Structures of Judicial Review, Horizontal Effect, and
Social Welfare Rights
CONSTITUTIONAL systems around the world have confronted the state action problem. The terminology differs. The doctrine takes its name in the United States from the specific wording of the Fourteenth Amendment, which prefaces its substantive provisions with the phrase “No State shall.” Elsewhere the problem is labeled horizontal effect. A constitution operates vertically when it regulates the relations between a government (usually envisioned as “on top”) and citizens, residents, and the like. It operates horizontally when it regulates the relations between private parties. The concerns that animate U.S. discussions—about avoiding conceptions of government that have totalitarian implications, about the proper role of the courts and legislatures— have been expressed elsewhere. For example, in the leading South African case, a dissenter referred to “an egregious caricature…that so-called horizontality will result in an Orwellian society in which the all-powerful State will control all private relationships.”1
Yet, constitutional courts outside the United States seem to have solved the state action problem more easily than the U.S. Supreme Court has. The German Constitutional Court's decision in the case of Erich Lüth has been enormously influential. I discuss the case in more detail later, but for present purposes it is enough to note that the Constitutional Court in that case rejected the proposition that Germany's Constitution, known as the Basic Law, directly regulated relations between private parties and simultaneously created a doctrine known as “indirect horizontal effect.” Under that doctrine, courts charged with construing and developing nonconstitutional law must take constitutional values into account as they do so, and constitutional courts will oversee them to determine whether they have been sufficiently respectful of those values. Constitutional courts around the world have followed the German Constitutional Court in solving the state action problem by using the doctrine of indirect horizontal effect.
1 Du Plessis v. De Klerk, 1996 (5) BCLR 658 (South African Constitutional Court), ¶ 120
(Kriegler, J., dissenting). The case was decided under South Africa's interim Constitution, which
provided, “This Chapter shall bind all legislative and executive organs of state at all levels of gov-
ernment.” Constitution of the Republic of South Africa, Act 200 of 1993, § 7 (1). The majority
interpreted this provision as establishing that the Constitution did not apply to decisions of the
courts in their lawmaking capacity.