DO CONSTITUTIONAL RIGHTS BIND PRIVATE INDIVIDUALS?

Victor Ferreres Comella 1 I. TWO POLITICAL TRADITIONS The rights that are enshrined in liberal-democratic Constitutions are normally understood to express the basic rights that all persons are entitled to have ("human rights", "fundamental rights"). If one asks, "Do these basic human rights bind the State exclusively, or do they bind private individuals too?", the answer seems straightforward: they bind both. When A murders B, he violates B's right to life. When A steals an object from B, he violates B's right to private property. In fact, according to liberal theory, the existence of the State is justified in order to safeguard the "natural rights" that are at risk in the circumstances of the state of nature. In those circumstances, it is not the State that violates rights (since it does not exist), but private individuals. When the State is erected, an awesome power is transferred to it (the power to impose criminal penalties) in order to ensure that private individuals will respect the fundamental rights of other individuals. The great contribuition of liberalism, however, lies in its insistence that the State may be tempted to abuse its powers and violate the rights for the protection of which it has been established in the first place. Thus, the State is there to protect private property against the attacks of others, but the risk exists that the State will use its powers to deprive individuals of their property (the State may want to take property without paying compensation, for example). Constitutional mechanisms are then established: the State is limited by a Constitution that distributes power among different branches, and that imposes restrictions on the exercise of that power in the name of individual rights. (So, for example, the State is
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Pompeu Fabra University.

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constitutionally prohibited from taking private property without paying just compensation). Through these techniques, natural rights become "constitutional rights". In every liberal State, then, individual rights are both the foundation and the limit of governmental power. Nevertheless, the European tradition has been more sensitive than the American one to the foundational idea that the State is the guardian of rights. It has emphasized the protective role of the State against violations by private individuals. To put it in Owen Fiss' terms, the State is basically viewed, not as an "enemy" of liberty, but as a "friend" of it2. In the United States, in contrast, the role of the State as the guardian of rights is deemphasized and its potential for harming liberty is placed at the center of public attention. In order to account for this contrast we must bear in mind the different meaning of the two great liberal revolutions that took place at the end of the XVIIIth century. The French Revolution used the State to liberate individuals from the feudal constraints that remained in society. Thus, the very same National Assembly that in August 1789 approved the Declaration of the Rights of Man and of the Citizen decreed the abolition of the feudal structures that still existed in France. The American Revolution, in contrast, was basically an act of liberation against a governmental power, a revolution that did not radically transform the relationships between private individuals, since these were already taking place within the framework of a liberal society3.

Owen Fiss, The Irony of Free Speech (Cambridge: Harvard University Press, 1996).

This important difference between America and France was stressed by Alexis de Tocqueville in his work Democracy in America (1835). Louis Hartz explored it some decades ago in The Liberal Tradition in America (San Diego: A

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Indeed, European liberalism sometimes goes so far as to suggest that the absolute State (against which the revolution arose) was a necessary basis for the liberal State. The conquest of liberty is viewed as a historical process that has two "moments": At first, all the power is centralized in the State, so that no private individual will have any power over another. This is the historical role of the absolute monarchy, which takes all powers from the feudal lords (jurisdictional powers, tax powers, etc...), and puts all private individuals in a position of equality. All of them are deprived of power and, because they are at an infinite distance from the King (who has all the power in his hands), they become "equals". Later on, the State must be limited through constitutional mechanisms: a system of separation of powers is established, and the validity of the governmental acts is conditioned upon their being in harmony with a collection of rights and liberties. The European liberal tradition has incorporated these two "dialectical moments" in its political discourse. In fact, the French revolution represents the fusion of these two moments, since it limits the powers of the State at the very same time that it brings to complete fulfillment the work that was entrusted to the absolutist monarchy: the destruction of feudalism to liberate the individual. The contrast between these two traditions is mirrored, for example, in a different understanding of the principle of separation of powers. Within the European tradition that emerges from the French Revolution, this principle is basically based on the idea that there are different functions that should be assigned to different organs of the State, so as to benefit from a division of labor. Strictly speaking, as

Harvest/HBJ Book, 1955).

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Elisabeth Zoller explains, there is no separation of "powers" (since Parliament is the supreme organ of the State), but merely a separation of "functions"4. In contrast, the American tradition embraces the principle of "checks and balances": different governmental organs share (to different degrees) the exercise of the same functions, so as to be able to control each other5. The State is going to find less obstacles to radically transform society in the first case than in the second. A system of "checks and balances" is thus based on an implicit preference for the statu quo. II. TWO CONSTITUTIONAL TRADITIONS Up to now I have highlighted the contrast between two different political traditions, which are more or less willing to embrace the State as a guardian of individual liberty. What connection is there between the question of the role of the State, on the one hand, and the question whether constitutional rights should bind private individuals, on the other? From a conceptual point of view, these are separate questions. For it is one thing to insist that we need the State to actively protect fundamental rights against private violations. It is quite another to say that the Constitution is the appropriate means to regulate the relationships between private individuals as far as fundamental rights are concerned. In practice, however, the two questions are linked, for the political tradition strongly influences the way in which the constitutional tradition is articulated. If the State is basically seen as a natural enemy of

Elisabeth Zoller, Droit constitutionnel (Paris: Presses Universitaires de France, 1998), pp. 305-308.

In Federalist Papers number 47, James Madison rejects a conception of the separation of powers that would not admit any degree of overlapping between the functions of the different branches.

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liberty, the Constitution will focus on the relationship between individuals and the State. In contrast, if the protective role of the State is emphasized, it is easier to accept the idea that the Constitution should include norms that regulate the relationships between private individuals. Thus, the "state action" doctrine of American constitutional law, which requires the presence of the State for a court to be able to say that there has been a violation of a constitutional right, fits well with its political tradition, which has been especially worried about the need to limit the power of the State. In contrast, in some European countries (due, in large part, to German influence), it is accepted that constitutional rights produce effects in contexts where the State is not present. This is the so-called "horizontal effect", or "third-party effects" of rights (Drittwirkung)6. In general, the European Court of Human Rights (whose case law reflects the common principles of the European legal culture) has accepted the idea that human rights are also binding on private individuals7. All this makes sense given the European emphasis on the protective role of the State.

Concerning this doctrine, with references to Germany and Spain, see Juan Maria Bilbao Ubillos, La eficacia de los derechos fundamentales frente a particulares (Madrid: Centro de Estudios Politicos y Constitucionales, 1997). Two more or less extreme decisions in this direction are "X and Y v. The Netherlands" (1985), and "A v. United Kingdom" (1998), where the Court goes so far as to hold that the State is required to use its criminal powers in order to protect human rights against attacks by private individuals. In the first case the Court held that the person that had forced a mentally handicapped girl to have sexual intercourse with him had violated her human right to physical and moral integrity; and that the State, by not bringing charges against him, had also violated her right. In the second case, the Court said that the step-father who had beaten his son with a cane, in order to chastise him, and had caused him serious injuries as a result, had infringed his right not to suffer cruel treatment; and that the State, by acquitting the stepfather on the grounds that it is a defence for parents to use a reasonable amount of force in order to chastise their children, had also violated that right.
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This contrast between the American and the European constitutional traditions is not as clear-cut as it is sometimes said to be, however: On the one hand, we should not forget that in the United States the "state action" requirement is historically linked to the problem of the distribution of powers between the Federation and the States. When the Supreme Court in 1883 invalidated the Civil Rights Act of 1875 (a federal statute that banned racial discrimination by private individuals in certain contexts), it did so on the grounds that the Fourteenth Amendment to the federal Constitution protects the right to the equal protection of the laws against the States, not against private individuals, and that, therefore, Congress is not authorized to enact legislation in this area under section 5 of that Amendment. It is for the States, the Court held, to guarantee the private dimension of equality. Now, it is true that the vast majority of States have not protected this aspect of equality through their Constitutions. But some have. Thus, the Constitution of California protects the right not to be discriminated against in entering or pursuing a business, profession, vocation or employment (Article 1, Section 8); the Constitution of Illinois protects equality in connection with the hiring and promotion practices of any employer or in the sale or rental of property (Article 1, Section 17); the Constitution of Louisiana protects individuals against discrimination in public accommodations (Article 1, Section 12); the Constitution of Montana guarantees a general right not to be discriminated against by any person or firm (Article 2, Section 4); and the same is true of the Constitution of New York (Article 1, Section 11).

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Constitutional clauses of this sort should not be disregarded or minimized as if they were completely foreign to the American tradition.

On the other hand, in Germany (the most influential country in Europe in this regard) the dominant thesis is that constitutional rights do not bind private individuals directly. In its famous decision in the "LUTH" case (7 BVerfGE 198, 1958), the German Constitutional Court started from the premise that it is the State that is bound by constitutional rights. It held, however, that when the Constitution guarantees a set of rights against the State, it also protects an "objective order of values" that must influence all the branches of the law, Private Law included. The consequence is that both the legislature, when it regulates relationships between private individuals, and courts, when they interpret and apply legislation, must take into account that order of values. If they fail to do so, they violate the constitutional rights that are at stake, and their decisions can be challenged before the Constitutional Court. Although fundamental rights are actually guaranteed against private parties in this way, the official thesis is that, formally, those rights are only binding on the State. So although there is an important difference between the American and the European tradition when it comes to the question whether constitutional rights should bind private individuals, there are some features in each tradition that make the contrast a more nuanced one. III. IN DEFENCE OF THE PRINCIPLA THAT CONSTITUTIONAL RIGHTS SHOULD BIND PRIVATE INDIVIDUALS

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In the next pages I want to defend the thesis that constitutional rights should influence the relationships between private individuals. If this thesis is acceptable, we should then say that those rights are directly binding on private individuals. The dominant view in Germany (which admits an indirect effect only, through the notion of an "objective order of values"), offers an unnecessarily complicated picture of things. If we admit that constitutional rights must have an impact on the relationships between private individuals, we should say that this is so, quite simply, because private individuals are bound by them8. Note that the question that this thesis answers in the affirmative is an "institutional" question, not a "substantive" one. That is, what is being discussed (at least, for the purposes of this paper) is not whether the State may grant individuals certain rights against others (so, for example, whether the legislature may grant workers the right not to be discriminated against on the ground of race or sex by the employer). What is at issue here is whether the Constitution is an appropriate means to protect those types of rights. I am going to defend the affirmative answer to this question, against four possible objections, which invoke: (1) the nature of the Constitution; (2) the asymmetry in the risk of mistakes made by the State; (3) legal certainty; (4) individual liberty.

An objection that is usually made, both in Spain and in Germany, against the thesis of direct effect is this: The "constitutional complaints" for violations of fundamental rights, which can be filed before the Constitutional Court, can only attack acts of public institutions. The act in question may be the decision of a civil court that has not decided in a constitutionally proper way a case that involves two private parties. But it is always an act of a public institution that is formally challenged. Now, does this mean that we must reject the thesis that holds that constitutional rights bind private individuals? I do not think so. The fact that a particular procedure (the constitutional complaint) can only be instituted against acts of public institutions does not say anything about whether or not private individuals are directly bound by constitutional rights. It is perfectly plausible to say that constitutional rights bind private individuals; that this is the reason why judges must take them into account when they decide cases; and that if they fail to do so, their decision can be attacked through a constitutional complaint. The fact that the complaint can only be filed against the judicial decision does not mean that before the judge intervened there was no violation of a constitutional right.

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IV. FIRST OBJECTION: THE NATURE OF THE CONSTITUTION The first objection makes reference to the "nature" of the Constitution. According to this objection, a particular domain is to be ascribed to the Constitution: the domain that covers the relationships between the different organs of the State, and the relationships between private individuals and the State. The Constitution must establish the basic principles in this area. Its function is to structure and restrict the State. The relationships between private individuals, in contrast, are beyond the domain of the Constitution so understood, and must be dealt with by the legislature and by judges (through the common law). To expand the constitutional domain to include the relationships between private individuals is not congruent with the nature of the Constitution. In order to answer this objection, two points can be made: First, there is a fundamental sense in which the Constitution that includes norms that regulate the relationships between private individuals is still a Constitution that restricts the State. This is so because the Constitution, as the higher norm of the legal system, will always restrict the legislature, which is an organ of the State. Note that when the Constitution regulates the relationships between individuals and the State (when, for example, it guarantees the right to be paid just compensation by the Administration if property is taken), it deals with a matter that the legislature could also regulate. If the Constitution has partially addressed this matter, instead of leaving it to the legislature, this is because it wants to ensure that a particular norm (the II-9

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one that guarantees the right to be compensated if property is taken) will prevail over a contrary norm enacted by the legislature. In the same way, if the Constitution includes some norms that concern the relationships between private individuals, its purpose is to make sure that those norms will prevail against contrary norms passed by the legislature. In both cases, then, the Constitution restricts the legislature, which is an organ of the State. Secondly, the political function of the Constitution is not served very well by a conception that excludes from the constitutional domain the relationships between private individuals. The Constitution tries to express the fundamental values of the community, so as to ensure that the political controversies that will emerge in the future will be decided in light of those values. Many of the controversies about rights refer to conflicts between individuals9. If this is so, there is then a pressure in favor of an "expansive conception" of the constitutional domain (that is, a conception that includes the relationships between private individuals), instead of a "restrictive conception" (which excludes them). Sometimes, however, a restrictive conception is embraced, but some conflicts between private individuals are translated into conflicts between a private individual and the State. In this process, some of the individual rights at stake appear through the back door, so to say, clothed as "governmental interests".

Thus, the two great controversies of the first century and a half of the history of the United States referred to conflicts within the private sphere. The debate over slavery addressed the question whether a person may hold private property in another person. The Thirteenth Amendment constitutionalized the negative answer. (This is the only clause of the federal Constitution that directly protects a right against private infringement). The next debate concerned the relationship between property owners and their workers. In LOCHNER v. NEW YORK, 198 U.S. 45 (1905), the Supreme Court decided that private property had to prevail, but some decades later it allowed the State to impose restrictions on this right in order to protect workers.

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This can distort the debate, at least as far as citizens understand it. The following examples will illustrate what I mean: a) To what extent may a person insult and offend another? Most citizens consider that there is here a conflict between freedom of speech and the right to reputation. But under a "restrictive conception", like the one that exists in the United States, this conflict has to be transformed into one between freedom of speech and "the legitimate state interest in compensating individuals for wrongful injury to reputation" (GERTZ v. ROBERT WELCH, INC, 418 U.S. 323 (1974)). The "inter-individual" component of the conflict has disappeared, and the question is now whether an individual right should prevail over a governmental interest. b) To what extent is hate speech to be permitted? Most citizens believe there is an underlying tension here between freedom of speech and equality. But, from a constitutional point of view, what emerges is a conflict between freedom of speech and "state interests in protecting the rights of members of groups that have historically been subjected to discrimination" (R.A.V. v. CITY OF ST. PAUL, 505 U.S. 377 (1992)). c) May a private association exclude women? Here we have a conflict between freedom of association and the right of women not to be discriminated against. But the constitutional translation transforms it into a clash between freedom of association and the "state interest in eradicating discrimination against its female citizens" (ROBERTS v. UNITED STATES JAYCEES (468 U.S. 609 (1984)).

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Now, it is true that in these three cases the State (or a local community) had enacted a statute (or regulation) that restricted a constitutional right (freedom of speech, freedom of association), and that the Court had to examine whether the State had good reasons to justify that statute. But the fact that the State must have good reasons to justify the statute that it has enacted does not mean that these reasons must refer to governmental interests. In cases like these three, it is not governmental interests, but individual rights (the right to reputation, the right to equality), that directly justify the restriction of the other rights. Moreover, the party that invokes the statute in question and has the burden of defending its constitutionality is not always a governmental organ. It may be a private individual. When a private individual, for example, invokes the statute to sue another for damages, and the latter argues that the statute is unconstitutional on the grounds that it restricts his freedom of speech or his freedom of association, the plaintiff will have to offer reasons to justify the restriction of this right10. It is him, not the State (which is not a party to the proceedings), that will have to shoulder this burden of justification. Now, if the "natural" justification of the statute is that it tries to protect an individual right of the plaintiff (so, for example, the right to reputation, the right not to be discriminated), it distorts things a little bit to require the plaintiff to appeal to a "governmental interest". In fact, there are some (not many) cases decided by the Supreme Court of the United States where the conflict has been directly presented as a collision between rights. Thus, a Florida newspaper published the name of a woman that had been raped, in contravention of a Florida statute that banned the publication

10

Later on I will comment on the problems derived from this way of structuring the burden of justification.

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of the names of victims of that type of crime. The woman sued the newspaper for damages, and the latter argued that the statute was unconstitutional because it restricted freedom of speech. The plaintiff had to offer reasons to justify the constitutionality of the statute she was basing her action upon. But neither she nor the Court made reference in this case to a "governmental interest": they directly referred to the "right to privacy" of the victim. (FLORIDA STAR v. B.J.C., 491 U.S. 524 (1989)). Ironically, the "restrictive" conception of the constitutional domain, because it pushes the Court to translate some of the individual rights into "governmental interests", suggests an understanding of the State that is too "collectivistic". Instead of making the State appear (in this kind of controversies) as an agent that tries to coordinate and accommodate the rights and liberties of private individuals, it makes it appear as if it had an interest of its own in the conflict. To sum up: In a constitutional democracy, there is pressure to use the Constitution to articulate the most important public debates. Quite often these refer to conflicts between private individuals. The "expansive" conception of the constitutional domain satisfies this interest in a natural way. The "restrictive" conception, in contrast, can only satisfy it by transforming into governmental interests what the public often views as individual rights. The restrictive conception is honored at the cost of distorting the structure of the moral problem that underlies the constitutional controversy.

V. SECOND OBJECTION: THE ASYMMETRY IN THE RISK OF MISTAKES MADE BY THE STATE

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The second objection accepts that there is no conceptual problem for the Constitution to regulate the relationships between private individuals, and to impose this regulation against the legislature. But it argues that we should only include in the Constitution those norms that regulate questions concerning which we have reasons to believe that the legislature will have a structural tendency to err. And it suggests that this tendency to make mistakes is at work when the legislature regulates the relationships between private individuals and the State, but not (or at least, not to an extent worth worring about) when it regulates the relationships between private individuals. The argument to justify this asymmetry is as follows: When the State (through the legislature) regulates the relationships between private individuals and the State, it is a party to the controversy. This will lead the State to overprotect its interests to the detriment of individual rights. Thus, when it regulates the conditions for taking private property for public use, the State has an interest in paying as little as possible in terms of compensation; when it regulates the powers of the police, the State has an interest in facilitating their investigatory tasks; when it regulates the procedures for challenging administrative decisions, the State has an interest in facilitating the enforcement of those decisions; etc... In contrast, when the State regulates conflicts between private individuals, it is not a party to the controversy. It is an impartial arbiter and, therefore, the risk of error diminishes a lot. When the State establishes limits to freedom of speech in order to protect the right to reputation or the right to privacy, for example, or when it limits private property in order to protect the right not to be discriminated, the State has no personal interest, and therefore no bias, in favor of one right against another.

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In my opinion, there are reasons to question this asymmetry. First of all, it is true that the State may have a tendency to regulate some relationships between private individuals and the State in a way that undervalues individual rights. But sometimes the reason for this is not that the State is a party to those relationships, but that the majority of citizens press the legislature to act in that direction. Let's take the case of criminal law. Obviously, the criminal law regulates the relationships between private individuals and the State (it establishes the conditions under which the State is authorized to use its power to punish individuals). It may be argued that the State has a certain tendency to overreact to crimes. This is not, however, because the State is one of the parties to the controversy, but because the majority of citizens press the State in that direction. If there are reasons to fear that the legislature will overreact to crime, those reasons would still apply if citizens themselves approved criminal legislation through a referendum. This latter example suggests, by the way, that there is a grey area between the "governmental acts" and the "acts of private individuals". Between them there exists an intermediate category: the "acts of citizens", acts that are adscribed to the State as a whole, but that are made by a collection of private individuals that exercise their political, democratic power. Constitutionalism cannot be insensitive to the risks that come from "citizens" as opposed to "governmental organs". After all, when James Madison, for example, reflected upon the need to restrict the State in order to protect individual rights, he was basically worried about the possibility that the rights of certain groups of individuals would be harmed by the political II-15

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decisions made, directly or indirectly, by citizens.

Secondly, when legislation regulates the

relationships between private individuals, the risk of partiality does not disappear, nor does it diminish dramatically. For not all citizens have the same capacity to influence the legislature. Some pressure groups will be able to get regulation very favorable to their interests, to the detriment of the interests of others. And there are vulnerable minorities whose rights are not properly taken into account by the political process. Thus, the same prejudices that push private individuals to discriminate against racial minorities, for example, may influence the parliamentary majority that enacts legislation that regulates the relationships between private individuals in some domains. Now, I am not saying that judicial review of legislation is a very successful method to deal with these problems derived from the partiality of the State. But if the reason why we adopt a system of judicial review of legislation is that we want to counter the tendency of the legislature to be "partial" in certain contexts, we should not confine our attention to those statutes that regulate the relationships between private individuals and the State. We should also extend our worries to statutes that regulate the relationships between private individuals.

VI. THIRD OBJECTION: LEGAL CERTAINTY

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A third objection (which is especially prominent among some scholars in continental Europe) appeals to the value of legal certainty11. The argument is as follows: If the judge must take into account the rights and liberties that are enshrined in the Constitution when she interprets the norms that regulate the relationships between private individuals (to simplify, norms of "Private Law"), legal uncertainty will increase. This is so because the constitutional rights of one of the parties will often collide with those of the other. These conflicts will have to be resolved through the balancing method: the judge will have to weigh the rights at stake, in light of the particular circumstances of the case, and decide which one must prevail. In many cases it will be controversial which is the right balance to strike. In this process, the rules of Private Law established by the legislature will lose their rigidity, that is, their capacity to determine in a categorical way the outcome of the case: they will have to be readjusted through interpretation in order to accommodate different constitutional rights. As those rules become more flexible, the judge has more discretion, and individuals find it more difficult to predict judicial decisions. It is true -this objection will concede- that when the judge has to decide conflicts between the individual and the State in light of the Constitution she also has to balance the rights and interests at stake, and it is not always easy to establish what the right balance is. But, first of all, there may be rules that ensure that in cases of doubt the individual right will prevail (since the burden of justification lies with the State).

The civil law tradition has always emphasized the value of legal certainty. See John Henry Merryman, The Civil Law Tradition. An Introduction to the legal Systems of Western Europe and Latin America (Stanford: Stanford Univerity Press, 1985), pp. 48-55.

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In contrast, it is not possible in Private Law to establish default rules of this sort, to favor the private individual, since in this area there is a conflict between two individuals. Secondly, the relationships between private individuals are very numerous in ordinary life, and it would be especially problematic if the rules that regulate them did not offer clear guidance to individuals. In my opinion, this objection rightly draws our attention to the fact that the constitutionalization of Private Law will endanger legal certainty if it is not channeled in the right way. The traditional rules of Private Law are certainly destabilized at first, when a new Constitution obliges judges to reinterpret them. (Thus, the civil and labor judges of the Federal Republic of Germany had to reconstruct important parts of Private Law when the new Constitution of 1949 enterred into force. Both the case law and the doctrinal consensus had to be revised). But once new precedents are established and scholars readjust the traditional categories to fit the new constitutional principles, legal certainty need not be in peril. Though the law has to be more sensitive to the different cases, rules emerge that generalize the factors that must be taken into account and that guide the judge that must decide in the future. It is true that for all this to be possible one needs to have a legal culture and a judicial structure that obliges courts to be consistent. Unfortunately, in some countries these constraints are deficient. In Spain, for example, the contradictions between judicial decisions are sometimes very large, and the institutional mechanisms to unify them are imperfect. But this is a problem that affects the legal system as a whole. Given that the law is more and more complex, that it is generated by an increasing plurality of sources, and that it is formulated in imperfect ways, the need to unify and stabilize judicial interpretations is very profound.

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If there are appropiate mechanisms in place to satisfy this need, the constitutionalization of Private Law should not harm legal certainty in any important way. If those mechanisms are absent, however, the problem is a general one, and it does not concern the constitutionalization of Private Law exclusively. VII. FOURTH OBJECTION: THE RISK FOR INDIVIDUAL LIBERTY The fourth objection against using the Constitution to regulate the relationships between private individuals is rooted in more substantive concerns (although the objection is still "institutional"). It argues that individual liberty is in danger if the Constitution, instead of confining itself to protecting private individuals against the State, imposes on individuals the duty to respect the fundamental rights of other individuals. This objection can be derived from two different substantive positions, which, to simplify, we can call "conservative" and "progressive". The conservative position does not wish the Constitution to grant rights against private individuals because it does not want the right of private property and freedom of contract to be limited. Thus, for example, it holds that the Constitution should not recognize a right not to be discriminated against in the sale and rental of property, because it believes that the property owner should have an absolute right to decide whom to sell or rent his property to. The progressive position, in contrast, regards it as legitimate for the State to limit the right of private property and freedom of contract (in order to protect the right against discrimination, for example). But it argues that it is the legislature, not the Constitution, that should recognize individual rights against other individuals. The reason is that there is a structural separation that is crucial to liberty: the one that II-19

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distinguishes between a public and a private sphere. By extending to the private sphere constitutional rights that were originally established to limit decisions made in the public sphere, this structural separation is eroded12. In my opinion, one can understand that those who are "conservative" should reject a Constitution that awards individuals some rights against other individuals. But it is difficult to understand why "progressive" scholars should do so. To begin with, the constitutionalization of the private sphere does not mean that there are no important differences between the two spheres. When a right that is recognized in the public sphere is transferred to the private one, the individual that is to be constrained by that right is himself often entitled to other rights. There is then a conflict between rights and counter-rights, a conflict that is absent in the public sphere and that can be decided in different ways in different types of cases. The consequence is that the right in question (the right to equality, for example) will have a different specific content depending on whether it is directed against the State or against private individuals. To constitutionalize the two spheres, then, does not mean that we subsume the private sphere into the public one. To put an extreme example (which is sometimes used to ridicule the position that holds that constitutional rights should bind private parties): the State cannot discriminate anyone, but a private individual is allowed to act on his racial prejudices when he decides whom to marry. There is here a clash

This is the thesis defended by Cass Sunstein, for example, in "On Property and Constitutionalism", included inFree Markets and Social Justice (Oxford: Oxford University Press), 1997, pp. 203-222.

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between the right not to discriminate and the right to decide whom to marry, a clash that does not appear in the public sphere, and that is clearly to be resolved in favor of the right to decide whom to marry. But, quite probably, a clause in a will that provides that the person receiving the bequest must not marry any person of a certain race is invalid. Here the liberty of the racist testator should yield both to the freedom of the person receiving the bequest and the general right not to be discriminated against. Secondly, if the Constitution protects private property and freedom of contract against the government, but does not guarantee any rights against private individuals, there is a risk of imbalance. This is so in two different ways: a) If the "progressive" legislature has enacted a statute that grants certain rights against the property owner (the right not to be discriminated, for example), the starting point in the judicial process will be the claim that the constitutional right to private property should not be unduly restricted. The statute will have to be defended against the challenge that it unduly restricts this right. In order to justify the statute it will be possible to appeal to the state interest in preventing individuals from being discriminated against by other individuals, but it will not be possible to connect this interest to any constitutional right. The conservative position, then, has a rhetorical advantage: it takes the side of "constitutional rights". This advantage may have practical consequences: if there is a political tradition that is "suspicious" of the State, the doubts as to whether the restriction of the constitutional right is justified may be resolved in favor of this right, to the detriment of the interests that the State invokes. In contrast, if the right that the statute tries to protect is a right that is also guaranteed in the Constitution, the conservative position loses its rhetorical and II-21

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argumentative advantage: here we have a clash of constitutional rights, and there is no reason to privilege private property over other rights that are also in the Constitution. Note that, for the conservative position to lose its advantage it is not necessary to deny that the right to private property is itself a constitutional right. It is sufficient to recognize that there are other rights with which it collides. Ironically, the thesis that advocates that fundamental rights should bind private individuals makes it possible to preserve the right to private property within the domain of constitutional rights. Moreover, it makes it possible to preserve it as a right not only against the State, but against private individuals too! b) It may happen that a "conservative" legislature overprotects the right to private property and freedom of contract, as against other rights (the right against private discrimination, for example). If the Constitution is silent about the latter rights, there is no possibility to react against this unbalanced legislative decision. For, from a constitutional point of view, the legislature is free to decide whether or not, and to what extent, it should protect governmental interests (or even individual rights) that are not guaranteed by the Constitution itself. For all these reasons, I think that those who accept the "progressive" position should favor a Constitution that makes some fundamental rights binding on private parties. VIII. CONCLUSION If the Constitution wants to preserve its capacity to shape contemporary controversies, the Bill of Rights should apply to the relationships between private individuals, and not only to the relationships

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Victor Ferreres Comella, Do Constitutional Rights Bind Private Individuals?

between individuals and the State. We should not transform the conflicts between rights into conflicts between a group of "individual rights", on the one hand, and "governmental interests", on the other. None of the four objections I have examined, which appeal, respectively, to the nature of the Constitution, the asymmetry in the risk of mistakes made by the State, the protection of legal certainty, and the guarantee of individual liberty, are compelling enough, I think, to justify our rejecting the thesis that constitutional rights should bind private individuals.

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