RECAP: “Who’s Responsible for Constitutional Rights?” Zoom Colloquium w/ Notre Dame’s Christina Bambrick
In 1989, the Supreme Court ruled in DeShaney v. Winnebago County that the Fourteenth Amendment to the Constitution of the United States does not create an obligation on behalf of the state to prevent child abuse when (a) the child is in the custody of a parent and (b) the state did not create or increase the danger of abuse. Which is to say that, in this particular case, the Winnebago County Department of Social Services had not violated Joshua DeShaney’s right to liberty, under the Fourteenth Amendment, by failing to prevent his abuse by his father. For all the heartache of DeShaney v. Winnebago County, the case entrenched a particular—what is now termed a vertical—understanding of constitutional rights in the United States as being the responsibility of the state to abide by but not enforceable within a private sphere. In her November 13 talk at the Kinder Institute, Notre Dame Assistant Professor of Political Science Christina Bambrick explored a number of issues that emerge from what has now become this conventional legal construction: how a polity’s understanding of constitutional rights influences the ways in which rights are discussed; the kinds of constitutional questions that come before judges, as well as the ways in which courts rule, as a result of the manner in which rights are conceived; and perhaps most importantly to this particular discussion, the tradeoffs that come when we think about constitutional rights as horizontally, rather than vertically, oriented.
According to Prof. Bambrick, a vertical model of rights is defined by a relationship between the state and private citizens in which the former promotes the rights and protects the liberties of the latter by regulating the public and private spheres as separate entities, each with its own set of laws: constitutional law for the state and common law for the private sphere. Though a jurisprudential standard in the U.S., this model is not without alternative. As Prof. Bambrick demonstrated in examining the comparative case of post-Apartheid South Africa, a horizontal model for understanding rights exists which places specific emphasis on relationships between private actors. This model, derived from the nation’s commitment to equality in its 1996 constitution, aims to protect rights and remedy harms not only by regulating both public and private life via constitutional law but also by placing private actors in the position of being bound to themselves protect and promote constitutional rights. Since the adoption of the constitution, Prof. Bambrick continued, the South African Constitutional Court has consistently ruled that citizens have constitutional duties to one another and, as a byproduct of this arrangement: that citizens have a right to housing (2004); that citizens have a duty to not interfere with education (2011); that landlords have the duty to ensure dignity in tenants’ living conditions (2017); and that schools have the duty to provide a basic education to students (2020).
As Prof. Bambrick noted, however, both models have their tradeoffs. The vertical model preserves a separate public and private sphere of law and grants legislators, courts, and private citizens more flexibility in understanding rights in a varied manner across various contexts, thereby allowing people, companies, churches, and state actors to have different rights and duties. That said, vertical models can leave tragic gaps in accountability like those that came to bear in DeShaney v. Winnebago. In contrast, horizontal models apply rights more evenly and broadly across a society but leave very little room for nuance.
Prof. Bambrick concluded her talk with three points that might further flesh out the distinctions between these two models of constitutional interpretation: (1) different models of understanding constitutional rights lead to different questions being asked in courts; (2) variability in models of constitutional rights directly shape the conversation of constitutional issues; and (3) it is worth considering the strengths and weaknesses of both models and what one can learn from each. Ultimately, she argued, there is no perfect model, and a nation’s approach to constitutional rights must thus be understood as a unique development of that nation’s history and the unique circumstances of its constitutional creation.