State Action

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The phrase "state action," a term of art in our constitutional law, symbolizes the rule—or supposed rule—that constitutional guarantees of human rights are effective only against governmental action impairing those rights. (The word "state," in the phrase, denotes any unit or element of government, and not simply one of the American states, though the "state action" concept has been at its most active, and most problematic, with respect to these.) The problems have been many and complex; the "state action" doctrine has not reached anything near a satisfactory condition of rationality.

A best first step toward exploring the problems hidden in the "state action" phrase may be a look at its development in constitutional history. The development has revolved around the first section of the fourteenth amendment, wherein the problem is in effect put forward by the words here italicized:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

An early "state action" case under this section, Ex parte Virginia (1880), raised an audacious claim as to the limiting effect of the words emphasized above. A Virginia judge had been charged under a federal statute forbidding racial exclusion from juries. He was not directed by a state statute to perform this racial exclusion. The judge argued that the action was not that of the state of Virginia, but rather the act of an official, proceeding wrongfully on his own. On this theory, a "state" had not denied equal protection. The Fourteenth Amendment, the judge contended, did not therefore forbid the conduct charged, or authorize Congress to make it criminal. The Supreme Court, however, declined to take such high ground.

"The constitutional provision," it said, "… must mean that no agency of the state, or of the officers or agents by whom its powers are exerted, shall deny … equal protection of the laws." But probably the only fully principled and maximally clear rule as to "state action" would have been that the "state," as a state, does not "act" except by its official enactments—and so does not "act" when one of its officers merely abuses his power. "Fully principled and maximally clear"—but, like so many such "rules," aridly formalistic, making practical nonsense of any constitutional rule it limits. There were gropings, around the year of this case, toward a "state action" requirement with bite, but the modern history of the concept starts with the civil rights cases of 1883, wherein many modern problems were foreshadowed. In the civil rights act of 1875, Congress had enacted "[t]hat all persons … shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theatres, and other places of public amusement … [regardless of race]."

Persons were indicted for excluding blacks from hotels, theaters, and railroads. The Court considered that the only possible source of congressional power to make such a law was section 5 of the Fourteenth Amendment: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." This section the Court saw as authorizing only those laws which directly enforced the guarantees of the amendment's section 1 (quoted above), which in turn referred only to a state. The amendment therefore did not warrant, the Court held, any congressional dealing with racially discriminatory actions of individuals or corporations.

Few judicial opinions seem to rest on such solid ground; at the end of Justice joseph bradley's performance, the reader is likely to feel, "Q.E.D." But this feeling of apparent demonstration is attained, as often it is, by the passing over in silence of disturbing facts and thoughts. Many of these were brought out in the powerful dissent of Justice john marshall harlan.

One of the cases involved racial discrimination by a railroad. The American railroads, while they were building, were generally given the power of eminent domain. Eminent domain is a sovereign power, enjoyed par excellence by the state, and given by the state to "private" persons for public purposes looked on as important to the state; the Fifth Amendment's language illustrates the firmness of the background assumption that "private property" shall be taken, even with just compensation, only for public use. The American railroads were, moreover, very heavily assisted by public subsidy from governmental units at all levels. Both these steps—the clothing of railroad corporations with eminent-domain power, and their subsidization out of public funds—were justified, both rhetorically and as a matter of law, on the grounds that the railroads were public instrumentalities, fulfilling the classic state function of furnishing a transportation system. Regulation of railroads was undertaken under the same theory.

Railroads and hotel-keepers, moreover, followed the so-called common callings, traditionally entailing an obligation to take and carry, or to accommodate, all well-behaved persons able to pay. The withdrawal of protection of such a right to equal treatment might be looked on as "state action," and Congress might well decide, as a practical matter, either that the right had been wholly withdrawn as to blacks (which was in many places the fact of the matter) or that the state action supporting these rights of access was insufficient and required supplementation; only the most purposefully narrow construction could deny to such supplementation the name of "enforcement."

Indeed, this line of thought, whether as to the Civil Rights Cases or as to all other "equal protection" cases, is fraught with trouble for the whole "state action" doctrine, in nature as in name. "Action" is an exceedingly inapt word for the "denial" of "protection." Protection against lynching was, for example, usually "denied" by "inaction." Inaction by the state is indeed the classic form of "denial of protection." The Civil Rights Cases majority did not read far enough, even for the relentless literalist; it read as far as "nor shall any Stat.…" but then hastily closed the book before reading what follows: "… deny to any person … the equal protection of the laws." Contrary to the majority's reading, the state's affirmative obligation of protection should have extended to the protection of the traditional rights of resort to public transport and common inns; it was notorious that the very people (blacks) whose "equal protection" was central to the Fourteenth Amendment were commonly the only victims of nominally "private" denial of these rights.

Justice Harlan pointed out that in its first sentence, conferring citizenship on the newly emancipated slaves, the first section of the Fourteenth Amendment did not use any language in any way suggesting a "state action" requirement, so that there was not even the verbal support for the "state action" requirement that the Court had found in the other phrases of that section. The question then became, in Harlan's view, what the legal consequences of "citizenship" were; for purposes of the particular case at hand, he said:

But what was secured to colored citizens of the United States—as between them and their respective States—by the national grant to them of State citizenship? With what rights, privileges, or immunities did this grant invest them? There is one, if there be no other—exemption from race discrimination in respect of any civil right belonging to citizens of the white race in the same State.… Citizenship in this country necessarily imports at least equality of civil rights among citizens of every race in the same State. It is fundamental in American citizenship that, in respect of such rights, there shall be no discrimination by the State, or its officers, or by individuals or corporations exercising public functions or authority, against any citizen because of his race or previous condition of servitude.…

There is a third, most interesting aspect to Harlan's dissent. The majority had summarily rejected the argument that under the thirteenth amendment—forbidding slavery and involuntary servitude and giving Congress enforcement power—racial exclusion from public places was one of the "badges and incidents" of slavery. Harlan argued that forced segregation in public accommodations was a badge of servitude, and he pointed out that no "state action" requirement could be found in the words of the Thirteenth Amendment. This argument was plowed under and was heard from no more for many decades, but it is of great interest because it was revived and made the basis of decision in a leading case in the 1960s, jones v. alfred h. mayer co. (1968).

The Civil Rights Cases, in the majority opinion, brushed past contentions that were in no way frivolous. Very many discriminatory actions of public scope are taken by persons or corporations enjoying special favor from government and heavily regulated by government; one cannot easily see their actions as isolated from public power. "Denial of equal protection," the central constitutional wrong in racial cases, seems to refer at least as naturally to inaction as it does to action. If any positive rights at all inhere in citizenship—and if there are no such rights, the citizenship clause is a mere matter of nomenclature—these rights are set up by the Fourteenth Amendment without limitation as to the source of their impairment. Nevertheless, the holdings and doctrine of the Civil Rights Cases fell on a thirstily receptive society. The "state action" doctrine became one of the principal reliances of a racist nation, North as well as South.

In a society where so much of access to goods and values is managed by nominally "private" persons and corporations—railroads, restaurants, streetcars, cinemas, even food and clothing—a protection that runs only against the government, strictly defined, can work out to very little effective protection. If the official justice system is hampered by inconvenient constitutional safeguards, the sheriff can play cards while the lynch mob forms, and there is "no state action." A nightclub may refuse to serve a black celebrity, and there is "no state action." The "state action" doctrine protected from constitutional scrutiny an enormous network of racial exclusion and humiliation, characterizing both North and South.

Paradoxically, the "state action" requirement may for a long time have been more important to the maintenance of northern racism than to that of the cruder racism of the South. The South developed segregation by law, in all phases of public life, and this regime was broadly validated by the notorious 1896 decision in plessy v. ferguson. For complex political reasons—and perhaps because of a faintly lingering adherence to scraps of civil war idealism—segregation by official law was not widely imposed in the North. But the practices of real-estate agents, mortgage lenders, restaurant keepers, and a myriad of other "private" people and corporations added up to a pervasive custom of racial segregation in many phases of life, a custom less perfectly kept than the official legal dictates of the southern regime, but effectively barring most blacks from much of the common life of the communities they lived in.

A striking case in point was Dorsey v. Stuyvesant Town Corporation (1949–1950). The Metropolitan Life Insurance Company, having much money to invest, struck a complicated deal with the State and the City of New York. The contemplated end-result was the conversion of a large section of New York City—from 14th to 23rd Streets, and from Avenue A to the East River—into a vast complex of apartments, to be owned and run by a Metropolitan subsidiary. By formal statute and ordinance, the State and City acquiesced in this scheme, agreeing to use (and later using) the sovereign "eminent domain" power to acquire title to all the needed land, which was, as prearranged, later transferred to Metropolitan. Again by formal arrangement, a quarter-century tax exemption was granted on "improvements"—that is to say, on the immensely valuable apartment buildings. The public easement on certain streets was extinguished, and control over them turned over to Stuyvesant Town Corporation, a Metropolitan subsidiary; various water, sewage, and fire-protection arrangements were altered to suit the needs of the project. And all this was done, visibly and pridefully, as a joint effort of public and "private" enterprise; politicians as well as insurance men took bows. Then, when the whole thing was built, with "title" safely vested in "private" hands, Stuyvesant Town Corporation announced that no blacks need apply for apartments. The suit of a black applicant reached the highest court of New York, and that court held, 4–3, that there was not enough "state action" in all this to make applicable the Fourteenth Amendment prohibition of racial discrimination. The Supreme Court of the United States denied certiorari.

The Stuyvesant Town case illustrates very well what could be done with the "state action" formula. With the fullest cooperation from government at all levels, as much of any city as might be desired (strictly public buildings alone excepted) could be turned into a "whites only" preserve. With the necessary cooperation, the process could be extended to a whole county, or a whole state. If they were prudent, the political partners in such deals would not put anything in writing about the racial exclusion contemplated.

But the essentiality of the "state action" formula to the success of northern racism must not obscure its considerable strategic importance even in the South. Segregation by law had in the main been validated, and this was the South's main reliance, but there were gaps, and the "state action" formula filled them in.

First, there was the role of nominally "private" violence against blacks, as the ultimate weapon of the racist regime—with lynching at the top of the arsenal's inventory. At this point the disregard of the Fourteenth Amendment's words, "nor shall any State deny … equal protection of the laws," is most surprising. But for a long time a whole lot of seemingly serious people saw no "denial of protection" in the de facto denial of protection to blacks against a great deal of "private" violence.

Second, outright racial residential zoning by law—just one form of segregation—had been struck down by the Supreme Court, in the 1917 case of buchanan v. warley. The opinion in that case does not adequately distinguish Plessy v. Ferguson, but it was the law, and nominally "private" methods of racial zoning had often to be resorted to in the South—just as they were, pervasively, in the North. Real-estate agents and mortgage banks played their accustomed part; until astonishingly recent times, the actually published codes of "ethics" of "realtors" forbade (under some transparent euphemism) actions tending toward spoiling the racial homogeneity of any neighborhood. But more was needed, and that more was found—South and North—in the "racially restrictive covenant." These "covenants" were neither necessarily nor commonly mere casual contractual arrangements between parties dickering at random. Very commonly, when an "addition" was "subdivided," all the first deeds restricted ownership or occupancy, or both, to whites only—or to white Gentiles only, or to white Gentiles of northern European extraction. These covenants, recorded at the courthouse in a registry furnished by the State for this purpose, were ordained by many states' laws to "run with the land"—that is, they had to be put in all subsequent deeds forever, and usually were binding whether so inserted or not, since any buyer, examining title, could find them in the title-chain. These "covenants"—often functionally equivalent to racial zoning by law, enforced by court orders, and kept on file at the courthouse—were for a long time looked on as "merely private" action, in no way traceable to the state, and so not amenable to constitutional command.

A third and even more important use of the "state action" doctrine (or a doctrine closely akin) was peculiar to the South, and was the rotting-out base of southern politics for generations. The fifteenth amendment forbade racial exclusions from voting—but, like the Fourteenth, it directed its prohibition at governments: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."

The general response in the South to this politically inconvenient constitutional mandate was the all-white Democratic primary election. This primary was colloquially known as "the election"; its nominees virtually always won in the November balloting, when all the whites who had voted in the Democratic primary were expected to vote for its nominee, and enough did so to wipe out any scattered Republican votes, including the votes of those blacks who could surmount the other barriers to their voting—literacy tests, difficult registration procedures, and even more violent discouragements. This plain fraud on the Constitution did not rest wholly on the concept that the action of the Democratic party was not "state action," but the even bolder idea behind it—the idea, namely, that the practical substitution of a "party" election for the regular election could altogether escape the Fifteenth Amendment mandate, even when the State commanded the all-whiteness of the Party—was related in more than spirit to the "state action" doctrine as illustrated in the Stuyvesant Town case. Its basis was the thought that racial voting requirements were not "official" if a nominally "private" organization was put in as a buffer between the wrong done and state power. And the all-white primary in the end had to rely (vainly, as at last it turned out) on the "state action" requirement.

The "state action" doctrine is not a mere interesting footnote in constitutional law. It has served as an absolutely essential and broadly employed component in the means by which black equality, theoretically guaranteed by the post-Civil War amendments, was made to mean next to nothing. It could do this because of the fact that, in our society, vast powers over all of life are given to formally private organizations—the Democratic party, the realtors' association, the mortgage bank, the telephone company, and so on—and because, further and indispensably, the courts were (as is illustrated by a line of decisions from the Civil Rights Cases to the Stuyvesant Town case) willing in case after case to gloss over the fact that large organized enterprises can rarely if ever be successfully conducted without very considerable help from the government. Intermixed in these racial cases was, moreover, the disregard of the Fourteenth Amendment's textual condemnation of governmental inaction, where that inaction amounted to denial of equal protection, as inaction obviously may. And constitutional guarantees that were implicit rather than explicit as limits on government were mostly ignored. A doctrine that went to the length of seeming to make of lynching a thing untouched by the Constitution and (as in united states v. cruikshank, 1875) untouchable by Congress was and could be again a powerful tool indeed for bringing national human rights, nationally enjoyed, to nothing, on the plane of life as lived.

The "state action" requirement thus served the major strategic goal of a nation to which racism, in practice, was utterly essential. But even outside the field of race, its incidence, though spotty, was wide-ranging. As late as 1951, in Collins v. Hardyman, the Supreme Court, obviously under the influence of the doctrine though not directly relying on it, forcibly construed a federal statute, in plain contradiction to the law's clear terms, as not to reach the "private" and violent breaking up of a political meeting of citizens.

But a strong countercurrent developed in the 1940s. Without entire consistency, the Supreme Court uttered a striking series of decisions that promised to clip the claws of the "state action" requirement. The Court declared the all-white Democratic primary unlawful in smith v. all-wright (1944) and extended this ruling in terry v. adams (1953) to a local primary serving the same function under another name and form. marsh v. alabama (1946) held that the first amendment, as incorporated into the Fourteenth, forbade the barring of Jehovah's Witnesses from distributing leaflets in a company-owned town. And shelley v. kraemer (1948) held that judicial enforcement of restrictive covenants was unlawful.

In the "white primary" cases the Court was doing no more than refusing to persevere in self-induced blindness to an obvious fraud on the Fifteenth Amendment. But Marsh v. Alabama suggested that the formality of "ownership" could not immunize from constitutional scrutiny the performance of a governmental function—an idea big with possibility. And the Shelley case even more profoundly stirred the foundations. Of course it was difficult to say that judicial enforcement of a racial-restrictive covenant, recorded at the courthouse, with the attendant implication that such covenants are not (as some others are) "against public policy," did not amount to "state action of some kind"—the requirement as worded in the fountain-head Civil Rights Cases of 1883. The difficulty in assimilation of Shelley arose from the fact that "state action of some kind" underpins and in one way or another enforces every nominally "private" action; the states had facilitated and lent their aid, indeed, to the very acts of discrimination considered in the 1883 cases. Shelley, therefore, forced a more searching analysis of the theory of "state action"; academic commentators became exceedingly eager and thorough, and in later decisions the Court became more willing to find "state action" and to move toward a fundamental doctrinal revision.

This process was accelerated by the civil rights movement that gained strength in the late 1950s, and grew to major force in the 1960s. In 1954, the famous case of brown v. board of education had outlawed racial segregation in the public schools; a number of other decisions had extended this rule to all forms of segregation imposed by law or by uncontestable official action. Though enforcement of these decisions was to be difficult, the first of two principal jural supports of American racism—legal prohibition of participation by blacks in the common society—had crumbled. Naturally attention turned—whether with the aim of continuing racism or of completing its demolition—to the second of the pillars of American racism, the "state action" requirement.

Segregation and state action were now clearly seen to have a close functional similarity. Before the decisions following Brown, the blacks in a typical southern town could not eat in the good restaurants because state law commanded their exclusion. After these decisions, the proprietors of the restaurants, by and large, went on excluding blacks. (In this they were simply following a practice widely followed in the North already). There was a difference in legal theory, but no difference to the black people. The city-owned bus system could not make black people sit in the back—but most bus companies were "private" in form; seating in the back was "privately" commanded.

The resistance to this widespread public segregation under "private" form was led (actively in part and symbolically throughout) by Dr. martin luther king, jr. Thousands of black people—most, but not all, young—defied the system by "sitting-in"—insisting upon service at "private" establishments open to the general public. They were in great numbers convicted of "crimes" selected with careful attention to the appearance of neutrality, such as "trespass after warning" or breach of the peace, and their cases reached the Supreme Court in some number.

The net result up to about 1965 was a considerable practical loosening up of the "state action" requirement, but no satisfactory theoretical reworking of that doctrine. A very few examples must be selected from the abundant case law.

The 1961 case of burton v. wilmington parking authority is an interesting example. The parking authority, a state agency, leased space in its parking building to a restaurateur, who forthwith refused to serve blacks. One might have thought it all but frivolous to contend that "state action of some kind" was absent here. The state had gone with open eyes into a transaction that empowered the restaurateur to insult and inconvenience citizens, in a public building owned by itself, and its police stood ready to make his rule stick. The state had done this—in effect certainly, if not in intent—for rent money. It had had the easy recourse of inserting in the lease a provision against racial discrimination; one has to wonder how the omission of that provision, obviously available under "the laws," can be anything but a "denial" of "equal protection of the laws," on the part of government. Yet the Court majority, though striking down the discrimination in the very case, roamed back and forth amongst the minutiae of facts—gas, service for the boiler-room, responsibility for structural repairs—and carefully confined its ruling to a lease of public property "in the manner and for the purpose shown to have been the case here.…" Still, the Wilmington case might have contributed toward some generality of constitutional theory.

As the " sitin " issue heated up, however, the Court became even more evasive of the central issues. As cases reached the Court in great numbers, no "sit-in" conviction was ever affirmed. But neither the whole Court nor any majority ever reached and decided the central issue—whether Shelley v. Kraemer fairly implied that the knowing state use of state power to enforce discrimination, in publicly open facilities, constituted such action of the state as "denied equal protection of the laws." Instead the cases were decided on collateral grounds peculiar to each of them.

The culminating case was bell v. maryland (1964). Trespass convictions of Maryland civil-rights "sitters-in" were reversed, on the grounds (available by chance) that a newly enacted Maryland antidiscrimination statute might be held, in the state courts, to "abate" prosecution for prior attempts to get the service now guaranteed; nothing was actually decided on the more fundamental issues. Six Justices reached the "state action" issue, but of those six, three would have found it and three would not.

At this dramatic moment, with indefinite postponement of a major doctrinal decision seemingly impossible, Congress stepped in and solved the immediate problem, by passing the civil rights act of 1964, Title 2 of which made unlawful nearly all the discriminatory exclusions that had generated the sit-in prosecutions, making future prosecutions of sit-ins impossible. Then, in 1964, in Hamm v. City of Rock Hill, the Court held that the act compelled dismissal of all such prosecutions begun before its passage. Thus vanished the immediate problem of the sit-ins, and of many other claims to nondiscrimination previously based purely on the Constitution. It is noteworthy that Congress chose to base this Title 2, dealing with public accommodations, mainly on the commerce clause rather than on the Fourteenth Amendment. This legislative decision reflected uncertainty as to whether the Court could be persuaded to overrule the 1883 Civil Rights Cases, which had severely limited congressional power to enforce the Fourteenth Amendment. In heart of atlanta motel v. united states (1964) and katzenbach v. mcclung (1964) the Court construed the 1964 provisions broadly, and upheld them under the commerce clause theory that Congress had emphasized. The public accommodations crisis was over, and with it the really agonizing social crisis as to "state action."

Nevertheless, important problems continued to present themselves after 1964. It seemed for a time that, though no longer under the intense pressure of the public accommodations issue, the Court might be moving along the road toward relaxation of the state action requirement—a road along which travel had begun at least as early as the cases of Smith v. Allwright (1944—knocking out the all-white Democratic primary), Marsh v. Alabama (1946—the "company-town" case), and Shelley v. Kraemer (1948—the case of the racial-restriction covenants). (Indeed, no case actually denying relief on the "no-state-action" ground was decided by the Supreme Court from 1906 to 1970, except the 1935 case upholding the white primary, overruled nine years later).

In 1966 the Court held, in Evans v. Newton, that a huge public park in the center of Macon, Georgia, could no longer be operated as a park "for whites only," pursuant to the directions in the 1911 will of the man who had given it to the city, even though the city, for the purpose of seeing this all-white status maintained, had resigned as trustee, and had acquiesced in the appointment of a set of "private" trustees. In Amalgamated Food Employees v. Logan Valley Plaza (1968) the Court applied Marsh v. Alabama to hold a large shopping center subject to the First Amendment, and reitman v. mulkey (1967) struck down under the Fourteenth Amendment a California constitutional amendment that would have forbidden state or local "fair" (i.e., antiracist) housing ordinances until such time as the state constitution might be amended again—a process substantially more difficult than the enactment of ordinary legislation. This opinion, by Justice byron r. white, encouraged much hope, because it explicitly undertook to judge this state constitutional amendment "in terms of its "immediate objective,' its "ultimate effect,' and its "historical context and the conditions existing prior to its enactment." This attitude, if adhered to, would in every case bring the "state action" question down to the earth of reality. The Court would recognize the impact of formal state "neutrality" on the actual patterns of American racism, and would ask in each case whether such seeming "neutrality" operated as a denial of equal protection to the group principally marked for protection. This hope was further encouraged in 1969 in Hunter v. Erickson wherein the Court struck down an Akron, Ohio, requirement that fair-housing ordinances run an especially difficult gauntlet before they became effective; it was especially striking that Justices john marshall harlan and potter stewart, who had dissented in Reitman, found the Akron provision too much, because on its face it discriminated against antiracist laws.

But the current of doctrine changed after President richard m. nixon made the most of his chance to put his stamp on the Court. The change was signaled by the 1970 decision in evans v. abney, a follow-up to the first Macon park case, Evans v. Newton, above. After the Newton decision, the heirs of the donor of the park applied for a reverter to them. The Court held this time that the state court's decision in their favor, in effect imposing a penalty on the citizens of Macon for their being unable under the Fourteenth Amendment to keep the park all-white, did not constitute "such state action" as to implicate the equal protection clause.

In 1971, in palmer v. thompson, the Court upheld the City of Jackson in its closing the city swimming pools and leasing one of them to the "private" YMCA, rather than having blacks swim in them. Here the Court found no state encouragement of discrimination, although the pools had been closed in response to a desegregation order. This was a total turn-about, in just four years, from the Reitman v. Mulky resolution to tie the operation of state-action law to the facts of life, and Justice White, the author of the Reitman opinion, dissented, with three other pre-Nixon Justices.

In 1974 the Court decided jackson v. metropolitan edison company. a heavily regulated "private" electric company, enjoying a monopoly and a state-issued certificate of public convenience, terminated service to a customer without offering her any chance to be heard. this practice was allowed by a "tariff" on file with and at the least acquiesced in by the public utilities commission. justice william h. rehnquist's opinion for the Court found insufficient "state action" in any of this to implicate the due process clause. This opinion and judgment, if adhered to in all their implications, would put us at least as far back as the 1883 Civil Rights Cases. Then, in 1976, hudgens v. national labor relation board explicitly overruled the Logan Valley Shopping Center case and made authoritative for the time being a very narrow view of Marsh v. Alabama.

Meanwhile, however, a new doctrinal thread had become visible. In the 1883 Civil Rights Cases the first Justice Harlan had argued that the Thirteenth Amendment, which contains no language to support a state-action requirement, proscribes all "badges and incidents" of slavery—which, historically, would mean a great many if not all racially discriminatory and degrading actions. This argument was a long time in coming into its own, but in 1968, in Jones v. Alfred H. Mayer Co., the Court made it the ground of a decision upholding an old act of Congress which the Court interpreted to command nondiscrimination in the sale of housing. And in 1976, griffin v. breck-enridge, overruling Collins v. Hardyman, based decision solidly on the Thirteenth Amendment, holding that the amendment authorizes Congress to secure its beneficiaries against "racially discriminatory private action aimed at depriving them of … basic rights.…" Under the very formula of the 1883 Civil Rights Cases themselves—Congress may "enforce" only that which is substantively there—this should imply a large substantive content in the Thirteenth Amendment, far beyond literal "slavery." In runyon v. mccrary (1976) the Court extended much the same rationale to the condemnation of racial exclusion from a "private, commercially operated, nonsectarian" school.

"State action" doctrine has remained intractable to being made rational. What is wanted is attention to these points:

  1. In almost any impingement by one person or more on another person or more, there is some contribution by the state: empowerment, support, or threatened support. Thus the presence or absence of "state action" is not a "test" at all; this has led to the spinning out of enormous series of subtests, hard to express and even harder to comprehend, none of which has much if any warrant in law.
  2. Concomitantly, "state action" may not legitimately be confined—as the Supreme Court's recent opinions have confined it—to one or more neatly defined categories such as "command," "encouragement," or "public function." One may identify ten ways in which so infinitely complicated and subtle a being as the "state" may act—and the "state" may then act in an eleventh and then in a twelfth way—all "state action."
  3. There is no warrant whatever in law for the assumption that "state action," to be significant, must be at a high level of involvement, or that a very close "nexus" must be found between "state action" and the wrong complained of.
  4. Many constitutional guarantees do not explicitly require "state action" as a component. The modern "state action" requirement purported to draw its life from the words of the Fourteenth Amendment. Many rights and relationships set up by the Constitution and enforceable by Congress do not refer to the state at all, for example, the prohibition of slavery (and, as now held, its badges and incidents), the right to vote for congressmen and senators, the right to travel. It is only custom-thought, which usually means half-thought, that would think it obvious that an impediment to interstate commerce would be unconstitutional only if it were state-created.
  5. A citizen of the United States should be regarded as having relational rights—rights of membership in the organized community—which nobody, state or private person, may interfere with. This principle has some life in the cases; in Bewer v. Hoxie School District (8th Cir. 1956), for example, an injunction was upheld that restrained private persons from interfering with state officials' attempts to comply with the national Constitution. But the principle deserves a greater generality. Anybody who tries forcibly to keep another person from getting his mail is interfering with a legitimate relation between citizen and government, even though the wrongdoer's own actions may not be "state action" at all. (See also united states v. guest, 1966.)
  6. There is broad scope in the natural meaning of the Fourteenth Amendment's words: "deny to any person within its jurisdiction the equal protection of the laws." These words, even as a matter of "narrow verbal criticism," do not require "action."
  7. Above all, while much of the defense of the "state action" requirement is conducted in the name of the private, personal lives of people whose conduct, it is said, ought not to be constitutionalized, it is very, very rare that any real "state action" case involves these values at all. The conduct of public transportation and restaurants, the operation of carnivals and parks, dealings with city swimming pools, the way the light company collects its bills, the character of a whole section of town—these are the usual stuff of "state action" problems in real life. If anybody ever files a lawsuit praying a mandatory injunction that he be included on somebody else's dinner list, that will be time enough to begin devising a well-founded "rule of reason" fencing constitutional prohibition out of the genuinely private life. This "genuinely private" life may be hard to define, but surely no harder to define than the "state action requirement" has turned out to be, and continues to be. And at least one would be trying to define the right thing.

Charles L. Black, Jr.


Black, Charles L., Jr. 1962 The Constitution and Public Power. Yale Review 52:54–66.

——1967 "State Action," Equal Protection, and California's Proposition 14. Harvard Law Review 81:69–109.

Hale, Robert L. 1952 Freedom through Law. Chap. 11. New York: Columbia University Press.

Horowitz, Harold W. 1957 The Misleading Search for "State Action" under the Fourteenth Amendment. Southern California Law Review 30:208–221.

Van Alstyne, William W. 1965 Mr. Justice Black, Constitutional Review, and the Talisman of State Action. Duke Law Journal 1965:219–247.

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