Classical Liberalism Meets the New Constitutional Order: A Comment on Mark Tushnet

Mark Tushnet's provocative paper, State Action, Social Welfare Rights, and the Judicial Role: Some Comparative Observations1 offers a typology of judicial review that throws into high relief some of the key elements of any system of constitutional law. One key component of the mix is substantive: just what rights should, or does, a particular constitution protect? A second is structural: what payoff comes from assigning any particular level of constitutional protection to any particular right? The differences can matter. The United States Constitution simply invalidates the offending law. In contrast, the Canadian Charter of Rights and Freedoms provides that any such law can be reenacted for a five year period by a simple provincial majority.2 These two questions-of content and potency-are interdependent. Many modern constitutions reject the baseline of the United States Constitution, with its system of strong rights in property and liberty and strong judicial review. In contrast, newer constitutions offer weak protection to private property and often contain an impressive list of positive rights, such as the right to a decent job or decent housing. How does content influence potency? Tushnet begins his analysis of these knotty questions by looking at a number of Canadian cases.3 Historically, constitutions did not regulate relations between private individuals, but instead limited regulations to state actors. Yet as Tushnet notes, IMAGE FORMULA3 much new legislation calls into question this neat historical distinction. For example, the normal (i.e., classical liberal) rules of contract allow individuals and firms to choose their trading partners on whatever terms they see fit. Is that response still appropriate in contiguous areas once the state prohibits private discrimination based on grounds of race or sex? May the state then refuse to prevent discrimination on grounds of sexual orientation? Or obesity? Does a private hospital that refuses to supply a sign language interpreter to a deaf person violate the constitutional norm of equality? Finally, must a labor statute that allows for collective bargaining for industrial workers extend the same right to farm workers? The Canadian courts have held that the state cannot enter the world of discrimination or collective bargaining by half-measures. The state's generalized guarantee of equality requires it to jump in with both feet once it has begun its journey. Likewise the state may not have to provide for anyone's medical care, but once it does, the norm of equality requires it to defray the costs of the deaf person. Tushnet argues that the Canadian Charter necessarily displaces the background rules of property and contract so central to the system of laissez-faire, which, in fact, they do.4 Indeed these Canadian cases seem to go beyond the usual American decisions on underinclusion, Underinclusion occurs when a statute that gives some benefit to members of one race declines to give it to members of another. It has never been read to require a state to prohibit discrimination on one ground because it has done so on another, which the Canadian cases do require. In many ways Tushnet welcomes this rejection of the classical liberal synthesis that I, for one, have long defended.5 His basic challenge asks whether the classical liberal tradition is coherent. If not, then what becomes the status of the judicial enforcement of constitutional liberties? I. THE COHERENCE OF THE CLASSICAL LIBERAL SYNTHESIS Tushnet correctly notes that the traditional synthesis combines broad readings to property and contract with a narrow definition to fraud or coercion, so that the latter categories do not swamp the former.6 Tushnet claims that this line is untenable because "coercion, as the courts had defined it, was not a category sharply distinguished from freedom but simply a particular location on a continuum of varying degrees of freedom. …