Scholars frequently treat the United States’ constitutional experience as a kind of ideal type when it comes to private actors’ duties. In particular, the US Supreme Court has repeatedly affirmed, even against competing interpretations and efforts of Congress, that the Fourteenth Amendment’s guarantee of equal protection creates constitutional duties only for state actors. Of course, the Thirteenth Amendment abolished slavery in all sectors of the polity; beyond this provision, however, the Civil War Amendments did not admit of additional guarantees against private action. Nor did they, in the Supreme Court’s understanding, permit Congress to pass legislation pursuant to these new constitutional commitments that might generate something like duties of private actors.

This is the official story that was passed down through case law and that, eighty years later, would prompt the Indian constitutional framers to adopt alternate language in their 1950 Constitution, as Chapter 4 will discuss. Key figures involved in drafting India’s Constitution understood its ends as largely different from the American counterpart insofar as they aimed to give broad effect to equality and nondiscrimination rights across spheres of life. Through the twentieth and twenty-first centuries, constitutional discourse in the United States would continue to assume some version of the Court’s “state action doctrine,” the idea that only government action triggers rights protections or, put differently, that only the state maintains constitutional duties. Such arguments insist on maintaining the divide between public and private, and often may be read as embracing an understanding of liberty resembling freedom as noninterference. To this extent, such accounts seem to resist a republican interpretation. It would be problematic, however, to understand such discourses in simply liberal terms. Indeed, initially they were clearly employed to defend or preserve racist and other illiberal strains of American politics and thought. Moreover, while perhaps rights-centric in prioritizing certain rights, such as to property, such arguments did not necessarily emerge from balancing other rights (let alone ends), at least not in any meaningful sense. Rather, they often depended on diminishing the rights-bearing status of black persons, in addition to rejecting an understanding of equality as a shared public project.

If the dominant discourse emerging from US constitutional history is so strongly wedded to the state action doctrine, what role does this chapter serve in a book on republican interpretations of horizontality? First, in certain cases, these arguments from American constitutional history serve as a useful foil to such republican concepts as a common good, shared ends, duties of citizens, and the like. Consistent with the typical scholarly consensus of American constitutionalism on these matters, this chapter finds occasion to examine discourses attached to traditional conceptions of constitutionalism that largely persisted even as the political culture shifted over time in favor of, for example, a further-reaching conception of equality. Indeed, the extent to which American constitutional discourse remains linked to traditional accounts of constitutionalism comes into sharper relief as Chapter 4 will turn to the Indian constitutional experience.

On the other hand, this book’s interpretive project and general focus on discourses rather than, say, a certain country’s dominant schools of thought offer occasion to consider other threads of constitutional argumentation in the American context, some of which may be understood in a republican light. For example, a strong basis for a republican interpretation and even explicit invocation of republican principles exists in dissenting and concurring opinions, such as Justice Harlan’s famous dissent in the Civil Rights Cases (1883).Footnote ¹ Moreover, important landmarks outside of case law, such as the sit-in protests and subsequent Civil Rights Act of 1964, show republican resonances in the ends at which they aim, even as they simultaneously show some attachment to vertical conceptions of rights inherited from official precedent. Even while the state action doctrine largely continued to dominate strict legal accounts, these episodes of constitutional politics in the twentieth century occurred against a backdrop of shifting understandings of equality and of the attendant duties of private actors. In the United States, arguments related to understandings of freedom, traditional accounts of constitutionalism, racism, and a combination of these tend to countervail against horizontality, and particularly the horizontal application of equality, in the discourse. On the other hand, some arguments reveal the potential for republican readings even in the United States, foregrounding a more extensive project of equality for the polity that engenders not merely rights but duties of citizens as well.

Expanding the scope of study beyond the framework of the state action doctrine, this chapter concludes by examining those episodes in which constitutional commitments were in fact applied to private relationships. In New York Times v. Sullivan (1964), for example, the Court applied freedom of speech principles to overturn traditional formulations of the common law of defamation.Footnote ² Moreover, in turning to the states, this chapter draws attention to the important reality of American federalism, and the fact that positive law at the subnational level includes no explicit state action requirement. A version of indirect horizontal application has thus expanded and contracted in various states at various times, with arguments about the duties of private actors under state constitutions sometimes taking on a republican character. While much in the prior sections (those focusing on the state action doctrine) turns specifically on rights related to equality, these latter sections (depicting some practices of indirect horizontal application at the subnational level) engage a broader range of issue areas. Moreover, while the particular issues applied horizontally vary between states, they often evince a turn from rights-centric arguments, couched in terms of noninterference, to greater openness to particular ends of the community articulated in the state constitutions.

In some ways, beginning the contextually based chapters of this book with the United States sets a kind of baseline for traditional understandings of constitutionalism from which horizontal application departs. However, it also illustrates the complexity inherent in constitutional discourse, a theme that recurs in various forms throughout the rest of the book. This chapter draws out complexity in the versions of horizontality and corresponding republican themes that do emerge in the American discourse, despite strong doctrinal ties to a state action requirement. In subsequent chapters, in contrast, complexity emerges more often in the arguments that seem to countervail against horizontality once it has been established. Differently situated institutions and actors continually wrestle with the reach and limits of horizontal application. In the constitutional history that follows, and in putting this American experience loosely into conversation with that of India in Chapter 4, constitutional actors may be read as debating the extent to which certain constitutional rights are understood as a kind of shared public project, or a common good with the potential to implicate even private actors. Different repertoiresFootnote ³ of constitutional experience thereby emerge with each of the following chapters as arguments related to constitutional ends, rights, and duties unfold across different circumstances. At the same time, specific themes recur, such that the concepts introduced in Chapter 2 carry over in helpful and revealing ways.

Defining a New Commitment to Equality

In the first session of the Thirty-Ninth Congress, Senator Jacob Howard explained that the purpose of the proposed Fourteenth Amendment to the Constitution was to “[abolish] all class legislation in the States and [do] away with the injustice of subjecting one caste of persons to a code not applicable to another.”Footnote ⁴ In this way the Republicans of the post–Civil War era hoped the forthcoming changes to the Constitution would set the stage for effecting the equality of all people throughout the states. Hence the Thirteenth, Fourteenth, and Fifteenth Amendments were ratified between the years 1865 and 1870. The text of each of these was clear enough. The Thirteenth Amendment abolished slavery. The Fourteenth Amendment extended citizenship to “all persons born or naturalized in the United States,” and guaranteed the equal protection of the laws and due process of law to people in every state. The Fifteenth Amendment guaranteed that the right to vote would not be contingent on one’s race. Congress quickly moved to exercise the power the amendments granted to enforce the new constitutional commitment to equality. To this extent, Congress, as opposed to the courts, had some preliminary say in determining what the new commitment to equality would require in practice. In the ensuing years, Congress enacted several laws in pursuance of these amendments, including the Civil Rights Act of 1875, which guaranteed, among other things, “‘full and equal’ enjoyment of inns, public conveyances, and places of public amusement, regardless of race.” As justification for this legislation, Congress cited its power to enforce both the Thirteenth Amendment’s ban on slavery and the Fourteenth Amendment’s guarantee of equal protection.

Even at the time the Civil Rights Act of 1875 was passed, Congress was fairly divided on whether legislating on public accommodations exceeded its constitutional powers, to say nothing of what policies might be prudent in a turbulent time.Footnote ⁵ A strong contingent from the southern states sought to limit the progress of Reconstruction as much as possible, and the Republican Party was itself divided on how to understand and interpret the new commitment to equality. While the Radical Republicans were eager to read the new amendments as much more comprehensive in their reach, the Centrist Republicans were content to extend freed persons an equality limited to political and legal spheres more strictly understood.Footnote ⁶ This range of positions with respect to the new amendments were on full display when the Civil Rights and Enforcement Acts were eventually challenged in court. In a series of cases, known collectively as the Civil Rights Cases of 1883, the Supreme Court was tasked with offering its own interpretation of the Civil War Amendments and the extent to which Congress did or did not act within its proper limits in its subsequent legislation. In these cases, black plaintiffs sued for being excluded from theaters and transportation facilities, in violation of the Civil Rights Act of 1875. The white owners of those businesses argued that Congress had no authority to regulate their establishments under the Thirteenth and Fourteenth Amendments. In an eight-to-one decision, the Court ruled in favor of the business owners.

In the opinion of the Court, Justice Joseph Bradley addressed the extent of congressional authority in the context of each amendment. The Thirteenth Amendment, he conceded, had no state action requirement. That is, the amendment prohibited slavery with respect to the actions both of the state and of private or nonstate actors. However, the Court did not accept the plaintiffs’ argument that their exclusion from such public places as theaters and transit facilities amounted to “badges of slavery.”Footnote ⁷ To accept this interpretation, Justice Bradley maintained, would be to “[run] the slavery argument into the ground.”Footnote ⁸ On Bradley’s telling, black persons had already been granted their “essential freedoms” in their civil and political rights, and calling any act of private discrimination a badge or incident of slavery would render the actual protection meaningless. In private correspondences, Bradley further worried that capacious interpretations of the Thirteenth Amendment would impose “another kind of slavery” on white proprietors.Footnote ⁹ Moreover, he took issue with Congress’s legislative efforts as he did not see (or refused to see) how private gatherings might be distinguished from privately owned businesses in a principled manner. Bradley wrote: “Surely a white lady cannot be enforced by Congressional enactment to admit colored persons to her ball or assembly or dinner party.”Footnote ¹⁰

In this way, Bradley redrew the lines that Congress had initially drawn as to what equality would mean and require under the US Constitution. Freedom extended only so far as to grant civil and political rights. So long as black persons had such freedoms, the Thirteenth Amendment could not (and, Bradley’s argument implies, should not) do more for them. Moreover, although Bradley conceded that the Thirteenth Amendment did not include a requirement for state action, underlying his reasoning on this constitutional provision was a palpable urgency that the Court nonetheless maintain a strict line between public and private, and maintain that line in a particular place. Specifically, the Thirteenth Amendment only required individuals in private spheres not to have slaves. But it did not require anything more of individuals, especially not in private arenas. Anything more, in his words, would make black people the “special favorite of the laws.”Footnote ¹¹

Bradley’s reasoning with respect to the plaintiff’s Fourteenth Amendment arguments reflected a similar urgency to maintain a line between public and private. The difference was that the text of the Fourteenth Amendment does include language that raises the question of state action. The text of the amendment reads:

To the extent that the text of the Fourteenth Amendment has a state action requirement, its application depends on some prior understanding of what constitutes state action (or state neglect, as it wereFootnote ¹³) as opposed to purely private action. Looking to draw such a line between public and private, Justice Bradley considered the requirements and content of the right to equality. In making this determination, he relied on the distinction between civil rights and social rights that he had begun to develop in his 1874 Circuit opinion for United States v. Cruikshank.Footnote ¹⁴ Pamela Brandwein explains that, during the framing of the Fourteenth Amendment, “Centrist and Radical Republicans agreed on a core body of civil rights: contract, property, suing, testifying, and equal redress for injuries. For centrists, access to public accommodations, schools, intermarriage were typically social rights.”Footnote ¹⁵ Brandwein explains that while the Radical Republicans would have both civil and social rights protected by the Fourteenth Amendment, Centrist Republicans drew this distinction for the very purpose of omitting social rights from the guarantee of equal protection.Footnote ¹⁶ Bradley pursued this line of argument in the Civil Rights Cases, setting the initial limits for the reach of equality in the polity.

Justice Harlan’s lone dissent in the Civil Rights Cases undertakes a task different from Bradley’s line-drawing project and comes to an alternate interpretation of the new amendments. In his dissent, Harlan argued against Bradley’s narrow account, explaining that the Thirteenth Amendment protects against more than slavery per se. Indeed, on his telling, the Thirteenth Amendment calls for a more capacious interpretation that includes the abolition of certain corollary “badges and incidents” of slavery. Thus, contrary to Bradley’s reading, the Thirteenth Amendment equipped Congress to contend with the many “burdens and disabilities” that freed persons confronted as a direct result of centuries of enslavement.Footnote ¹⁷ Full abolition of slavery, full freedom in any meaningful sense, required protection of “those fundamental rights which were the essence of civil freedom” and protection from “all discrimination against [freed persons], because of their race.”Footnote ¹⁸ According to Harlan, “the essence of civil freedom” thus extended further than Bradley conceded to include the very venues that the Civil Rights Act proposed to regulate, namely, “inns, public conveyances, and places of public amusement.”

Harlan understood the ability to use inns and public conveyances as part and parcel of a rudimentary conception of freedom and, as such, comprising the freedom the Thirteenth Amendment intended to guarantee. Indeed, services such as these institutions offer are “so far fundamental as to be deemed the essence of civil freedom,” no less than those rights the majority of the Court did concede.Footnote ¹⁹ That the agents of these institutions are technically nonstate actors does not detract from the fact that they maintain public significance and power over the enjoyment of the rights in question. Harlan explains, “[N]o matter who is the agent, or what is the agency, the function performed is that of the State.”Footnote ²⁰ In this account, these agents were executing public functions in offering these services and therefore may be subject to Congress’s efforts to give effect to the guarantees of the Thirteenth Amendment. In the Court’s decision to rule otherwise, he explained, freed persons are “robbed of some of the most essential means of existence, and all this solely because they belonged to a particular race which the nation has liberated.”Footnote ²¹

Apart from this argument that the regulations of the Civil Rights Act follow from the Thirteenth Amendment’s guarantee of freedom, Harlan also explains that access of all-comers to inns and public conveyances is a principle rooted in common law. In this light, the Court’s rejection of the Civil Rights Act becomes even more significant as not simply a rejection of one possible interpretation of a constitutional amendment, but a rejection of longstanding common law intended to regulate such private interchange. On this point, Harlan quotes Justice Joseph Story:

On this basis, Harlan highlights the public nature of such institutions as inns and public conveyances. With this “quasi-public employment,” he explains, comes “certain duties and responsibilities to the public,” to serve all guests without distinction as to race or color.Footnote ²³

Harlan’s opinion goes on to consider the Civil Rights Act’s attempt to regulate “places of public amusement.” While such places as theaters do not necessarily qualify as “the most essential means of existence,” they may still be understood as public in the sense that proprietors devote their property “to a use in which the public has an interest.” To this extent, Harlan explains, these institutions operate only under the license of law, and so, the authority to establish and maintain them is public in nature. Harlan concludes on this basis that such institutions must “submit to be controlled by the public for the common good.”Footnote ²⁴

This line of thinking, that privately owned institutions operating under the law must align with the common good, makes explicit a republican significance inhering throughout Harlan’s opinion. In the Thirteenth Amendment and Civil War Amendments more generally, Congress rearticulated the polity’s res publica to include a conception of freedom now comprising racial equality. This project involved not only the abolition of slavery but also the abolition of those badges and incidents that contradicted this new articulation of the common good. Thus, Congress affirmed in the Civil Rights Act that “since the nation has established universal freedom in this country for all time, there shall be no discrimination, based merely upon race or color, in respect of the accommodations and advantages of public conveyances, inns, and places of public amusement.” In other words, Congress established universal freedom as an end for the broader political community, including sectors of the private sphere, and sought to realize this object in both law and fact.

As Harlan understood the Thirteenth Amendment to be as much about discrimination on a broad scale as about the institution of chattel slavery in particular, so too did he understand the Fourteenth Amendment as transcending a strict understanding of legal or formal equality to include all the “privileges or immunities fundamental in republican citizenship.”Footnote ²⁵ His more expansive interpretation of equality and citizenship comes through when he explains that the Fourteenth Amendment and, specifically, the citizenship clause of Section 1 guarantee “[e]xemption from race discrimination in respect of the civil rights which are fundamental in citizenship in a republican government.”Footnote ²⁶ He goes on to read Congress’s Section 5 enforcement power in light of this comprehensive understanding of citizenship. Given his broad reading, the new amendments seem to require Congress to take positive action to give these new constitutional commitments full effect, as it so attempted in the Civil Rights Act. Harlan explains the rationale undergirding the Fourteenth Amendment accordingly: “To meet this new peril to the black race, that the purposes of the nation might not be doubted or defeated, and by way of further enlargement of the power of Congress, the Fourteenth Amendment was proposed for adoption.”Footnote ²⁷

In this way, Harlan relies on the citizenship clause to justify Congress’s authority to legislate pursuant to the Fourteenth Amendment. He argues that the Amendment’s language is “distinctly affirmative in character,”Footnote ²⁸ not simply prohibiting the states from violating the new commitment to equality, but empowering Congress to give effect to the Civil War Amendments. Ought not Congress to have the constitutional authority, he questions, to “do for human liberty and the fundamental rights of American citizenship what it did … for the protection of slavery and the rights of the masters of fugitive slaves”?Footnote ²⁹ Harlan would thus have Congress pursue a notion of citizenship encompassing much more than a simple checklist of traditional legal criteria.Footnote ³⁰ Rather, the Civil War Amendments aimed at more than legal equality in citizenship, on Harlan’s telling, to bring equality even into certain private spheres, encompassing even citizens and private actors into this constitutional project. He states:

In this way, Harlan’s account of the amended constitution might be described as embracing a project or, one might say, ends, much more than did Bradley’s. Indeed, his opinion reveals how the Civil War Amendments might have marked, in the words of Jacobsohn and Roznai, the beginning of a kind of step-by-step revolution toward more complete racial equality.Footnote ³²

From the debate between Radical and Centrist Republicans to the exchange between Justices Bradley and Harlan, a range of interpretations of equality and the Fourteenth Amendment entered the constitutional discourse. Specifically, what the Fourteenth Amendment’s guarantee of equal protection meant for public accommodations, and in particular whether access to public accommodations was properly considered a civil right, seemed an open question. According to Charles Calhoun, “For most Republicans … the good society entailed [civil and] political equality but not social equality.”Footnote ³³ In spite of its more marginal status in early debates, however, the Radical Republican argument illustrated the range of possibilities for the Fourteenth Amendment, including a more republican interpretation of equality that included a social dimension and implicated a wider range of actors. Indeed, other iterations of this general position would recur in the constitutional politics of the twentieth century as the state action doctrine continued to be debated.

Ultimately, the Centrist Republican conception of what equality required triumphed in the Civil Rights Cases, along with a particular understanding of a strict line between public and private spheres, with public accommodations located decidedly on the private side. In so prioritizing the rights of proprietors, these interpretations likewise pointed toward a priority of freedom as noninterference. At the same time, while this interpretation in some ways tracks traditional liberal understandings of constitutionalism and the public–private divide, the continually ascriptive characterFootnote ³⁴ of the era’s politics and political discourse defies calling these arguments simply liberal.Footnote ³⁵ As the idea that only state action triggered constitutional rights endured in American jurisprudence, some later arguments were attached to liberal commitments of a certain stripe and not (always) adulterated with the same racist overtones. This is arguably true, for example, of such arguments as Herbert Wechsler’s famous call for neutral principles, discussed below.

Alternate discourses would also reappear in the ensuing decades, some of which may be read as making equal protection into a larger constitutional project, even a common good, and effectuating duties for at least some citizens in turn. These arguments often approximated or even embraced versions of horizontality, echoing Harlan’s dissent and themes this book conceives in terms of republicanism. Specifically, these discourses begin to consider the possibility that private actors may have duties qua private actors to the extent that their actions bear on certain public projects. In other cases, these arguments seem intent on more closely tracking the Court’s initial settlement in the Civil Rights Cases, perhaps reaching conclusions that are similar to Harlan’s, but justifying new duties of citizens more on the basis that certain private actors resembled public institutions and less on the way they bear on public or constitutional ends, such as equality, even as private actors. While both styles of argument might result in duties of private actors, the former depends more on the public–private divide that grounds the state action doctrine. Thus, while both formulations arguably are heirs to Harlan’s judgment, instances of the latter may be read in a more republican light.

Harlan’s dissent offered plausible alternative interpretations of the Civil War Amendments that translated the commitment to equality into a more far-reaching project potentially applying to members of civil society. As the sections that follow suggest, however, constitutional actors and legal scholars continually questioned the status of such arguments vis-à-vis American doctrinal history and even liberal constitutionalism in general. The Court’s judgments remained largely fixed on keeping intact a version of the state action doctrine, rather than on explicitly implicating private actors in a constitutional project of racial equality. Therefore, with a few notable exceptions, the arguments that tended to prevail in subsequent years remained premised on the public–private divide, even as many constitutional actors and members of the public grew more sympathetic to a broader conception of equality.

Revisiting Equality’s Requirements in the Twentieth Century

After decades of an equality defined by “civil not social” and “separate but equal,” the Court and American populace in certain ways became receptive to a more capacious understanding of the content and requirements of equality. That the Court might in fact pursue a line of constitutional argument that allowed equality rights to reach private spaces seemed plausible when the Court briefly embraced a broader understanding of state action. In the 1948 case Shelley v. Kraemer, homeowners in St. Louis adopted a restrictive racial covenant that prevented African Americans and other minorities from purchasing properties in their neighborhood. The covenant stated that no property shall be “occupied by any person not of the Caucasian race, it being intended hereby to restrict the use of said property … against the occupancy as owners or tenants of any portion of said property for resident or other purpose by people of the Negro or Mongolian Race.”Footnote ³⁶ When one of the homeowners party to this covenant sold his house to an African American family by the name of Shelley, others in the neighborhood asked the courts to uphold the restrictive racial covenant as a private contract to which they had all voluntarily agreed. The Supreme Court of Missouri decided to enforce the covenant on the basis that it was a purely private contract and did not bear on the state’s obligation to uphold the Fourteenth Amendment’s commitment to equal protection. This was a matter of private action, rather than state action. However, on appeal, the US Supreme Court found that the very act of enforcing the covenant did constitute state action. In the Opinion of the Court, Justice Vinson explained that “the full panoply of state power”Footnote ³⁷ was ultimately responsible for preventing the Shelley family from occupying the home they had purchased. To this extent, one could not honestly say that the state had “merely abstained from action, leaving private individuals free to impose such discriminations as they see fit.”Footnote ³⁸ While the Court could not prevent the drafting of such covenants, neither could it enforce them without directly participating in discriminatory actions, thereby violating the Fourteenth Amendment.

In this way, the Court seemed to locate one path forward from the strictures of Bradley’s initial reasoning and subsequent developments that continually left Congress bereft of any power to implement a broader equality. Indeed, in the years leading up to the sit-in protests, some spectators hoped that Shelley’s move to recognize the Court’s enforcement of private contracts as constituting state action might next lead to the Court’s reinterpretation of the Fourteenth Amendment to require equal access to public accommodations.Footnote ³⁹ However, others were less optimistic about the impact of this case, whether for reasons of strategy or reasons of principle. Today, legal scholars understand Shelley as “a singular case” and as the Court’s attempt to “[put] aside doctrinal complexities in order to attack an immoral and socially destructive practice.”Footnote ⁴⁰ Indeed, this decision does constitute a kind of high-water mark in the Court’s willingness to stretch the bounds of the state action doctrine so as to hold private actors accountable for constitutional principles. No major case after Shelley follows similar reasoning. While the Court would in some ways find workarounds to the state action doctrine, it quickly reverted back to a more limited understanding of state action, particularly in those cases that did not raise the issue of racial equality.

That retrospective analyses find Shelley to be anomalous in US constitutionalism is not altogether surprising when viewed in the light of early accounts of the case. Some legal scholars, including many who were sympathetic to a broader equality, faulted the Court for its reasoning and even the outcome it reached in Shelley. Herbert Wechsler, for example, famously criticized the Court for departing from “neutral principles” of the law, explaining:

In other words, according to Wechsler, while state action was present in the general sequence of events surrounding the Shelley case, one could not honestly say that state action was responsible for the particular discrimination at issue, namely the restrictive covenant. The state may have had a hand in the covenant’s enforcement, but it was not the source of the discriminatory act. Any decision to the contrary, Wechsler argued, was merely a result of the Court’s wanting to reach a more favorable outcome rather than adhere to neutral principles of the law. The fact that such dissents came from parties that were likely to welcome the outcome in Shelley as a practical matter speaks volumes of the dominance of the state action doctrine at the time. While the Court in Shelley had technically granted the premise that only state action was accountable to constitutional obligations, it departed from the thrust of the Civil Rights Cases in that constitutional standards ultimately governed the behavior of private actors.

That many scholars and jurists objected to the Court’s decision at the time is not to say that the issue of state action was settled in constitutional argumentation, however. Indeed, Shelley and other cases such as Marsh v. Alabama (1946)Footnote ⁴² led some to question the state action doctrine as traditionally understood.Footnote ⁴³ Louis Henkin, for example, suggested in a 1962 article that the Court should have decided Shelley v. Kraemer by weighing the Shelley family’s right to equality against the other homeowners’ liberty to enter a contract.Footnote ⁴⁴ He explains, “Under today’s concepts of due process, we have suggested, the state may not forbid a person to be whimsical or capricious in his social relations or as to whom he will admit to his home.”Footnote ⁴⁵ In other words, a certain arbitrariness in private action must be permitted if liberty in a meaningful sense is to endure. But this arbitrariness or whimsy that characterizes social relations (and that amounts to a conception of freedom as noninterference in these spaces) does not extend to all spheres, Henkin argues. His treatment of rights begins to resemble horizontal effect, explaining how the Court should have engaged in a process of balancing to determine which right ought to triumph in this particular instance. More often than not, he thinks, equal protection will triumph, given the commitments of the Constitution. But again, in his telling the Constitution does permit and even protects a certain ability of individuals to act arbitrarily with respect to the company they choose to keep. And so, the Court cannot but account for such freedoms of association as well. To balance these freedoms, Henkin explains, Shelley should have asked that the “state not prefer the old contract over his new one, that it not lend support to organized zoning for an improper purpose, to a discrimination which has no basis but race and serves no purpose but prejudice.”Footnote ⁴⁶ Hence, while different rights may have been at stake here, the facts of the case and the commitments of the Constitution favored the Shelleys.

Henkin’s heterodox take on state action never gained traction.Footnote ⁴⁷ Indeed, something closer to Wechsler’s understanding seemed to stick in American legal discourse and in the Court’s own arguments. Just a couple of years after Shelley, the Supreme Court actually denied certiorari of a case in which the New York Court of Appeals had “found no state action in a racial discrimination claim against a private housing developer.”Footnote ⁴⁸ The Supreme Court opted to deny cert in spite of the fact that “the developer had received extensive state support in the form of land condemnation, street closings, and a twenty-five year tax exemption for a New York case just a couple of years later.”Footnote ⁴⁹ In the end, the argument in Shelley was the exception that proved the rule, a fact that became even clearer as the Supreme Court began to confront the cases resulting from the sit-in protests. Even as the Court largely ruled in favor of protestors, finding ways to help them evade trespass laws during the sit-ins of the early 1960s, it abided by the discursive status quo of the state action doctrine.Footnote ⁵⁰

The Civil Rights Act Redux

Around the time that Congress was debating the Civil Rights Act of 1964, the Supreme Court was deciding Bell v. Maryland.Footnote ⁵¹ In this case, twelve African American students were refused service in a Baltimore restaurant and convicted of criminal trespassing. As Christopher Schmidt explains it, “[T]he question came down to which party was the primary lawbreaker, the discriminating proprietor or the sit-in demonstrator.”Footnote ⁵² Given its favorable rulings in the sit-in cases of the previous terms, the Court might have taken this opportunity finally to overturn or at least revisit the conclusion of the Civil Rights Cases. And indeed, Justices Douglas and Goldberg were in favor of doing just this throughout the deliberations. Even in the earlier case of Garner v. Louisiana (1961), Douglas wrote in his dissent: “Restaurants, whether in a drugstore, department store, or bus terminal, are a part of the public life of most of our communities. Though they are private enterprises, they are public facilities in which the State may not enforce a policy of racial segregation.” Three years later, and with the Civil Rights Act of 1964 on the cusp of passing in the legislature, court observers speculated whether the time was ripe to reconsider the constitutional question – were private business owners obligated by the equal protection clause?

Even while a majority of the Court was sympathetic to the protesters, other considerations were in play that, scholars argue, led the Court to vacate and remand the decision back to the Maryland Court of Appeals. Schmidt makes much of the fact that Justice Black was disquieted by the methods of the protestors, for example. Eager to maintain law and order and not to stamp civil disobedience with the Court’s endorsement,Footnote ⁵³ Justice Black, along with Justices Harlan (II) and White, decided in favor of the restaurant owner. The remaining six justices wavered between considering the constitutional question and taking the intermediate step of vacating and remanding, since Maryland had recently passed laws against discrimination in public accommodations. Led by Justice Brennan, the justices seeking the more moderate line put much weight on the fact that the Civil Rights Act was about to pass Congress. If they could prevent any disruption of this progress by avoiding a (doctrinally) controversial decision, then so much the better.

Members of the public sympathetic to the Civil Rights Movement were largely unconcerned and even unaware of such jurisprudential hurdles, however. In fact, a major impetus behind the sit-in protests was the widespread conviction that the principle of equality advanced in Brown v. Board of Education ought to apply to public accommodations as well. Moral and constitutional consistency, they argued, required nothing less. Martin Luther King, Jr. described the demand for equality in access to public accommodations as “the logical extension of the school segregation struggle.”Footnote ⁵⁴ This popular understanding, that the constitutional commitment to equality directly bore on private spaces, received the imprimatur of other public figures as well, including Dwight EisenhowerFootnote ⁵⁵ and John F. Kennedy.Footnote ⁵⁶ Almost as if to draw from Justice Harlan I’s conception of citizenship in the Civil Rights Cases, President Kennedy stated that the “right to be served in facilities which are open to the public” was an “elementary” right and one of “the privileges of being American.”Footnote ⁵⁷ In his 1963 message to the American people on civil rights, he said:

In this light, at least some constitutional actors and members of the general public viewed equality at lunch counters, restaurants, and the like as no less constitutive of the equality the polity had committed to in the Fourteenth Amendment and clarified in Brown. Such arguments seem unconcerned with maintaining a line between public and private, inasmuch as they understood equality as a project that implicated a broad range of actors across the American polity.

Even those who were more aware of the doctrinal complexities of state action and equal protection did not necessarily view these precedents as insurmountable. In a 1960 article, for example, the Washington Post described the state action doctrine as “an evolving thing.”Footnote ⁵⁹ It stated:

The observation that “a long step-by-step process” might be underway suggests that alternate interpretations of the state action doctrine and equality were, in fact, in play in discourses during those decades, despite the various reiterations of Bradley’s early take on the Fourteenth Amendment. The Court might have decided, for example, that African Americans had “a right to eat beside white persons,” thereby reinterpreting the state action doctrine to conform to the emerging public understanding and, as it happens, to be closer to Justice Harlan’s conception of citizenship in the Civil Rights Cases. Even the Chief Justice himself thought it possible that the jurisprudence might unfold in this way. In speaking of the Court’s practice of avoiding the merits and instead deciding the sit-in cases on more procedural issues, Earl Warren explained that he had hoped that the Court “could take these cases step by step, not reaching the final question until much experience had been had.”Footnote ⁶¹ As Warren thus admitted the possibility and even some desire to develop the state action doctrine, in retrospect it was telling that these reflections came within a more general explanation of why the Court had not yet taken such steps.

Various oral and written statements suggest that many of the justices initially considered decoupling Section 1 of the Fourteenth Amendment, establishing the legal principle of equal protection, from Section 5, establishing Congress’s enforcement power.Footnote ⁶² This would allow the Court to “follow Congress in redefining the meaning of the Equal Protection Clause – that is, the congressional interpretation of equal protection would then be adopted by the Court as a self-enforcing constitutional right.”Footnote ⁶³ Even Justice Harlan, who ultimately dissented from Brennan’s majority opinion in Bell v. Maryland, indicated some willingness prior to the decision to consider this rationale, since it would have allowed the Court to tread lightly with respect to the jurisprudential precedent.Footnote ⁶⁴ Members of Congress floated this possibility, too, during deliberations for the Civil Rights Act of 1964. Nevertheless, this decoupling strategy would not control the decision in Bell v. Maryland, nor would it serve as the primary authorization for Congress’s Act, as discussed below.

Despite the potential doctrinal workaround of decoupling Sections 1 and 5, to say nothing of the favorable state of public opinion, the majority opinion in Bell ultimately avoided the constitutional question altogether. Scholars suggest a variety of factors contributing to the Court’s anemic judgment, from Justice Black’s fears of endorsing civil disobedience, to the strategic calculation of how their decision might affect the contemporaneous efforts of Congress.Footnote ⁶⁵ Moreover, some cost is generally attached to the process of revisiting and revising precedent – perhaps particularly as the precedent was itself understood as protecting rights. In dissent, Justice Black seemed to echo Justice Bradley’s argument in the Civil Rights Cases: “[The Fourteenth Amendment] does not destroy what has until very recently been universally recognized in this country as the unchallenged right of a man who owns a business to run the business in his own way so long as some valid regulatory statute does not tell him to do otherwise.”Footnote ⁶⁶ The underlying argument here was that the Fourteenth Amendment maintained a particular distinction between public and private, and the regulation of public accommodations fell decidedly on the side of private, nonstate action. So while the states were free to root any antidiscrimination law in their own commitments to equality, the US Supreme Court at least had to abide by the line-drawing project defined decades earlier in the Civil Rights Cases, as well as respect the particular place at which Bradley had located this line, which prevented the application of equality in public accommodations.

Even the majority opinion shows concern on the part of Justice Brennan and those justices joining him not to depart too quickly or drastically from what they took to be the requirements of doctrine. Perhaps their concerns were primarily strategic or prudential; however, even this suggests that these distinctions between public and private and state action and nonstate action were rooted in legal discourse to such a degree that caution was warranted. That the general public’s understanding of equality’s requirements had shifted enormously by this period only throws the point into sharper relief. In the end, even the activist Warren Court was not up to the task of redefining equality as a constitutional matter, to uproot the conceptions of public and private that had developed around equality in the form of the state action doctrine.

Contemporaneous with the Court’s deliberations in Bell v. Maryland, Congress held debates similar in both subject matter and intensity. In working to pass the Civil Rights Act of 1964, members of Congress considered whether they might rely on their enforcement powers under Section 5 of the Fourteenth Amendment. This basis was clearly more germane to the questions at issue than, say, the alternative basis of Congress’s power to regulate commerce. Moreover, a few of the Court’s recent decisions (some concerning the sit-ins and others state action) served to suggest that at least some of the justices might welcome the shift in constitutional understanding this would inevitably entail. On the other hand, relying on the power to regulate commerce likely provided a safer basis on which to ensure this new Civil Rights Act withstood lawsuits. Indeed, even if less clearly connected to issues of discrimination and equality, the Commerce Clause would not pose the same challenge to the regnant precedent and might consequently be more successful at achieving the legislators’ intended ends.

Even despite the high stakes of the issue of civil rights, Congress did not seem to accept its position “as a coequal branch on matters of constitutional interpretation” and deferred instead to the Court’s 1883 precedent.Footnote ⁶⁷ Schmidt’s account points to a painful irony in Congress’s deferential attitude. In his telling, the Court was actually looking to Congress to act on the constitutional issue. As described above, the Court had in its deliberations considered decoupling the first and fifth sections of the Fourteenth Amendment, which would have allowed Congress to advance its own understanding of equality rights in law under its enforcement power.Footnote ⁶⁸ Nevertheless, the Court’s “evolving position on this question was largely hidden from view,” leaving members of Congress ignorant of these developments among the judges.Footnote ⁶⁹ Ultimately Congress cited its power to regulate commerce as the primary constitutional basis on which it passed the Civil Rights Act. While it also cited its enforcement power under the Fourteenth Amendment, this provision was clearly auxiliary.

Not long after the Civil Rights Act became law in 1964, proprietors began to challenge Title II’s requirement that people not be denied access to public accommodations on the basis of race. In such cases as Katzenbach v. McClungFootnote ⁷⁰ and Heart of Atlanta Motel v. United States,Footnote ⁷¹ the Court confronted the question of whether Congress acted within its constitutional powers in its recent legislation. Moreover, the Court considered what part of the Constitution gave Congress this authority. Although Congress had relied primarily on the Commerce Clause, that the law mentioned the Fourteenth Amendment at all kept Section 5 in play as a possibility. Even at this stage, however, when the Court was in such a position that it could defer to Congress, it upheld Title II on the basis of the Commerce Clause alone, “refusing to evaluate the alternative Fourteenth Amendment rationale to which most of the Justices felt Congress had not committed itself.”Footnote ⁷² The justices considered the possibility in conference, but in the end only Douglas and Goldberg wanted to address Congress’s Section 5 enforcement powers.Footnote ⁷³ And so, what broad sectors of the country had come to understand as a requirement of constitutional morality – an end for the polity to pursue – remained cordoned off from the perspective of constitutional law, to be regulated simply as a matter of commerce and not implicating competing constitutional rights. Neither Congress nor the Court disrupted or modified what they took to be the original settlement of this constitutional question from the nineteenth century.

By prioritizing a vertical logic, the arguments predominating in American constitutional discourse may be read as rejecting, at least as a theoretical matter, a particular understanding of racial equality as a shared project and as creating duties beyond a fairly narrowly defined public space. One might cite such developments as the Civil Rights Act as a counterpoint. And indeed, many horizontal initiatives often do occur in the form of statutory law. The Civil Rights Act has itself become quasi-constitutional in nature,Footnote ⁷⁴ and many states have done much to combat discrimination in their own antidiscrimination laws even prior to 1964.Footnote ⁷⁵ However, from a theoretic perspective, that the Civil Rights Act continues to be grounded in Congress’s commerce power, rather than the principle of equality, seems to demote its status in the constitutional landscape from the start. Even as the law requires private actors not to discriminate on the basis of race, it would not seem to be for the sake of any duty to fellow citizens nor any constitutional goal or project.Footnote ⁷⁶ Whether this lower constitutional status carries consequences with respect to actual outcomes or impact is beyond the scope of the present book.Footnote ⁷⁷ What this book aims to do is reveal and clarify the republican concepts undergirding the theoretical situation of this constitutional discourse.

Law Along the Public–Private Divide

The sit-in protests may have posed the question of whether to rethink concepts of public and private with respect to the particular issue of racial equality. Yet, constitutional discourse, particularly from the Court, illustrates how the precedent in the Civil Rights Cases persisted in constitutional thinking concerning the public–private divide. Key actors continued to adhere to the state action doctrine in some form, rejecting the chance to recast the line between public and private spaces, or even to approximate a republican logic that conceived a role in the broader constitutional project for private actors as such, not unlike Justice Harlan’s dissent. Although certain circumstances seemed to favor such a decision, the state action framework still rose above these alternative understandings as a matter of constitutional law – probably owing to precedent, institutional interests, and doubtless other political and attitudinal factors, as scholars have variously suggested.

While legal scholars have long recognized the state action doctrine as a “conceptual disaster area,”Footnote ⁷⁸ the Court has continued to work within and around this framework. Particularly in the realm of civil rights, the Court has decided that privately owned institutions that are somehow “entangled” with the state or that serve what are traditionally thought of as “public functions” can, in fact, be regulated as state actors. Though these workarounds may bring the Court to the outcomes it desires, they reach such conclusions only by expanding the definition of the state, arguably preserving the core of Justice Bradley’s legacy, rather than obligating private actors to constitutional commitments to equality. Perhaps it is not surprising that the Court has employed these doctrines of “entanglement” and “public function” in the area of civil rights more than any other.Footnote ⁷⁹ Indeed, this is a realm in which the country has patently shifted its thinking as evinced in the sit-ins and the public’s constitutional understanding of these and later protests, as described earlier. In other words, these workarounds to the state action doctrine have occurred precisely where the polity has changed its position on a clear set of issues in fairly decisive fashion.

While, historically, the state action doctrine was often employed to nefarious ends, scholars and constitutional actors acknowledge the value of preserving some private sphere beyond the reach of public values and in distinguishing between state and nonstate action.Footnote ⁸⁰ Sometimes the Court has preserved this doctrine even when reaching outcomes that are unpalatable or worse. The staying power of this framework is on full display in the infamous DeShaney v. Winnebago County case,Footnote ⁸¹ when the majority of the Court persisted in a strict conviction that constitutional rights obligated only state actors, arguably in spite of alternative interpretations that might have mitigated tragic circumstances.

A small child by the name of Joshua DeShaney suffered serious abuse at the hands of his father. Wisconsin Social Services reported to the residence several times on suspicions of abuse but did nothing to remove the child permanently from his father’s custody. The abuse continued until the boy suffered irreversible brain damage with which he would live for the rest of his life. Learning what had happened only after it was too late, the boy’s mother argued that the state was culpable insofar as it knew about the situation but did nothing to protect her son’s positive right to liberty under the Fourteenth Amendment. In a 1989 opinion by Chief Justice Rehnquist, however, the Supreme Court ruled that the Fourteenth Amendment did not establish an affirmative duty of the state to protect against private abuse. Because Joshua’s injuries were inflicted by a private party, the harm at issue could not properly be described as state action. Moreover, neither did any negligence on the part of the social worker constitute a harm insofar as this was an instance of state inaction as opposed to state action. Thus, the Constitution did not offer any rights protections to Joshua. His only remedy was found in the fact that the father had been convicted of child abuse.

The state action doctrine thus persists, and persists in rigid form, even in the face of tragedy. Perhaps the idea that “state neglect” be counted as state action might have led to a different outcome in DeShaney.Footnote ⁸² While this understanding of state neglect was widely accepted in equality-based claims in the nineteenth century, Brandwein explains how it fell away from the jurisprudence after a few decades.Footnote ⁸³ Even without the concept of state neglect, however, the Court might have reached a different outcome, according to Justice Brennan’s dissent. He argues that the state had acted from the very moment that it established the Department of Social Services, taking upon itself a duty to protect vulnerable citizens even in their private homes.

Gary Jacobsohn offers a framework to evaluate this alternative outcome in DeShaney against the decision the Court actually reached. Specifically, he analogizes constitutional interpretation with the classic dramatic genres of comedy and tragedy. In much the same way that comedies conclude with happy endings, typically only after some manipulation and absurd turns of events, so too can we imagine “judges exercising creativity in the pursuit of acceptable outcomes.”Footnote ⁸⁴ On the other hand, in contrast to comedic figures, the tragic hero inevitably is “unable to escape the necessary consequences of his actions,” try as he may.Footnote ⁸⁵ Likewise, constitutional interpretation can have a tragic character, as when judges insist on “rigorous judicial adherence to norms of objectivity derived from neutral principles,”Footnote ⁸⁶ even when alternative plausible interpretations might have been available. In DeShaney, one might say that Brennan’s and Blackmun’s opinions tend toward the comedic while Rehnquist’s errs on the side of the tragic.Footnote ⁸⁷

Both approaches have their problems, however. Of the comedic approach, Jacobsohn explains that some “will find in these efforts an unfortunate subversion of the liberal constitutionalism of the Founding Fathers.”Footnote ⁸⁸ Even if a person were convinced that a particular outcome was morally superior, it may not follow that the Constitution could support that outcome without unacceptable levels of twisting or manipulation. Meanwhile, practitioners of the tragic approach are vulnerable to the different tendency of subscribing to an “exaggerated sense of law’s determinacy.”Footnote ⁸⁹ Jacobsohn ultimately comes to the sober conclusion that constitutional interpretation is best understood in tragicomic terms, in which judges “strive for an accommodation between necessity and manipulation, between the obligation to find the law and the temptation to make it.”Footnote ⁹⁰ While this conclusion resists easy categorization and certainly calls upon judges to exercise their discerning capacities, it seems that neither tragedy nor comedy can by itself encompass a full account of the constitutional project.

Jacobsohn concludes that DeShaney seems to “represent a failure of judicial imagination,”Footnote ⁹¹ suggesting that the Court might have reached a more favorable outcome, perhaps along the lines of Brennan’s opinion, without doing damage to constitutional structures. In support of this diagnosis, that the judges did have more latitude to reach a different conclusion than Rehnquist maintained, Jacobsohn points to the “degree of interpretive freedom manifest in the ambiguities surrounding the state action doctrine.”Footnote ⁹² Notwithstanding this possible interpretive freedom, much argumentation in the history of state action jurisprudence seems to be characterized by similarly tragic interpretations when the Court and other actors might have understood the Constitution otherwise – perhaps acknowledging, in more instances, the way certain private spaces hold public significance and, therefore, bear on constitutional projects, permitting Congress to act on this basis.Footnote ⁹³ This stops short of a republican logic that would understand new constitutional commitments as generating ends for the polity and therefore duties of citizens. In admitting such plausible alternative interpretations, however, the Court might have also permitted the kind of step-by-step transformation of which Earl Warren later spoke, all while preserving more traditional understandings of the public–private divide and constitutionalism. Interestingly, other sectors of American constitutional discourse have shown greater openness to pursuing such lines of argumentation, and even departing from traditional understandings in favor of something like horizontal application.

Beyond the Public–Private Divide: Speech and the States

As this history of discrimination-related moments in constitutional politics has shown, the state action doctrine and accompanying interpretations of individual rights have long been a feature of American constitutional politics. Even actors arguably sympathetic to republicanesque broad ends regarding equality or antidiscrimination measures show attachment to discourses characterized by a kind of rights-centrism and the public–private divide. These cases do not constitute the only format in which constitutional duties of private actors have been considered (and, perhaps, dismissed), however. Indeed, certain exceptional cases follow a logic that could easily be understood as a version of indirect horizontal application,Footnote ⁹⁴ such as reforming the common law according to constitutional standards. Most notable among these is the 1964 case New York Times Co. v. Sullivan.Footnote ⁹⁵ This famous decision involved the police commissioner for the city of Montgomery, Alabama, suing for defamation after the New York Times published a full-page advertisement criticizing the sheriff and Alabama police for their mistreatment of civil rights demonstrators. While the broader criticism itself was not in question, the advertisement did include some inaccuracies about the specific circumstances and actions taken against the protestors, forming the basis for the defamation suit.

In a unanimous decision, the Court argued that the common law rule of defamation governing private actors had to show sufficient parity with the rights commitments of the US Constitution. However, the application of the law of defamation in the lower courts did not give due weight to the commitment to freedom of speech under the First Amendment. On this basis, the Court introduced its “actual malice” standard, arguing that criticisms of public officials, such as the police commissioner, enjoyed broader First Amendment protections than, say, potentially defamatory speech against private individuals. Insofar as criticism of government and public officials was an essential justification for protecting the freedoms of speech and of the press at all, the defamed had to demonstrate that the defendant made the defamatory statement with actual malice, rather than simply demonstrate that the statement was false. In short, constitutional values (in this instance, free speech) required a higher standard than that traditionally set by the common law on matters of defamation.

New York Times v. Sullivan thus constitutes a clear, albeit rare, instance of horizontal application in the United States.Footnote ⁹⁶ Unsurprisingly, the Court did not acknowledge it in these terms in the same way as have apex courts of other countries. However, simply considering the logic of the decision, this US case may even create stronger horizontal protections for speech than do analogous cases in such countries as GermanyFootnote ⁹⁷ and South Africa.Footnote ⁹⁸ Specifically, Sullivan concludes with more than a simple call for lower courts to consider the influence of constitutional commitments on private law, or for the Supreme Court to do so in future cases. Instead, under the aegis of the freedom of speech, the Supreme Court actually strikes down the state common law at issue. The strength of First Amendment commitments in the United States, therefore, translates to comparatively strong duties of individuals, even if indirectly.Footnote ⁹⁹

In an important article, Stephen Gardbaum argues that Sullivan sheds light on a larger potential logic latent in the US Constitution, and particularly in the Supremacy Clause of Article 6, paragraph 2.Footnote ¹⁰⁰ He argues that this clause establishing the supremacy over the states of all federal law, including the Constitution, effectively calls for a broader practice of indirect horizontal application.Footnote ¹⁰¹ While the arguments it employs have appeared only rarely in case law of the US Supreme Court, New York Times v. Sullivan nonetheless maps out a potential avenue for additional constitutional duties of private actors in the American context. Put differently, the state action doctrine turns out not to be the only doctrinal pathway for understanding private actors’ duties – both their history and their future. Indeed, in a post-Sullivan constitutional landscape, rights commitments may be said to have a broader reach, so that the freedom of speech is more than a right one may claim against government, but a source of constraint and obligation in private law and relationships as well. In sum, the requirements of freedom of speech come to impact private actors and thereby narrow, somewhat, the public–private divide.

A complete picture of virtually any question of constitutional politics in the United States warrants some consideration of American federalism.Footnote ¹⁰² And indeed, when it comes to the relationship between public and private spheres and the question of horizontal application, the experience of several states complicates the picture scholars have typically painted in focusing exclusively on the national constitution. Scholars such as Helen Hershkoff, John Dinan, and Emily Zackin have documented well the way in which state constitutions enrich our understanding of the American rights tradition.Footnote ¹⁰³ Specifically, they challenge the conventional wisdom that American constitutionalism is preoccupied with negative rights, and with what government may not do. Instead, these scholars illustrate how state constitutions provide for positive rights, and even how state governments are charged with securing certain ends. Dinan goes so far as to suggest that positive rights provisions in state constitutions “can give expression to the fundamental goals and values of a polity.”Footnote ¹⁰⁴

In this same spirit, consideration of the constitutional traditions and case law of the states demonstrates that the state action doctrine does not by itself govern the question of constitutional duties of private actors in the United States. While New York Times v. Sullivan may be an exceptional case at the national level of constitutional politics, this manner of applying constitutional commitments to common law norms has happened with greater frequency, and less doctrinal restraint, across the several states.Footnote ¹⁰⁵ Indeed, this book’s republican framework offers a helpful lens to analyze the issues that emerge at this subnational level of constitutionalism. While much of this chapter has recounted arguments about how private actors within the states ought to relate to the national constitution’s commitment to equality, the chapter now concludes by considering how the states themselves have understood how private actors relate to the states’ constitutional ends. In the terms of this book, one might say that rights in the states have sometimes been interpreted as more than mere rights for which to hold government accountable, but as larger ends, perhaps a kind of res publica at a subnational level, sometimes implicating private actors as well. In these instances, the strict division between public and private has proven less entrenched, such that courts apply state constitutional values to common law rules, giving further “expression to the fundamental goals and values of a polity.”Footnote ¹⁰⁶

In the important case of Pruneyard Shopping Center v. Robins (1980),Footnote ¹⁰⁷ the Supreme Court suggested that the state constitutions may be interpreted to protect rights against private actors. The case involved high school students soliciting signatures at a local shopping center. The center’s security guards asked the students to leave, as they had not attained a permit from the owners. The students sued the center for violating both their right to freedom of speech under the US Constitution and their right to petition the government under the California State Constitution. When the US Supreme Court ruled in favor of the students, several state governments and, more specifically, state courts began to evaluate a state action requirement for constitutional rights in their subnational contexts. State constitutions do not explicitly prescribe developing common law in line with constitutional commitments in the same way as, say, the South African Constitution does.Footnote ¹⁰⁸ However, Pruneyard seemed to constitute an invitation to apply state constitutional rights on a broader scale than the state action doctrine permitted for rights in the national constitution.Footnote ¹⁰⁹ In the wake of Pruneyard, several state courts expanded (and, in some cases, later contracted) the application of constitutional norms to such entities as “shopping centers, universities, insurance companies, banks, utilities, private clubs, and possessory lienors.”Footnote ¹¹⁰ Hershkoff explains how interpretive practices of state courts can resemble “those of jurisdictions abroad, such as India and South Africa, in which courts achieve the horizontal application of constitutional norms in disputes involving nongovernmental actors using the pathways of private law doctrine.”Footnote ¹¹¹

While Pruneyard remains controversial and different states continue to decide these questions in varied ways,Footnote ¹¹² the fundamental point is that state constitutions maintain greater interpretive space, less concretized precedent, and perhaps lower stakes in terms of scope and ability to revise – in short, fewer obstacles from pursuing a version of indirect horizontality.Footnote ¹¹³ Likewise, constitutional politics within the states may be interpreted through this book’s republican lens. With greater latitude as to structuring the duties of – or at least relations between – private actors, constitutional discourses within the states might more easily transcend the kind of rights-centrism on display in many accounts of the national constitution, and may be more likely to articulate ends that involve the cooperation of private actors.

In an article examining the relationship between socioeconomic rights and indirect horizontality in the states, Hershkoff argues:

Her description of a conception of “a shared polity” and of a “political culture that values a shared interest” typifies the kind of republican tone this book locates in discourses surrounding horizontal application. It is this language of shared public ends that many public figures and protestors employed in the Civil Rights Movement. While this manner of argumentation did not gain much traction as a doctrinal matter at the national level, scholarship suggests that constitutional actors may more easily speak, and have spoken, in these terms at the state level.Footnote ¹¹⁵ Indeed, Hershkoff elsewhere explains how the New Jersey Supreme Court has enforced “social and economic rights as a matter of state constitutional law” and likewise has “refused to enforce common law entitlements when they interfere with activities that are vital to democratic life – speech, association, privacy, and the stability of adequate housing.”Footnote ¹¹⁶ In this way, the possibility of prioritizing what is constitutional in both public and private spaces, a kind of public morality or common good in the terms of this book, emerges clearly in the states.

Of course, the US federal structure has permitted some of the great evils of American history. However, it has also permitted broader rights protections tailored to the particular needs, interests, and commitments of actors and citizens in a given state. Zackin argues this to great effect, opening her book with an example of grassroots efforts advocating for coal miners’ rights that resulted in detailed protections in the 1870 Illinois Constitution.Footnote ¹¹⁷ Indeed, a range of examples of horizontal application, and more liberal understandings of state action at the subnational level, illustrate how states may pursue different priorities or ends, as they choose to apply some rights expansively and not others. John Devlin describes how New York courts have maintained a state action requirement for speech rights,Footnote ¹¹⁸ but have understood due process rights to apply more broadly.Footnote ¹¹⁹ Hershkoff also offers several examples, including cases about enforcing equality norms in places of work in Washington,Footnote ¹²⁰ modifying “at will” employment policies in Michigan,Footnote ¹²¹ and balancing property and speech rights in OregonFootnote ¹²² – each of which resulted from invoking state constitutional rights commitments, admittedly to varying degrees, in private interactions.

In McCulloch v. Maryland, Justice John Marshall argued that the ability of the national government to speak directly to American citizens, as opposed to speaking to them only through the state governments, was an essential characteristic of sovereignty.Footnote ¹²³ In a somewhat similar vein, the ability to speak to citizens on matters both public and private seems to be yet another important aspect of sovereignty. Hershkoff explains, “State common law, as an aspect of state sovereignty, helps to publicize issues, transcend boundaries, and test the constitutional waters by offering case-by-case elaborations of constitutional norms in discrete situations.”Footnote ¹²⁴ That the states in some ways retain greater ability than the national government to apply constitutional commitments in private spaces is important. It harkens back to early debates between the Federalists and Antifederalists about the nature and locus of American political community, and even anticipates future debates in such quasi-federalist arrangements as the European Union. Indeed, as Chapter 7 will show, the question of horizontality in the European Union is theoretically tied to larger questions of political community and integration, as individual Member States reckon with potentially conflicting commitments coming from the top, that is, from EU institutions. Echoing debates over federalism in the United States, some political actors and observers worry about what horizontal application at a supranational level could mean for the sovereignty of Member States.Footnote ¹²⁵ On the other hand, some are ready to have the European Court of Justice exercise horizontality in a more robust form, as it would serve to confront more directly the question of what kind of a moral community the European Union will be.Footnote ¹²⁶

In this understanding, the question of horizontality relates to the question of where moral or political community exists and the particular commitments comprising that community. In republican terms, the discourses surrounding these issues in such places as the United States and the European Union may be read as articulating a kind of common good with the potential to shape even private relationships. Indeed, in addition to what material outcomes these questions and decisions might engender, they also have an important expressive element, that is, the “effect of the constitutional norm might be … [to signal] approval or disapproval of particular forms of private behavior.”Footnote ¹²⁷ The question, then, becomes whether these discussions ought to take place among the subunits or in more centralized fora. The answer to this question varies both within the United States and across other federal systems.Footnote ¹²⁸ While the US federal structure proves important to a wide range of constitutional questions, including the possibility of horizontal application, it is less important as a consideration in, say, India, where an understanding of state citizenship does not exist to the same degree that it does in the United States, and a transformative constitutional project arguably permits less deference to state governments than that found in American federalism.Footnote ¹²⁹

Relative to the US national government, and even the state governments of many other countries, the American states have fewer barriers to debating questions of constitutional ends and citizens’ duties. This is not to deny the good reasons that may exist for maintaining a state action doctrine, say, in some desire to preserve a sphere of autonomy in private life.Footnote ¹³⁰ Hershkoff acknowledges how this desire “goes to the heart of the liberal project and to the importance of constitutional values” and that it “raises fundamental questions about private life and its relation to collective goals.”Footnote ¹³¹ Perhaps the tendency of state constitutions to consider material concerns more than federal constitutions warrants greater emphasis on “collective goals,” an emphasis that necessarily “constrains our private sense of possibility” more than is generally true at the national level.Footnote ¹³² Such normative considerations are beyond the scope of the present book. However, this book’s republican framework offers a richer lexicon and an analytic lens through which to understand more fully the implications of these constitutional questions, even across levels of government.

Conclusion

Various factors – political, legal, historical – have undoubtedly contributed to the constitutional history of state action and horizontal application in the United States. The purpose of this chapter is not to provide a causal explanation of the outcomes. Rather, this chapter offers one setting, with others to follow, in which to examine discourses surrounding the question of horizontality according to the analytic concepts developed in Chapter 2. For those familiar with American constitutionalism, the emphasis on individual rights and the public–private divide will be unsurprising. However, this book’s interpretive lens facilitates the specific work of analyzing the language and arguments surrounding these developments. Ultimately, this interpretive lens helps to illuminate threads with republican undertones, even in American constitutional discourses. We see these republican threads in concurrences, dissents, other constitutional dynamics not strictly part of court-driven doctrinal development, and in state courts and constitutions. Republican themes fit comfortably, and sometimes are explicitly invoked, in such statements as Harlan’s famous dissent in the Civil Rights Cases,Footnote ¹³³ and in his successors’ concurrences and dissents in the sit-in cases. To think of the United States strictly as a kind of ideal type for doctrines of state action, as is common, thus misses much that is potentially important from a political theoretic standpoint.

That the United States would have had some version of a state action doctrine seems inevitable given the text of the Fourteenth Amendment and the conventional liberal understandings of constitutionalism. Indeed, even Harlan I’s dissent appreciates some distinction between public and private spaces. At the same time, Harlan and successors such as Douglas were ready to acknowledge the significance certain private spaces carried for citizenship and racial equality, as the Radical Republicans had envisioned when they championed the Civil Rights Act of 1875. While a kind of rights-centrism prevails in the predominant doctrinal story, even the archetypal case of state action that is the United States reveals discourses pointing toward certain ends of the community – ends that some constitutional actors came to understand as too constitutive to justify preserving a wholly insulated private sphere. These debates gradually grew out of the transformative constitutional moment embodied in the Civil War Amendments; in contrast, Chapter 4, which is on India, will show how an entire constitutional project, at least on many accounts, was oriented toward transforming both public and private spheres from the beginning. In many ways, the question of horizontal application still has had to be worked out; indeed, it is still being worked out. In another sense, however, it is a question inhering in the Indian Constitution itself. Some of the most influential Indian framers defined their goals in explicit contrast with the rights-centrism that American constitutionalism has come to represent, favoring instead a dynamic constitution centered on equality and nondiscrimination as collective ends.

Despite a range of interpretations of what the Fourteenth Amendment requires and permits, doctrinal practice in the United States remains wedded to a dividing line between public and private, between state and nonstate action. Some provisions of the Indian Constitution likewise stipulate that certain rights control only state action, and some constitutional interpreters have indeed foregrounded such provisions. However, more capacious interpretations of rights, indeed of rights as ends, have contributed to the official constitutional story from its earliest days. From arguments of key framers to later Supreme Court judgments, Indian constitutional discourse often understands rights as requiring more for their protection and fulfillment in comparison with American rights. Amid yet another history tainted by inequality and caste, such crucial political figures as Dr. B. R. Ambedkar, who himself was a Dalit, aimed to fashion a constitution that would break down divisions and ameliorate discrimination. Hence, several constitutional provisions admitted space for the possibility that rights be grounded in larger constitutional ends from which private actors were not necessarily insulated. Examining Indian constitutional arguments through this book’s republican framework reveals a theoretic potential in the discourse. Indeed, various episodes since the Constitution’s adoption in 1950 have been marked by arguments echoing concepts like a common good and duties of citizens. All this has occurred in a context where, like the United States, the reach and nature of equality itself hung in the balance.

In the same way that the US debate cannot be summed up solely in terms of state action or verticality, neither does the Indian debate show an uninterrupted trajectory toward horizontality. Not all of the Indian framers, much less the array of constitutional actors since the Constitution’s adoption, subscribed to the same vision of equality, nondiscrimination, and social justice for India. In the years leading up to the Constitution’s framing, Jawaharlal Nehru, the independence activist and first prime minister, acknowledged that the Indian constitutional moment might be born of merely a “semi-revolutionary situation.”Footnote ¹ Nehru thus showed some confidence that India was approaching the moment in which it would reconstitute itself, as well as a kind of realism that the impetus for such a revolution likely would not pervade the country as a whole. He was right; many did remain tied to structures of oppression that ran contrary to the eventual constitutional vision.Footnote ² Picking up on this idea of a “semi-revolutionary situation,” Jacobsohn and Roznai further suggest that the Indian polity at the time of independence might have been comprised of only “a semi-revolutionary people.”Footnote ³ Even by the time the framers adopted and drafted the Constitution, they point out, divergent strands of thought and conflicting positions contributed to the final document – some supported the project of secularism and equality, while others were inclined to constitute the country on the basis of Hindu nationalism. Even into the twenty-first century, scholars find both transformative and more nationalist conservative interpretations of the Indian Constitution among political actors and institutions.Footnote ⁴

In addition to this different interpretation vis-à-vis the place of equality and nondiscrimination in the Constitution, Granville Austin describes competing understandings of the very content and requirements of these rights. This comes in his account of three “strands” underlying the Indian Constitution’s philosophy: “protecting and enhancing national unity and integrity; establishing the institutions and spirit of democracy; and fostering a social revolution to better the lot of the mass of Indians.”Footnote ⁵ While many observers and constitutional actors understood these three to be “mutually dependent and inextricably intertwined,”Footnote ⁶ these strands also would come to exist in some tension.Footnote ⁷ Most relevant to this book, the traditional rights that one might associate with the second strand’s “institutions and spirit of democracy” did not always sit comfortably with the third strand’s more ambitious goal of “social revolution.” While the former was manifested in the Constitution primarily in Part III’s guarantees, such as equality, the latter appeared in Part IV’s Directive Principles, including the call to institute affirmative action programs (known as reservations) to benefit those populations who were subjected to discrimination.Footnote ⁸ Although the Directive Principles of Part IV were technically nonjusticiable, they were essential to understanding the constitutional vision as a transformative one, charging the state to transcend traditional formulations of rights in favor of more substantive ends across Indian society.Footnote ⁹

Austin’s account, therefore, anticipates both a static element and a dynamic element in the new constitution. Whereas the static provision for, say, the right to equality in Part III, Article 14 would by itself support a more conservative tendency, a more aspirational substantive equality, what Marc Galanter calls the Constitution’s “compensatory theme,”Footnote ¹⁰ arguably comprises a more comprehensive and dynamic vision. Figures like Ambedkar and Nehru, who sought transformation, urged that the Indian project could only be realized fully in recognizing the dynamic element, thus contending “step by step” with a still-unreceptive political culture.Footnote ¹¹ These two elements are likewise present in ensuing jurisprudence of the Indian Supreme Court, which displays both conservative and transformative bents in the handful of decisions in which it has confronted the horizontal application of rights to private actors.Footnote ¹²

In the interest of taking stock and thinking comparatively, in the United States we saw a kind of crescendo of disharmony in constitutional discourses over time, as the limited equality that prevailed in the Civil Rights Cases (pace the Radical Republicans) did not rest easily with the way understandings of equality shifted during the Civil Rights Movement of the 1960s. In contrast, we see disharmony at the very start in India, in the juxtaposition of Ambedkar’s and Nehru’s aspirations with the broader political situation that promised to hamper their vision. Whereas disharmony between public discourses and the official constitutional line proved to be a kind of terminus in America when the US Supreme Court would not revisit the reach of equality during the sit-in protests, it is better characterized as a discursive starting point in Indian constitutionalism since, for many, nondiscrimination and fraternity were ends toward which the country needed to strive but that required more than what some sectors of the polity would permit.Footnote ¹³

It is in a similar spirit that Jacobsohn and Roznai identify a kind of “step by step revolution” in India, involving both “steps backwards and forwards,”Footnote ¹⁴ that incrementally furthered more ambitious understandings of the constitutional project at least in certain moments.Footnote ¹⁵ This same understanding led the Indian framers to provide for horizontal application in several constitutional provisions. Moreover, much about the early constitutional debates possessed a republican valence,Footnote ¹⁶ sometimes explicitly so. Both during the framing and in later episodes of constitutional politics, such republican proclivities can be seen in arguments about transcending more limited understandings of equality and extending duties beyond state actors to involve private actors as well. Likewise, the handful of cases in which the Court has considered horizontal application have often cast the issues at stake in terms that may be conceived of as republican, often deployed in service to transformative understandings of the constitutional project. Indeed, the foundations for such ends-oriented arguments that support horizontal application were established with the 1950 Constitution.

At the same time, arguments less amenable to transformative interpretations, including those respecting horizontal application, persist in constitutional discourse. In certain ways, a continued diversity in the discourse is more conspicuous in Indian constitutional history than in other contexts this book considers insofar as the Indian Supreme Court decides cases in panels, called benches, selected by the chief justice, rather than en banc. In other words, only a few justices at a time, rather than the whole thirty-four member court,Footnote ¹⁷ will typically be charged with deciding a case. Outcomes are thus largely contingent on the composition of those benches and make more tenuous any claims about the court’s doctrinal trajectory. Nevertheless, for the purposes of this book, the practice of deciding cases in benches may put more constitutional understandings on the table for examination. Doctrinal trends may be more difficult to locate, but discursive threads across eras and court cases are quite discernible.

This context engenders arguments similar, in both range and substance, to those that Chapter 3 examined in the United States. Indeed, what follows shows a continual choice in Indian constitutionalism between more transformative and conservative constitutional discourses, with the former generally correlating with the horizontal application of rights. Nevertheless, this chapter also reveals new discursive possibilities when the horizontal application of a range of equality and nondiscrimination rights is more explicitly provided for in the constitutional text and framers’ visions. Of course, a court’s choice to pursue a more transformative or restrained line cannot but be influenced by such contingencies as institutional strength (or limitations, as the case may be) and political will.Footnote ¹⁸ However, pursuant to this book’s project to take constitutional discourses as the focus, the primary concern here is to foreground more theoretic lessons, highlighting the potential republican lines of thinking as Indian constitutional actors, operating amid pervasive inequality, contemplate how the horizontal application of rights might grow out of the constitutional project. From cases ranging from labor to education emerge an interpretation of the Constitution as a far-reaching and public project, where public values are not constrained to particular rights formulations, issues, or spheres but potentially implicate all corners of life and a vast cross-section of the Indian populace.

Freedom and Fraternity: Drafting a New Constitution

The Indian independence movement’s leaders and constitutional framers sought unity and equality in the country’s founding.Footnote ¹⁹ A decade after independence, Nehru articulated the new constitutional project as “to promote fraternity, assuring the dignity of the individual and the unity of the nation.”Footnote ²⁰ “Fraternity” was thus considered a major factor in securing individual dignity and rights, to say nothing of the very unity of the newly constituted polity.

This same idea, that relations between citizens are crucial to the success of a democratic India, runs through the deliberations preceding ratification.Footnote ²¹ Members of the Subcommittee on Fundamental Rights believed that citizens’ duties should not be neglected amid so much discussion of rights. K. T. Shah cautioned that “the constitution would be incomplete, and even futile, if equal stress were not laid on obligations corresponding to rights,”Footnote ²² and that “every one of these rights [in the draft Statement of Fundamental Rights] would be impossible to realise, unless, side by side, toleration is cultivated and enforced.”Footnote ²³ Shah goes on to develop this idea in a way that makes it immediately relevant to the subject of horizontal application, speaking of “the seeming conflict in certain rights due, so to say, to the right of one person or of one group becoming the obligation of another.”Footnote ²⁴ This explanation of a “conflict between rights” and of rights becoming “the obligation of another” gets to the heart of horizontality’s republican character, as it generates new duties in a liberal context.

Throughout these deliberations, the framers seemed to be more concerned with cultivating a culture of mutual obligation among fellow citizens than a more specific doctrinal understanding of horizontality as it might develop in constitutional law. That many of the framers sought a culture of fraternity and understood private actors as having obligations to one another is a far cry from the state action requirement through which equality came to be understood in the American context. And indeed, the United States’ experience with equality (and inequality) had a direct influence on this stage of drafting of Indian constitutional rights to equality.Footnote ²⁵ In his draft articles and notes, the Father of the Indian Constitution himself voiced concern to avoid the discrimination that had lingered in the United States as a result of constitutional actors’ formulations of divides between private and public, state and nonstate action. B. R. Ambedkar’s draft articles explicitly dealt with access to public accommodations, eligibility for various offices, and the like.Footnote ²⁶ In his notes on these particular draft articles, Ambedkar states that he borrowed language for some of the provisions from the Civil Rights Acts of 1866 and 1875, “passed by the Congress of the United States of America to protect the Negroes against unequal treatment.”Footnote ²⁷

Whereas in the American context Justice Bradley worried that these laws would force whites to endure “another kind of slavery”Footnote ²⁸ and Justice Black later worried that reading the Fourteenth Amendment to guarantee equal access to public accommodations would limit liberty too much, Ambedkar and others in the Subcommittee on Fundamental Rights were intent not to understand equality simply in terms of private and public. In Ambedkar’s own words, “Discrimination is another menace which must be guarded against if the fundamental rights are to be real rights. In a country like India where it is possible for discrimination to be practiced on a vast scale and in a relentless manner fundamental rights can have no meaning.”Footnote ²⁹ In this way, deliberations during the constitutional drafting and subsequent debates often understood equality as necessitating at least some cooperation from private actors.

The Subcommittee on Fundamental Rights did not ultimately adopt Ambedkar’s draft articles, but did bring articles before the Constituent Assembly that aimed at securing the right to equality, including the prohibition of discrimination in public accommodations (Article 15), untouchabilityFootnote ³⁰ (Article 17), begarFootnote ³¹ and forced labor (Article 23), and child labor (Article 24). Insofar as the problem of inequality did not distinguish between spheres of life, so too did these provisions presume to bring the new public commitments to equality and nondiscrimination into private spaces.Footnote ³² Many framers’ preoccupation with encompassing private entities in the constitutional plan, and particularly the commitment to nondiscrimination, is evident in Article 15. This Article prohibits discrimination in two separate clauses: one aimed at the state, and the other aimed at private individuals or nonstate actors. Both clauses employ the same language and specify the same protected categories: “religion, race, caste, sex, place of birth or any of them.”Footnote ³³ Though these clauses possess almost identical content, the framers nevertheless thought it necessary to include both in the final Constitution, with Sardar Vallabhbhai Patel going so far as to say both were “absolutely essential.”Footnote ³⁴

In some ways, however, the inclusion of two separate clauses – one obligating state entities, and another private nonstate entities – complicates the story. On the one hand, the fact that the framers thought it was necessary to specify that a right obligated the state suggests a departure from the traditional model in which one could assume that rights only ever obligated the state.Footnote ³⁵ On the other hand, implicit in the fact of these separate clauses is the idea that private and public entities are distinct, and perhaps that their obligations are different. Indeed, Patel describes prohibitions of private discrimination in arenas like restaurants and hotels as “a completely different idea” from the state’s obligation not to discriminate.Footnote ³⁶ Moreover, in detailing additional private establishments, such as “wells, tanks, bathing ghats, roads and places of public resort,” Article 15(2b) prohibits discrimination only in situations in which these establishments are “maintained wholly or partly out of State funds or dedicated to the use of the general public.”Footnote ³⁷ Similarly, Article 14 guaranteeing equality before the law has a state action requirement. The text reads: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Though the framers maintained ambitious ideas of the duties of citizens, they still distinguished between state and nonstate actors in matters of law and politics.

The framers were unlikely to collapse the categories of public and private completely given how this distinction largely defines liberalism and given the generally different capacities of state and nonstate actors.Footnote ³⁸ Indeed, as in other jurisdictions, the importance of the distinction decreases as the means and power of private entities increase.Footnote ³⁹ Nevertheless, the Indian framers’ recognition of some distinction between public and private actors created ground on which a young Supreme Court would argue against horizontal application, at least in particular instances if not writ large. At the same time, much in these early constitutional debates reflects a kind of republican vision of the polity’s problems that the Constitution was designed to address with its attendant duties of citizens. Likewise, the debates and ultimate text do not contain anything quite like the Centrist Republicans’ understanding in postbellum America that drove a wedge between social and civil rights. Rather, the debates reveal comparatively broad consensus during the framing of the Indian Constitution that a right to nondiscrimination required both.Footnote ⁴⁰ Discrimination from any corner of society had to be fought if fundamental rights were to be “real rights” and “have meaning.”Footnote ⁴¹ In this way, Ambedkar and other Indian framers articulated a conception of the Constitution as transformative and, as such, necessarily dynamic. And while traditional understandings about the requirements of equality and nondiscrimination remained present in the discourse, a larger role for private actors in realizing such rights of fellow citizens gained new momentum in constitutional understandings.

The Conservativism of the Early Supreme Court

That the Constitution distinguishes between private and public spaces, and between state and nonstate actors, figured into some of the Supreme Court’s earliest decisions. These followed other countries’ practices, and the conventions of constitutionalism more generally, to confine the application of rights to the state.Footnote ⁴² Early decisions conforming to this conventional understanding include PD Shamdasani v. Central Bank of India (1952)Footnote ⁴³ and Vidya Verma v. Dr Shiv Narain Verma (1956).Footnote ⁴⁴ Nevertheless, these are also ambiguous cases, insofar as the constitutional language alone offers interpretive space in which the Court might have applied the rights in question to private actors had they been so inclined. In these early cases, however, the Court employed a kind of canned understanding of constitutionalism, with only perfunctory consideration of how the Indian Constitution might call for something more or something different. Quoting an earlier case, Justice Bose writes in Vidya Verma, “[A]s a rule constitutional safeguards are directed against the state and its organs and that protection against violations of rights by individuals must be sought in the ordinary law.” Sudhir Krishnaswamy describes this approach as “stipulative and unreasoning” for its inattention to how the constitutional text and its theoretical basis could lead to a different understanding of the scope of fundamental rights.Footnote ⁴⁵ Indeed, it takes as granted conventional accounts of constitutionalism, conceiving of rights as creating a relationship between individuals and the state, and not considering that they might embody certain ends for the polity as a whole. Nevertheless, these two cases did not foreclose the possibility of such an understanding and the future development of horizontality insofar as they limited their analysis to the individual rights provisions in question “instead of deciding the issue wholesale.”Footnote ⁴⁶ In fact, later cases do show a Court understanding the polity’s issues in more republican terms and embracing a dynamic constitutional projectFootnote ⁴⁷ aimed at more ambitious understandings.

In addition to resisting any move toward horizontal application at this early stage, the Court also resisted government efforts to make good on the new constitution’s “compensatory themes,” articulated in the Directive Principles that charged the government with working toward a more substantive equality. In State of Madras v. Champakam Dorairajan, the Supreme Court struck down a state initiative that reserved specific spaces in government jobs and universities for members of lower castes.Footnote ⁴⁸ Whereas the State of Madras had relied on Article 46 of the Directive PrinciplesFootnote ⁴⁹ in pursuing this policy, the Supreme Court operated on a more narrow understanding of the ends of equality and nondiscrimination grounded in a prioritization of Article 16(2),Footnote ⁵⁰ prohibiting discrimination, over other provisions in that same Article 16 that permitted greater complexity.Footnote ⁵¹ Similar to the early cases directly concerning horizontal application, the Court here chose to emphasize some aspects of the Constitution over others, maintaining that quotas in government jobs violated equality under the law. Further, whatever preference the Court already had toward a more conservative interpretation was reinforced all the more by the fact that the Directive Principles were nonjusticiable, in contrast with the equal protection of the laws and other such rights in Part III of the Constitution, the protection of which was clearly within the courts’ purview.Footnote ⁵²

In response to such judgments “impeding the fulfillment of government’s perceived responsibilities” under the Directive Principles,Footnote ⁵³ parliament passed the Constitution Act of 1951. In this First Amendment to the Constitution, a parliament, largely composed of the same members that had drafted the Constitution,Footnote ⁵⁴ pushed back against the Supreme Court’s restrictive decision in State of Madras v. Champakam Dorairajan. The Amendment aimed to clarify a series of rights under Part III of the Constitution, including the rights to property and to equality, in order to preempt further claims that they somehow stood in the way of state-initiated reservation programs. In this way, such affirmative actions to assist historically deprived populations could not be challenged on the basis of discrimination.Footnote ⁵⁵ Jacobsohn and Roznai explain this as “a step forward in the dialogical advancement of a dominant, if not indisputable, view about achieving distributive justice in the polity.”Footnote ⁵⁶ However, the Court did not take even a constitutional amendment as the final word on the question, waging an ongoing battle for power with parliament in the ensuing years.

A couple of decades, as well as several significant decisions and constitutional amendments, later, the Court had a considerable opportunity to push back against parliament in Kesavananda Bharati v. State of Kerala.Footnote ⁵⁷ In this decision, the Court established what has become a crucial concept of Indian constitutionalism, known as the Basic Structure Doctrine, the idea that “specific features of the Constitution are deemed sufficiently fundamental to the integrity of the constitutional project to warrant immunity from drastic alteration.”Footnote ⁵⁸ The initial cause (and effect) of this decision was to declare that the Court in fact had power to determine if an amendment passed by parliament (specifically, the Twenty-Fourth and Twenty-Fifth Amendments) went so far as to destroy, rather than simply modify, the Constitution’s basic structure. In particular, a narrow majority of the Court argued that while amendments could enact some limitations to individual rights, the Constitution permitted such limitations only to a point. The initial impetus for this judgment was, admittedly, to stem parliament’s power against the judiciary. However, this same Basic Structure Doctrine would gain additional legitimacy when parliament did pass dubious constitutional amendments. Indeed, the doctrine has been often enlisted to the cause of a more capacious understanding of the Indian constitutional project, including the support of the Directive Principles and even the expansion of horizontal application.Footnote ⁵⁹

The Supreme Court thus assumed a fairly conservative posture in the years immediately following the Constitution’s adoption. It conceived of individual rights in such a way as to deter parliament’s efforts to enact transformative legislation and, moreover, insisted on a vertical model of rights that limited the influence of constitutional values in private spaces. Constitutional debates and particular provisions distinguishing between state and nonstate action rendered such early decisions against horizontal application viable.Footnote ⁶⁰ Nevertheless, these readings did not accrue in Indian constitutional politics the same entrenched status we see in the more limited interpretations of equality that followed the United States’ Fourteenth Amendment. Indeed, even if the state were the primary guarantor of rights, a larger project, grounded in the debates and constitutional text, aimed at the polity’s more thorough transformation.Footnote ⁶¹ Citing such constitutional understandings, the Indian Supreme Court would ultimately give indirect horizontal application to Article 14’s guarantee of “equality before the law” and “equal protection of the laws” in spite of its state action requirement and would not just support reservations but support them in private spaces, too. Nevertheless, it took years of political conflict and institutional consolidation before the Court began to make such arguments. Nehru might have explained this as part of the step-by-step revolutionFootnote ⁶² that depended as much on political will as on the theoretic potential of the foundations established by the framers.

From Rights to Ends: Toward a Broader Constitutional Understanding

Eventually, the Supreme Court acknowledged a constitutional project more comprehensive than its early decisions suggested, specifically in reassessing the reach of rights in Part III of the Constitution.Footnote ⁶³ As early as the 1963 case State of West Bengal v. Union of India,Footnote ⁶⁴ the Court began to understand rights as also engendering a broad constitutional program. In this understanding, a right was “an obligation imposed not merely upon the ‘State,’ but upon all persons to respect the rights so declared, and the rights are enforceable unless the context indicates otherwise against every person or agency seeking to infringe them.”Footnote ⁶⁵ In this, we see an operative logic different from the aforementioned cases, in that certain rights might, in fact, create duties “for all persons” according to the commitments of the Constitution. In this way, at least some constitutional actors put greater weight on the requirements of particular articles of the Constitution and, not unlike many US cases, expanding the definition of “the State,” per Article 12, to admit further application of rights even under a state action requirement.

In the wake of the Emergency Era of 1975–1977, the Court, chastened by its broad capitulation to executive power, was eager to reassert itself as a defender of all rights and not a mere instrument of the privileged.Footnote ⁶⁶ Emboldened in this way, the Court acted to widen the application of fundamental rights, including through the horizontal application of certain constitutional rights. In People’s Union for Democratic Rights v. Union of India (1982),Footnote ⁶⁷ the petitioners sought to enforce existing labor laws against contractors who were paying less than minimum wage in a construction project. The petitioners argued that the state had failed to enforce these labor laws, but also that the private contractors had violated laborers’ right to equality (Article 14), right to life (Article 21), and rights against exploitation (Articles 23 and 24). With respect to the right against “begar and other similar forms of forced labor” (Article 23), Justice Bhagwati explained that certain constitutional rights were “enforceable against the whole world.”Footnote ⁶⁸ Moreover, he described the right against child labor (Article 24) as “plainly and indubitably enforceable against everyone.”Footnote ⁶⁹ Insofar as Article 14 includes a state action requirement, Bhagwati dealt with it somewhat differently. Rather than giving Article 14’s right to equality direct horizontal application, as with Articles 23 and 24 where horizontality is basically required by the text, he gave this provision indirect horizontal application, expanding the state’s duties to ensure that private entities met minimum wage requirements.

Though limited in some ways, People’s Union is notable for the arguments the Court made in developing horizontal application in Indian constitutional law, particularly on provisions that bear on equality. In spite of some language of state action in the Constitution, People’s Union illustrates how “differently phrased rights may apply horizontally to a different extent and in a different manner,”Footnote ⁷⁰ and particularly those rights that bear directly upon India’s larger project toward equality and nondiscrimination. The concern in this case is clearly not to negotiate equality along a boundary of what is public and what is private, which is arguably how much of the state action discourse in the United States has unfolded. Rather, the Indian Court’s interpretation raises the more positively constructed question of how the right to equality may charge private individuals and nonstate actors to act in certain ways. This approach, Krishnaswamy suggests, serves as a kind of model, “as it pays attention to the constitutional text, the nature of the right, and the context in which the right is claimed.”Footnote ⁷¹ In this way, the Court avoids making all disputes automatically subjects of public law while carving out a space to understand equality as creating constitutional obligations for private citizens.Footnote ⁷²

The specific rationale in People’s Union reveals what is arguably a republican understanding of the issues at hand. As Gautam Bhatia notes, beyond the fact that the workers received an amount less than the minimum wage at the time, the Court focused on the reality of exploitation and force underlying the entire situation. This was not merely a freedom to go about one’s life without interference but a freedom from the power of “market forces” from which employers benefited and which they reproduced in turn.Footnote ⁷³ Thus, Bhatia identifies a labor-republican understanding of freedom in People’s Union, one that appreciates the arbitrary power that human-made structures and systems may impose to the benefit of some and at the expense of others.Footnote ⁷⁴ This conception of freedom finds grounding in the Constitution itself, as such figures as Ambedkar took on more than a rights regime, but also confronted the belief that existing orderings were somehow neutral.Footnote ⁷⁵ Instead, the Constitution embraced a “social vision” that called into question existing economic arrangements and relationships that stood to hamper the project of fraternity. In light of such a goal, attempts to dissect the meaning of the word “freedom” were less helpful than considering “what my moral obligations to you are.”Footnote ⁷⁶ Indeed, in this understanding, individuals and other private actors inevitably garner some obligations to one another.

The judgment in People’s Union thus articulates both the problem of forced labor and its solution in republican terms. In contrast to the logic of state action, which does not offer conceptual space to consider the possibility of citizens’ duties as such, the Court found basis for a republican logic in the constitutional history and text, not least in such aforementioned provisions as Articles 23 and 24 that imply the possibility of horizontality. The Court might have expanded the concept of state action so as to encompass nonstate actors (such as public accommodations) as a practical matter, an approach employed in both the US and Indian contexts at times. However, no concept of individual constitutional duty follows from this reasoning. Instead, in People’s Union, the Court drew from a preexisting lexicon to formulate an understanding of constitutional duty. Admittedly, this case serves as a kind of “signpost to a road not yet taken,”Footnote ⁷⁷ as horizontal application remains nascent in Indian constitutionalism. Nevertheless, the sort of space that People’s Union makes for private obligation finds its origins in the priorities of the framers, as well as the constitutional text itself. “Appealing to the framers’ understandings,” Justice Bhagwati explains that Article 23

That the framers laid the groundwork for the concept of horizontal application could thereby spare the Indian Supreme Court some of the concerns the Warren Court faced in the 1960s when it too was inclined to conceive of cases in more republican terms.Footnote ⁷⁹

The Indian Constitution’s stronger foundation for horizontality in its constitutional vision comes into sharp relief in a couple of cases that have analogs in the canon of American constitutional law. Although legal scholars dispute the status of these cases from a technical standpoint as instances of horizontal application, they do reveal an underlying core that can be cast in terms of republicanism, particularly when contrasted with the analogous US cases. First, Vishaka v. State of Rajasthan (1997)Footnote ⁸⁰ speaks to the issue of the state’s duty to protect in ways not unlike the American case DeShaney v. Winnebago County (1989).Footnote ⁸¹ Apart from the usefulness of this case for its parallels with DeShaney, Vishaka is often considered an important case in its own right for horizontal application in India. Vishaka involved a social worker, employed by the State of Rajasthan, who was brutally gang-raped on the premises of her workplace after she attempted to stop a child marriage. A trial court’s acquittal of her attackers served as the impetus for others to file a class suit to establish laws against sexual harassment. Before Vishaka was decided in 1997, the only relevant provisions against such abuses were those couple of provisions of the penal code under which the social worker had sued. The petitioners argued that these did not adequately address the hazards to women in the workplace and that the issue should take on a weightier constitutional status.Footnote ⁸² The petitioners stated:

Thus, petitioners sought to highlight the state’s failure to protect rights by way of legislation and, by extension, how this failure directly resulted in the violation of women’s rights by private actors.

In his careful reading of the case, Stephen Gardbaum points out that it is not entirely clear who the Court thought responsible for the harm in Vishaka. Indeed, given the facts of the case, the primary harm was arguably that which the assailants inflicted against the social worker.Footnote ⁸⁴ But even clearer in the judgment is the interpretation that the state inflicted a harm in failing in its duty to protect citizens from such crimes and from sexual harassment in general. Though this understanding falls short of direct horizontal application, since the perpetrators are not themselves responsible for upholding rights, this latter reading is a clear instance of indirect horizontal application. Indeed, private actors were still held to the rubric of constitutional principles in the positive action the state took to regulate behavior. What previously would have been a matter of mere tort, contract, and criminal law became “a constitutional wrong” in Vishaka,Footnote ⁸⁵ as the law was made to accord better with constitutional ends.

Recall Justice Rehnquist’s general argument in the American case DeShaney v. Winnebago County, that the Constitution’s purpose “was to protect the people from the State, not to ensure that the State protected them from each other. The Framers were content to leave the extent of governmental obligation in the latter area to the democratic political processes.”Footnote ⁸⁶ This reasoning and its accompanying interpretation of the founding are a far cry from either of the two suggested readings of Vishaka. However one reads it, Vishaka does entail the state’s positive duty to protect individuals. Moreover, while in India and the United States the framers did look to the democratic political processes to execute such protections, it does not follow that in Vishaka such protections were discretionary. Indeed, the Court formulated guidelines instructing that the state should undertake such action as a constitutional matter. In DeShaney, the US Supreme Court insisted on the presence of state action to trigger constitutional rights protections, and that an inaction that led to a private harm was not adequate. In Vishaka, on the other hand, Chief Justice Verma does identify such a positive obligation of the state, thus “widening the scope of application of rights as the court enforces a positive obligation on the state to intervene and decisively alter the relationship between private parties.”Footnote ⁸⁷ Beyond the particular issues of gender equality with which this case was concerned, this reflects the more general divergence between understandings of the US and Indian constitutional projects, the latter being much more concerned with positive steps the state ought to take to remediate such abuses – historical, proximate, and the proximate rooted in the historical.

Also present in Vishaka, and absent from DeShaney, is the understanding that citizens might have duties to one another under the Constitution. While the remedy in Vishaka did not necessarily come by way of the constitutional duties enumerated in Article 51A, insofar as they are not justiciable,Footnote ⁸⁸ the very fact that Chief Justice Verma cites them shows some continuity with the convictions aired in the Constituent Assembly debates. Krishnaswamy understands these constitutional duties as an “interpretive aid” to the Court.Footnote ⁸⁹ Therefore, even if not controlling the case as a doctrinal matter, Verma’s citing these duties suggests that, at some level, “all citizens are under the constitutional obligation not to engage in sexually discriminatory behavior in the workplace.”Footnote ⁹⁰ Contrast this outlook with Mary Ann Glendon’s account of the United States, wherein she describes the “deafening” silence of anything like citizens’ duties in national constitutional law and, in many ways, civic culture.Footnote ⁹¹

Another US case that serves as a useful comparison to this moment in Indian constitutionalism is United States v. Morrison (2000). Indeed, both Morrison and Vishaka concern the introduction of legislation to deter and penalize gender-based violence and harassment. However, in passing the 1994 Violence Against Women Act (VAWA), the US Congress was not acting to fulfill any constitutional duty to protect. Indeed, in Rehnquist’s opinion in Morrison, the Supreme Court decided that the Commerce Clause and Equal Protection Clause did not empower Congress to enact certain sections of the law. Respecting the Commerce Clause, the Court argued that punishing gender-based crimes, as VAWA proposed to do, was beyond the purview of the national government and ought to be left to the states. Moreover, the Court argued that the legislature could not rely on the Equal Protection Clause in regulating private relationships. Citing the Civil Rights Cases as precedent, the Court maintained that the state action doctrine did not permit bringing constitutional commitments to bear on private actors. Neither did the state action doctrine empower the national government to hold accountable state actors, such as the state legislatures, for their inaction to legislate against gender-based crimes.

The decision in Morrison illustrates plainly the contention that the US Congress did not have the same constitutional duty to protect, and indeed could not assume such a duty, as did the Indian Parliament. One could argue that the role of federalism in American constitutionalism makes sense of the outcome in Morrison. Even though India is also a federal country, the arc of its constitutional jurisprudence places much less emphasis on the unique governing power of its states, perhaps symptomatic of differences in its larger constitutional vision.Footnote ⁹² Nick Robinson explains, “In contrast to the American Constitution, which largely solidified the economic and social status quo even while bringing momentous political changes, India’s Constitution was born with an eye towards multiple transformations.”Footnote ⁹³ Moreover, as the 1994 Bommai decision discussed later reveals, such a transformative project on the national scale does not easily allow for significant deference to subnational units. However, separately from the federalism question, the general absence of anything like a duty to protect in the United States is worth noting. The American states could regulate gender-based violence as they wished, but they also could do nothing and face no repercussions, even as state actors. Thus, while the variable of federalism certainly influences constitutional argumentation and the larger story in the United States, the difference between Morrison and Vishaka also points toward a more basic difference that finds expression in Glendon’s insight about the dearth of “duties talk” in the United States. Whereas the Indian Supreme Court in Vishaka mandated government action as a constitutional matter, the US Supreme Court rejected Congress’s initiative as a constitutional matter.

Another case, which has an American analog in the decision of Shelley v. Kramer, may seem to undercut this chapter’s argument at first blush. In 2005, the Indian Supreme Court decided Zoroastrian Cooperative Housing Society v. District Registrar.Footnote ⁹⁴ This case involved a society that restricted membership only to Parsis. Since housing could only be transferred to members, the practical effect of the agreement was that only Parsis were permitted to buy houses in the cooperative society. Both cases thus involved housing restrictions on the basis of classifications that had particular political salience in their respective contexts – race in Shelley, and religion in Zoroastrian Cooperative. To this extent, comparing these cases offers a glimpse into how each polity has addressed fundamental questions of equality among citizens in the common area of housing.

Recall that the US Supreme Court decided Shelley based on the fact that the Court was an arm of the state and would have been implicated in discrimination contra the Fourteenth Amendment if it were to uphold the restrictive housing covenant. While the decision in Shelley technically toes the state action line and distinguishes between public and private spheres, the result clearly approaches and, according to some typologies, even represents a form of horizontal application. Indeed, the case is rightly understood as an anomaly in the long history of state action in the United States. And yet, the Court’s conforming to the doctrine of state action still serves to turn attention away from the actual issue of the case, which was a private harm.

Perhaps surprisingly, the decision in Zoroastrian Cooperative more closely conforms to a strict state action line, at least in the particular outcome the Indian Supreme Court reaches. Rather than relying on the fact that the Court would in effect be upholding the restrictive housing covenant in deciding in favor of the cooperative society, the Court seems to engage the validity of the cooperative society’s agreement itself. While the cooperative society argued its case on the basis of its right to association (Article 19(1)(c)) and minorities’ right to cultural preservation (Article 29(1)), the respondents argued that the restrictive covenant violated public policy, specifically Article 15 of the Constitution that prohibits discrimination in both public and private spaces. Thus, the arguments from both sides invited the kind of substantive analysis the US Supreme Court had avoided in Shelley. Although the Court ruled in favor of the cooperative society, however, it is unclear whether they based their decision on the constitutional rights to association and cultural preservation.

Legal scholars have acknowledged that the reasoning in Zoroastrian Cooperative is “obtuse,”Footnote ⁹⁵ making it difficult to contend with and nearly impossible to come to any definitive conclusion about the controlling rationale.Footnote ⁹⁶ For these reasons, as well as the potentially important fact that this case was decided only by a two-judge panel,Footnote ⁹⁷ the present account of the case is necessarily tentative. There seem to be two lines of reasoning in Zoroastrian Cooperative. On the one hand, although the cooperative society’s bylaw preventing the sale of land to non-Parsis had to conform with “public policy,” the Court argued that conformity with relevant statutory law, namely the Gujarat Cooperative Societies Act,Footnote ⁹⁸ rather than directly with the Constitution was sufficient. It states:

Thus, the Court’s argument amounts to a fairly robust state action requirement, insofar as it maintains some separation between parliament’s ability to legislate private interchange and the Constitution. On this reading, parliament has wide discretion in setting the parameters of such societies without running the risk of implicating the state in any discrimination in which the society chooses to participate.Footnote ¹⁰⁰ Indeed, it may legislate so as to permit such restrictive covenants among religious groups such as the Parsis in spite of the constitutional project to render such categories “legally irrelevant.”Footnote ¹⁰¹ Put differently, private agreements such as the one among the Parsis of this housing cooperative were subject only to such regulatory legislation, and not necessarily the Constitution itself.Footnote ¹⁰²

Zoroastrian Cooperative thus seems to involve a similar reasoning as in Shelley, only reaching the opposite outcome, and even going further in that the state ultimately did uphold the covenant in question. Despite constitutional ends, such as rooting out discrimination and fostering equality, that might hold up public principles as a standard even for private projects, this episode (or at least this first reading of it) signals a kind of retreat to conventional understandings of rights contra the Constitution’s transformative streak. The Court sidesteps both those constitutional provisions that would assign private actors some role in upholding constitutional commitments and those that call upon the legislature to make law in accord with the Constitution. Instead, the Court seems to carve out anew a space in which private actors may enter into contracts unencumbered by constitutional ends.Footnote ¹⁰³

An alternative reading of Zoroastrian Cooperative that is plausible, albeit underdeveloped in the Court’s judgment, is that the Court did engage in constitutional balancing here, and that “its narrow conception of public policy was the conclusion and not the premise of its analysis.”Footnote ¹⁰⁴ In other words, the Court did question and ascertain that the cooperative society’s particular bylaw conformed to the Constitution, and therefore proceeded on this basis to balance the rights to freedom of association and cultural preservation against the right to be free from discrimination. Indeed, there is some evidence for this in the judgment. The Court states:

This discussion about preserving one’s “culture and way of life” suggests that rights such as those found in Articles 19 and 29 did factor into the Court’s judgment, and that the decision in Zoroastrian Cooperative did not hinge simply on the right of private actors to enter any manner of contract under statutory law. Rather than base its decision primarily on a state action requirement, the Court did apply these rights horizontally, in this reading. It simply came down in favor of the rights to association and cultural preservation, in this instance, rather than antidiscrimination. Apart from the fact that the Court seems to refer to these competing constitutional rights, this reading is further corroborated by the fact that contractual rights are, historically, not so prioritized as rights of association in Indian constitutionalism.Footnote ¹⁰⁶ Moreover, which reading is “correct” may matter more for developmental stories than it does for the current theoretical project. That the latter reading of Zoroastrian Cooperative is even plausible demonstrates the theoretical potential for a republican interpretation of horizontality in Indian constitutional discourses.

If there is any merit to this second reading, then this case does involve horizontal application to a greater degree than does Shelley. Indeed, in this latter reading, Zoroastrian Cooperative actually takes up the constitutional substance of the question at stake rather than rely on the fact of judicial enforcement of contracts. One might question, then, how this decision that seemingly favors discrimination comports with the larger purpose of the Indian Constitution. Is not the Indian project founded on the goal of equality and fraternity among all constituent religions, ethnicities, and cultures? The key here may be the fact that the Parsis are a minority population in India. In a similar way, the American case Wisconsin v. Yoder allowed Amish communities to make alternative educational choices for their children, thus acknowledging a need to accommodate differences of particular populations, even as they may sit in some tension with other constitutional commitments. Indeed, such efforts toward accommodation are rooted in other constitutional commitments such as cultural preservation. This is not to say that rights of association and cultural preservation would always trump rights of nondiscrimination. It is unlikely, for example, that such majority populations as adherents to the Hindu faith would have succeeded with the same arguments, since Article 29 of the Constitution refers specifically to minorities’ rights to cultural preservation. As Bhatia argues, the Indian Constitution actually “contains the tools to go one step beyond the solutions advanced in other jurisdictions” when it comes to horizontal discrimination, including restrictive covenants. Indeed, with such provisions as Article 15(2), it may bring the principles of equality and nondiscrimination to bear directly on private actors engaging in a wide range of transactions, whenever constitutional actors are inclined to do so.Footnote ¹⁰⁷

Although one cannot easily sum up the Zoroastrian Cooperative case, one also cannot ignore it when considering the question of horizontal application in India, particularly given the case’s implications for the larger constitutional objects of equality and nondiscrimination. There are good reasons to adopt different readings of the case and to believe that the case’s outcome is circumscribed to the unique set of facts before the Court.Footnote ¹⁰⁸ While one might be justified to draw conclusions about this case only hesitantly, the later case Indian Medical Association v. Union of India (IMA) sheds additional light on the arguments in Zoroastrian Cooperative. Whereas Shelley is a high-water mark for horizontality in the United States, Zoroastrian Cooperative seems to be only one episode in what could be an ongoing thread, pending Court members’ understanding of the Constitution’s ends and, consequently, their receptivity to the republican elements of horizontality. And indeed, in the IMA case that followed a few years later, we see a convergence of discourses concerning the different commitments of Indian constitutionalism – specifically, to the rights enumerated in Part III and the more compensatory scheme of social justice in Part IV. In this later case, the deciding members of the Supreme Court showed themselves willing to engage all parts of the constitutional project. Moreover, in this case the Court employed horizontal application and did so through a republican manner of argument.

Emerging Duties under the Transformative Constitution

A few antecedent battles in Indian constitutional history laid crucial groundwork for the IMA case and expansion of horizontal application. In its early years, the Indian Supreme Court’s judgments showed a kind of “static” interpretation of the Constitution.Footnote ¹⁰⁹ This manifested in its drawn-out battle with parliament, including such episodes as the passing of the First Amendment and the Kesavananda case. Moreover, this static interpretation manifested in the Court’s early horizontal application decisions, which adhered to a state action requirement with respect to Part III of the Constitution. As Jacobsohn and Roznai explain, “[T]he Court became the perfect embodiment of the disharmonies within the Constitution, as it found itself over time on both sides of the tension inherent in the dual commitment to socio-economic transformation and liberal democratic rights.”Footnote ¹¹⁰ Such cases as People’s Union after the Emergency Era and, later on, Vishaka show some shift in the discourse on the reach of Part III rights. While Zoroastrian Cooperative displays adherence to a strict state action rationale, the obscure nature of this decision could be interpreted as additional evidence of a break from prior understandings, at least among some constitutional actors. In contrast with what some readings of Zoroastrian Cooperative might by themselves suggest, later cases reveal some willingness to develop horizontal application further. In particular, the Court has incorporated Part IV of the Constitution, containing the Directive Principles, into its own constitutional purview, a development which certainly bears on the way actors discuss the horizontal application of rights to private actors.

In 1994, the Court decided S. R. Bommai v. Union of India, what has been described as the “linchpin in Nehru’s step-by-step progression.”Footnote ¹¹¹ The case arose amid ongoing violence between Hindus and Muslims following the destruction of a mosque in Ayodhya in the State of Uttar Pradesh. The party in power in the state, the Hindu nationalist BJP, was clearly complicit in its negligence to quell the violence. And so, pursuant to Article 356 of the Constitution, the president of India assumed rule over the state. When the state challenged this action, the Supreme Court explained that, in its failure to take steps to put down the violence, the BJP-led government demonstrated that it “could not be trusted to follow the objective of secularism which was part of the basic structure of the Constitution and also the soul of the Constitution.”Footnote ¹¹² Furthermore, since the Constitution “does not provide for its own demise,”Footnote ¹¹³ the president’s actions were justified as necessary to save the basic structure of the Constitution, including such fundamental principles as secularism as an instrument of equality and the larger catalog of Directive Principles in Part IV.

In Bommai, the Court extended the Basic Structure Doctrine of Kesavananda beyond constitutional amendments to bear on the actions political actors pursue in the course of ordinary politics. Put differently, apart from the electoral repercussions politicians risk in ignoring the Directive Principles, the decision in Bommai established that “a Government will also have to answer for ignoring the Directive Principles of State Policy in a court of law.”Footnote ¹¹⁴ In this way, the Court embraced within its purview the same Directive Principles previously considered unenforceable, realizing a conviction that motivated many in the Constituent Assembly, namely, that the soul of the Constitution included both Part III and Part IV.Footnote ¹¹⁵ Bommai thus marks an important moment in the larger constitutional revolution of which Nehru spoke, and a significant point of distinction from the US DeShaney case. Specifically, it rendered state inaction respecting the Directive Principles constitutionally liable and subject to the judgment of the Supreme Court. Moreover, Bommai set the stage for applications of horizontality that also incorporated the Directive Principles, as became evident in the IMA case.

In IMA,Footnote ¹¹⁶ the Supreme Court applied Bommai to the effect of embracing a transformative constitutional understanding, specifically understanding duties of private actors as emerging not only from some of the rights enumerated in Part III but also potentially from the Directive Principles of Part IV. In short, the Court in IMA brought the Basic Structure Doctrine to bear on parliament’s efforts to effectuate the Directive Principles by way of constitutional amendment. In addition to the usual issues surrounding the enforceability of social policy and the practice of reservations in particular, however, the Court faced the additional question of how such initiatives applied horizontally. Specifically, it considered the validity of the Ninety-Third Amendment to the Constitution, adopted in 2005, that laid groundwork for legislatures to extend to private actors the charge to maintain reservations in education – essentially guaranteeing a requisite level of representation across spheres of life for members of castes and other groups that had faced systematic disadvantage in Indian society. The Amendment added a fifth section to Article 15 of the Constitution that read:

Similar to the First Amendment discussed above, this Ninety-Third Amendment aimed to ensure that Article 15’s guarantee of formal equality would not be deployed against efforts to realize a more substantive equality. However, that this Amendment applied to both public and private educational institutions made it importantly different from prior constitutional developments. Indeed, this Amendment directed the momentum of more capacious understandings of the constitutional project toward private spaces, specifically private educational institutions. Whereas the division between Part III and Part IV of the Constitution (as well as other divisions, as between Article 15(1) and Article 15(2)) had provided grounds on which to circumscribe an already limited conception of horizontal application, the Ninety-Third Amendment began to break down some of these divisions, acknowledging that some constitutional ends would implicate private actors.

Pursuant to this new amendment, the Delhi Act of 2007 prohibited certain educational fees and mandated that a number of seats in all educational institutions be reserved for “Scheduled Castes, Scheduled Tribes and other socially and economically backward classes.”Footnote ¹¹⁸ In the very next year, a private, unaided professional school in Delhi, called the Army College of Medical Sciences, was founded, admitting to their student body only “wards, or children of current and former army personnel and widows of army personnel, who, the school’s defenders claimed, had experienced educational disadvantages relative to the civilian population.”Footnote ¹¹⁹ The school ranked applicants according to their test scores, but made no distinction on the basis of social, economic, or cultural background, other than meeting the army personnel requirement. Therefore, while the population the school aimed to serve might have faced disadvantages of their own, the school’s admission policy did not necessarily benefit those populations belonging to the castes and backward groups the Delhi Act and, by extension, the Ninety-Third Amendment aimed to protect. The appellant argued that the law and amendment were both contrary to the basic structure of the Constitution insofar as they constituted “unreasonable restrictions” under Article 19 (detailing the “Right to Freedom”) and were likely to destroy the freedom to maintain such unaided nonminority educational institutions.Footnote ¹²⁰

In prior years, the Court might have invoked the Basic Structure Doctrine of Kesavananda to uphold a more limited or “static” equality that favored the Army College of Medical Sciences’ case. Instead, however, the Court followed Bommai in that it acknowledged parliament’s efforts to implement the Directive Principles and thereby secure a more substantive equality as part and parcel of the larger constitutional project. In this understanding, the Ninety-Third Amendment did not betray the Basic Structure Doctrine, but rather moved the country forward in a protracted constitutional revolution. Moreover, the particular fact that the Amendment and subsequent law included such private institutions as the Army College of Medical Sciences in its efforts to achieve greater equality did not detract from the constitutional vision. Rather, this effort to reach into private spaces was in line with the vision many in the Constituent Assembly articulated – to bring private actors into the fold of the constitutional project and inculcate a conception of fraternity among citizens. Insofar as abuse occurred and inequality existed without distinction between public and private spaces, so too must the Constitution ultimately reach these spaces. The Court seems to adopt this position for itself in the IMA case, directly speaking to the relationship between constitutional ends and duties of citizens. It states, “[T]he same concerns of national purpose, goal and objectives that inform the constitutional identity [do not] miraculously disappear in the context of the private sector.”Footnote ¹²¹

Furthermore, the Amendment in question not only was consistent with the Constitution, in the Court’s telling, but actually augmented the fundamental constitutional project that had long aimed at transforming the private sphere to effect equality and even fraternity among citizens. Even apart from the new Clause 5 the Ninety-Third Amendment added to Article 15, the Court briefly acknowledged how the preexistent Clause 2 in Article 15 also serves to ground the Delhi Act of 2007.Footnote ¹²² While, prima facie, this provision simply provides recourse for discrimination in “access to shops, public restaurants, hotels and places of public entertainment,” the Court finds in Article 15(2) nothing less than the Constitution’s “conception of social justice,” a conception meant to apply more extensively than standard definitions of “shops” might suggest.Footnote ¹²³ Indeed, the Court maintained, one must read this provision in the context of the polity’s “national aspirations of establishing a society in which Equality of status and opportunity, and Justice, social, economic and political.” Understood through this lens, private establishments must “not contribute to the perpetration of unwarranted social disadvantages associated with the functioning of the social, cultural and economic order.”Footnote ¹²⁴ The Army College of Medical Sciences was perpetuating such disadvantages by not considering the disparate impact their admission standards had on different populations, thereby hampering the Constitution’s end of substantive equality.Footnote ¹²⁵

This effort to bring equality into private spaces took many forms over the years, involving different rights from Part III and, as in IMA, different Directive Principles from Part IV. Moreover, that the question of horizontal application occurred in the specific area of education was not particularly surprising. Insofar as many Indian schools are privately run, bringing education into line with constitutional ends could not but raise the question of horizontal application. Education was a natural sector in which to give effect to constitutional commitments, as education influences so much of the life and future of a polity, as well as how citizens relate to one another and relate to the Constitution. The upshot of such regulation was that schools, including private schools, faced a real call to action when the Delhi Act required the implementation of reservations. This application of horizontality was never going to be instantaneous or effortless. Indeed, these regulations entailed a fundamental shift in the mission of the Army College of Medical Sciences as initially conceived. But then, the Indian Constitution was never going to be an instantaneous or effortless project. As Jacobsohn and Roznai explain, “Since the greatest potential societal effect of group-based admissions policies implicates the private domain, it is only appropriate that a case confronting that issue directly became the occasion for instructive reflection on India’s constitutional revolution.”Footnote ¹²⁶ Thus, more than any of the preceding decisions that implicated the question of horizontal application, the IMA case shows a clear shift from rights-centric understandings to republicanesque discourses concerning constitutional ends and how those ends involve the cooperation of private actors.

The Future of Horizontal Application?

Observers of Indian constitutional politics may find a worksite for the continued development of horizontal rights in questions of religion – an ongoing issue that strikes at the heart of India’s constitutional project. Scholars have described religion in India as “thick” insofar as it occupies a central role in public life in comparison to many other countries today.Footnote ¹²⁷ Many religious practices also stand at odds with constitutional commitments to equality, propagating systems of caste and gender discrimination, for example. Thus, insofar as it adopts a transformative vision, the Indian Constitution could not avoid confrontation with religion.Footnote ¹²⁸ The practical complexity of such reform is clear, as religion is deeply constitutive of many diverse people’s lives and even daily habits.Footnote ¹²⁹ Additionally, a kind of theoretical complexity accompanies these issues. In any context, religion serves to introduce an alternate and independent set of standards – one might even say an alternate set of laws – to the conversation.Footnote ¹³⁰ Thus, whereas questions of horizontality always involve balancing, the particular issue of religion raises unique challenges as religious communities within a polity maintain potentially different understandings of, say, the common good. One necessarily confronts the question of whether and how religious groups should be treated like other nonstate actors such as businesses or private employers. While all countries confront such questions in some form, they become more salient in contexts like India, where religion plays a thick role in daily life and constitutional understandings assume ameliorative or transformative ends.Footnote ¹³¹

The question of the relationship between religion and politics is as old as both religion and politics. However, to adapt the question to the terms of this book, we might ask how horizontality’s function to apply public norms across the polity comprehends the existing norms of religion. To the extent one understands liberalism as requiring a kind of sequestration of religion to a separate private sphere, both for its own sake and for the sake of civil peace, this issue might serve to reveal the reach and usefulness of this book’s republican framework. In short, while a constitution inspired by conventional liberal accounts would likely preserve wider latitude for religious practices, a constitution assuming the republican elements that this book identifies with horizontality may be more inclined to take on the moral question of balancing religious and civil norms against one another. More specific to the Indian context, the Constitution guarantees both freedom of conscience (Article 25) and group rights that allow a religious denomination to “manage its own affairs in matters of religion” (Article 26).Footnote ¹³² At the same time, both Articles 25 and 26 include limitation clauses that admit of some state regulation of religious practices. Unsurprisingly, these dual commitments have come into conflict time and again. The question, for Indian constitutional actors, is how to adjudicate these sometimes-diverging commitments.

These musings necessarily raise the question of horizontal application and, more specifically, the obligations of religious denominations vis-à-vis constitutional commitments to equality and antidiscrimination. The question comes into sharp relief in the 2018 case Indian Young Lawyers’ Association v. State of Kerala, often called the Sabarimala case, considering whether overseers of the Sabarimala Temple should be made to admit women in spite of the long practice of barring women between the ages of ten and fifty. Indeed, the controversy goes back decades and has continued to be disputed even after the 2018 judgment.Footnote ¹³³ The Supreme Court’s current habit in such cases is to weigh whether the practice in question constitutes an “essential religious practice.”Footnote ¹³⁴ If the Court deems something “essential,” then that practice remains protected from regulation under Articles 25 and 26. If not, then that religious denomination incurs duties to adjust their practices to align better with, say, the constitutional principle of equality. And indeed, the Court decided in the Sabarimala case that restrictions to temple entry were not essential to Hinduism and, on this basis, regulable.

In some ways, the essential religious practices test seems deferential toward religion, permitting those practices that run up against constitutional commitments if they are essential.Footnote ¹³⁵ As with any issue raising the question of horizontality, however, religious authorities may still be called to support such public projects as promoting equality, as we saw in the Sabarimala case. The essential religious practices test poses unique challenges, moreover, in that it entangles the Court in “knotty questions of religious and theological doctrine.”Footnote ¹³⁶ Indeed, some criticize the merits of this doctrinal test on the very basis that it charges the state with evaluating and defining the content of religion.Footnote ¹³⁷ Gautam Bhatia, for example, proposes an antiexclusion principle to decide such cases, calling on the Court instead to determine how religious practices bear on secular ends, rather than try to discern the essential practices that should be a matter internal to a given religion.

In addition to being grounded in text and history, an antiexclusion principle avoids the difficulty of a court attempting to discern a religion’s essential practices. Instead, this principle operates on a basis that the Constitution itself adopts and cognizes. Arguably, in this understanding a republican logic is more pronounced, as nonstate actors are held to account for the constitutional project regardless of how it might bear on their religion. Put differently, the antiexclusion principle explicitly operates from the perspective of the state, whereas the essential practices test at least presumes to operate from the perspective of the religion in question, in spite of the aforementioned difficulties of this approach. While the antiexclusion principle is more upfront in its prioritization of constitutional principles, this posture may well be constitutive of any project understood as transformational. In a similar vein, Bhatia explains:

While a transformative project is likely to call for a prioritization of public values in most any context, this seems especially true in a country like India where the project itself has been defined in terms of reshaping deeply rooted religious practices. Put differently, such a transformative project as found in India, by definition, prioritizes the ultimate realization of constitutional ends over certain religious practices.

Cecile Laborde argues in favor of treating religion differently from how “separationist” models, such as the essential religious practices test, propose. Specifically, she argues for a “minimal secularism,” maintaining that religion ought not to be singled out for special treatment when it clashes with public projects, particularly “liberal democratic ideals.”Footnote ¹³⁹ Rather, in her telling, religion should be subject to regulation in much the same way as any other area of life. Evidence of such alternative approaches seems to be present in both India’s constitutional text and history. In fact, a couple of justices have hit upon a similar approach in their judgments – specifically, Chief Justice Sinha in his dissent from the 1962 case Saifuddin v. State of Bombay, and Justice Chandrachud in his concurrence to the Sabarimala judgment. Both judges focus on the impact of each respective case on the public project of antiexclusion, as Bhatia and Laborde advocate, rather than have their argument hinge on any elaboration of religious doctrine.Footnote ¹⁴⁰

Another emergent issue that potentially triggers horizontal application is the rights of same-sex couples. In 2009, the Delhi High Court decided Naz Foundation v. Union of India, overturning a colonial-era provision in the penal code that criminalized homosexual activity on the basis of Article 14 (Equality Before Law), Article 15 (Prohibition of Discrimination), and Article 21 (Protection of Life and Personal Liberty).Footnote ¹⁴¹ Soon after the case was decided, Tarunabh Khaitan described the judgment as a natural conclusion given the principles of the Indian Constitution. He states, “Given the liberal, secular and egalitarian Constitution of India, it is the opposite result that would have surprised constitutional lawyers.”Footnote ¹⁴² And yet, that is exactly what the Supreme Court did four years later. In Koushal v. Naz Foundation, the Supreme Court overturned the Delhi High Court’s 2009 decision and, with it, what Khaitan had described as a “new deal for all minorities.”Footnote ¹⁴³ The Court cited in its reasoning the “principle of presumption of constitutionality” of legislation and the need to ground important decisions in the principles of the Indian polity rather than of foreign jurisdictions (as the Delhi Court had).Footnote ¹⁴⁴ Finally, in the back-and-forth fashion that, Jacobsohn and Roznai argue, defines the arc of India’s constitutional history, the Supreme Court revisited the issue in 2018, this time ruling in favor of decriminalization. The Court stated:

In this way, the Court ultimately argued in its unanimous decision that “the constitutional morality” required this new application of the equality principle in India.Footnote ¹⁴⁶

Insofar as the decriminalization of homosexual activity involved questions about the penal code, this particular sequence of cases implicated only the state and state action. Nonetheless, the Court seized upon the opportunity in its 2018 decision to lay groundwork to extend rights obligations further. It stated:

From the beginning, the Indian constitutional vision was one of “fraternity.” In this light, it is somewhat unsurprising that the Court would gesture toward implications for private actors even as the case itself created obligations only for the state. As a practical matter, this digression in the Court’s argument may foreshadow future moves to hold public accommodations accountable for this extension of the Constitution to gay rights, contingent, of course, on individual justices’ inclination to develop horizontal application further and to do so in the particular arena of gay rights.Footnote ¹⁴⁸

Apart from laying judicial groundwork for horizontality in such dicta described above, a symbolic element pervades this and other decisions,Footnote ¹⁴⁹ in a way similar to how the Constitution itself includes both material and expressive elements. In discussing the significance of the Directive Principles, Marc Galanter explains, “The compensatory discrimination policy is not to be judged only for its instrumental qualities. It is also expressive: through it Indians tell themselves what kind of people they are and what kind of nation.”Footnote ¹⁵⁰ In a similar vein, in the most influential understandings of the Indian constitutional project, the public and the private were never essentially distinct; rather, both spheres speak equally and speak together to what “kind of people” and “what kind of nation” India aims to be.

Conclusion

While it would be an overstatement to say that Indian constitutionalism includes a developed practice of horizontality, this chapter shows certain republican theoretic themes in the discourse that have the potential to support more extensive horizontality, particularly with respect to equality rights. In various episodes, constitutional actors have connected the success of the constitutional project with what transpires in private spaces. From the arguments of such crucial figures as B. R. Ambedkar to the 2011 IMA case, understandings of private actors as having constitutional duties emerge. Indeed, some constitutional actors have understood such duties to emerge not only from those rights enumerated in Part III but also potentially from the Directive Principles of Part IV. Contrast this with the early adoption of a strict vertical model in the United States. That there exists a separate private sphere not subject to constitutional standards steers much of the discourse in that context. This is true even in spite of arguments of the Civil Rights Movement premised on more ambitious understandings of equality and of citizens’ duties. In both contexts we find some republican potential in early formulations and ensuing debates concerning equality’s horizontal application. As courts and constitutional actors continually question whether horizontality emerges from the constitution, however, the discourses in these two constitutional orders tend to exhibit different presuppositions – namely, presupposing vertical relations in the United States, and admitting, or creating, space for some understanding of horizontal relations in India.

The aforementioned cases notwithstanding, the Indian Supreme Court has not frequently enforced constitutional commitments to equality and antidiscrimination in its case law. Likewise, these commitments have often proven not to take root in civil society as a practical matter, as evinced in ongoing social boycotts and the lack of national antidiscrimination law.Footnote ¹⁵¹ However, these established constitutional commitments continually inform debates to presuppose that public ends bear on private spaces and that private entities may have constitutional duties. Recurring in Indian constitutional discourse, including in official accounts, is an understanding of equality as seeking more substance, and as aiming toward fraternity among citizens. In this way, Indian constitutionalism points toward a horizontal project, and one that constitutional actors frequently articulate in republican terms.