Lateral Thinking: Justifying the Horizontal Application of Constitutional rights

• Author: Alastair Richardson
• Position: LLB Candidate and Scholar, Trinity College Dublin
• Pages: 159-173

© 2018 Alastair Richardson and Dublin University Law Society

LATERAL THINKING: JUSTIFYING THE

HORIZONTAL APPLICATION OF CONSTITUTIONAL

RIGHTS

ALASTAIR RICHARDSON

Introduction

The debate over whether constitutional rights should have horizontal

effect raises fundamental questions regarding the nature and scope of

constitutional law. Does constitutional law simply regulate the

relationship between the individual and the State, or does it lay down

fundamental norms which all legal actors should respect? If the duty to

honour constitutional rights applies to private parties and the State alike,

then redress can be sought against private parties who infringe

constitutional rights. The primary objection to horizontality is grounded

in a concern that the interest of the duty-bearer will be unduly burdened

by having to honour the constitutional rights of others.

1

This is the

rationale for the state action doctrine in the US, where constitutional rights

only bind the State.

2

This, however, is rooted in a conception of rights as

spheres of private influence free from state interference. Rights, according

to this view, protect individuals against demands that they contribute to

the public good, or to the welfare of other individuals.

3

In Ireland, while there is no doubt but that constitutional rights have

horizontal effect, little consideration is given as to why.

4

Part I of this

article will highlight the lack of a sound theoretical underpinning for the

Irish courts’ approach to the question of horizontality. Part II will consider

the rationale for the state action doctrine and the objections to the

 LLB Candidate and Scholar, Trinity College Dublin. My thanks to Mary O'Toole, Professor

Gerry Whyte, Alan Eustace, and Leo Boonzaier for their helpful comments on earlier

versions of this article. All errors and omissions remain my own.

1

Martin Margulies ‘Standards of Review and State Action Under the Irish Constitution’

(2002) Irish Jurist 37 (1) 23; David P Currie, The Constitution of the Federal Republic of

Germany (University of Chicago Press 1994) 186.

2

Civil Rights Cases [1883] 109 US 3.

3

Joseph Raz, ‘Rights and Politics’ (1995) 71(1) Ind L J 27.

4

Aoife Nolan, ‘Holding non-state actors to account for constitutional economic and social

rights violations: experiences and lessons from South Africa and Ireland’ (2014) 12(1) ICON

61.