Diluting Constitutional Rights: Rethinking State Action
![handle is hein.journals/illlr80 and id is 564 raw text is: Copyright 1986 by Northwestern University, School of Law Printed in U.S.A.
Northwestern University Law Review Vol. 80, No. 3
DILUTING CONSTITUTIONAL RIGHTS:
RETHINKING RETHINKING
STATE ACTION
William P. Marshall*
I. INTRODUCTION
The state action doctrine has been soundly criticized for being hope-
lessly confused and inconsistent.I Commentators argue that the public/
private distinction of the state action doctrine has been wrongly and per-
haps disingenuously applied by the Supreme Court in order to avoid the
substantive constitutional inquiry.2 With this I have no quarrel.
Professor Erwin Chemerinsky's Rethinking State Action,3 however,
goes much further in its criticism of the state action doctrine. His asser-
tion that the public/private distinction would maintain some vitality
even if the state action doctrine were abandoned4 makes it clear that he is
less concerned with the inconsistencies that continually have plagued the
* Associate Professor of Law, Case Western Reserve University Law School. I would like to
thank Professors Barbara Snyder and Melvin Durchslag for their helpful comments on an earlier
draft of the Article. I am also deeply indebted to Jonathan Smith-George of the Marshall-Wythe
School of Law, College of William & Mary for his research assistance. Finally, I would like to thank
my friend Erwin Chemerinsky for yet another lively disagreement, and express the hope that some-
day we may actually agree on something.
I See L. TRIBE, AMERICAN CONSTITUTIONAL LAW 1147-74 (1978); Black, Foreword: State
Action, Equal Protection and California's Proposition 14, 81 HARV. L. REv. 69 (1967); Brest, State
Action and Libel Theory: A Casenote on Flagg Brothers v. Brooks, 130 U. PA. L. REV. 1296 (1982);
Nerken, A New Deal for the Protection of Fourteenth Amendment Rights: Challenging the Doctrinal
Bases of the Civil Rights Cases and State Action Theory, 12 HARV. C.R.-C.L. L. REV. 297 (1977);
Williams, The Twilight of State Action, 41 TEx. L. REv. 347 (1963).
2 See Hale, Rights Under the Fourteenth and Fifteenth Amendments Against Injuries Inflicted by
Private Individuals, 6 LAW. GUILD REv. 627 (1946); Nerken, supra note 1; Williams, supra note 1.
According to Professor Tribe, the state action doctrine serves a legitimate function:
[I]f constitutional law is understood as a snapshot of the deepest norms by which we govern our
political lives the state action problem is its negative. It is a problem, or rather, a series of
problems, whose solutions must currently be sought in perceptions of what we do not want
particular constitutional provisions to control.
L. TRIBE, supra note 1, at 1174. Tribe, however, would reformulate the inquiry as one that examines
the substantive reach of constitutional commands rather than examine whether the government has
done anything to which the Constitution speaks. Id.
3 Chemerinsky, Rethinking State Action, 80 Nw. U.L. REa. 503 (1985).
4 See id. at 551-52. In this he is undoubtedly correct. It would be impossible, for example, to
apply the establishment clause to private conduct.](ViewImageLocal?handle=hein.journals/illlr80&div=19&collection=&method=preview&ext=.png&size=3)
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Diluting Constitutional Rights: Rethinking State Action
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