The State Action Doctrine and the Principle of Democratic Choice
The state action doctrine is somewhat of a mystery to law students, legal scholars, lawyers, and judges. It is a key component of the Fourteenth Amendment—a threshold requirement that must be satisfied before triggering protection of our fundamental rights—but the doctrine itself seems to be curiously without purpose, a collection of arbitrary rules that impede constitutional protection of liberty, equality, and fairness for no good reason. Nearly forty years ago, Professor Charles Black called the state action doctrine “a conceptual disaster area” and characterized scholarly commentary upon it as “a torchless search for a way out of a damp echoing cave.” More recently other legal scholars have described the state action doctrine as “analytically incoherent” and “a miasma.” The reason that the state action doctrine is considered to be so inscrutable is that the purpose of the doctrine has been misunderstood. The purpose of this Article is to explain what the rationale behind the state action doctrine is.