Document Type

Article

Publication Title

Stanford Law Review

Abstract

[...] not all state constitutions include a state action requirement, and in some states-admittedly, only a few-state courts permit an individual to enforce public rights directly against another private actor. State constitutions do not, however, explicitly subject common law decision making to state constitutional regulation, and so questions about the application of state constitutional norms in the horizontal position remain open. Provisions such as Section 39(2) of the South Africa Constitution, for example, which requires that "[w]hen developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights," are simply absent from state constitutions. Treating common law as detached from constitutional law may appear to be natural and uncontroversial; the separation has deep roots and marks the divide between the public and the private that is critical to liberal theories of constitutionalism. From the federal perspective, the strict compartmentalization reflects the institutional demands of federalism, which are absent at the state level, as well as a desire to protect an autonomous private realm from the intrusion of government regulation. Less obviously, the separation of constitutional and common law reflects a particular conception of law that limits the content of a law to its coercive effect: if a nongovernmental actor cannot sue to enforce the Federal Constitution against another nongovernmental actor, it is assumed that the Constitution exerts no influence in disputes between these private parties.

First Page

1521

Volume

62

Publication Date

2010

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