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Explanation:INTRODUCTION
Are fundamental rights, the sort of rights entrenched in written constitutions
and human rights instruments, binding on individuals or other private
actors? With few exceptions, most legal systems of the constitutional
democratic type answer this question in the negative. The German Basic
Law, for example, provides in article 1(3) that ‘constitutional rights bind the
legislature, the executive, and the judiciary’ , which means that they bind all
the three standard state powers but not private actors such as individuals,
Direct and Indirect Effects of Fundamental Rights
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corporations, labor unions and the like. Similarly, the Fourteenth
Amendment to the United States Constitution provides that ‘no State shall
make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States’. The U.S. Supreme Court built a notoriously
large and obscure body of case law on top of this seemingly harmless
provision ― the basis of the so-called ‘state action doctrine’ ― the gist of it
being that constitutional rights do not bind private actors unless they are
acting as surrogates of the state or are placed under privileged protection
from it. What it all comes down to is rejection of the view that fundamental
rights normally bind private as well as public actors or that such rights
produce not only ‘vertical’ but ‘horizontal’ effect as well.
But this is hardly the end of the story. Even if fundamental rights
cannot be invoked in private relations ― meaning, for instance, that the
plaintiff cannot base her complaint on the defendant’s violation of a
constitutional entitlement or that the defendant cannot invoke a
constitutional liberty to evade liability ― they are fully operative against the
state in its capacity as law-maker, law-executor and law-enforcer. Imagine
the standard hypothetical of a landlord that sues the tenant for breach of a
term in the lease that placed the latter under an obligation to go to church
every weekend and to decorate the premises with religious paraphernalia.
While the doctrine of vertical effect bars the tenant from invoking freedom of
religion against the landlord, he may do so against the court itself qua
enforcer of the lease and against the legislature qua author of the laws which
empower private parties to create legal obligations inconsistent with freedom
of religion. If the laws in question are indeed unconstitutional, they must be
regarded as void. At the end of the day, the tenant will win the case precisely
as she would if she was allowed to invoke the constitutional right directly
against the landlord. The only difference is procedural: the rejection of
‘horizontal’ effect implies that she must obtain a judicial decision striking
down the law deemed unconstitutional in order to win the dispute against the
landlord. One way or another, the outcome is exactly the same
