Much of my recent scholarly work has addressed questions concerning the political morality—the global political morality—of human rights. This essay continues in that vein; I focus on a relationship I began to discuss almost forty years ago, in my first book: the relationship between (some) constitutional rights and (some) human rights. My overarching claim here: There is a significant interface between the constitutional law of the United States and the political morality of human rights. My principal aim in this Essay is to defend (and illustrate) that broad claim by defending three narrower claims:
- The constitutional right to freedom of speech is closely related to the human right to intellectual freedom: The former right protects against the same kinds of government action that the latter right protects against.
- The constitutional right to equal protection is closely related to the human right to moral equality: The former right protects against the same kinds of government action that the latter right protects against.
- The constitutional right of privacy—aptly described by legal scholar Reva Siegel as “one of the most fiercely contested rights in the modern constitutional canon”—is closely related to the human right to moral freedom: The former right is best understood as a version of the latter right and, so understood, is legitimately regarded as a constitutional right.
I hope that the title of this essay—“Constitutional Rights as Human Rights”—does not mislead. I do not contend that every constitutional right—every right that is part of the constitutional law of the United States—is closely related to a human right. Let us assume that, as a majority of the U.S. Supreme Court has ruled, the right to bear arms is legitimately regarded as a constitutional right. The constitutional right to bear arms is not closely related to any human right: There is no human right to bear arms; no right to bear arms is part of the morality of human rights. Nor do I contend that the three constitutional rights on which I focus in this essay are the only constitutional rights that are closely related to a human right. I have argued elsewhere that the constitutional right not to be subjected to cruel and unusual punishment is closely related to the human right not to be subjected to “cruel, inhuman or degrading” punishment.
Before beginning my defense of the three claims set forth above, I want to emphasize that in defending the claims, I rely on a particular answer to this fundamental question: What criteria should we apply to determine whether a right (or other norm) claimed to be part of the constitutional law of the United States is legitimately regarded as such? That five or more justices of the U.S. Supreme Court have ruled that a right is part of the constitutional law of the United States does not entail that the right is legitimately regarded as such. This is the answer on which I rely:
First. R is a constitutional right if constitutional enactors made R a constitutional right—if they entrenched R in the Constitution of the United States; if other, later enactors did not entrench in the Constitution a norm that supersedes R; and if no norm that supersedes R has become constitutional bedrock. (I explain “constitutional bedrock” below.) By constitutional “enactors,” I mean what legal scholar Richard Kay means:
By enactors, I mean the human beings whose approval gave the Constitution the force of law. In the case of the original establishment of the United States Constitution that means the people comprising the majorities in the nine state conventions whose ratification preceded the Constitution entering into force. With respect to the amendments that means the people comprising the majorities in the houses of Congress proposing the amendments and in the ratifying legislatures of the necessary three-quarters of the states.
Second. R is a constitutional right if R is an inescapable inference (a) from the structure of government established by the Constitution, which consists of (i) a separation of powers among the three branches—legislative, executive, and judicial—of the national government and (ii) a division of powers between the national government and state government, or (b) from the kind of government (“representative democracy”) presupposed by the Constitution; and if no norm that supersedes R has been entrenched in the Constitution or become constitutional bedrock.
Third. R is a constitutional right if R is constitutional bedrock—if R is a bedrock feature of the constitutional law of the United States—in this sense: R has become, in the words of Robert Bork, “so embedded in the life of the nation, so accepted by the society, so fundamental to the private and public expectations of individuals and institutions,” that the U.S. Supreme Court should and almost certainly will continue to deem R constitutionally authoritative even if it is open to serious question whether enactors ever entrenched R in the Constitution. As Michael McConnell has put the point: “[M]any decisions, even some that were questionable or controversial when rendered, have become part of the fabric of American life; it is inconceivable that they would now be overruled . . . . This overwhelming public acceptance constitutes a mode of popular ratification . . . .”
No answer to the “what criteria” question—a question that, in one or another version, has long been contested among constitutional theorists—can escape controversy. Nonetheless, no answer, I submit, is less contentious than the foregoing threefold answer, which is the answer on which I rely in this essay.
