Reconceptualizing Hybrid Rights
65 Pages Posted: 4 Nov 2020 Last revised: 10 Aug 2021
Date Written: November 2, 2020
In landmark decisions on religious liberty and same-sex marriage, and many other cases as well, the Supreme Court has placed its imprimatur on so called “hybrid rights.” These rights spring from the interaction of two or more constitutional clauses, none of which alone suffices to give rise to the operative protection. Controversy surrounds hybrid rights in part because there exists no judicial account of their justifiability. To be sure, some scholarly treatments suggest that these rights emanate from the “structures” or “penumbras” of the Constitution. But critics respond that hybrid rights lack legitimacy for that very reason because structural and penumbral interpretive approaches are intrinsically unprincipled and overreaching. As it turns out, however, both proponents and opponents of hybrid rights have taken a wrong turn in their efforts to identify and assess the source of these constitutional safeguards. In fact, hybrid rights are just like other rights in the key sense that each such right emanates from a single constitutional clause. The relevant clause, however, is marked by ambiguity, and courts must deal with that ambiguity as they apply the clause to specific cases. As courts do so, they put to work rules of interpretation, and one of those rules dictates that judges should consider the whole document in deciphering the meaning of any indeterminate text that the document includes. In hybrid-rights cases, courts do nothing more than apply this well-settled canon. They expound the meaning of one, and only one, contested clause by considering, among other things, informative companion provisions. This Article develops and defends this previously unrecognized single-text-viewed-in-light-of-the-whole-document theory of hybrid rights. Of no small significance, this understanding of hybrid rights undercuts all key challenges to their recognition, including that these rights are (1) non-originalist, (2) unduly activist, (3) unmanageable, and (4) countertextual. Even more important, this new synthesis reveals why there is error—error perhaps attributable to the very nomenclature of “hybrid rights”—in assuming that these rights must reflect judicial usurpation because they seem, at first blush, to be exotic in nature. As this Article shows, hybrid rights are not exotic at all. They are simply rights—rights, just like other rights, rooted in a single constitutional provision, whose ambiguity courts address by consulting the whole document that is the Constitution itself.
Keywords: constitutional law, hybrid rights, interpretation, Employment Division v. Smith, due process, Equal Protection Clause, originalism, Obergefell v. Hodges, Bill of Rights, Free Exercise Clause, Fourteenth Amendment, First Amendment, activist, penumbral
JEL Classification: K10, K11, K14, K19
Suggested Citation: Suggested Citation