On who has a right to what, continued

I wrote a few weeks ago about the risks of inequity involved in assigning some people's claims, but not other people's, the status of rights. But there's an argument that says, essentially, that every claim is a rights claim. The South African scholar Johan van der Walt, in an insightful draft essay called Abdications of Sovereignty in State Action and Horizontal Application Jurisprudence, calls this argument, as Frank Michelman has, the "Holfeldian point."

This argument begins with the proposition that everything people do in society that isn't forbidden by law must, instead, be permitted by law -- there is no area of life as to which the law is simply speechless. So suppose the law permits some troubling form of seemingly private conduct, such as firing employees at will or uttering hateful speech. The law giving permission (maybe a statute, maybe just a legal doctrine developed in the courts -- a "common law" rule) should be seen as a form of government action, and government action is subject to constitutional scrutiny. Then a law that permits employers to fire workers at will might be seen as government authorization to depart from the requirements of "due process of law," and a law permitting (or forbidding) hate speech might be seen as implicating the First Amendment's protection of the freedom of speech. At this point we've reached what is sometimes called the "horizontal application" of constitutional rights -- application not just to what the government does to us, but to what we do to each other.

Another illustration: Clearly part of liberty is a right to be free from physical assault from the government unless the government has some just cause for its action -- say, that there's probable cause to believe I  committed a crime. Now a private person injures me; perhaps I entered someone else's property without realizing I was doing so, and he shot me. He asserts that the law permits any landowner to shoot anyone who comes on his property without consent. If the law does permit that, then on this argument that law should be scrutinized under the constitution to see whether what it permits is a violation of the right to liberty.

This isn't easy logic to resist, though in fact US constitutional law insists that much private action really is not "state action," and that only "state action" is normally regulated by the constitution. Professor van der Walt quotes from the response of Chief Justice Rehnquist, who wrote in the case of Flagg Brothers, Inc. v. Brooks, 436 U.S. 149 (1978), that "[i]t would intolerably broaden, beyond the scope of any of our previous cases, the notion of state action under the Fourteenth Amendment to hold that the mere existence of a body of property law in a state, whether decisional or statutory, itself amounted to 'state action' even though no state process or state officials were ever involved in enforcing that body of law." Id. at 160 n.10.

Why does this matter? After all, it's always open to citizens to argue that the rules on landowners' use of force, or on the permissible range of hateful speech, or on termination of employees at will are simply bad rules, and should be changed because a wise and good country would change them. Moreover, once the rules are made they do in fact regulate what private individuals can and can't do; there may be some realm of private conduct that the constitution doesn't regulate but -- and this is the Hohfeldian point restated -- there's no realm of conduct that the law doesn't reach.

The difference, however, is that once the constitution is seen to regulate these choices, they become, to that extent, no longer matters for popular choice alone. People can still advocate for the laws they want, and legislatures can still enact them, but now the range of permissible laws will be constrained by the constant background presence of constitutional principles. The result may be more vigilant protection of people's interests (now denominated as "rights"), though it's not a simple question whether on balance legislatures or courts do a better job of attending to popular needs. But even if that's so, the trade-off is that the protection of each right of daily life -- to fair treatment on the job, to full but not exaggerated freedom of speech, to protection from others' violence -- seems to be accomplished at some cost to another right, the right of democratic self-governance.

That oversimplifies the trade-off. Many court decisions actually promote democratic self-governance, for instance by ensuring that each legislative district has the same number of people (so no one district has extra power), or by ensuring full and frank political debate. It is good that we protect self-governance by preventing those who govern us from abusing their power. On that ground, probably most constitutionalists would acknowledge that they are not supporters of unchecked democracy -- and few people would say that the framers of the US constitution ever envisaged unchecked democracy either. But the broader the range of constitutional rights we come to recognize, and the more frequently they come into play, the more we constrain the choices we ourselves, or our representatives, can make. We don't really want a government of philosopher-kings, as Judge Learned Hand pointed out, but we inch towards it the more we multiply the occasions when legal rules are set by judges rather than by politics.