State Action Doctrine and the Logic of Constitutional Containment

Deriding the state action doctrine is one of the great pastimes of American constitutional law. It has been described as a shamble and “incoherent.” On its face, the core concept seems straightforward enough: constitutional rights are rights against the government. But what counts as the “state action” that triggers the protection of rights seems to shift, maddeningly, from case to case in the Supreme Court’s state action jurisprudence.

In this Article, I aim to help make some sense of why the state action doctrine has developed as it has by setting it in a comparative and historical frame. It can be useful to think about the state action doctrine as an American response to a generic problem that constitutional systems face: the problem of managing the horizontal effect of rights. If the American response to this problem is distinctive, it reflects the distinctive institutional, normative, and historical features of the context in which it developed.

The choices that a court makes regarding when and how rights apply horizontally play important, and varied, roles in the course of constitutional development within a legal system. A court’s horizontal effect doctrine says something more broadly about what constitutional rights are and about the constitutional court’s role in enforcing them.

This Article offers an overview of the role the horizontal effect doctrines play in the constitutional development of the United States as well as two other jurisdictions, Germany and Canada. I argue that this analysis highlights how the state action doctrine has functioned as a constitutional containment device in the United States. As applied, the state action doctrine does not extinguish the horizontal effect of rights altogether, but rather ensures that the Supreme Court, rather than litigants, lower courts, or legislators, takes the lead in saying when and how rights apply horizontally. I also argue that the Court uses the state action doctrine to curate the conversation that the Court and litigants have about rights, steering it away from certain difficult and unwelcome questions, such as whether state inaction is ever actionable.

The full text of this Symposium is available to download as a PDF.