Christina Bambrick, a political theorist at the University of Notre Dame, recently spoke at UW-Madison about whether liberal constitutionalism can address problems that extend beyond the traditional relationship between governments and individuals. Bambrick’s research dives into American and comparative constitutionalism, republican theory, and the history of political thought.
Bambrick’s September 22 talk, hosted by the Center for the Study of Liberal Democracy, focused primarily on two questions: what virtues are necessary for a liberal society to function and whether constitutional rights should sometimes apply to the private sphere, rather than only to governments.
She began by discussing what she described as a common understanding of liberalism: a broad school of political thought that emphasizes political theory rooted in liberty and the rule of law. She emphasized a political system that sets focus on virtue, duty, and the role they play in liberal politics. This laid the foundation for the rest of the lecture.
She moved on to talking about two projects she worked on in recent years. The first project is an article she wrote in The Political Science Reviewer in 2023 titled “The Promise of Virtue, Old and New: On Building Bridges in Contemporary Politics.” The second project was her recent book, Constitutionalizing the Private Sphere: A Comparative Inquiry. Although the projects address different subjects, Bambrick said both examine what some scholars and political actors understand as weaknesses in modern constitutionalism, as well as potential solutions to address those weaknesses.
Bambrick began with the role of virtue in liberal politics. She discussed the promise of liberal virtues through Rawlsian liberalism and the idea that liberal politics should maintain a degree of neutrality toward competing views about morality and life.
She turned to communitarian critics such as Michael Sandel, who challenged liberalism for producing what they viewed as overly individualistic citizens who could potentially become disconnected from their communities and lack a strong sense of duty in society. She pointed to some liberal theorists responding to the criticism by developing the idea of “liberal virtues.”
However, Bambrick argued these virtues still begin with a liberal understanding of the individual and autonomy. She suggests that older traditions of virtue could provide another way to approach questions about human nature and what is good for people. Traditions include prudence, justice, courage, and temperance.
She challenged the idea that liberalism and republican political thought have always been separate traditions. She argued historical scholarship suggests that liberal and republican ideas have often existed together, even going so far as to say liberalism grows out of republicanism. This furthers her argument that older traditions could still contribute to contemporary liberal politics.
She then shifted focus to her book, which examines whether constitutional rights should apply not only to governments but also to private actors. Bambrick described the traditional approach as the “vertical” model, in which constitutional rights primarily govern the relationship between the state and individuals.
She said the vertical model aims to protect the private sphere by keeping private actors free from constitutional regulation, allowing people to exercise liberty in their private lives, which ultimately protects the sphere of liberty. Bambrick argued that the separation between state and individuals can leave people without constitutional protections from harm caused by other private actors and overlook duties that citizens may have toward each other.
Bambrick pointed to what she believes is a solution to this weakness. She introduced the idea of a “horizontal” model, where private actors potentially become responsible for rights in the private sphere. This would allow constitutional protections to apply to abuses wherever they might occur outside of direct government action.
She then connected the horizontal approach to republican political thought, which focuses on duties and responsibilities between citizens. She described horizontal application as a “republican vein in liberal constitutions,” arguing that it introduces ideas of shared responsibility into a system focusing on individual rights.
Bambrick used the United States, India, and South Africa to illustrate different approaches to the public and private divide.
She first used the United States to exemplify this. She focused on policy during the Reconstruction era, with a specific focus on the 13th, 14th, and 15th Amendments which expanded constitutional protections. She specifically highlighted the 14th Amendment because the language focused on state action.
Bambrick explained that some Radical Republicans wanted Congress to enforce equality in private spaces, including inns, theatres, and public transportation. The Supreme Court ultimately adopted the state action approach, which limited the reach of the 14th Amendment into private relationships.
She moved on to discussing India, which she named as the only example in her book where the framers were self-consciously republican when drafting their constitution. She focused on Article 15, which prohibits discrimination in places such as restaurants, shops, and hotels. She also pointed to B.R. Ambedkar’s emphasis on making fundamental rights real protections for citizens, which goes hand in hand with the broader goal of extending constitutional principles to private spaces.
The last example she discussed was South Africa’s transition away from apartheid. Bambrick explained that its interim constitution took a more laissez-faire approach to the public-private divide. She highlighted Du Plessis v. De Klerk, where the majority maintained this separation, before the 1996 constitution moved toward more explicit application of constitutional rights to private actors.
One concern Bambrick mentioned with the horizontal model is the expanded role it gives to the courts. She acknowledged that judges would have significant power to decide when constitutional rights apply between private actors. In response, she suggested allowing space for the legislature and legislative institutions to be involved in decision-making, so that the obligations do not solely rely on the courts.
Bambrick concluded her presentation with a Q&A portion, where audience members were able to ask her questions regarding her ideas on virtue and liberal constitutionalism, as well as how her arguments would apply to different real-life problems.
During this session, Bambrick’s responses discuss how law and civic virtue could work together to address issues such as climate change and artificial intelligence. She said that law and virtue have a “bidirectional” relationship, meaning that law can be instructive for society, but can also be counterproductive if people are not ready to accept what the law requires.
One audience member asked whether a horizontal model could limit pluralism if adopted. Bambrick said the question ultimately comes down to which constitutional values a society wants to apply more broadly and where those values might have influence.
Finally, when asked whether the United States could adopt a more horizontal model in the future, she claimed she did not see that broad of a change happening, especially not anytime soon. She did note, however, that there may be specific circumstances where greater constitutional protections for private actors would be useful.
