Rights Against Rules: The Moral Structure of American Constitutional Law
Posted: 18 Dec 1998
Constitutional rights are conventionally thought to be "personal" rights. The successful constitutional litigant is thought to have a valid claim that some constitutional wrong has or would be been done "to her"; the case of "overbreadth," where a litigant prevails even though her own conduct is permissibly regulated, is thought to be unique to the First Amendment. This "personal" or "as-applied" view of constitutional adjudication has been consistently and pervasively endorsed by the Supreme Court, and is standardly adopted by legal scholars.
In this Article, I argue that the conventional view is incorrect. Constitutional rights, I claim, are rights against rules. Constitutional reviewing courts operate at the same level of generality as legislatures. Their task is to evaluate statutes and other rules, in light of constitutional criteria, and to repeal or amend the rules that fail those criteria. The strength of the litigant?s personal claim is irrelevant. I defend this view of constitutional rights with specific reference to the case of conduct-regulating rules, and to the provisions in the Bill of Rights that provide the main (substantive) protection against conduct-regulating rules -- namely, the Free Speech Clause, the Free Exercise Clause, the Equal Protection Clause, and the substantive component of the Due Process Clause.
My view has wide implications, for a host of problems in federal courts and constitutional jurisprudence. For example, it suggests that classic justiciability doctrines such as "ripeness" and "standing" have no support in the nature of constitutional rights; their justification, if any, must be found elsewhere. It explains why constitutional doctrines are typically framed in terms of "tests" (e.g., narrow-tailoring tests, or anti-discrimination tests) that look to the predicate and history of rules. In particular, the view defended in my Article bears on the problem of "facial" and "as-applied" challenges -- a problem that, in recent years, has provoked considerable controversy at the Supreme Court. If constitutional rights are indeed rights against rules, then all constitutional challenges are "facial" challenges, and properly so. Relatedly, the "overbreadth" doctrine is misconceived; there is nothing unique to the First Amendment about the propriety of challenges by litigants who lack personal claims of constitutional wrong.
Suggested Citation: Suggested Citation