The phrase "state action," a term of art in our constitutional law, symbolizes the rule?or supposed rule?that constitutional guarantees of human rights are effective only against governmental action impairing those rights. (The word "state," in the phrase, denotes any unit or element of government, and not simply one of the American states, though the "state action" concept has been at its most active, and most problematic, with respect to these.) The problems have been many and complex; the "state action" doctrine has not reached anything near a satisfactory condition of rationality.
A best first step toward exploring the problems hidden in the "state action" phrase may be a look at its development in constitutional history. The development has revolved around the first section of the FOURTEENTH AMENDMENT, wherein the problem is in effect put forward by the words here italicized:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
An early "state action" case under this section, Ex parte Virginia (1880), raised an audacious claim as to the limiting effect of the words emphasized above. A Virginia judge had been charged under a federal statute forbidding racial exclusion from juries. He was not directed by a state statute to perform this racial exclusion. The judge argued that the action was not that of the state of Virginia, but rather the act of an official, proceeding wrongfully on his own. On this theory, a "state" had not denied EQUAL PROTECTION. The Fourteenth Amendment, the judge contended, did not therefore forbid the conduct charged, or authorize Congress to make it criminal. The Supreme Court, however, declined to take such high ground.
"The constitutional provision," it said, "? must mean that no agency of the state, or of the officers or agents by whom its powers are exerted, shall deny ? equal protection of the laws." But probably the only fully principled and maximally clear rule as to "state action" would have been that the "state," as a state, does not "act" except by its official enactments?and so does not "act" when one of its officers merely abuses his power. "Fully principled and maximally clear"?but, like so many such "rules," aridly formalistic, making practical nonsense of any constitutional rule it limits. There were gropings, around the year of this case, toward a "state action" requirement with bite, but the modern history of the concept starts with the CIVIL RIGHTS CASES of 1883, wherein many modern problems were foreshadowed. In the CIVIL RIGHTS ACT OF 1875, Congress had enacted "[t]hat all persons ? shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theatres, and other places of public amusement ? [regardless of race]."
Persons were indicted for excluding blacks from hotels, theaters, and railroads. The Court considered that the only possible source of congressional power to make such a law was section 5 of the Fourteenth Amendment: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." This section the Court saw as authorizing only those laws which directly enforced the guarantees of the amendment's section 1 (quoted above), which in turn referred only to a state. The amendment therefore did not warrant, the Court held, any congressional dealing with racially discriminatory actions of individuals or CORPORATIONS.
Few judicial opinions seem to rest on such solid ground; at the end of Justice JOSEPH BRADLEY'S performance, the reader is likely to feel, "Q.E.D." But this feeling of apparent demonstration is attained, as often it is, by the passing over in silence of disturbing facts and thoughts. Many of these were brought out in the powerful dissent of Justice JOHN MARSHALL HARLAN.
One of the cases involved racial discrimination by a railroad. The American railroads, while they were building, were generally given the power of EMINENT DOMAIN. Eminent domain is a sovereign power, enjoyed par excellence by the state, and given by the state to "private" persons for public purposes looked on as important to the state; the Fifth Amendment's language illustrates the firmness of the background assumption that "private property" shall be taken, even with JUST COMPENSATION, only for PUBLIC USE. The American railroads were, moreover, very heavily assisted by public subsidy from governmental units at all levels. Both these steps?the clothing of railroad corporations with eminent-domain power, and their subsidization out of public funds?were justified, both rhetorically and as a matter of law, on the grounds that the railroads were public instrumentalities, fulfilling the classic
state function of furnishing a transportation system. Regulation of railroads was undertaken under the same theory.
Railroads and hotel-keepers, moreover, followed the so-called common callings, traditionally entailing an obligation to take and carry, or to accommodate, all well-behaved persons able to pay. The withdrawal of protection of such a right to equal treatment might be looked on as "state action," and Congress might well decide, as a practical matter, either that the right had been wholly withdrawn as to blacks (which was in many places the fact of the matter) or that the state action supporting these rights of access was insufficient and required supplementation; only the most purposefully narrow construction could deny to such supplementation the name of "enforcement."
Indeed, this line of thought, whether as to the Civil Rights Cases or as to all other "equal protection" cases, is fraught with trouble for the whole "state action" doctrine, in nature as in name. "Action" is an exceedingly inapt word for the "denial" of "protection." Protection against lynching was, for example, usually "denied" by "inaction." Inaction by the state is indeed the classic form of "denial of protection." The Civil Rights Cases majority did not read far enough, even for the relentless literalist; it read as far as "nor shall any Stat.?" but then hastily closed the book before reading what follows: "? deny to any person ? the equal protection of the laws." Contrary to the majority's reading, the state's affirmative obligation of protection should have extended to the protection of the traditional rights of resort to public transport and common inns; it was notorious that the very people (blacks) whose "equal protection" was central to the Fourteenth Amendment were commonly the only victims of nominally "private" denial of these rights.
Justice Harlan pointed out that in its first sentence, conferring CITIZENSHIP on the newly emancipated slaves, the first section of the Fourteenth Amendment did not use any language in any way suggesting a "state action" requirement, so that there was not even the verbal support for the "state action" requirement that the Court had found in the other phrases of that section. The question then became, in Harlan's view, what the legal consequences of "citizenship" were; for purposes of the particular case at hand, he said:
But what was secured to colored citizens of the United States?as between them and their respective States?by the national grant to them of State citizenship? With what rights, privileges, or immunities did this grant invest them? There is one, if there be no other?exemption from race discrimination in respect of any civil right belonging to citizens of the white race in the same State.? Citizenship in this country necessarily imports at least equality of civil rights among citizens of every race in the same State. It is fundamental in American citizenship that, in respect of such rights, there shall be no discrimination by the State, or its officers, or by individuals or corporations exercising public functions or authority, against any citizen because of his race or previous condition of servitude.?
There is a third, most interesting aspect to Harlan's dissent. The majority had summarily rejected the argument that under the THIRTEENTH AMENDMENT?forbidding SLAVERY and involuntary servitude and giving Congress enforcement power?racial exclusion from public places was one of the "badges and incidents" of slavery. Harlan argued that forced segregation in public accommodations was a BADGE OF SERVITUDE, and he pointed out that no "state action" requirement could be found in the words of the Thirteenth Amendment. This argument was plowed under and was heard from no more for many decades, but it is of great interest because it was revived and made the basis of decision in a leading case in the 1960s, JONES V. ALFRED H. MAYER...