The State Action Clause

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 of the equal protection of the laws.

—Lee J. Strang

Introduction

The Fourteenth Amendment imposes several restrictions on the states. They cannot violate the privileges or immunities of citizens, they cannot deprive people of liberty without due process of law, and they cannot deny people the equal protection of the laws. It is clear that this amendment restricts government officials and their official actions, but does it impose similar restrictions on private parties? The Supreme Court has held that it does not. Under the state action doctrine, the Fourteenth Amendment restricts only governmental action; it does not apply to private parties. The doctrine’s name is drawn from the words that begin Section 1 of the Fourteenth Amendment: (“No State shall . . .”), which, despite its name, applies to state, local, and federal governments. The state action doctrine is generally easy to apply, but the Supreme Court has struggled with borderline cases, and scholars have criticized the doctrine as being broader than the Fourteenth Amendment’s original meaning.

The State Action Doctrine in the Original Constitution

The original Constitution, ratified in 1788, did not have a clause that explicitly articulated the state action doctrine. However, the text limited application of the Constitution to the federal and state governments. Article I, Section 9 imposed restrictions on Congress (see Essay Nos. 67–76). And Article I, Section 10 separately listed similar prohibitions on the states (see Essay Nos. 77–86). The First Amendment similarly restricted the federal government: “Congress shall make no law. . . .”

Other provisions of the Bill of Rights are not so clear. The Takings Clause of the Fifth Amendment simply provides “nor shall private property be taken for public use, without just compensation.” (See Essay No. 173.) This text, stated in the passive voice, does not clearly indicate who is prohibited from taking property. In Barron v. Baltimore (1833), a property owner argued that the Takings Clause required the state to provide just compensation.¹ On appeal, the U.S. Supreme Court rejected that argument. Chief Justice John Marshall’s majority opinion ruled that the Bill of Rights did not apply to the states and restricted only the federal government. There was no suggestion that a private party who took property would be required to pay just compensation.

Adoption of the Fourteenth Amendment

During and after the Civil War, Republicans in Congress worked to ensure that the gains made by victory on the battlefield were legally secure, but they recognized that there were two primary obstacles: through the so-called Black Codes, southern states recreated many aspects of slavery, and newly freed black Americans and their Republican allies were subjected to private violence. State officials often did nothing to stop this violence and in some cases actively assisted in these crimes.

The Thirteenth Amendment, ratified in 1865, created the first clear, textual exception to the state action doctrine. It provides that “Neither slavery nor involuntary servitude . . . shall exist within the United States.” (See Essay No. 191.) Both the government and private actors were barred from imposing slavery or involuntary servitude. The scourge of slavery was not merely one of government; it was the ownership of human beings by other human beings.

The Fourteenth Amendment was ratified in 1868. Section 1 contained four important provisions: the Citizenship Clause, the Privileges or Immunities Clause, the Due Process Clause, and the Equal Protection Clause. (See Essay Nos. 194, 195, and 196.) Each of these provisions placed an express limitation on the states. Section 5 authorized Congress to pass “appropriate” legislation to enforce Section 1. (See Essay No. 200.)

The debates over the Fourteenth Amendment included little to no discussion of the state action doctrine. For this reason, scholars have focused on the actions of officers implementing the Fourteenth Amendment after ratification to gather information about the Amendment’s relationship to the doctrine.

Enforcing the Fourteenth Amendment

Congress passed a number of civil rights acts pursuant to its Fourteenth Amendment powers. Many of these statutes criminalized private violence occurring in the South. Most clearly, the Civil Rights Act of 1871 targeted the Ku Klux Klan by criminalizing private conduct.²

Congress debated whether Section 5 empowered Congress to target non-state actors. Representative James A. Garfield of Ohio, for example, identified the state’s failure to enforce its law against groups like the Klan.³ He recognized that “the chief complaint is not that the laws of the State are unequal.” Rather, “even where the laws are just and equal on their face . . . a portion of the people are denied equal protection under them.” Garfield pointed to “a systematic maladministration of” the laws by the government, “or a neglect or refusal to enforce their provisions.”

One of the most significant enforcement laws was the Civil Rights Act of 1875.⁴ This statute provided that “all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of [places of public accommodation].” However, in the Civil Rights Cases (1883), the Supreme Court ruled that Congress did not possess the power under Section 5 to enforce the provisions of Section 1 against private parties.⁵ The Court ruled that Section 1 prohibited only state action. The Court relied on the structural principles of federalism and limited and enumerated powers. The Court asked: “If this legislation is appropriate for enforcing the prohibitions of the amendment, it is difficult to see where it is to stop.”⁶ As a result, the state action doctrine would apply to the Fourteenth Amendment. The Civil Rights Act of 1875 was the last major piece of Reconstruction-era civil rights legislation.

Exceptions to the State Action Doctrine

The Civil Rights Cases remains good law,⁷ but the Court has created several precedent-based exceptions to the state action doctrine. Nixon v. Condon (1932) held that a private political party could not exclude black voters.⁸ The Court ruled that the exclusion of black voters was authorized by statute and thus was subject to constitutional scrutiny. Marsh v. Alabama (1946) found that a company-owned town could not violate a person’s free speech and religious exercise rights.⁹ Burton v. Wilmington Parking Authority (1961) declared that a private restaurant in a public parking garage was a state actor.¹⁰ The Court even held that a private shopping center was subject to the Free Speech Clause.¹¹ During this period, Professor Charles Black famously argued that the state action doctrine was being submerged by the exceptions.¹²

However, the Burger Court began to narrow the exceptions. The Court reversed its ruling on private shopping centers¹³ and held that a private club with a liquor license was not a state actor.¹⁴ Jackson v. Metropolitan Edison Co. (1974) articulated the public functions exception to the state action doctrine.¹⁵ Justice William Rehnquist’s majority opinion explained that activities that were “traditionally the exclusive prerogative of the State” were state action.¹⁶ This exception covered the white-primary cases, the company town cases, and a handful of others but not much else. The Court has invoked other exceptions, though the doctrine is difficult to synthesize.¹⁷ On the Roberts Court, the state action doctrine seems stable. Manhattan Community Access Corp. v. Halleck (2019), for example, held that a cable public access channel is not a state actor.¹⁸

Criticism of the State Action Doctrine

Originalist scholars contend that the Supreme Court has articulated an overly broad state action doctrine.¹⁹ This criticism essentially reflects two schools of thought advocated by groups of scholars.

The first group argues that the Equal Protection Clause applies to some situations that would be considered state inaction. For instance, Professor Christopher Green has suggested that “it is the state’s failures with respect to [private] violence, not the violence itself, which produces a constitutional violation.”²⁰ Green supports this conclusion with a detailed study of the remote and immediate history of the Equal Protection Clause.²¹

The second group argues that the Citizenship Clause, typically coupled with the Privileges or Immunities Clause, imposes an affirmative obligation on states to treat all citizens in a manner comporting with their status as citizens in a republic, particularly with regard to public accommodations laws.²² This view would require, for instance, that state law prohibit (at least) places of public accommodation from treating citizens differently because of such irrational bases as race. This argument builds on the antebellum Republican thought about citizenship that influenced the Reconstruction Congress to pass the Fourteenth Amendment and the various pieces of civil rights legislation.

Open Questions

• Are social media platforms state actors? Are they public utilities?²³
• What sort of test could the Court apply to determine whether state inaction is subject to Section 1 of the Fourteenth Amendment? Would this test undermine the state action doctrine altogether?
• As a general matter, the Constitution limits only state action and does not restrict private actions. It is clear that the Thirteenth Amendment restricts private action and is not limited to state action, but there may be other exceptions as well. The Twenty-First Amendment prohibits the transportation of alcohol in violation of a state law. (See Essay No. 205.) Would being convicted of violating a state liquor law be a violation of the Twenty-First Amendment?²⁴ The Foreign Emoluments Clause restricts certain government officials from accepting “any present, Emolument, Office, or Title” from foreign governments. (See Essay No. 76.) And the Domestic Emoluments Clause prohibits the President from accepting emoluments from the federal government and the states. (See Essay No. 100.) If a covered official accepted a prohibited emolument in his personal capacity, would that acceptance violate either or both of these clauses?²⁵

1. Barron v. Baltimore, 32 U.S. 243 (1833). ↩︎
2. 17 Stat. 13, § 2 (1871). ↩︎
3. Cong. Globe, 42d Cong., 1st Sess. App. 153 (1871); Enforcement Act of 1870 § 6, 16 Stat. 140 (1870). ↩︎
4. 18 Stat. 335, § 1 (1875). ↩︎
5. Civil Rights Cases, 109 U.S. 3 (1883). ↩︎
6. Id. at 14. ↩︎
7. United States v. Morrison, 529 U.S. 598 (2000). ↩︎
8. 286 U.S. 73 (1932). ↩︎
9. 326 U.S. 501 (1946). ↩︎
10. 365 U.S. 715 (1961). ↩︎
11. Amalgamated Food Emps. Union Loc. 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968). ↩︎
12. Charles L. Black, Jr., Foreword: “State Action,” Equal Protection, and California’s Proposition 14, 81 Harv. L. Rev. 69, 84–91, 108–09 (1967). ↩︎
13. Hudgens v. NLRB, 424 U.S. 507, 518 (1976). ↩︎
14. Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972). ↩︎
15. 419 U.S. 345 (1974). ↩︎
16. Id. at 353. ↩︎
17. Jordan Goodson, The State of the State Action Doctrine: A Search for Accountability, 37 Touro L. Rev. 151, 159–69 (2021); G. Sidney Buchanan, A Conceptual History of the State Action Doctrine: The Search for Governmental Responsibility, 34 Hous. L. Rev. 333, 391–424 (1997). ↩︎
18. Manhattan Comm. Access Corp. v. Halleck, 587 U.S. 802 (2019). ↩︎
19. Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights 158 (1986); Michael P. Zuckert, Congressional Power Under the Fourteenth Amendment—The Original Understanding of Section Five, 3 Const. Comment. 123, 142 (1986). ↩︎
20. Christopher R. Green, The Original Sense of the Equal Protection Clause: Subsequent Interpretation and Application, 19 Geo. Mason U. Civ. Rts. J. 219, 254 (2009). Evan D. Bernick, Antisubjugation and the Equal Protection of the Laws, 110 Geo. L.J. 1, 36 (2021). ↩︎
21. Randy E. Barnett & Evan D. Bernick, The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit 319–51 (2021); Pamela Brandwein, Rethinking the Judicial Settlement of Reconstruction 28–86 (2011). ↩︎
22. John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385, 1425–33 (1992); Ryan C. Williams, Originalism and the Other Desegregation Decision, 99 Va. L. Rev. 493 (2013). ↩︎
23. Moody v. NetChoice LLC, 603 U.S. 707, 766 (2014) (Alito, J., concurring); Biden v. Knight First Amend. Inst. at Colum. Univ., 141 S.Ct. 1220, 1226 (2021) (Thomas, J., concurring). ↩︎
24. Laurence H. Tribe, How to Violate the Constitution Without Really Trying: Lessons from the Repeal of Prohibition to the Balanced Budget Amendment, 12 Const. Comment. 217, 220 (1995). ↩︎
25. Josh Blackman & Seth Barrett Tillman, The Unresolved Threshold Issues in the Emoluments Clauses Litigation: The President Has Three Bodies and There Is No Cause of Action for Ultra Vires Conduct, 20 Geo. J.L. & Pub. Pol’y 163, 196–98 (2022). ↩︎