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33 N. Y. L. Sch. L. Rev. 383 (1988)
Shelley v. Kraemer and Theories of Equality

handle is hein.journals/nyls33 and id is 389 raw text is: SHELLEY v. KRAEMER AND THEORIES OF EQUALITY MARK TUSHNET* I must begin this essay by noting that I had more difficulty in writing it than I have had with7 any other of my articles on constitu- tional law. Whether this results from the difficulty of the subject mat- ter, the subtlety of my analysis, or the inadequacy of my understand- ing of the subject, will be for readers to decide. The essay addresses two connected questions. First, what is the relation between the state action doctrine as invoked in Shelley v. Kraemer,' and the substantive theory of equality the Court invoked in holding racially restrictive cov- enants unconstitutional? The short answer is that the two doctrinal holdings are identical. That is, there can be no doctrine of state action that is independent of the applicable substantive constitutional law. As we will see, although that answer is completely conventional among the commentators on Shelley,2 the Supreme Court persists in invoking a state action doctrine that it purports to treat as prior to and indepen- dent of substantive constitutional law. The second question I address is, why does this disjuncture between Court behavior and analytical clarity arise? I suggest two answers. The first is that the state action doctrine has some important, albeit complex, ideological functions. This answer produces a modest defense of the state action doctrine as one that provides an opportunity for some degree of judicial activism, which might be absent were the state action doctrine repudiated. The second answer is that the enterprises of adjudication and scholarly analysis may differ precisely in that scholars need not-though they sometimes do-perform the same ideological functions as the Court * Professor of Law, Georgetown University Law Center. I would like to thank, in addition to the participants in the New York Law School symposium, members of the faculty at the University of Maryland and the University of South Carolina Law Schools for their comments on an earlier version of this essay. Elizabeth Alexander and Gerry Spann also made helpful comments. In the course of discussing the essay with L. Michael Seidman, he repeatedly said things like, It's your article, but if it were mine I'd do it a different way. I probably should have followed his advice. The correct things I know about the state action doctrine I have learned from him; the incorrect ones I have come up with myself. 1. 334 U.S. 1 (1948). 2. See, e.g., Chemerinsky, Rethinking State Action, 80 Nw. U.L. REv. 503, 505 (1985) (For twenty years, scholars have persuasively argued that the concept of state action never could be rationally or consistently applied.); see also Horwitz, The Misleading Search for State Action Under the Fourteenth Amendment, 30 S. CAL. L. REv. 208 (1957) (arguing that the issue is the constitutionality of that state action which is always present).

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