Moral Pluralism and Constitutional Horizontality

Abstract Despite the growing influence of constitutional rights over the regulation of horizontal (private) relations, many aspects of this trend remain under-theorized. This article criticizes four ideal-typical constitutional horizontality models for failing to accommodate moral reasons that must shape this regulatory practice: the state action model ignores basic consequentialist aspects of political morality; the direct application model ignores basic relational aspects of interpersonal morality; the strong indirect model recognizes both but subordinates the latter to the former; and the partitioned indirect model recognizes both but separates them too strongly. This article claims that a composite indirect model, which reflects basic features of the common law, can better realize constitutional rights through private law in conditions of moral pluralism: it can expose private law to constitutional rights-based and reform-oriented scrutiny without ignoring, eroding, or distorting the unique normativity of private relations and practices or their underlying values.