The Federal Constitution as a Ceiling, Not Only a Floor: Constitutional Limitations on Civil Rights and Liberties

ofer raban, university of oregon school of law

Abstract

"It is elementary that States are free to provide greater [civil rights] protections…than the Federal Constitution requires.” California v. Ramos, 463 U.S. 992, 1013 (1983). And the same is true for Congress, so far as it operates within its constitutional powers. In other words, Congress or the States (through legislation or through their own constitutions) can always go beyond the Federal Constitution and provide more civil rights and liberties. That possibility has been a source of comfort for those who favor expansive civil liberties during the continuing spell of conservative supreme courts. But that comforting idea has its limitations: sometimes the Federal Constitution can limit the ability of Congress or the States to expand civil rights. In other words, sometimes the Federal Constitution is not just a floor for civil liberties, it is also a ceiling. This happens whenever a civil liberty conflicts with another constitutionally-protected right or liberty, or whenever granting a civil liberty to some individuals restricts its availability to others. This paper surveys a number of such constitutional conflicts, and examines the possible ramifications of Isaiah Berlin’s “incommensurability” thesis to such conflicts of rights.