PERSONAL RIGHTS AND RULE-DEPENDENCE: Can the Two Coexist?

Can constitutional rights be both personal and rule-dependent? Can it be true of constitutional adjudication (1) that a constitutional litigant must assert “her own” rights, and yet also (2) that the viability of a constitutional challenge depends (or sometimes depends) on whether a particular type of legal rule, for example, a discriminatory or poorly tailored rule, is in force? In a previous article, Rights Against Rules: The Moral Structure of American Constitutional Law, I (in effect) answered these questions in the negative.1 My focus was a specific kind of constitutional challenge2 and a specific conception of what it meant for a constitutional right to be “personal.”3 The current article is an attempt to generalize the arguments developed in Rights Against Rules. Insofar as constitutional doctrine makes reference to rules, constitutional litigants are not personal rights-holders and reviewing courts are not, in the strict sense, courts.4 Rather, they are mini-legislatures, engaged in the repeal or amendment of rules that fail to meet constitutional norms (such as antidiscrimination norms or narrow-tailoring norms), and litigants are the “private attorneys-general” who initiate the enforcement of these norms. This is true, I will claim, on any plausible understanding of the “personal” cast of constitutional rights.