Rights before the Court

Chapter 1

Rights before the Court

Legal guarantees for the rights of individuals (as subjects, citizens or human beings) are institutional facts of modern times. Despite some ancient and medieval precursors (e.g., the proclamations of Cyrus the Great and the Magna Carta), and some antecedents in the English Bill of Rights (1689), it was the US Constitution (1787) and the US Bill of Rights (1791) as well as the French Declaration of the Rights of Man and the Citizen (1789) that transformed the idea of fundamental and inalienable rights into positive law. More than 80 percent of the national constitutions adopted between 1787 and the 1948 Universal Declaration of Human Rights included some form of rights guarantees. This ratio increased to more than 93 percent for those adopted between 1948 and 1975.¹ Today a bill of rights has become a mainstay of most constitutional democracies. Human rights norms are institutionalized in myriad regional and international conventions and covenants such as the European Convention on Human Rights (1950), the Inter-American Convention on Human Rights (1959), the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights (1966). Claims to social inclusion are increasingly formulated in terms of fundamental rights, particularly freedom and equality, and high courts have emerged as final arbiters of their concrete meanings at both the national and international levels.²

Archetype of judicial supremacy, the US Supreme Court has grappled with rights-claims for well over two centuries. While the Constitution signaled the end of the colonial era, and the Bill of Rights provided some formal guarantees of liberty and equality, it was only after the abolition of slavery and the adoption of the Fourteenth Amendment (1868) that the US began to observe itself as composed of legally free and equal individuals.³ It took another century to make the Fourteenth Amendment fully applicable to the States and bring their actions under the Court’s judicial oversight. As the variety of claims to liberty and equality has grown, so has the contingency of judicial responses to them– hence the enormous complexity of the Court’s jurisprudence of rights, and continuous change in legal meanings of liberty and equality. We have come from a world of slavery, established State religions, propertied male suffrage, heteronormativity and racial segregation, through civil, women’s and gay rights movements, to contemporary dilemmas of difference and recognition in an increasingly heterogeneous polity. Yet, constitutional amendments have been relatively rare. In other words, the Supreme Court has been able to reconcile constitutional guarantees for liberty and equality with both their drastic limitation and unprecedented expansion.

This achievement has involved constructing new concepts and introducing new distinctions that could dissolve apparent contradictions between legal provisions.4 Notwithstanding the brilliance and ingenuity of some judicial minds, such innovations presuppose certain social conditions, without which they can be neither thought nor understood. While legal theory has long been occupied with the study of such conceptual and doctrinal developments, the socio-historical context of their emergence and acceptability makes them suitable and challenging empirical objects for social scientific investigation.

This chapter reformulates rights-based judicial review in systems-theoretic terms and prepares the Court’s jurisprudence of rights for sociological analysis. It begins with a brief account of some main points of contention within socio-legal studies over judicial review. Next, it discusses the societal functions of constitutions and fundamental rights, and the significance of judicial determination of their concrete meanings. An account of the role of the Court as an organization at the summit and center of the legal system and its main decision-making programs follows. Finally, it describes the second-order analysis of jurisprudence of rights carried out in subsequent chapters.

Judge-Made Law and Socio-Legal Studies

Pursuant to Article III, Section 1 of the Constitution that vested the judicial power of the US in one Supreme Court, the Judiciary Act of 1789 established a system of independent federal courts under its jurisdiction. In Marbury v. Madison, the Court for the first time used this power to declare an Act of Congress unconstitutional,⁵ thereby establishing its judicial oversight of legislative and administrative action.⁶ Since then, American jurisprudence has grappled with the legitimacy, proper scope and actual exercise of power by the Court over representative government. The debate has been variously cast in terms of questions of democracy, popular sovereignty, separation of powers and the counter-majoritarian role of the Court.7 Socio-legal studies seem to have mostly followed suit.

In the early twentieth century, the Court’s adoption of the “substantive due process” doctrine,⁸ and the rise of Legal Realism in American jurisprudence,⁹ augmented extant emphases on the political rather than judicial function of the Court. In tune with Legal Realism, since the 1950s, social-scientific investigations of judicial review have tended to disregard differences between political and judicial decision-making and primarily focus on identifying and measuring extra-legal determinants of judicial behavior.¹⁰ Dahl (1957) is regarded as a major precursor of political approaches to the Court.¹¹ However, his (1961) salutary emphasis on the distinction between predicting individual behavior and explaining operations of social systems was lost to the behavioral and some rational-choice theoretic approaches that became cornerstones of scientific research on the Court. The success of such studies in predicting Justices’ votes marginalized concern for more adequate analysis of adjudication as a social phenomenon.12 More specifically, the interplay between jurisprudential developments and structural transformations of modern society was left unexplored.

In recent decades, and perhaps in accordance with greater emphasis within legal scholarship on the constitutive rather than instrumental role of law, a variety of new institutionalist approaches to judicial review have tried to “bring the law back in.” Such investigations have drawn attention to institutional norms, procedures and missions within the legal system as endogenous variables guiding and limiting possibilities of meaningful legal action, and highlighted the role of “jurisprudential regimes” and “argumentation frameworks” in judicial decision-making.¹³ Yet, insofar as their primary focus remains predicting or understanding determinants of judicial behavior, such studies fall short of a radical break with prevalent behavioral approaches in the field.¹⁴ Jurisprudence is brought in, but mainly as one variable among others regulating or coordinating Justices’ votes or policy preferences. What tends to be ignored is the significance of conceptual distinctions, tests and doctrines in regulating the internal complexity of the legal system and, by that token, its relation to its environment. A systems-theoretic understanding of the societal functions of fundamental rights, the significance of normative closure of the legal system for its functional differentiation and the role of the Court in maintaining this normative closure will cast this debate in a new light.

Fundamental Rights

Fundamental rights due to individuals are hallmarks of the transition to modernity.¹⁵ While these rights promise to protect the more vulnerable individual in the context of the increasingly precarious condition of modern life, to understand their irreducibly societal functions we must move beyond satisfaction of individual needs to the structural requirements of routine operations of modern social systems. Most important here is the transformation of the primary principle of social inclusion/exclusion in the course of transition to modernity.

In pre-modern societies, individuals have more or less fixed social positions. Membership of the family, tribe, corporation or estate provides the basis for social inclusion/exclusion, determines one’s access to a network of social bonds and provides protection against possible threats.16 The obverse side of automatic inclusion in some groups is automatic exclusion from others. While individuals participate in various secondary groups, the reach of which can extend beyond the boundaries of towns and cities, such affiliations treat the individual “as a member of a group rather than as an individual.”¹⁷ Individuals’ rights, privileges and duties are properties of their positions rather than their persons. Individuals are not “right-bearing entities” and the institution of fundamental rights has no place in regulating social life.

In contrast, modern society no longer differentiates “groups of people … but types of communication.” Automatic, ineluctable and total inclusion/exclusion by virtue of ascribed status gives way to partial inclusion/exclusion contingent on particular rules of access to each social system, and on one’s ability to fulfill system-specific role expectations. Modern individuality, in other words, is “exclusion individuality”: first, as independent individuals, actors are excluded from society; then, they may be allowed re-entry, but only partially and under specific conditions.¹⁸ Career (a step-by-step process of self-selection and other-selection throughout the lifetime of each individual) replaces ascribed status as the primary mechanism for social inclusion.¹⁹

The institutions of subjective, civil and, later, human rights emerge in this context. Leaving to the individual certain decisions concerning property, ultimate belief, occupation and marriage undermines the old stratified order and further compartmentalizes the economy, politics, religion and family. Thus, capital accumulation can continue without regard to religious and moral expectations about surplus distribution or fear of arbitrary political confiscation. This is a precondition for the rise of a global market economy. Likewise, private rights depoliticize religious and economic tensions and relieve the political system from making binding decisions on a wide range of issues, which could only be implemented through crude coercive measures. This self-limitation of politics or de-politicization of vast areas of social exchange is a precondition for the abstraction and generalization of political power and the emergence of modern nation states. In the same vein, the search for scientific truths is accelerated in the absence of fear of inquisition and excommunication, hence increasing the functional differentiation of the societal system of science. The institution of rights allows each societal system “in a relatively short span of time (that is, with relative independence from demographic developments) to reach that degree in size” necessary for its functional differentiation.20

As social communications in each system increase in terms of volume and scope, their symbolically generalized communication media (money, power, faith, etc.) provide distinct, but functionally equivalent, solutions to the problem of double contingency.²¹ Whereas morality presupposes a prepared terrain of values, and moves towards standardization, symbolically generalized communication media operate with premises of amorality and the implausibility of communication, and diversify toward specific communicative problems.²² To acquire goods and services, one can rely on money; to make collectively binding decisions, one requires power; for eternal salvation, one has to have faith, etc. Functional differentiation of various areas of social exchange and multiplication of the social personas of each individual are two sides of the same coin. This is the structural context of “increasing societal complexity,” “pluralization of forms of life,” “individualization of life histories” and shrinking “shared background assumptions.”²³

None of this, however, denies the existence of stratification in the form of social classes. Enormous disparities of living standards, power, wealth and prestige not only persist but in fact increase. Yet, rather than remnants of the old stratified order, they are increasingly the by-products of the exclusionary operations of the functionally differentiated societal systems.²⁴ To the extent that new patterns of social exclusion appear to reproduce those of the old stratified order, the radical difference between functional and stratificatory forms of differentiation tends to be overlooked. On the other hand, the contingent trajectory of social inclusion for each individual may sustain optimistic views of the egalitarian potentials of modern society.

The “diabolic” character of symbolically generalized communication media and their significantly disintegrative effects undermine such illusions.²⁵ While facilitating communication within each societal system, symbolically generalized media constantly generate new differences and conflicts. Money eases economic transactions, but divides the world between rich and poor. Power ensures the binding character of decisions, even (or perhaps especially) on those excluded from the decision-making process, and divides the world between powerful and powerless, etc. Moreover, a peculiar asymmetry persists between social inclusion and exclusion: further advantages of partial social inclusions are only probable, but contagious and totalizing effects of some social exclusions are certain.26 Abiding by the law does not ensure employment, but criminal conviction puts some career and other options forever beyond one’s reach.

In this context, equality promises to limit the contagious effects of partial exclusion by providing a “principle of selective indifference.”²⁷ It sustains the expectation that, in access to societal systems, only functionally relevant communicative capacities are to be considered and nothing else; that “different social goods ought to be distributed for different reasons, in accordance with different procedures, by different agents.”²⁸ Thus, (regardless of faith, political affiliation, skin-color, gender, etc.) all with the ability to pay expect equal access to the market; all within a certain jurisdiction expect equal access to the law; and all with the ability to learn expect equal access to public education. Of course, contracts go to lowest bidders; prior convictions affect sentencing; and university admissions depend on examination scores—at least that is the generalized normative expectation. In other words, in modern society only functionally differentiated societal systems have “the right to produce inequalities on intra-systemic (and therefore, for them, rational) grounds.”²⁹ Whether and how much money one has at one’s disposal is determined by the economic system. One’s success or failure in asserting a legal claim is decided by the legal system. The scientific value of one’s truth claims is ascertained by the science system, etc.

Thus, freedom and equality, the two basic principles of all human rights regimes, express neither a natural fact about human beings nor an enlightened moral value; rather, they are emergent properties of modern society. In addition to protecting the individual, they facilitate functional differentiation of societal systems, and guard against their de-differentiation. As the boundaries of social systems and the exact features of their relevant role expectations are in flux, the concrete contours of liberty and equality remain contentious. So is the nature of state responsibility for their protection, as clearly indicated in the Court’s equal protection jurisprudence.³⁰

Against this backdrop, constitutional litigation concerning freedom and equality can be observed as indicative of boundary tensions between social systems. Sometimes they arise when an event is made meaningful with reference to multiple societal systems (i.e., is used by multiple systems to connect their operations) and it is not clear which system is the primary reference in the eyes of the law. For example, it is not clear if hiring policies of religious organizations concern access to the labor market or free exercise of religion, or if public funding of religious schools benefits public education or religion. Other ambiguities concern the relevance of a particular criterion of access to the function of the same system. For example, it is not clear whether a specific standard of literacy is relevant to becoming a firefighter, if sexual orientation is relevant to obtaining a marriage license or if a prior criminal conviction is relevant to suffrage. Still other times, it is not clear if constitutional provisions apply to the social system in question. For example, it is not clear if and on what ground membership in private clubs or political parties should be legally guaranteed to all regardless of race, ethnicity, gender, etc.