Document Type

Article

Publication Date

2017

Abstract

On conventional accounts, the state action doctrine is dichotomous. When the government acts, constitutional limits take hold and the government action is invalid if those limits are exceeded. When the government fails to act, the state action doctrine leaves decisions to individuals, who are permitted to violate what would otherwise be constitutional constraints.

It turns out, though that the modern state action doctrine creates three rather than two domains. There is indeed a private, inner band where there is thought to be insufficient government action to trigger constitutional constraints, but often there is also a public, outer band where there is too much state action for the Constitution to apply. The Constitution takes hold only in a middle band -- the Goldilocks band -- sandwiched between these two domains. For constitutional limitations to have force, the government must act just enough -- but no too much.

The first aim of this Article is to identify and describe this puzzling structure. That is the business of Parts I and II, which, respectively, set out the conventional dichotomous view of state action and complicate that view with many examples where the law of state action has a tripartite structure.

Part III examines a variety of doctrinal principles that produce and, perhaps, justify these results.

Part IV argues that these seemingly disparate principles are all related to the special constitutional problems produced by the emergence of the middle sphere of government regulation. The growth of the regulatory state left intact a sphere of more or less untrammeled public power and a sphere of more or less autonomous private freedom, but there emerged a middle, mixed sphere of government regulation that disciplined but did not displace private power. Much of modern constitutional law consists of doctrines designed to remedy supposed pathologies associated with the middle sphere.

Part IV concludes with some brief speculation about whether and how the modern equilibrium can be maintained and about the role of constitutional theory in maintaining it.

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