By Sheldon Nahmod [Reposted from Nahmod Law]
This is the eighth in a series of posts about the United States Constitution written in everyday language with a minimum of legal jargon.
Previous posts introduced the Constitution, rebutted some commonly held myths about the Constitution, addressed the Equal Protection Clause, considered free speech and hate speech and discussed procedural and substantive due process.
This post deals with the important concept of state action. Non-lawyers should understand that private persons cannot violate another’s equal protection, due process or, say, 1st or 4th Amendment rights. Only governments can.
The term “state action” stems from the language of section 1 of the 14th Amendment which provides in relevant part that states (including local governments) must treat people equally and fairly (equal protection) and must not deprive them of basic rights (due process, which includes most of the provisions of the Bill of Rights through a process called “incorporation”).
This means that I personally, as a private person, cannot violate your constitutional rights, at least those based on the 14th Amendment. Some governmental involvement is required. For example, if I punch you because I disagree with your views, I may have violated state law but not the 1st Amendment. On the other hand, if a police officers arrests you because of what you said, that arrest is state action and may turn out to violate your 1st Amendment rights.
In a very real sense, the state action requirement serves a gatekeeper function: you don’t get to the question of whether 14th Amendment rights have been violated unless there is state action.
Over the years, the Court has developed several technical tests for determining when the conduct of a nominally private person or entity constitutes state action: (1) the public function test, (2) the joint action/symbiotic relationship test and (3) the nexus test.
Why Do We Care About State Action?
The obvious reason is that the 14th Amendment explicitly imposes this requirement. But there are sound policy reasons as well for this public/private distinction.
1. Freedom First is the interest in personal autonomy or freedom. As private persons we do not necessarily want to be subject to constitutional requirements or norms, even if we think some of those norms are good ones. Further, if these norms applied to private persons, then that would invite federal judicial intervention and supervision, thereby interfering with our private choices. Nobody wants to be sued and hauled into federal court.
2. Federalism The second policy reason is a bit more complicated, but it is related to the first. Ours is a federal system in which states should, and do, play a major role in protecting individual rights of all kinds. If private persons are regulated by the 14th Amendment, then the federal judiciary would be monitoring and evaluating private conduct, whereas that is a primary role of the states in our federal system.
This federalism concern also arises in connection with section 5 of the 14th Amendment which gives Congress the power to enforce section 1 of that amendment. If the 14th Amendment covered private conduct, it would follow that Congress could regulate much more private conduct than it can with the state action requirement in place.
Keep in mind that I’ve been writing about state action and the 14th Amendment only. In contrast, the 13th Amendment, which prohibits involuntary servitude, applies to private persons as well.
In addition, there are other ways for Congress to regulate private conduct irrespective of section 5 of the 14th Amendment. Perhaps the best example is the Commerce Clause. Of course, Congress may not violate our constitutional rights even under the Commerce Clause.
Which brings me to my last point. Though Congress is obviously not a state, it may nevertheless not violate equal protection and due process because of the Fifth Amendment’s due process clause. Similarly, Congress may not violate the provisions of the Bill of Right because its provisions expressly apply to the federal government.
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