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Acts, Omissions, and Constitutionalism

The so-called state action doctrine is a central theme of contemporary American constitutionalism. Based on the "nor shall any State" language in the Fourteenth Amendment, and applicable also to the national government, the state action doctrine holds that the constraints of the Constitution, especially those of the Bill of Rights and the Fourteenth Amendment, apply to governmental but not nongovernmental acts. Discriminatory practices, restrictions on individual freedoms, and procedural irregularities are beyond constitutional purview when committed by private clubs, corporations, and universities, yet the same practices would be unconstitutional were they to be committed by the instrumentalities of the state. The state action doctrine explains why, as a matter of constitutional law, the University of Chicago but not the University of Michigan could dismiss its students and faculty without affording them notice or hearings; why General Motors but not the Detroit school system could fire its employees for publicly criticizing the board of directors; and why the Augusta National Golf Club but not a municipal golf course in Atlanta could limit access to Caucasians. And although the impact of the state action doctrine has been somewhat ameliorated by civil rights laws rendering private discriminatory conduct unlawful by statute even when it is not unconstitutional, the state action doctrine remains a central theme of American constitutionalism. The state action doctrine is more than just a legal principle, however. It also embodies a key tenet of most strands of contemporary liberal thought, the distinction between the public and the private. The state action doctrine instantiates the supposition that governmen-