, foregrounding such republican concepts as duty and responsibility to the common good in political discourses.

Perhaps conventional understandings that emphasize rights above these other concepts remain prudent in particular contexts and issues. Nevertheless, the urgency of many contemporary political questions, social media regulation being only one, obliges consideration of alternative approaches that imagine both constitutional rights and duties for private actors. Social welfare states might more readily embrace this way of thinking—indeed, Germany is typically cited as the first country to introduce a horizontal understanding of rights in the wake of WWII. Likewise, what are sometimes called transformative constitutional orders, such as post-Apartheid South Africa, often have reason to adopt horizontal application.

Ultimately, the choice to adopt a horizontal approach to rights is a fundamental one which constitutional actors continue to make. The hope is that the book’s marriage of theoretic and comparative thinking will help scholars and practitioners to view the constitutional possibilities more plainly—from the deeper theoretical implications to the practical consequences of adopting different models of constitutional rights.