This essay articulates two intertwined points about the
effects of fundamental rights in private disputes. First, it presents a case
against the doctrine of direct horizontal effect, although not on the
familiar grounds that it places individual freedom in jeopardy. It argues
instead that legislative mediation instantiates values of legal certainty,
deliberative idleness, and political legitimacy cherished in a
constitutional democracy. The second point is that the quarrel concerning
the horizontal effect of fundamental rights is not outcome-neutral. The
fact that such rights bind directly only law-making agencies has
normative consequences both in terms of their influence on private
litigation and in terms of the responsibilities of the state qua law-maker.
These arguments are doubly conditional. On the one hand, they are based
on three premises of constitutional theory discussed in the first section:
protective entitlements, fundamental rights as principles, and a
concentrated model of judicial review of legislation. On the other hand,
the rejection of direct horizontal effect is not absolute: it holds only within
the core case where the premises apply, thereby allowing a number of noncore
cases of direct effect.