Can constitutional rights be both personal and rule-dependent? Can it be true of constitutional adjudication (1) that a constitutional litigant must assert “her own” rights, and yet also (2) that the viability of a constitutional challenge depends (or sometimes depends) on whether a particular type of legal rule, for example, a discriminatory or poorly tailored rule, is in force?

Professor Matthew Adler has argued that many constitutional rights are not personal moral rights, but “rights against rules” that are pragmatic and instrumental in nature.See Matthew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional Law, 97 MICH. L. REV. 1 (1998); Matthew D. Adler, Personal Rights and Rule-Dependence: Can the Two Coexist?, 6 LEGAL THEORY (present issue). The reason rights are not personal, in Adler’s view, is that they are rule-dependent—the constitutionality of a statute depends not just on how it affects someone, but on what it says—its formulation of a rule. Constitutional litigants are in some cases allowed to challenge the formulation of rules, regardless of whether the error in formulation would make any difference to the way the litigant is treated. Adler argues that because the litigant would receive no different treatment whether the law is formulated correctly or not, the litigant does not suffer from the constitutional error any “personal” legal disability that would set him apart from any other citizen, and is, therefore, not enforcing a personal right. Instead, Adler believes that constitutional rights are better understood as positive-law creations that allow citizens to sue as private attorneys-general.

I. INTRODUCTION

Do we have constitutional rights that certain states of affairs exist (for example, that I burn an American flag and am not punished); or do we instead have constitutional rights that certain rules not exist (for example, that there be no rule forbidding the burning of American flags on pain of punishment)? I believe that as a positive account of at least most of our constitutional law, our constitutional rights are best conceived as rights against rules. However, the question remains, Why should the Constitution concern itself with rules rather than with states of affairs, with rule-differentiated act-types rather than rule-independent act-tokens? Must not its concern for the former be based on its concern for the latter?

INTRODUCTION

Economic accounts of tort law tell us why tortfeasors face monetary sanctions for certain sorts of conduct. That is not enough, according to corrective justice theorists Jules Coleman and Ernest Weinrib.See, e.g., Jules L. Coleman, RISKS AND WRONGS (1992); Ernest J. Weinrib, THE IDEA OF PRIVATE LAW (1995). See also Arthur Ripstein, EQUALITY, RESPONSIBILITY AND THE LAW (1998); Richard A. Epstein, A Theory of Strict Liability, 2 J. LEGAL STUD. 151 (1973); George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537 (1972); Stephen R. Perry, The Moral Foundations of Tort Law, 77 IOWA L. REV. 449 (1992). Economic theoriesThe most thorough, and impressive, attempt to provide a positive theory of tort law from an economic perspective is that of William Landes and Richard Posner. William M. Landes & Richard A. Posner, THE ECONOMIC STRUCTURE OF TORT LAW (1987). See also, Guido Calabresi, THE COSTS OF ACCIDENTS (1970); Steven Shavell, ECONOMIC ANALYSIS OF ACCIDENT LAW (1987); Guido Calabresi & Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972); Ronald Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960). do not offer an adequate explanation of why the defendant is required to pay these monetary sanctions to the plaintiff. Perhaps some argument can be made that it is efficient to reward private parties for bringing tort actions. Yet even if this were plausible, it would make the plaintiff-driven nature of tort law a purely contingent matter. The plaintiff-defendant structure of tort law is essential to it, not merely contingent. The economic account is therefore fatally flawed, like an account of the criminal law that fails to mention the role of the state, or an account of Shakespeare’s literary genius that fails to mention his poetry. This is called the “bipolarity” critique of law and economics.

In an impressive and important article, Rights Against Rules: The Moral Structure of American Constitutional Law, Matthew Adler maintains that constitutional rights are “rights against rules: they protect citizens against the legislative enactment and judicial application of particular rules (rules with wrong act-type predicates); they do not provide guarantees that citizens can perform any particular sorts of actions free of governmental interference.”Matthew D. Adler, Rights Against Rules: The Moral Structure of American Constitutional Law, 97 MICH. L. REV. 1 (1998). As Adler writes:

A familiar jurisprudential view is that a judicial decision functions as a legal precedent by laying down a rule and that the content of this rule is set by officials. Precedents can be followed only by acting in accordance with this rule. This view is mistaken on all counts. A judicial decision functions as a precedent by being an example. At its best, it is an example both for officials and for a target population. Even precedents outside of law function as examples when they have conduct-guiding significance. Examples may be rule-like in their scope, but need not be. Their import is independent of their justification; this point has implications for coherence theories of precedent meaning. The content and scope of a legal decision’s extension is not set exclusively by officials. It is socially set and depends upon social salience.

Judicial review of statutes on constitutional grounds is affected by a cluster of doctrinal practices that are generally accepted, but not very well explained, by the courts and not entirely consistent with each other. Courts usually judge statutes “as applied” rather than as written;See generally Michael C. Dorf, Facial Challenges to State and Federal Statutes, 46 STAN. L. REV. 235 (1994); Marc E. Isserles, Overcoming Overbreadth: Facial Challenges and the Valid Rule Requirement, 48 AM. U. L. REV. 359 (1998). they favor “severance” of valid applications of statutes from invalid or possibly invalid applications when possible;See generally Mark Movsesian, Severability in Statutes and Contracts, 30 GA. L. REV. 41 (1995); John Copeland Nagle, Severability, 72 N.C. L. REV. 203 (1993); Robert Stern, Separability and Separability Clauses in the Supreme Court, 51 HARV. L. REV. 76, 82–106 (1937). and they interpret statutes in ways that avoid constitutional difficulty.See generally Frederick Schauer, Ashwander Revisited, 1995 SUP. CT. REV. 71; Adrian Vermeule, Saving Constructions, 85 GEO. L.J. 1945 (1997). These overlapping practices presumably are intended to preserve legislation, and hence are associated with a modest conception of the role of courts in government. Yet they are not always modest in operation. Several commentators have equated the practices mentioned in the text to judicial revision of statutes. See Dorf, supra note 1, at 292–93 (severance results in a “judicially rewritten law”); Nagle, supra note 2, at 220 (the product of severance is “akin to a new statute”); Schauer, supra note 3, at 80–81 (narrowing construction is a form of “redrafting”).

In 1990, in Department of Employment Services v. Smith,494 U.S. 872 (1990). the Supreme Court announced a new standard to govern Free Exercise claims. The Court held that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”Id. at 879 (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens concurring)). Prior to Smith, the Court had applied a test drawn from Sherbert v. Verner.374 U.S. 398 (1963). In Sherbert, the Court had indicated that religiously motivated persons were constitutionally exempt from otherwise valid laws unless the imposition of those laws was necessary to secure “a compelling state interest.”Id. at 403 (internal quotation marks omitted). Although the Court rejected almost every Free Exercise claim raised under Sherbert, the Sherbert standard was—in theory if not in practice—remarkably generous to religiously motivated persons, granting them a presumptive right to disobey laws that thwarted their religious commitments.

Prior to recent decades, the United States Supreme Court often invoked the political question doctrine to avoid deciding controversial questions of individual rights.For a flavor of the former view, see Baker v. Carr, 369 U.S. 186, 266–330 (1962) (Frankfurter, J., joined by Harlan, J., dissenting). For the modern view, see id. at 208–37 (opinion of the Court) (holding that an equal protection challenge to state legislative apportionment did not present a political question). By the 1970s and 1980s, standing limits traced to Article III’s case-or-controversy language had replaced the political question doctrine as the favored justiciability device.See, e.g., Warth v. Seldin, 422 U.S. 490 (1975) (denying standing to low and moderate income plaintiffs claiming that town’s exclusionary zoning practices denied them housing); id. at 519 (“Standing has become a barrier to access to the federal courts, just as ‘the political question’ was in earlier decades.”) (Douglas, J., dissenting). Although both political question and standing doctrines remain tools in the Court’s arsenal of threshold decision making,See, e.g., Nixon v. United States, 506 U.S. 224 (1993) (holding that a challenge to the Senate’s use of a committee to hear testimony for judicial impeachment presented a political question); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (denying standing to environmentalists suing the Secretary of the Interior to require consultation regarding the environmental impact of overseas projects). in the last decade the Court has turned with increasing frequency to the distinction between facial and as-applied challenges to perform the gatekeeping function. However, although there is a considerable body of scholarship concerning the conventional justiciability doctrines, scholars have only recently begun to address the range of questions implicated by the Court’s approach to the relation between constitutional rights and challenged legal rules—and they have generally focused on narrow doctrinal questions about the proper treatment of discrete rights such as abortion, free exercise of religion, and freedom of speech. The papers in this issue of Legal Theory and the next view these issues in a broader jurisprudential context.

No one denies that moral principles figure in legal argument and practice. However, the kind of role morality can or must play in law has been a topic of debate not only between positivists and their critics, but also within the positivist camp. The topic was brought into contemporary prominence by Ronald Dworkin, who in The Model of Rules I made the provocative observation that the legality of norms appears to depend sometimes on their substantive (moral) merits, and not just on their pedigree or social source.Ronald Dworkin, The Model of Rules I, in TAKING RIGHTS SERIOUSLY 14 (1977). The observation was intended by Dworkin as a challenge to the positivism of H.L.A. Hart.