Making Sense of State Action

Lauren E. Tribble, Columbus School of Law, The Catholic University of America
John Dorsett Niles, Gilbert LLP
Jennifer N. Wimsatt, Law Clerk, Hon. Eugene Siler

Abstract

Perhaps no question of constitutional law is more fundamental than whether the Constitution applies. The Bill of Rights, Fourteenth Amendment, and Fifteenth Amendment protect individuals’ rights from invasion by the state, but they do not protect against private action. Separating “state action” from “private action” thus poses a critical constitutional question, and it is one with which the U.S. Supreme Court has grappled more than seventy times since 1883.

Unfortunately, the Court’s state-action rulings provide something less than a model of clarity. Many rulings seem inconsistent, and issues of first impression frequently have created new lines of precedent that speak little to prior state-action rulings. The Court never has developed an overarching conceptual structure within which to tie together its many state-action rulings. Such a framework also has eluded scholars: though more than two hundred articles examine "state action," none meaningfully distinguishes between it and "private action." In the words of one scholar, the distinction has become “at least a piece of the Holy Grail that has eluded state action theorists for decades.”

Nevertheless, distinguishing meaningfully between state action and private action is possible. In this Article, the authors advocate that the Court adopt a conceptual framework for determining, in any circumstance in which the state-action inquiry might arise, whether the Constitution applies. The authors review the law and scholarship of state action and—building on decades of analytical progress—propose a conceptual structure, consistent with case law and applicable to any set of circumstances, for meaningfully distinguishing between "state action" and "private action." The authors conclude by defending and illustrating this proposal.