Huq, Aziz Z., The Private Suppression of Constitutional Rights (April 1, 2022). Texas Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4072800

“On September 1. 2021, Texas’s abortion ban S.B.8 went into effect, not only prohibiting almost all abortions after six weeks but also allowing any private party to sue those who, knowingly or unwittingly, aid or abet such procedures. Texas’s law has been described as “unprecedented” and “inventive.” These claims reflect a widely shared assumption that the state’s legislature broke new ground by allowing private citizens the legal power to stifle a presently valid constitutional right. But such condemnations miss important historical context: Laws enabling the private suppression of constitutional rights have been enacted, and aggressively used, throughout American history. Indeed, many of the most potent elements of S.B.8 have been prefigured by specific features of earlier, ‘anti-constitutional’ schemes. This Article foregrounds and analyzes these historical practices, which it labels “private suppression.” Its threshold contribution is the identification of state and federal private suppression schemes from the early Republic through to the War on Poverty. Having flagged varied examples, it then identifies patterns in the political economies from which private suppression schemes arise, and predictably downstream effects on regulated population, constitutional norms, and legal institutions With this empirical ground established, the Article situates the private suppression of constitutional rights in constitutional theory as a species of popular constitutionalism and also an exercise in privatization. These frames bring into sharp focus private suppression’s likely effects. Beyond its proximate operation, the Article suggests, private suppression reproduces underlying social ‘facts’ that are used to justify and legitimate social hierarchies of race, class, and now gender. In this process, it wreaks a novel and distinctive harm by configuring some individuals into objectionable postures of vulnerability and exposure to their co-citizens. Hence, private suppression has played an important role marking out, and hence calling into being and reifying, ‘spoiled’ social identities (e.g., certain understandings of race or gender) Bringing private suppression to light also casts new light on the concept and practice of ‘the rule of law’ along two dimensions. First, while seemingly a loss of control on the part of the state, private suppression works in practice as a way for the state to weaken constitutional constraints—and thus to magnify its reach and achieve policy changes that could not be directly wrought. This undermine a premise of the American constitutional theory—that concentrations of power are linearly associated with the hazard to individual rights. Diffuse authority can also be liberty’s enemy. Second, private suppression destabilizes the ordinary relationship between courts and the rule of law by conscripting adjudication as a law-ousting, rather than law-enforcing institution. Rather than serving as validating historical precedent, these antecedents and the accompanying analyses suggest fertile ground for moral and legal concern about S.B.8, all quite independent of the divisive question of reproductive choice…”