Who is Afraid of the Total Constitution?
The FCC plausibly insists that constitutional rights do not apply directly to individuals, but only to state actors. And it is right to do so, given a constitutional text that suggests legal problems should be constructed by focusing on the relevant action by public authorities.54 But the Court recognizes that there is always action by public authorities when the state legislates the rules that govern the relationship between individuals and when a court interprets and enforces these rules in litigation. If the state action requirement is always met, the question arises whether there is a difference between construing an indirect horizontal effect grounded in a “radiating effect” of constitutional rights norms and simply acknowledging that constitutional rights bind individuals. The counterfactual example used here illustrates that nothing would change outcome-wise or even institutionally if the FCC simply acknowledged that constitutional rights bind private individuals. Indirect horizontal effect and direct horizontal effect are merely alternative, but in all relevant respects equivalent constructions of a legal problem.55 A constitutional amendment explicitly establishing that constitutional rights have direct horizontal effect in Germany would neither impede the liberty of economic actors, nor would it provide additional protection for weaker economic parties. As a matter of substantive law and institutional division of labor, it would simply leave things as they are. With the comprehensive scope of constitutionally protected interests in Germany, private law in Germany is already applied constitutional law.
D. Who’s Afraid of the Total Constitution?
Conceptually then, private law, like any law in Germany, qualifies as a branch of applied constitutional law. If, like in Germany, the constitutional court recognizes a general constitutional right to liberty and private law is about determining the limits of the respective spheres of liberty in the interest of all, then private law is in effect applied constitutional law. It implements the constitution with regard to the concerns it addresses. It works out the implications of a general commitment to a constitutional right to liberty that citizens enjoy equally in their relationship with each other. As the hypothetical illustrates, civil litigation could always be conceived as litigation about competing constitutional rights, the specific contours of which private law attempts to define.
This may be a conclusion that even many constitutional lawyers find unfamiliar and are hesitant to embrace, even when they embrace the doctrine of “mittelbare
See Art. 1 Sect. 3 Basic Law.
See TCR, 351.