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3 Chi. J. Int'l L. 465 (2002)
State Action is Always Present

handle is hein.journals/cjil3 and id is 471 raw text is: State Action is Always Present
Cass R. Sunstein
What is the place of social and economic guarantees in a democratic
constitutional order? Do such guarantees place a special strain on the judiciary? Do
they help poor people? What is the relationship between such guarantees and
doctrines involving state action and the horizontal application of constitutional
Mark Tushnet does not attempt to answer these questions directly. But he casts
new light on them by analyzing a number of cases in which courts have, or have not,
taken their constitutions to alter background rules of property, contract, and tort.
Tushnet contends that the rise of the activist state, understood as some form of social
democracy, unsettles preexisting understandings of the relationship between
constitutional norms and the private sector. In the classical liberal state, the
constitution does not apply horizontally; there are no economic guarantees; and what
counts as state action is relatively clear. But once the state assumes affirmative
obligations, constitutional norms might well be triggered, and the state's failure to
alter the background rules of property and contract law might well raise serious
constitutional problems. To borrow from Tushnet's summary of his complex account:
In a thin social democratic nation, such as Canada, courts are placed in a new and
extremely difficult position, being forced either to enforce obviously arbitrary lines
between what they treat as state action and what they do not, or to work out the set
of entitlements people should have in a thicker social democracy.
Much of what Tushnet says is highly illuminating, but I think that there are
several gaps in his discussion. I emphasize two points here. First, the classical liberal
state assumes affirmative obligations, and does so no less than the social democratic
state. The obligations are different, but they are not less affirmative. The widespread
neglect of this point, within the legal and political culture, has led to serious failures in
analysis, and the failures are not innocuous. Second, state action is always present.
*     Karl N. Llewellyn Distinguished Service Professor of Jurisprudence, Law School, Department of
Political Science and the College, University of Chicago.
1.    Mark Tushner, State Action, Social Welfare Rights, and the Judicial Role: Some Comparative Observations,
3 ChiJ Intl L 435 (2002).

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