Who is Afraid of the Total Constitution?
because of their political views. The question asked when balancing competing rights between private individuals is one that concerns the delimitation of respective spheres of autonomy. It is about determining the proper limits of the sphere in which the rights-holder is not accountable to others for what he says or does. An individual does not need to have good reasons not to invite people to his dinner part. In this regard, striking an appropriate balance between competing rights claims leads to the result that he is free to do whatever he likes, and may exclude dinner guests because he is bigotted and intolerant. But in the domain of employment, for example, the competing autonomy interests balance out very differently. An employer can’t generally choose not to employ people whose political views he dislikes.62 Employment decisions require justifications of a different sort. The rights of the employer are limited by the competing rights of the applicant not to be discriminated against for his political views. This is generally recognized by rules of labor law, which can be reconstructed as having balanced the various competing concerns. The point of constitutional rights is merely to provide the FCC with the possibility to review whether the competing autonomy interests were appropriately taken into account.
Substantively, then, the application of constitutional rights to private law and the relationship between individuals does not prejudice any particular outcome about where the relevant lines ought to be drawn. It neither implies a libertarian nor a social-democratic bias and is certainly not totalitarian in that it abolishes the private/public distinction. Constitutional rights provide a way of structuring legal debates about private law. The structure provided – and the open-ended proportionality requirement in particular – is open to the whole range of considerations that legal actors deem relevant for the design and interpretation of good, just, and efficient private law rules that give the right weight to the principle of private autonomy. If existing private law strikes the right balance between the relevant concerns, then existing private law rules can be justified within the constitutional rights paradigm. If certain parts of contract law are either too libertarian or too paternalistically focused on consumer protection, then constitutional rights provide a structure within which this criticism can be legally articulated in a reasoned form. The only bias inherent in such a construction of the legal issue is that it requires reasoned reconstruction of any tradition-gilded baselines and conceptual and doctrinal structures that lawyers are socialized into as part of becoming a part of a private law culture. Either such a reconstruction succeeds. Then the tradition can proudly claim to stand on more solid grounds than mere
See for example BVerfGE 86, 122 (taking a particular political view in a student journal is insufficient to justify a decision not to employ someone). According to BAG, NJW 84, 828, on the other hand, a doctor at a hospital run by the Catholic Church can be required to abstain from publicly advocating the right to abortion. 62