The Historical Origins of the Horizontal Effect Problem in the United States and Japan: How the Reach of Constitutional Rights into the Private Sphere Became a Problem

Abstract

This Article examines the historical origins of the horizontal effect problem in the United States and Japan. In the United States, from the founding era to the nineteenth century, jurists considered common law rights and constitutional rights had the same scope. Lawyers in the nineteenth century considered that the Due Process Clauses protected common law rights, which originally developed in private litigations. For example, private parties as well as the government shall not infringe on liberty of contract. However, this circumstance changed after the constitutional revolution in 1937. The concept of constitutional rights, distinct from common law rights, has gradually developed since then. The problem of horizontality appears because of the historical fact that constitutional rights and common law rights diverged at that time. In 1946, the framers and lawyers in Japan had the idea that the Constitution applied to private spheres. They expected the government to enforce the Constitution in all legal areas, including private relations. This is because just after World War II, Japan experienced various liberal and progressive social reforms. However, Japanese politics ultimately became conservative. The conservative Liberal Democratic Party had constantly ruled the government. Japanese liberal scholars could no longer expect the government to impose liberal ideologies upon society and they needed an intellectual weapon to combat the government. Japanese lawyers have rebuilt a constitutional theory that constitutional rights are a bulwark of individual liberties against the government, and that the rights only apply to governmental actions. From the time that constitutional theory emerged on, Japanese jurists have had to tackle the horizontality problem.