The classical liberal tradition has typically understood constitutions as protecting private individuals and entities from the encroachments of government. Of course, constitutions empower government, but they also seek to limit that power through checks and balances and, almost always, through enumerating a list of justiciable rights obligating the state.Footnote ¹ At the time of writing, some 184 constitutions protect the freedom of expression against government action, for example.Footnote ² Since the post–World War II era of constitution-making, an increasing number of countries have also included socioeconomic or positive rights in their constitutions. Hence, the right to healthcare now yields duties for the state in as many as 136 constitutions.Footnote ³ In each case, the constitution establishes a vertical relationship according to which government must respect, protect, and fulfill rights of the people.Footnote ⁴ Only state action is held to a constitutional standard. This vertical relationship leaves space for a separate private sphere in which private actors may pursue their own interests and projects, supported by government structures but unencumbered by those constitutional obligations that bind the state.

Particular moments from American history demonstrate the crucial implications of working out which institutions belong to the public or private sphere, as well as the fact that these are not new questions by any means. Take for example the “white primary” cases. In Grovey v. Townsend (1935),Footnote ⁵ the Supreme Court’s decision to classify the Democratic Party as a private organization perpetuated the continual disenfranchisement of African Americans. While the state of Texas’s administration of elections constituted state action, the acts of the participating political parties did not. The state of Texas could thus authorize the Democratic Party in denying ballots to African American voters. While parties in some ways operate as nonstate actors, one cannot deny the essential ways in which they contribute to political processes. The Court in Grovey took advantage of this ambiguous status of parties and of the fact that it maintained full power to draw the line between public and private spheres. Not until Smith v. Allwright (1944),Footnote ⁶ a decade later, did the Court find that state permission to discriminate was in fact a violation of the Fifteenth Amendment insofar as it had the practical effect of excluding voter participation. Even in this case, however, the Court did not reverse course either in their initial decision to designate political parties as nonstate actors, or in the general practice of applying rights obligations only to state actors. Rather, the Court simply noted the extent to which the state of Texas was, in this particular situation, implicated in authorizing the decisions of the Democratic Party.

Many jurists and scholars have criticized this traditional modus operandi of courts, to determine which institutions are public and thus accountable to constitutional rights, versus those that are private and so insulated from constitutional obligations. The aforementioned US cases seem to hinge on mere semantic distinctions, for example. In this vein, the Legal Realists in the 1920s and 1930s argued that traditional boundaries between public and private were neither necessary nor self-evident, but contingent on social meanings. Feminist scholars have long noted that expansive definitions of “private” can have the pernicious effect of insulating personal harms such as domestic abuse occurring in private homes. The Critical Legal Studies movement would later build on many of these arguments. Following Robert Hale,Footnote ⁷ Mark Tushnet maintains “the controversial proposition that ‘private’ property is actually a delegation of power from the state.”Footnote ⁸ To him and other representatives of Critical Legal Studies, the state always acts when it codifies private law and designates private spaces. Although Tushnet acknowledges elsewhere that we may have reason not to abandon categories of “private” altogether,Footnote ⁹ the general critique made by this school of thought maintains that which institutions belong in which category is neither necessary nor self-evident and is, therefore, arbitrary and subject to abuse.

Perhaps these critiques are not insurmountable. Nevertheless, they do raise the possibility that jurists might enforce rights through a different method – that instead of redrawing boundaries between public and private, they might apply constitutional rights commitments to both public and private actors. Recent years have brought attention to the increasing power of society’s private sectors.Footnote ¹⁰ Technology companies possess vast amounts of data. This has led European courts to consider whether such companies must honor a “right to be forgotten” of individuals who would not have their information available on the internet.Footnote ¹¹ Moreover, media increasingly act as gatekeepers to popular fora, an issue which the US Supreme Court confronted in the 2019 decision of Manhattan Community Access Corp v. Halleck.Footnote ¹² This particular case considered a public access television station’s obligations with respect to the freedom of speech, a question with potential implications for such social media sites as Facebook and Twitter (now X). While not state actors, these companies enjoy resources and agency that rival the world’s most powerful national governments. Such developments have given new salience to the question of whether rights relationships exist (or should be made to exist) between these private entities and the individuals that use their platforms.

Some courts and constitution-makers now handle cases in exactly this way. Specifically, they give horizontal application to constitutional rights, interpreting them to create duties not only of the state but of private entities or nonstate actors as well. Such an approach does not necessarily abandon categories of public and private, but employs constitutional principles across the polity understood as a whole. According to the Indian Supreme Court, for example, the constitutional right to equality creates obligations of companies vis-à-vis workers.Footnote ¹³ According to the South African Constitutional Court, landlords have positive obligations to ensure their tenants live in conditions consonant with human dignity.Footnote ¹⁴ In these instances, courts have moved away from the liberal preoccupation of distinguishing public and private spheres in order to determine constitutional duties, toward a different logic that admits of duties across spheres. Jurists ask different questions about which public values and commitments ought to bind the polity as a whole, creating potential obligations of all actors regardless of their public or private status. In other words, increasingly, private actors may be called upon to protect, respect, and fulfill the same constitutional rights that obligate the state.

This practice of horizontal application has been employed to adjust the rules governing and behaviors within the private sphere. With horizontal application, the boundaries drawn between public and private become less rigid, as public values permeate traditionally private spaces. A constitutional commitment to freedom of expression may enjoy primacy in interchanges among individuals, even where the state is not involved at all, despite the fact that economic harm results from particular speech.Footnote ¹⁵ A horizontal constitutional commitment to equality may obligate private businesses not to deny access on the basis of race, caste, sex, or place of birth.Footnote ¹⁶ In this way, horizontal application pursues a kind of parity between private behavior and constitutional values when it might otherwise run counter to public projects, as was the situation in the “white primary” cases in the United States.Footnote ¹⁷

Horizontal application departs from the traditional vertical model in the additional sense that it introduces a conception of citizens’ duties, a rarity in political cultures that prioritize rights and the individual. Many scholars, including Herbert StoringFootnote ¹⁸ and Mary Ann Glendon,Footnote ¹⁹ have emphasized the ill effects of individualism and the paucity of a sense of duty in contemporary America. Jamal Greene’s recent book, How Rights Went Wrong, evinces how this sense persists, that something is lacking in American “rightsist” culture.Footnote ²⁰ Greene’s account, concerning the harms of absolutist understandings of rights common in the United States, does not explicitly mention but certainly points toward a need for something such as the limitations analysis underlying horizontal understandings of rights. Limitations analysis is the balancing that judges undertake when they limit a right in favor of some other constitutional end. With the introduction of horizontal application, private actors come to exist under a constitutional standard of scrutiny, thereby gaining duties in addition to the more commonly emphasized rights.

If the former vertical paradigm was characteristic of liberal constitutionalism, then, horizontal application introduces (or perhaps reintroduces)Footnote ²¹ republican elements in the adjudication of private spaces. This is not to say that constitutional actors necessarily intend to wield horizontal application as a republican instrument but that, as a practical matter, horizontal application does function as such an instrument. Indeed, in applying rights horizontally, constitution-makers, courts, and other political actors deemphasize the differences between spheres, to conceive of the polity as more of a whole and to make constitutional projects the duty of public and private actors alike. This is also not to say that the specific duties of different actors become identical. Courts that apply horizontal application still understand the obligations of private actors differently from those of public actors, accounting for such factors as the importance of a right to the constitutional project and the resources available to private actors in comparison to the state.Footnote ²²

An additional consideration that becomes more important when rights are applied horizontally is the sheer fact that private persons do bear rights as persons, in contrast with state actors as such. Balancing rights among individuals, therefore, becomes an essential feature of horizontal application. While conventional liberal understandings might and do account for such balancing, the concern for civic duty built into republican theory offers conceptual resources to better understand the balancing of – and, by extension, limitations of – rights that horizontality entails. Even if private actors do not ultimately possess all of the responsibility accompanying the tripartite framework of human rights, to “respect, protect, and fulfill,”Footnote ²³ the constitution still becomes a common source of obligation for all actors. This chapter demonstrates how certain features of horizontal application comprise a new republican logic, altering the terms and tenor of constitutional politics. Although this development may not constitute a complete turn to civic republicanism, it is a republican vein within liberal constitutionalism.

What purpose does this comparison with republican theory serve? Is it a mere academic curiosity, or does it offer analytic value as well? Republican theory’s long tradition offers a trove of thought from which to draw in thinking about the relationship between community and the individual, between public and private. Per the conventional wisdom, civic republicanism prioritizes community or the common good, whereas liberalism tends to prioritize the individual. While both vertical and horizontal models involve balancing the rights of the individual with the good of the community, as stated earlier, the horizontal model signals a shift toward the goals of the community. No longer are constitutional rights simply about individuals; rather, rights are recast as public commitments that reach further and create duties for a wider range of actors.Footnote ²⁴

The contention here is that republicanism, liberalism, and their attendant differences offer existing frameworks within which to identify and understand corresponding differences between the horizontal and vertical models of constitutionalism. Put differently, the ways in which these traditions of political thought treat questions of the community and the individual, public and private, offer reference points to track the ways in which the horizontal and vertical models differ (or, perhaps, do not always differ) in their basic assumptions and discursive logics. To the extent that horizontal application marks a shift in the terrain of constitutional politics, republican theory (and its comparison with the liberal tradition) provides a framework by which to observe, and the language with which to describe, those changes that horizontality entails. To this end, this chapter leverages concepts from republican political thought to show how specific features of horizontal application do constitute an important shift. These features I call parity and duty. In these two features, the scope of rights changes so that they now form the content for common standards and duties for additional actors. In these changes, horizontal application approximates certain republican principles and diverges from certain liberal premises of the vertical model.

By parity I mean the way in which horizontal application alters the scope of constitutionalism, making the private sphere congruent with public values. In comparison with the vertical model, horizontal application distinguishes less between public and private, requiring that private entities act in a way that reflects parity with public commitments. Horizontal application therefore incorporates private actors into the constitutional project more directly. The vertical model might bring private actors closer to public values through ordinary legislation but, importantly, this would occur at the discretion of legislators and not as a result of the constitution’s requirements. In other words, rights relationships remain unaltered in the vertical model even as private actors may be subject to new regulation and laws, because it is still the state acting to “respect, protect and fulfill” rights, albeit in new ways. In widening the scope of who is obligated to adhere to constitutional principles and projects, horizontal application reflects a new affinity with the republican conception of “the public thing” as a priority and, moreover, a priority for all citizens. This idea is clearly present in the commitment to the common good that recurs in republican thought. Horizontal application seems to require some analytic category of a common good in order to justify the introduction of individual duties, even at some cost to individual rights. As public or constitutional commitments gain new significance for nonstate actors, a more encompassing conception of political community emerges that approximates republican accounts of the common good.

This is not to say that the common good entails a static substance or settled consensus, however, either in my particular use of the term or in the republican tradition. Without wading into the extensive debates surrounding concepts of the common good or the public good, this book employs the idea of the common good simply to signal a new premise or point of reference in constitutional politics. Actors may continually debate the constitution’s content;Footnote ²⁵ indeed, contestation is another important republican concept. However, with horizontal application, these debates over constitutional meaning come to have greater reach as constitutional commitments apply across more spheres of life. The constitution remains as subject to debate as ever, through interpretation, construction, and ordinary political dispute. But the premises of rights shift from structuring the relationship between government and individuals, to constituting broader ends that, in various ways, apply to the community. The parity horizontal application entails thus involves thinking about constitutions in these new terms and as new communal referents, even as different parties continue to push their own preferred interpretations. Ultimately, rights remain protective of individuals but also pertain to broader ends and thus prescribe duties for a wider scope of actors.

Growing out of this parity is a second republican feature of horizontal application, and that is the new manifestation of duty. Positioning public and private actors under a common constitutional standard entails that private actors gain constitutional duties, tracking the republican understanding that people possess duties to one another by virtue of being equal citizens of a common polity. Of course, other traditions also call for certain dispositions of citizens. William Galston and Stephen Macedo have argued that even liberalism requires particular virtues to ensure a sufficient level of respect and tolerance among citizens.Footnote ²⁶ However, these conceptions are more typically couched as boons for individuals’ self-interest rather than as duties. And even when other theorists have employed the language of duty, as we see in Joseph Raz’s work, the ultimate point of reference typically is still the individual, as I will discuss later, as opposed to public projects and a common good.Footnote ²⁷ In these interconnected features of parity and duty, horizontal application departs from certain premises of liberal constitutionalism and finds affinity in a logic and values commonly associated with republicanism.

By making this descriptive argument that horizontal application tracks certain republican concepts, this chapter sets up the remainder of the book, showing the discourses that the practice of horizontal application brings about in constitutional politics. Moreover, the republican framework helps us see the upshots and stakes involved in this decision to think differently about the relationship between public and private spheres. The outcomes of this development may be positive, as constitutions address abuses in private spaces and introduce the kind of duty-mindedness that Glendon and Storing find lacking, at least in American political culture. Nevertheless, the republican framework can also uncover potential liabilities of horizontal application, if we attend to the critiques political thinkers have leveled against civic republicanism historically.Footnote ²⁸ In light of this reflection, a natural question is whether horizontality’s similarity with republicanism stops short of what some take to be republicanism’s problematic features, insofar as horizontality still occurs in a liberal context. Though this chapter primarily concerns horizontality in the abstract, its conceptual work brings into sharp relief the weight of these theoretical questions, thereby laying groundwork to consider the constitutional politics of actual cases in the chapters that follow. Whether a country should adopt a vertical or horizontal model of rights enforcement is not self-evident but contingent on the histories, challenges, and aspirations of the place.Footnote ²⁹ In drawing from republican theory to better understand the logic of horizontal application, this book offers greater clarity about the nature of this choice that constitutional drafters and actors continue to face.

The remainder of this chapter proceeds with an overview of the liberal and republican traditions, in order to distinguish between them and their respective cores. It then turns to focus specifically on republican thought, expounding concepts such as the common good and duties among citizens. This discussion sets up the heart of the book’s argument, that particular features of horizontal application (parity and duty) amount to new republican elements in constitutionalism. The final section raises potential republican concerns with the way horizontal application results from judicial action, weighing scholars’ arguments that defend a role for courts on the very basis of republican liberty. The chapter concludes by suggesting that the concerns some scholars and jurists raise about horizontal application – namely about the way it increases judicial power – are contingent on context, depending at least in part on the conditions under which this practice is introduced. The following chapters delve into various contexts in detail to elucidate how horizontal application has been understood and debated in practice.

Distinguishing the Liberal and Republican Traditions

In arguing that horizontal application reflects republican principles more than the liberal principles commonly associated with constitutionalism, this chapter depends on a comparison between liberalism and republicanism. Vast bodies of scholarship examine the ways in which liberal and republican theories relate to each other in the history of political thought, as well as in the history of the American founding more specifically.Footnote ³⁰ Although this book’s argument does not depend on any particular position in these broader debates, it does depend on liberalism and republicanism being different, which is not to say irreconcilable or entirely distinct. Rather, to claim that these traditions are distinguishable is fully compatible with subtle accounts arguing that liberalism is nested within republicanism or vice versa. Andreas Kalyvas and Ira Katznelson recount such a history.Footnote ³¹ These explanations demonstrate how republicanism and liberalism may be fundamentally tied to one another historically or theoretically, but also defined by different concepts and commitments.

How then do these traditions differ? This question may seem difficult to answer as the history of political thought has seen many versions of each. Liberal and republican scholars often converge on the proposition that the fundamental and encompassing difference consists in how each tradition understands liberty.Footnote ³² Hence, the tradition one finds most compelling may depend on which conception of liberty one thinks corresponds better to human nature and experience. Relatedly, crucial differences consist in how each tradition tends to conceive of the relationship between the individual and the community.

The conventional account holds that the liberal tradition grew out of various wars that plagued Europe in the years leading up to the Enlightenment.Footnote ³³ Such political philosophers as Thomas HobbesFootnote ³⁴ and John LockeFootnote ³⁵ sought a new basis on which to ground governmental authority, and so developed their theories of the state of nature. In each version, individuals exist in perfect freedom before the establishment of government, enjoying certain prepolitical natural rights. However, the state of nature ultimately proves inconvenient at best and dangerous at worst, as no institutions exist to enforce individual rights. Individuals thus contract with one another, ceding some of their natural rights to a governmental authority in exchange for order and protection. It is at this point that Hobbes and Locke part ways. While Hobbes thinks it necessary to empower an absolute sovereign simply to get people to live in relative peace, Locke develops the liberal premise that government can and ought to be limited, acting within certain constitutional boundaries to protect people’s rights but no further. In Locke’s telling, government exists for the sole purpose of protecting rights and so may not act beyond this designated purpose. Out of all this comes a common liberal understanding of freedom, sometimes identified as negative liberty,Footnote ³⁶ freedom as noninterference,Footnote ³⁷ or the right to be let alone.Footnote ³⁸ Government exists so that people may be let alone and not face unwarranted interference in exercising their rights. Moreover, people adopt constitutions to ensure that government operates within these designated limits, purposely carving out a separate private sphere in which individuals may go about their lives with minimal government interference.

Liberty in republicanism has different origins. Classical republicanism finds its start in the Greco-Roman world with such philosophers as Aristotle, Polybius, and Cicero. In The Politics, Aristotle describes man as zoon politikon, a being that requires political community in order to flourish. Anyone who can flourish, let alone survive, without community must be either god or beast, he concludes.Footnote ³⁹ Therefore, politics is natural in a way that it is not for liberal social contract theorists; indeed, political life is necessary for authentic freedom. For many republicans, freedom comes in the ability to engage in public life on an equal basis with one’s fellow citizens, to debate the requirements of the common good, the laws under which citizens live, and the way forward for the polity.Footnote ⁴⁰ From this common structure of republics, some conclude that republican freedom consists in “mastery over the self” or an ability to shape and control the polity’s way of life.Footnote ⁴¹ On the other hand, others insist that there is a more fundamental core to republican freedom in the concept of freedom as nondomination.Footnote ⁴² Laborde and Maynor sum it up: “In the old republican adage, the people want not to be a master, but to have no master.”Footnote ⁴³ Thus, republican citizens are free insofar as they are equal among their fellow citizens and are not subject to arbitrary or alien rule. Moreover, insofar as the goal is nondomination, and domination is conceivable in both public and private life (imperium and dominium, respectively),Footnote ⁴⁴ republican liberty requires that law be able to govern all spheres of life. Neorepublican scholars, as represented by Philip Pettit, claim to follow this more negative cadence of freedom as nondomination. Although they attempt through this formulation to carve out more space for liberty in private spaces, they also recognize the need for law to intervene in private life when necessary to prevent domination of some individuals by others.

As the republican tradition has evolved since its early formulations thanks to such theorists as Pettit, so too has liberalism developed since Hobbes and Locke. Now liberalism encompasses such philosophers as John RawlsFootnote ⁴⁵ and Joseph Raz.Footnote ⁴⁶ These later thinkers depart from a Lockean emphasis on limited government and noninterference toward more ambitious ends, such as those associated with modern welfare liberalism. Raz’s perfectionist liberalism, for example, acknowledges a more positive role for government with the end of promoting autonomy among individuals. He explains that his principle of autonomy “yields duties which go far beyond the negative duties of noninterference,”Footnote ⁴⁷ and that government should promote autonomy by incentivizing moral options that people may choose and discouraging immoral options that are not choiceworthy. He further discusses the importance of community, and even duties of private individuals, as crucial to promoting autonomy.Footnote ⁴⁸ In his perfectionism, Raz thus departs from certain premises often associated with liberalism, namely, that government is limited and that freedom consists essentially in noninterference.

On this basis, some doubt Raz’s liberal credentials altogether.Footnote ⁴⁹ Indeed, in some ways his principle of autonomy seems to track republican conceptions of nondomination better. However, this fact need not undermine this book’s argument that republicanism, as distinct from liberalism, offers an apt theoretical framework to describe horizontality. Raz’s modified liberalism may well have the potential also to make sense of horizontal application.Footnote ⁵⁰ However, the particular benefit of turning to another theoretical tradition – namely, republicanism – to describe horizontality is only underscored by the fact that one must turn to a kind of modified liberalism, say in Raz’s thought, to begin to find a promising theoretical fit within liberalism itself.Footnote ⁵¹ Perhaps more importantly, and as will become clear in the chapters that follow, republican thought is helpful in understanding the discourses surrounding horizontal application for the particular way in which this tradition conceives of community and prioritizes the common good. This characteristic – in contrast with, say, the autonomy that forms the heart of even Raz’s liberalism – proves valuable in illuminating how horizontality reorients constitutional politics and rights toward conceptions of the common good. On the other hand, it may be that this reorientation toward community ultimately serves liberal ends by expanding the scope of their reach.Footnote ⁵² Indeed, the extension of constitutional duties to private actors that defines horizontality may well comport with the way Razian autonomy may demand recognition from others. In this way, the republican forms of horizontality would seem to amount to a new extension of liberalism itself.

Scholarly discussions of liberty thus bear directly on republicanism’s and liberalism’s different understandings of the relationship between the individual and community. Longstanding debates over conceptions of the common good in early American political thought prove helpful here. In Gordon Wood’s telling, Americans of the revolutionary era situated the community before the individual, maintaining the sort of thick conception of the common good associated with civic republicanism. He explains:

Wood finds such a polity in early America.Footnote ⁵⁴ In direct response to Wood’s account, Gary Schmitt and Robert Webking,Footnote ⁵⁵ as well as Herbert Storing,Footnote ⁵⁶ argue that individual rights themselves formed the primary content of “the common good” in this period. They acknowledge that American political thinkers employed such republican terminology. However, they maintain, their conception of the common good located the individual and individual rights at the center, and so was not likely to require the submission of private interests to public causes in the same way as civic republicanism. Examining many of the quotes that Wood cites in his book, Schmitt and Webking conclude that the conception of the “common good” operative in the Early Republic was, in fact, “thoroughly modern.”Footnote ⁵⁷ They explain:

This is emphatically not the civic republicanism of ancient times. Indeed, this prioritization of individual rights better aligns with liberal premises and conceptions of liberty, arguably even Raz’s prioritization of individual autonomy.Footnote ⁵⁹ One could argue that this account simply represents another version of republicanism; however, this would still be a republicanism significantly adjusted according to liberal values.Footnote ⁶⁰

This crossroads in scholars’ interpretations of early American political thought reveals core differences between republicanism and liberalism. Again, these traditions may not be irreconcilable; they may even share similar roots.Footnote ⁶¹ Nevertheless, they are different in how they order and understand the relationship between the individual and community. These different orderings in turn shape the way each understands such corollary concepts as the common good and duty, expounded in the next section. Schmitt and Webking’s liberal account emphasizes the rights of individuals. Gordon Wood’s more republican account finds something thicker, namely, a good or set of values distinct from individual rights, to which the polity is obligated and which may require putting community and fellow citizen before self.Footnote ⁶²

Neither tradition pretends that rights are absolute. Indeed, both sometimes call for balancing rights against what is variously called the common good, the general interest, or the public interest. Nevertheless, the purposes of and calculi behind balancing differ to the extent that their priorities and ends differ. Schmitt and Webking explain that “one can speak of a ‘public good’ without envisioning a good which has priority over individual rights; … forms of government are means to ends, and not ends in themselves; and … prudent men realize that individual rights sometimes must be restricted in order to maintain a civil society wherein individual rights can be respected.”Footnote ⁶³ This rationale behind restricting rights plainly differs from republican theories. Specifically, under the republican umbrella, rights may be restricted not simply to preserve the conditions that conduce to protecting one’s own rights, as Schmidt and Webking explain. Rather, rights may be restricted for the sake of the community itself and for one’s fellow citizens in themselves. Hopefully this serves to benefit the individual, too, as he or she lives in that community, but this may well be a byproduct rather than a fundamental end. Given all of this, it is perhaps unsurprising that almost every version of republicanism sets out some conception of citizens’ duties, something we cannot always say about liberal thought.Footnote ⁶⁴ Moreover, the execution of duty and the personal sacrifice it may involve is not the exception in republicanism but constitutive of political life as a citizen.

How does this discussion bear on horizontal application and what I call its republican nature? After all, the horizontal application of constitutional rights still involves a focus on individual rights. What remains of this chapter will show how features of horizontal application approximate the republican prioritization of the common good and duty, even while continually operating within a liberal constitutional framework. While constitutional actors still employ the language of rights, now attached to those rights are larger public values that yield obligations for public and private actors alike. The republican concepts of the common good and duty, therefore, describe the kind of constitutional moral landscape that we begin to see with horizontal application.

The Common Good and Duty in Republican Thought

In order to show how horizontal application may reflect republican understandings, it is necessary to exposit the particular principles of republicanism, such as freedom as nondomination, that can do this heavy lifting. This section elaborates the republican concepts of the common good and duty among citizens, showing how they emerge from a foundation of freedom as nondomination. This discussion lays the groundwork to connect these principles with horizontal application in the section that follows.

The very purpose of the polity, as Aristotle understands it, is to facilitate people’s achievement of their human end of virtuous living.Footnote ⁶⁵ More precisely, the purpose of the polity is to pursue the common good, or the good of the community taken as a whole, above any one person’s individual good. He states, “For even if the good is the same for a city as for an individual, still the good of the city is apparently a greater and more complete good to acquire and preserve. For while it is satisfactory to acquire and preserve the good even for an individual, it is finer and more divine to acquire and preserve it for a people and for cities.”Footnote ⁶⁶ In this way one can see an early articulation of the republican idea that there exists a discernible good of the community, as well as the republican ideal that the promotion of this good is the primary function of politics. The common good may be understood to be distinct from, and sometimes counter to, private interests or even the aggregate of individual interests. Indeed, a republican conception of the common good refers to what is good for a community as such, the idea being that everyone ought to contribute to the good of the community and that the community will affect each individual’s good in turn. This concept is so constitutive of Aristotle’s understanding of a well-ordered polity that he employs it as the standard by which to distinguish good regimes from bad regimes, true forms of government from perversions.Footnote ⁶⁷

In Aristotle one can already see core concepts of what would develop into republican political theory. First, Aristotle gives an initial account of human beings as having a particular good that consists in virtue and in living the political life; second, Aristotle understands the common interest or common good as, in some ways, prior to the individual good. Even as republicanism has evolved, these points have been represented consistently in various iterations of the tradition. Some even argue that one can only be a republican philosopher or a republican statesman in a limited sense if one does not accept these premises.Footnote ⁶⁸ For others, the republican understanding of the common good is less a matter of teleology and more a matter of what is necessary to achieve authentic freedom. Daly and Hickey associate the more teleological understanding with Aristotle, and the more liberty-centered interpretation with Roman thought, citing Pettit’s conception of freedom as nondomination as an exemplar of this Roman republicanism.Footnote ⁶⁹ Such differences in republican thought will reemerge below in considering precisely how republican understandings of the common good are reflected in the parity effected by horizontal application.

Unlike Aristotle, Machiavelli did not base his thought on any particular understanding of the human good. However, “the public thing” features prominently in his republicanism, as Machiavelli considers citizens’ ability to debate the common good vigorously an essential feature of republican freedom.Footnote ⁷⁰ S. M. Shumer explains:

Amid this inevitable (and desirable) disagreement in public discourse, however, Machiavelli’s ideal citizen will remain intent on pursuing the common good. Individual ambition and expression become “fused within the breast of each citizen” with the public good, and even with liberty.Footnote ⁷² On Machiavelli’s telling, what made the Romans truly free was that, even after tempestuous debate, they pursued with unequivocal and united commitment the common good as dictated by the results of those debates.Footnote ⁷³

A few centuries later, Jean-Jacques Rousseau represents the republican tradition in his concepts of the social contract and the general will. Individuals can only be truly free, Rousseau argues, if they are not subject to alien or arbitrary rule, if each individual is self-governing. Given that we are bound, as a practical matter, to operate within the confines of civil society, the best chance we have of achieving the authentic freedom that comes with self-government is to enter into a social contract with others.Footnote ⁷⁴ In this social contract, we surrender our rights and agree to comply with the general will. Since individuals have, in theory, consented and so vested their own will in the general will, they are obeying themselves in obeying the general will – they are, in fact, self-governing and free. Moreover, a community may “force to be free” those who would not comply with the decisions of the general will.Footnote ⁷⁵ Thus, Rousseau’s requirements for freedom lead to some limitation of the individual, and to a republican understanding of human freedom as consisting within the political life. Although this goes further than other versions of republican thought, Rousseau’s emphasis on the public is characteristic of republicanism in general.Footnote ⁷⁶

From ancient republicanism to modern republicanism, one sees the privileged status of the common good, a prioritization of the “public thing.” As Cicero explains in On Duties, “But when you have surveyed everything with reason and spirit, of all fellowships none is more serious, and none dearer, than that of each of us with the republic. Parents are dear, and children, relatives and acquaintances are dear, but our county has on its own embraced all the affections of all of us.”Footnote ⁷⁷ The politeia or res publica (the public thing) and its governing principles are all-encompassing and, therefore, require the citizen’s devotion, even at some cost to private interests, but always with the ultimate result of securing one’s freedom, understood as nondomination. Like liberals, republicans from Cicero to Pettit maintain a space for private interests and rights, such as those concerning property. However, in contrast with liberals, republicans of almost any stripe would ultimately understand their freedom as contingent upon, rather than infringed by, the larger commitments of the polity, understood as the common good.

In this idea of devotion to the common good, one begins to see the outlines of a republican sense of duty or solidarity. Many republican philosophers and statesmen have discussed the importance of inculcating some connection and shared beliefs among citizens through civic education.Footnote ⁷⁸ Aristotle explains that the young must be “trained by habit and education in the spirit of the constitution.”Footnote ⁷⁹ Inhering in a constitution is a kind of ethos, a particular shared life, in which people must be educated if the polis is to persist.Footnote ⁸⁰ In her own account of education as a vehicle for a kind of solidarity among citizens, Iseault Honohan worries that “fostering solidarity has often been associated too closely with promoting cultural identity without taking sufficient account of the pluralist conditions of modern societies.”Footnote ⁸¹ Honohan thus recognizes the value of a common culture, but insists that the sense of duty that education should foster is better understood as “willingness to acknowledge and assume the responsibilities entailed by interdependence; self-restraint in pursuing individual or sectional interests rather than the common good; and the inclination to engage open-mindedly with viewpoints of others in the public realm.”Footnote ⁸² This contrasts with promoting a particular cultural identity. Aristotle, Cicero,Footnote ⁸³ Rousseau,Footnote ⁸⁴ the American Founders,Footnote ⁸⁵ and contemporary theorists such as HonohanFootnote ⁸⁶ all emphasize, albeit in different ways, the role of education in cultivating civic-mindedness and devotion to republican values and virtues. As Richard Bellamy states, “No constitution will itself survive long unless citizens identify with it.”Footnote ⁸⁷

In this understanding, devotion to one’s constitution entails devotion to one’s patria (homeland) and, by extension, a sense of duty to one’s fellow patriots. Maurizio Viroli explains how people only come to love liberty and virtue through the cultivation of such local bonds.Footnote ⁸⁸ Again, we see this idea as early in the republican tradition as Aristotle, who describes civic friendship as “the greatest good of states and what best preserves them against revolutions.”Footnote ⁸⁹ Later in The Politics, Aristotle further explains the value of such friendship:

Thus, in Aristotle’s understanding, friendship is requisite to community, including political community. This includes the sort of affection for one’s neighbor that one might expect, but also a sort of proximity and sameness – shared blood to reinforce those affections. “To choose to live together,” he states, “is friendship.” Cicero further develops this idea of civic friendship in his account of duties. He states, “We are not born of ourselves alone,”Footnote ⁹¹ and suggests in his account of justice that we actually owe something to our country and fellow citizens. Not to give to our patria what we are able to give is nothing less than an injustice.Footnote ⁹²

In addition to the existential requirements of a polity and necessities of justice that Aristotle and Cicero, respectively, offer in support of civic bonds, fellow citizens must see each other as coequals and feel at least somewhat obliged to one another if they are to govern together. This need for meaningful and acknowledged equality among citizens has been present even when republics were not so egalitarian, as in Greece, Rome, and the United States during the slavery and Jim Crow periods.Footnote ⁹³ Jack Balkin explains how “the historical tradition of republicanism … insisted that economic self-sufficiency was central to participation in republican government,” that one had to meet a threshold of leisure time and financial security in order to participate in politics, both as a practical matter and as a matter of being acknowledged as an equal.Footnote ⁹⁴ “This demand,” Balkin continues, “produced both conservative and egalitarian versions of republicanism.”Footnote ⁹⁵ It produced the conservatism of those republics that allowed only property-owning or noble members of society to be voting citizens. However, this same demand of economic self-sufficiency also gave rise to more modern versions of republicanism that have sought either to raise more individuals up to a certain level of independence and self-sufficiency, or to make material wealth less important so that a broader population may participate as equal members in politics and society. Arguably, this is the basic impulse behind the introduction of socioeconomic rights, which often serve as the backdrop for horizontal application.Footnote ⁹⁶

In a way, both the conservative and egalitarian versions of republicanism operate from the same premise: that a certain equality among citizens goes hand in hand with collective self-government and civic duty. The difference is that the conservative version identifies citizens from preexisting castes, whereas the latter, more egalitarian version makes a positive effort to equalize people and so bring them into the fold of citizenship.Footnote ⁹⁷ In either case, one sees the necessity of shared responsibility and civic duty toward fellow citizens in a republican framework.

The Neorepublican Intervention

From the conservative versions of republicanism that Balkin discusses to the populist bent found in Rousseau, some scholars have worried about the broader implications and tendencies of republicanism. For example, Isaiah Berlin’s famous characterization of the ancients’ positive liberty is less than attractive in that their understanding of self-rule may be exercised to legitimate an oppressive communitarianism and even authoritarianism.Footnote ⁹⁸ Against such apprehensions, Pettit argues that a consistent understanding of republicanism – that is, “freedom as nondomination,” properly understood – is not susceptible to authoritarian perils. Rather, he argues, the fundamental core of republican thought may actually serve to critique other instantiations of republicanism as classist and homogenizing.Footnote ⁹⁹ Similarly, Daly and Hickey explain that republicanism comes in different flavors, some of which are more palatable than others:

Pettit attempts just this: he argues for “a minimal domain” of republican citizenship that can “accommodate a range of co-existing private identities.”Footnote ¹⁰¹ Pettit juxtaposes republican freedom as nondomination with both the liberal conception of freedom as noninterferenceFootnote ¹⁰² and the more demanding accounts of republicanism sometimes identified with communitarian theories.Footnote ¹⁰³ He follows Quentin SkinnerFootnote ¹⁰⁴ in arguing that republican freedom is properly understood “not as the positive benefit of participation in sovereign self-rule, but as a negative good that such participation might instrumentally serve: the good of escaping the imposition of others.”Footnote ¹⁰⁵ In this way, Pettit’s theory may require the addition of another category in Berlin’s framework, namely freedom not simply as self-rule but negatively conceived as nondomination.Footnote ¹⁰⁶

How, then, does Pettit’s more moderate take on freedom as nondomination comport with a republican commitment to the common good and sense of duty among citizens? Although Pettit tends not to employ such language as “the common good” in the same way as classical republicans, the heart of his theory still reveals an essential kinship. First, he is very clear that nondomination is a common good, that is, a good that is good for all and can only be fully realized in common. He explains that

In short, even republican liberty in its negative form of freedom as nondomination, as opposed to the more positive freedom as self-mastery, depends on a “republican community” dedicated to this conception of freedom and to its fruition for all members of the community. For Pettit, therefore, freedom is necessarily tied up with some understanding of a common good.

In the same way that freedom as nondomination requires republican community, so too might it be jeopardized by any sector of the community, by private and public entities alike. Pettit warns against the ways in which domination can occur in the private realm; one might think of the power of employers over their employees, or of large campaign donors in politics. For this reason, true freedom requires the cooperation of all spheres with respect to this public principle of freedom as nondomination. Hence, Pettit follows his republican predecessors in maintaining that both public and private spheres remain obligated to this common good, even as a matter of law. The fundamental requirement for preserving freedom is that interventions in private life occur “on the people’s terms.”Footnote ¹⁰⁸ In other words, the public principle of nondomination may warrant interference in the private sphere so long as the people maintain meaningful control over the governing institutions that make these decisions.

Pettit also accounts for a republican sense of duty and requisite equality among fellow citizens. In On the People’s Terms, he introduces the “eyeball test,” the idea that freedom requires that an individual be able to “look others in the eye without reason for fear or deference.”Footnote ¹⁰⁹ In other words, freedom in a meaningful sense requires that fellow citizens be able to approach one another as equals. In contrast, we find domination in those instances when one evokes the kind of fear that would lead citizens to avert their eyes in deference before a fellow citizen. Pettit believes that this kind of domination, or arbitrary power, can be avoided if everyone enjoys a comparable standard of living. He explains: “Social justice, so interpreted, would require each citizen to enjoy the same free status, objective and subjective, as others. It would mandate a substantive form of status equality.”Footnote ¹¹⁰ According to Pettit, the securing of material factors, often controlled by the private realm, is necessary to achieve nondomination in a meaningful sense. Therefore, a polity must secure a certain level of material well-being in order for citizens to be able to “look others in the eye” and so view one another as coequals governing together. This concern over a degree of material equality, to which the “eyeball test” draws attention, echoes the emphasis of classical republicanism on material equality and self-sufficiency as prerequisites for participation in politics and society. Hence Pettit justifies intervention in the private sphere to secure such social and economic equality, as well as to prevent more direct forms of domination.

While republican thought is united by an understanding of freedom as nondomination, Pettit’s theory proposes to focus on the more negative concern of not being subject to the arbitrary power of others, in contrast with other versions of republicanism that focus on the positive of self-rule. In some ways, this distinction is important to the task of demonstrating parallels between horizontality and republican thought insofar as one version may encompass more persuasive connections to horizontal application than the other. Indeed, horizontal application does seem to have an affinity to Pettit’s negative formulation of nondomination as it addresses the threats to freedom that may occur in private spaces. In contrast, consider certain accounts of freedom as self-mastery, such as one finds in Rousseau’s concept of the general will, that depend on a more complete subversion of one’s individual will. Contemporary proponents of horizontal application, still operating within the framework of constitutionalism, likely would recoil from the implications of such Rousseauian theories and incline to more moderate neorepublicanism in order to ground horizontal application. Put differently, one might argue that it is in the context of neorepublicanism’s negative conception of freedom that the practice of horizontal application is most accurately considered a republican vein within the tradition of liberal constitutionalism.

At the same time, neorepublicanism arguably is an heir of classical republican theories. In arguing that domination often occurs in the private sphere, Pettit follows classical theories in requiring governance of the polity taken as a whole – namely, that his republican conception of freedom must govern public and private spaces alike. This may not leave much room for accommodating differences in how individuals privately conceive of freedom. This is not to suggest that Pettit’s theory of republicanism collapses into something like Rousseau’s general will, but only to highlight that his account includes certain limits to what “the people’s terms” may ultimately include.Footnote ¹¹¹

Regardless of how one comes down on such questions concerning positive and negative formulations of liberty in republican thought, the principle of freedom as nondomination forms the fundamental core of this tradition. Consequently, it illuminates the role of such concepts as the common good and duty that one finds in the practice of horizontal application.

Republicanism and Horizontality

What, then, is the connection between these principles of republican thought and horizontal application? More specifically, how do the principles of the common good and civic duty relate to this emerging practice in constitutionalism? And how does this comparison move us beyond technical legal issues to understand how horizontal application interacts with conventional understandings of constitutionalism? The parity and duty that characterize horizontal application make clear the relevance of this republican connection, which the remainder of this chapter will elaborate. It will consider these concepts separately to specify how exactly we find these republican features in the logic of horizontal application, as well as the discourses that emerge from its practice. However, parity and duty are fundamentally related, even two sides of the same coin. Therefore, subsequent chapters treat them together as comprising the unified republican character of horizontal application.

Parity in Horizontal Application

As republican thought holds up the common good as a binding standard for both public and private entities, so too does horizontal application charge both public and private actors with promoting constitutional values. This parity in the constitution’s applicability to public and private entities shows some kinship with republicanism and, more specifically, with the concept of the common good that underlies the republican conception of freedom.

For an example of how parity manifests in an actual instance of horizontal application and how it follows the logic of republican principles, one need not look further than the Federal Republic of Germany’s famous Lüth case.Footnote ¹¹² In 1951, pro-Nazi filmmaker Veit Harlan filed suit against Erich Lüth, arguing that Lüth had harmed Harlan’s economic prospects by publicly calling for a boycott of his film. While the district court initially granted Harlan’s injunction, the Federal Constitutional Court reversed the ruling seven years later, arguing that the German Basic Law committed the polity to an “order of objective moral and legal principles.” Such principles have a “radiating effect” (Ausstrahlungswirkung), bearing on all areas of German law and life. For this reason, the Court argued that it would be remiss to pretend that Lüth’s right to freedom of expression, guaranteed by the Basic Law, was irrelevant to the case (as the district court had ruled). Indeed, the Court ultimately sent the case back to the lower court with the instruction that it should consider how such principles of the Basic Law inform Germany’s civil law.

In Lüth, the Federal Constitutional Court stated explicitly the importance of parity in certain foundational questions and constitutional commitments in public and private venues alike. In the same way that the framers of the Basic Law felt a sense of urgency to entrench commitments to human dignity and the inviolability of human personality just a few years after the conclusion of the Second World War, one senses a similar urgency in the Constitutional Court’s Lüth decision to ensure that these defining constitutional commitments actually be constitutive of the polity as a whole. In speaking of the postwar German constitutional tradition, and the Lüth case in particular, Ulrich Preuss explains:

This interpretation of postwar German constitutionalism suggests that the horizontal application of rights is motivated by more than the sheer convenience of enlisting the private sphere, or even by the goal of protecting individual rights. Rather, Preuss describes an ethos of the polity, a moral position that may permit some degree of difference but that ultimately begs for, and demands, a united front in the polity’s commitment to certain governing principles. Thus, the horizontal application of rights can serve to infuse the life of the polity with the “spirit or the values of the fundamental rights,” in the same way that citizens of a republican polity are equally held to pursue the common good of the polity as their own. In this way, constitutional rights commitments may be just as much “about” that private entity charged with promoting rights as they are about the rights-bearer. In a sort of Dworkinian turn, horizontal application as a practice suggests an obligation to make each society the most attractive that it can be.Footnote ¹¹⁴

One might object that parity between public and private spheres is different in some important ways from the principle of the common good associated with republicanism. Indeed, horizontality operates within a larger framework of rights that, on certain formulations, may exist in tension with the sort of civic-mindedness that republicanism requires.Footnote ¹¹⁵ The objection might continue that, in horizontal application, one employs the language of rights and thereby frames the issue as a conflict of rights, an essentially liberal formulation that does not leave much space for considerations of the common good.Footnote ¹¹⁶ Nevertheless, horizontal application still entails a privileging of the “public thing” above one’s immediate private interests, and not simply as a result of the sort of refereeing or policing that virtually all political philosophers have understood as being part of the role of government.Footnote ¹¹⁷ Rather, horizontality requires the suspension of private interests in the explicit service of public ends, a notion difficult to find in the work of classical liberals. Indeed, horizontality will require that people yield their rights claims to other, perhaps more constitutive commitments of the polity.

In the same spirit as Schmidt and Webking’s argument, however, one might push back that the common good to which people yield their rights in horizontal application itself simply comprises rights. In other words, whatever common good that horizontal application may further amounts to simply the amalgamation of individual rights. In this telling, there is not anything external to the self or truly common of which to speak in horizontal application; this development is little more than an extension of the same rights protections of the traditional vertical model. While the rights to which the polity commits are not contentless or neutral, the objection may continue, they are also not qualitatively the same as a republican understanding of the common good. Robert Alexy’s discussion of horizontal application and his treatment of subjective versus objective rights go some way to show how, in fact, horizontal application entails reconceiving rights so that they are more than claims to level against another.Footnote ¹¹⁸ While this “subjective” understanding of rights is still operative in horizontal application, it operates alongside an “objective” understanding of rights by which rights commitments become goods or values in themselves, independent of the claims they allow one to make against another. In this way, rights become principles in a way that brings them closer to resembling a thicker common good. Hence, Germany’s Federal Constitutional Court ruled that the freedom of expression was a part of Germany’s “order of objective moral and legal principles.” It is because these principles have a “radiating effect” that they may sometimes necessitate the concession or sacrifice of others in both public and private spaces.Footnote ¹¹⁹

At the same time, courts account for the burden horizontal application puts on private agents, concluding that the obligations of state and nonstate actors may differ in intensity. Take for example Daniels v. Scribante and Another, a case of the South African Constitutional Court.Footnote ¹²⁰ Living in conditions of utter disrepair, Yolanda Daniels began to improve the dwelling she rented on Chardonne Farm at her own expense. The property manager, Theo Scribante, argued that the relevant statutory law and constitutional provisions granted her no right to change the property without his or the owner’s consent. Moreover, they argued that they had no positive duty to pay for any modifications she made to improve her living conditions. Tending to the social and historical context surrounding the case, the South African Constitutional Court ultimately decided that Daniels did, in fact, have a right to live in conditions that were up to standard and, more specifically, that this was required by her right to human dignity. Moreover, Scribante and the property owners were not necessarily exempt from covering these costs. Still, the Court acknowledged certain limits to the duties that Daniels’s right demanded of Scribante. In the majority opinion, the Court observed that private persons can only rely on “their own pockets” or private funds as opposed to public sources of revenue. Justice Madlanga explains, “It would be unreasonable, therefore, to require private persons to bear the exact same obligations under the Bill of Rights as does the State.”Footnote ¹²¹ Because the capacities, resources, and status of private and public institutions are not identical, their constitutional duties are not equal.

Nevertheless, the capacity of, or burden on, private entities is neither the only nor the most important consideration in determining whether rights should be applied horizontally. In Daniels, the Constitutional Court developed criteria introduced in earlier cases,Footnote ¹²² explaining the considerations upon which the horizontal application of rights depends:

This explanation of the South African Constitutional Court’s decision suggests that much more enters the calculation than the burden that horizontal application may create for private entities. Rather, the court puts much weight on the importance or status of a given right, such as how constitutive a right is of a larger constitutional project, as well as what the right’s realization will require. One can see this in the Constitutional Court’s consideration of “the nature of the right” and “the history behind the right.” In such criteria, the Court considers the status of particular rights weighed against standards of justice, as well as the meanings that arise out of particular historical and cultural contexts. Some rights are so important, universally and locally,Footnote ¹²⁴ the argument goes, they demand parity across the polity, governing even actions in what one might otherwise understand to be a private space.

Duty in Horizontal Application

In addition to parity, the horizontal application of rights also engenders certain duties akin to republican understandings of civic duty. Specifically, in obligating private entities to promote the constitutional commitments of a polity, horizontal application holds individuals accountable for others’ rights, generating constitutional duties as they take up the mantle of their fellow citizens’ equal status. Of course, liberal political thought also depends on a belief in human equality. But again, one who subscribes to the liberal conception of freedom as noninterference may dispute the way horizontality seeks equality through enlisting private entities for public projects. On the other hand, the idea that one has duties with respect to one’s fellow citizens is part and parcel of the republican community to which Pettit refers.Footnote ¹²⁵ That one would have obligations to one’s fellow citizens as an extension of pursuing the good of the polity is beyond dispute in almost any version of the republican tradition. Therefore, while not necessarily incompatible with liberal thought, this understanding of duty is a natural result of the republican conception of freedom as nondomination.

This connection between horizontality and citizens’ duty is apparent in various scenarios, such as when courts apply rights horizontally to achieve an outcome that might have been attainable through the conventional vertical model as well. For example, in Mohini Jain v. State of Karnataka, the Indian Supreme Court decided that it was unconstitutional for private universities to charge certain capitation fees, insofar as such fees would obstruct the Indian Constitution’s guarantee of equality (in Article 14) and right to education (implied by Article 21).Footnote ¹²⁶ However, these rights plausibly could have been secured through alternative means, perhaps through government subsidies to offset the cost of applying to private universities, or through making public universities more accessible.Footnote ¹²⁷ When a court applies horizontally a right that government might have secured through state action, it seems to assume the distinct goal of compelling private entities to respect and guarantee the rights of others. Horizontal application thus becomes just as much about the duties of those private entities charged with protecting rights as about protecting the rights-bearer.

A similar impulse underlies those instances in which a court imposes a penalty on private actors in addition to whatever steps are necessary to ensure that the rights-bearers’ rights are secured. Consider the case of M. C. Mehta v. State of Tamil Nadu, in which the Indian Supreme Court held that employing children younger than fourteen in match and firework factories violated Article 24 of the Constitution. The offending employers were required to pay a fine to the “Child Labour Rehabilitation-cum-Welfare Fund” in order to provide for children who might otherwise be compelled to seek employment.Footnote ¹²⁸ While this penalizing impulse hoped to deter future violations of rights, it also spurred private actors to participate in the promotion of particular rights and the values underlying them.

In Daniels v. Scribante and Another, this preference for horizontality, and a category of constitutional duties for individuals, was described more broadly.Footnote ¹²⁹ In deciding that landlords must permit tenants to live in accommodations with requisite standards of dignity, the South African Constitutional Court did more than simply hold private entities to account for public values. Rather, the Court decided that economic and social rights could directly create obligations of private individuals and nonstate actors.Footnote ¹³⁰ This entails the much broader conclusion that constitutional commitments may create positive obligations for private individuals and nonstate actors. In other words, individuals against whom a right is applied horizontally may not simply have to refrain from acting in a particular way, but may have to take positive action in pursuit of the commitments of the polity.Footnote ¹³¹ In this understanding, horizontal application has the reach and power to achieve an equality akin to Pettit’s status equality.Footnote ¹³² Insofar as it holds private individuals to not only acknowledge but also actively secure the rights of others, horizontality makes possible an equality that exceeds the typical negative and positive rights, since it encompasses the mutual cooperation and recognition that might enable one to look others in the eye, according to Pettit’s republican “eyeball test.”

One might object that while the constitutional duties that result from horizontal application ultimately aim toward solidarity among citizens, this would come about by judicial decree in contrast to the more typical republican emphasis on a robust civic culture and contestation.Footnote ¹³³ The objection might continue that, in spite of the moderation that courts sometimes practice, the very act of assigning duties to private actors, such as landlords and private universities, only serves to underscore and even crystalize how rights-bearers continue to depend on such entities. In contrast, a remedy more faithful to republican principles would work to free people from dependence on judicial oversight, insofar as freedom as nondomination is possible only in independence from external, likely arbitrary, forces. In response to this objection, that horizontality achieves merely a pretense of republican objectives due to its reliance on government authority rather than civic culture, and top-down implementation, one could argue that the courts (and other institutions) involved in applying rights horizontally offer citizens an education in republican virtues.Footnote ¹³⁴ While the institutional character and limitations of courts mean that the effects of horizontality will likewise be limited, this practice could potentially serve an instructive role,Footnote ¹³⁵ as well as a kind of stopgap in salient cases.Footnote ¹³⁶

The next section discusses how the tension – some have called it a difficultyFootnote ¹³⁷ – inhering in judicial review between top-down authority and self-government bears on the question of horizontal application. It begins with the observation that certain scholars who have written on horizontal application were also prominent contributors to the Republican Revival in legal scholarship. Nevertheless, these scholars do not seem to connect horizontality and republicanism in their writings. A potential reason for this may be the simple fact that horizontality is so closely associated with courts, often viewed as less democratic (or, for the purposes of this book, less republican) institutions. The next section thus wrestles with critiques and defenses of judicial decision-making and their applications to horizontality. However, while courts are key actors in questions of horizontality, they may relate to this phenomenon differently depending on the particulars of a given context. For example, constitutional framers, rather than courts, may introduce horizontal application into the constitutional text itself. Thus, the section concludes that republicanesque objections to the role of courts in horizontal application are contingent. Indeed, the histories detailed in subsequent chapters illustrate the varying roles of courts and how different actors relate to the horizontal application of rights in different ways. Moreover, notwithstanding the courts’ essential role in this practice, reinvigorating the role that, say, legislative institutions also play in deciding these questions would begin to address concerns that horizontal application disproportionately empowers courts. As it happens, such steps may be described as making horizontality more republican in the sense that it refocuses some attention on representative institutions. With such adjustments, the extension of public values to establish parity among, and duties for, private actors may also more closely approximate the republican value of self-governance essential to republican freedom.

Horizontality and the Republican Credentials of Courts

Despite the features of horizontal application that can be understood in republican terms, the expansive role for courts that horizontality potentially entails may give some republican scholars pause.Footnote ¹³⁸ As Bellamy explains, “Courts lack the fundamental democratic quality of allowing an equal input from all affected citizens – their ‘right’ to author their rights.”Footnote ¹³⁹ Such a tension emerges in one strand of republican thought not yet discussed, namely the Republican Revival in legal scholarship. Interestingly, some Republican Revivalists, such as Frank Michelman and Mark Tushnet, have also written on horizontality.Footnote ¹⁴⁰ However, these scholars never make the connection that horizontality has a republican logic, perhaps because of the nature of their endorsement of republicanism. Tushnet, for example, emphasizes such republican principles as self-government, dialogue, and deliberation,Footnote ¹⁴¹ principles that may not easily coexist in an increasingly court-centric world. Indeed, Tushnet has argued that we must “take the Constitution away from the courts.”Footnote ¹⁴²

Frank Michelman finds a role for courts in his republicanism, although his argument is premised on the very fact that there is a deep tension between what he frames as “rule of the people” and “rule of law.” In Law’s Republic, Michelman states, “Republican thought thus demands some way of understanding how laws and rights can be both the recreations of citizens and, at the same time, the normative givens that constitute and underwrite a political process capable of creating constitutive law.”Footnote ¹⁴³ In other words, it is not immediately clear how citizens can be both self-governing and governed by law. As a solution, Michelman argues that courts are distinctly situated to assist the marginalized of society to join the governing body of citizens. For if a polity, taken as a whole, is to be truly self-governing, then all its citizens must possess the requisite agency to govern. According to Michelman, courts can help widen the boundaries to encompass more people as citizens and thus facilitate more perfect self-government. Nevertheless, a tension remains in Michelman’s thought, since he elsewhere concedes that the role of the courts ought to remain fairly modest.Footnote ¹⁴⁴

Richard Bellamy tries to strike a similar balance in his own scholarship.Footnote ¹⁴⁵ Drawing on a distinction first employed by Pettit,Footnote ¹⁴⁶ Bellamy concedes the usefulness of courts for their “editorial” capacity – that is, their ability to force legislatures to reconsider laws that may not have accounted for the interests of every group in the polity.Footnote ¹⁴⁷ However, he worries that with judicial finality, courts instead begin to exercise an “authorial” role. This is the function of making law, which, in a republican understanding of freedom as nondomination, ought to be retained by institutions accountable to and, therefore, controlled by the people, rather than exercised by unelected judges. Bellamy explains that if a court is allowed “to strike down legislation or to read into it its own reading of its fit with constitutional norms, then it is in effect usurping the authorial function of electoral democracy.”Footnote ¹⁴⁸ And indeed, insofar as people disagree so vastly in their views of the “sources and substance” and the “subjects and scope”Footnote ¹⁴⁹ of rights, one has little reason to entrust judges with answering these inherently political questions about rights, much less with their horizontal application. Bellamy states, “At the level of principle, these disputes have not proved any more resolvable in seminar rooms of philosophy departments than they have among policy makers and citizens.”Footnote ¹⁵⁰ Since reasonable disagreement is inevitable, the republican who is committed to freedom as nondomination may not view courts as proper venues to convene what Eugene Rostow referred to as a “national seminar.”Footnote ¹⁵¹ Rather, on Bellamy’s telling, the authorial implications of rights questions make their resolution a matter for “real democracy.”Footnote ¹⁵²

Tom Hickey also addresses these concerns.Footnote ¹⁵³ Like Bellamy, Hickey is a political constitutionalist in that he views the source, substance, and scope of rights as political questions, rather than as questions with set legal answers to be revealed by judges and lawyers.Footnote ¹⁵⁴ In this spirit, Hickey joins Bellamy in arguing that judicial review cannot be justified in terms of judges’ “epistemic”Footnote ¹⁵⁵ capacities (i.e., their abilities to reach correct answers), if one is operating in a republican conception of freedom as nondomination. However, Hickey departs from Bellamy in the extent to which he thinks judicial review can be justified in terms of judges’ “legitimating”Footnote ¹⁵⁶ capacity without necessarily usurping the authorial function. This is because courts may actually support those processes by which the people retain control over governing institutions and so bolster their republican liberty. In particular, Hickey cites the ability of judicial review to “smoke out”Footnote ¹⁵⁷ dubious motives of legislators, draw attention to missed opportunities to accommodate minorities, and allow individuals whose rights may have been violated to raise their grievances.Footnote ¹⁵⁸ Insofar as these features and capacities work toward legitimating law-making processes rather than seeking correct answers, they become not only compatible with but also potentially instrumental toward a republican understanding of freedom as nondomination. In this way, Hickey argues, even strong judicial review may remain editorial without infringing on the authorial function more properly located in those electoral institutions over which people have more control.

To some extent, the questions underlying Hickey’s and Bellamy’s arguments about judicial review cannot be avoided in considering horizontal application, given the core role of the courts in this practice. Nevertheless, the role of courts still varies among countries employing horizontal application. For example, a constitutional assembly, rather than a court, may be the body to adopt this practice, mitigating concerns about countermajoritarianism and democratic deficits. This is true of the South African Constitution, which provides for the potential horizontal application of all rights in Section 8, and is arguably true of the Indian Constitution, which includes more targeted horizontality provisions such as Article 15 concerning antidiscrimination. In cases such as these, the finding that courts are less republican than other governmental institutions is only a concern when it comes to the implementation of horizontal application, as opposed to the more fundamental decision to adopt this practice in the first place.

Moreover, other institutions may still serve an important function in determinations of horizontality, even as the courts retain their own role. Constitutional amendments may spur legislators to apply rights horizontally as they look to implement new constitutional commitments. Moreover, legislators may respond to or even anticipate court decisions, essentially creating upstream effects as they legislate with horizontality in mind.Footnote ¹⁵⁹ Arguably we see such exchanges between institutions in all of the chapters that follow. We see such contests in the United States following the adoption of the Fourteenth Amendment and later the Civil Rights Act of 1964. Moreover, in Germany we see different courts staking different positions on the question of horizontality, which was made more complicated when the European Union introduced its antidiscrimination directives for the Member States.

Court decisions cannot be avoided in conversations on horizontal application and, indeed, comprise a substantial portion of the subsequent pages.Footnote ¹⁶⁰ Thus, in some sense, one cannot avoid the question of whether courts employ horizontal application in primarily an editorial or authorial mode. In other words, the question still stands whether horizontal application generally contributes to courts’ ability to legitimate those processes that engender republican freedom, or instead raises wholly new political questions that ought to be left to more democratic institutions. Still, while courts play a prominent role in questions of horizontality, they need not have a monopoly on the practice. Rather, courts are one among several governmental institutions that may attempt to shape the private sphere according to constitutional norms.Footnote ¹⁶¹ A complete telling must thus account for the clusters of relations among institutions that this practice creates and the ways such institutions relate differently to horizontality.Footnote ¹⁶² Consideration of the range of institutions involved only becomes more important when thinking in republican terms.

Conclusion

Horizontal application constitutes a republican vein within the tradition of liberal constitutionalism. As such, horizontal application still depends on the continued use of the liberal language of rights.Footnote ¹⁶³ In understanding this innovation in constitutionalism through the lens of republican theory, this chapter does not intend to cast republicanism and liberalism as clearly dichotomous, or horizontal application as wholly incompatible with liberal constitutionalism. Rather, it draws attention to how particular features of horizontality reflect and find grounding in republican forms within a larger liberal framework. Previous scholarship understands horizontality in liberal contexts,Footnote ¹⁶⁴ yet concepts within the republican tradition do more to explain the logic of crucial features, including the parity and duty that horizontal application generates.

In light of these republican features, then, what position does horizontal application occupy as a development in the long tradition of constitutionalism? How can we conceive of its situation and function as a republican vein in liberal constitutionalism? The intellectual history that Kalyvas and Katznelson lay out in their book, Liberal Beginnings: Making a Republic for the Moderns, proves instructive on this point. They argue that liberalism grew incrementally and organically out of republicanism to make republican politics practicable in modern times. They explain, “Instead of simply thinking of republican and liberal ideas as rival, external each to the other, we demonstrate that what we recognize today as liberalism in fact was constituted as a conceptual hybrid both against and within republican terminology, ideas, and aspirations … Political liberalism burst from the shell of a republican chrysalis.”Footnote ¹⁶⁵ Thus, while liberalism eventually took on a life of its own, it was originally intended as a corrective within the republican tradition, bringing the rights of the individual to the fore of politics.Footnote ¹⁶⁶ A correct understanding of the history, they maintain, locates liberalism and its earliest thinkers as a kind of addendum to republican thought.Footnote ¹⁶⁷

In a similar spirit to this historical account, horizontal application works as an adjustment but in the reverse direction, reinjecting republicanesque elements into liberal orderings. This qualified return to certain qualities from republican thought may function to bolster liberalism where some critics find that it falls short.Footnote ¹⁶⁸ Indeed, if liberalism was originally a corrective to republicanism, some critics suggest that liberalism has gone too far in its claims to the neutrality of law, its emphasis on rights and private interests, and so on. This may result in a kind of atomism and self-interestedness detrimental to public life and civic duty. Amid such shortfalls, constitutional actors may and arguably do employ horizontal application as a kind of adjustment to this status quo. In Jud Mathews’s words, horizontal application fills certain “normative gaps” in private law.Footnote ¹⁶⁹ In much the same way that Kalyvas and Katznelson describe liberalism as arising out of a need to correct certain aspects of republicanism in concrete circumstances, so too may we think of horizontal application as arising out of historical particulars to address problems that constitutional actors encounter, and perhaps even to realize more fully certain understandings of liberal constitutionalism itself. Indeed, even as this chapter describes how traditional rights claims are reimagined as ends with the introduction of horizontality, it is still liberal values that form the content of these ends and that are arguably expanded by this process of reimagining.

While this book’s republican framework is useful to understand specific features of horizontal application, it also draws attention to potential ways in which horizontal application may not be so republican. Indeed, the role of the courts in applying rights horizontally may exist in some tension with republicanism’s emphasis on self-government, as discussed earlier. While the presumed purpose of recognizing rights is to entrench certain protections against the will of the majority, rights of any kind, including rights applied horizontally, are not purely legal questions and do not only inhabit the juristic realm. They are also political questions – high constitutional-political questions, but political questions, nonetheless. Objections to horizontality revolving around the courts thus seem to pose less of a challenge when legislators take part in the conversation or when horizontality is introduced by constitution-makers themselves. In such cases, horizontality bears a stronger connection with those actors and institutions traditionally associated with republicanism, potentially hedging worries about horizontality’s homogenizing of private to public and its potential to effect a “juridical coup d’etat.”Footnote ¹⁷⁰ Republicanism’s demands of citizens to pursue the common good and to fulfill their civic duties are also accompanied by the promise of republican freedom. As this chapter describes how horizontal application makes analogous demands of citizens in contemporary constitutional orders, constitutional actors would do well to acknowledge the political dimensions of horizontal application, in order that this practice may occur “on the people’s terms.”Footnote ¹⁷¹