State Action and the Constitution's Middle Band

By Seidman, Louis Michael | Michigan Law Review, October 2018 | Go to article overview

State Action and the Constitution's Middle Band


Seidman, Louis Michael, Michigan Law Review


Introduction

According to conventional accounts, the state action doctrine is dichotomous. When the government acts, constitutional limits take hold and the government action is invalid if those limits are exceeded. When the government fails to act, the state action doctrine leaves decisions to individuals, who are permitted to violate what would otherwise be constitutional constraints.1 These accounts are linked to the conventional view about the primary purpose served by constitutional law. On this view, the Constitution's main function is to limit government power in order to protect individual freedom. As Robert McCloskey once wrote: "[T]he essential business of the Supreme Court is to say 'no' to government."2

The state action doctrine serves this purpose by providing constitutional protections where they are needed most. The doctrine prevents judicial en forcement of the Constitution from itself serving as an excuse for government intervention.3 As Justice Byron White argued,

Careful adherence to the "state action" requirement preserves an area of individual freedom by limiting the reach of federal law and federal judicial power. . . . A major consequence is to require the courts to respect the limits of their own power as directed against state governments and private interests.4

In short, the state action doctrine embodies the principle that government action-rather than action taken by private individuals-triggers constitutional limitations.

Many critics of the state action doctrine have attacked its coherence and normative attractiveness.5 They have disputed the connection between the doctrine and individual freedom by pointing out that the absence of constitutional protections in effect authorizes private coercion.6 Moreover, they insist that the government is always implicated in that coercion. In particular, they assert that the state action doctrine systematically ignores background, structural state action like common law tort, property, and contract rules that shape, limit, and legitimate private conduct.7 That observation, in turn, has led some commentators to conclude that there is no real "state action" doctrine. Instead of asking whether there is "state action," these commentators argue that courts should focus on the state conduct that is always present and determine whether that conduct violates substantive constitutional norms.8

After several generations of contestation, these positions are now well understood. The argument has gone stale. Remarkably, though, no one has noticed that both sides misstate the fundamental structure of state action law.

The state action doctrine is not dichotomous at all. It has a tripartite structure that delineates three, rather than two, domains. First, there is a private, inner band where there is insufficient government action to trigger constitutional constraints. Second, there is a public, outer band where there is too much state action for the Constitution to apply. Third, there is a middle band-a Goldilocks band-where the level of government action is just right, and the Constitution takes hold. For constitutional limitations to have force, the government must act just enough-but not too much.

Two recent Supreme Court cases illustrate this basic structure. First, in Walker v. Texas Division, Sons of Confederate Veterans, Inc.,9 the Sons of Confederate Veterans, Texas Division sought an injunction requiring the state to provide specialty license plates featuring a Confederate battle flag. The license plates were similar to other plates that the state had issued and that supported controversial causes, but state officials denied this request.10 The organization sued, claiming that the denial constituted content discrimination that violated the free speech guarantee of the First Amendment.11

Writing for the Court, Justice Breyer detailed the extensive history of state involvement in the design and issuance of license plates. …

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