Christina’s book manuscript, Horizontal Rights: Constitutionalism and the Transformation of the Private Sphere, studies shifting understandings of public and private in comparative constitutionalism, specifically in the United States, Germany, India, South Africa, and the European Union. Jurists have traditionally understood the constitution as a separate kind of law that obligates only the state. However, courts increasingly understand constitutions as creating obligations for private entities such as private individuals, businesses, schools, and hospitals. For example, the South African Constitutional Court decided in 2017 that landlords have a constitutional duty to ensure their tenants live in conditions consonant with human dignity. Similar questions arise even in the United States, which historically has resisted the idea that constitutional rights bind private individuals. Recently, the Supreme Court found itself asking whether a Christian baker must bake a wedding cake for a same-sex couple. The practice of applying rights “horizontally” to private actors raises a range of questions from the theoretical to the practical and from the jurisprudential to the political.
Christina draws on constitutional debates, court cases, and political histories to argue that this development of horizontal effect reflects a republican intervention (as in, classical republican political theory) in constitutionalism, so altering the politics surrounding rights accordingly. While the conventional liberal narrative emphasizes the rights of individuals, horizontal effect builds a catalogue of individual duties as well, corresponding to the commitments and aspirations of a given constitutional order. In addition to examining constitutional histories, therefore, this research draws on classical and contemporary republican political theory.
This project is the first sustained effort to understand the practice of horizontal effect in terms of political theory, and only the second comparative monograph in political science on the subject. In accounting for the practical power of constitutional politics to shape the rights and duties of private entities, this research contributes to our knowledge of how governments act on conceptions of public and private in an increasingly pluralistic world.
Horizontal Rights: A Republican Vein in Liberal Constitutionalism. Polity, Volume 52, Issue 3, July 2020, Pages 401-429, DOI: 10.1086/709494. View article online.
While liberal constitutional theory typically understands constitutions as establishing vertical arrangements in which governments protect individual rights, some courts have introduced doctrines of horizontal effect, holding private bodies responsible for the rights of others, as well. This article argues that we can understand such horizontal rights as a republican vein in the tradition of liberal constitutionalism. While the conventional liberal narrative emphasizes the rights of individuals, horizontal effect builds a catalogue of individual duties as well, corresponding to the commitments and aspirations of a given constitutional order. This article draws on classical and contemporary republican political theory, as well as cases from Germany, India, and South Africa, to demonstrate how the structure of and arguments for horizontal rights reflect proclivities and track commitments associated with republicanism. Though the fact of a republican streak in these rights need not make them antithetical to existing understandings of constitutionalism, it does admit the distinctive potential of horizontal rights to alter elements of the conventional narratives, about the nature, purpose, and limits of constitutionalism.
“Neither Precisely National Nor Precisely Federal”: Governmental and Administrative Authority in Tocqueville’s Democracy in America. Publius: The Journal of Federalism, Volume 48, Issue 4, 1 September 2018, Pages 586–606, DOI: 10.1093/publius/pjy030. View article online.
Tocqueville’s insights on local politics in Democracy in America have led some scholars to ask where he fits into longstanding debates about the balance of power between the national government and state governments in American constitutionalism. Although Tocqueville’s observations speak to these questions, he also transcends them by developing the concepts of governmental and administrative (de)centralization. In differentiating governmental and administrative capacities, Tocqueville offers language by which to understand and evaluate the federal system in terms of the nature of the authority each level of government exercises, rather than simply by the objects of national, state, and municipal powers. The purpose of this article is to clarify Tocqueville’s understanding of governmental and administrative (de)centralization and thereby contribute to a better understanding of political authority in the American federal system.
The Politics of Public and Private: Equality in India and the United States. In progress.
American jurists typically understand the Constitution as creating a vertical arrangement in which state actors are responsible for protecting individual rights. Some courts in contrast, including the Indian Supreme Court, have begun to apply rights “horizontally,” holding private entities responsible for protecting and promoting rights as well. While these vertical and horizontal models are not by themselves determinate of case outcomes, their adoption in the United States and India, respectively, initiated a kind of path dependence, setting the terms of debate in each context to the present. In comparing these countries on the issue of equality, this article demonstrates how these different conceptions of the relationship between public and private spaces affect political-constitutional trajectories, defining presuppositions and framing the very questions that the courts must answer. This article thus moves horizontal effect beyond the purely doctrinal considerations of legal inquiry to show the political consequences of this constitutional phenomenon.
Rights in the Private Sphere: Horizontality in Constitutional Design. In progress. Coauthor: Maureen Stobb.
Constitution-makers sometimes apply rights horizontally to make private actors responsible for rights. The conventional wisdom is that “horizontal effect” makes law more democratic in contrast with state action doctrines that insulate private spaces and benefit socio-economic elites. We examine whether this democratic potential motivates constitution-makers to introduce horizontality in practice. To this end, we consider the universe of national constitutions that include horizontal effect in their original versions. We then expand our database to include constitutions without horizontality, and employ several models to test whether popular participation in the constitution-making process is a significant predictor of drafters’ decisions to include horizontal effect. We adopt a measure of popular participation in constitution-making that distinguishes consultation with the larger public at various stages of the process. This methodology allows us to consider whether the adoption of horizontal effect is more often the result of an elite-driven, top-down process. We suggest that a significant, positive relationship between early popular participation and the inclusion of horizontality indicates that the adoption of horizontal effect is actually rights-minded and aims to protect the larger public, rather than imposing arrangements in a top-down way to privilege elites. We substantiate our findings with qualitative analysis to be expanded in future work.
Considering the Possibility (and Desirability) of Liberal Virtues. In progress.