With the exception of the 13th Amendment's ban on slavery or involuntary servitude, discussed at ß 25.1, other rights protected by the Constitution are protected only against government infringement, not infringement by private actors. This is indicated by the literal text of most constitutional provisions. For example, the First Amendment provides, "Congress shall make no law abridging the freedom of speech." The 14th Amendment provides, "No State shall deprive any person of life, liberty, or property without due process of law, nor deny to any person equal protection of the laws." Thus, the Court held in 1883, in the Civil Rights Cases,1 that the 14thAmendment does not bar the invasion of rights by individuals, but only authorizes courts and Congress to redress the operation of state laws and the actions of state officials that deprive people of federal rights. Even in the absence of literal text, other constitutional protections, like the Fifth Amendment protections against double jeopardy or self-incrimination, only make sense in the context of the government action of arrest and prosecution. As the Court stated in the 2001 case of Brentwood Academy v. Tennessee Secondary School Athletic Association:
The judicial obligation is not only to "'preserv[e] an area of individual freedom by limiting the reach of federal law' and avoi[d] the imposition of responsibility on a State for conduct it could not control," . . . but also to assure that constitutional standards are invoked "when it can be said that the State is responsible for the specific conduct of which the plaintiff complains."2
Where an individual is burdened by the operation of a state statute enforced by a state official, such as a district attorney or an administrative agency official, state action is naturally found. Where action is done purely by a private individual, such as an individual determining what speech will go on in the individual's own home, state action is not found. The difficult cases involve circumstances involving actions that have elements of both state and private action. The Court noted in Brentwood Academy,3 "[S]tate action may be found if, though only if, there is such a 'close nexus between the State and the challenged action' that seemingly private behavior 'may be fairly treated as that of the State itself.'" In deciding whether such a "close nexus" exists, the Court has considered a myriad of factors, and has used different terminology and tests at different times in order to determine whether state action exists. Despite the terminology of "state action," the key question in each case is whether sufficient "government action" exists, so that either the individual rights protections involving federal action, like the original Bill of Rights, or individual rights protections involving state or local action, such as the 14th Amendment, can be said to apply. In all cases of federal, state, or local action, the terminology and tests can be organized around three basic factors: Page 917
(1) The extent to which the individual is burdened by "overt official involvement," whether by operation of a federal, state, or local law; federal, state, or local executive or administrative agency action; or involvement by a federal, state, or local judge in judicial enforcement of a constitutional, statutory, or common-law right;
(2) The extent to which the individual and the government are "entwined," whether by (a) individual participation in "joint activity" with the government, either "overt or covert," e.g., a joint venture, partnership, or conspiracy, or in some other way shared "management and control," including government control through regulation "authorizing" the private activity; or (b) financial connections of support, such as direct grants or subsidies, or tax breaks, between the government and private actor; or (c) some symbiotic relationship between the two, so that the government has placed its "power, property, and prestige" behind the private activity, or in some other fashion has "encouraged" the activity to occur; and
(3) The extent to which the individual is performing an activity considered by the Court to be a "public function."4
Differences among the four decisionmaking styles influence how, in practice, the Justices go about defining each of these three factors. As discussed at ß 188.8.131.52 nn.38-43, these three considerations are best understood as factors to be weighed together, although a formalist approach would prefer to view them as elements to meet, meaning at least one of them must be met on its own, without aggregating the cumulative affects of all three factors, to support a finding of state action.
The Court decided no explicit state action cases during the original natural law era. All cases dealing with constitutional rights involved federal, state, or local governmental action. There were very few state cases during this period, since the first eight Amendments were not applicable to the states until after the 14th Amendment was ratified in 1868, as discussed at ß 27.2. The few state cases involving individual rights, as opposed to federalism concerns, involved cases such as those under the Contracts Clause, discussed at ß 22.1. Few federal cases existed because of sparse federal legislation touching on individual rights. The cases decided involved issues such as those under the Takings Clause, discussed at ß 22.2, or whether the Ex Post Facto Clause applies only to criminal legislation, discussed at ß 23.2, all examples of clear federal, state, or local government action.
As might be expected, a formalist approach to state action looks for examples which clearly, that is, literally, involve "overt official involvement"; or shared control because the private organization Page 918is clearly "created, coerced, or encouraged by the government," or is in a "symbiotic relationship with the government"; or the organization is performing a clear "public function." Under this approach, "mere entwinement" of some kind is not sufficient to trigger a finding of state action.5
For example, during the formalist era in 1927, the Supreme Court held in Nixon v. Herndon6 that a Texas statute excluding blacks from Democratic primaries was unconstitutional as race discrimination by the state. Similarly, in 1932, in Nixon v. Condon,7 a state law excluding blacks from a Democratic primary by the party's executive committee was found to be state action where a state statute delegated power to determine party membership. Thus, there was overt official involvement, as well as aspects of a public function. In contrast, in 1935, in Grovey v. Townsend,8the Court held that a political party could exclude blacks from membership since that action, taken without the benefit of a statute, was done literally by a private group.
Based upon its more functional approach to law, discussed at ß 3.2 nn.23-25, 43-50, the Holmesianera Court took a more functional view of the state action doctrine. It extended the state action doctrine beyond the literal application of state law by state officials to actions of private persons where there were sufficient connections with the state.
For example, in Smith v. Allwright,9 the Court overruled Grovey v. Townsend because the state's allowing a private political party to deny in their primary election the eligibility of blacks to vote was the functional equivalent of excluding blacks from the primary based upon the state statutory permission that occurred in Nixon v. Condon. Similarly, in Terry v. Adams,10 the Court held that excluding blacks from a private group's pre-primary straw vote was state action because the winners of that primary ran unopposed in formal Democratic primaries. Functionally, therefore, it was indistinguishable from Herndon and Condon.
Since Allwright and Terry did not literally involve "overt official involvement," as did Herndon and Condon, from these cases emerged the "public function" aspect of state action doctrine. Where Page 919private individuals perform a public function, such as choosing candidates to run for public...