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Constitutional Law II
University of Cincinnati School of Law
Bryant, A. Christopher



A. State Action and Federalism
1. Intro
a. State action is a predicate for an individual rights claim based on the Constitution because the constitution’s commands are only directed to state entities, not private parties. The court has held that the state action doctrine is necessary to preserve individual liberty by limiting the federal government’s reach (preserves federalism). The modern court has held that state action is a prerequisite to the assertion of rights contained in both the first eight amendments (originally applicable only to the fed gov’t) and the 14th Am. (applicable to the states).
b. Must show that the state either (1) acted or (2) failed to act and had a duty to act.
2. The Civil Rights Cases (1883) US SC [1584] Neutral govt action
a. The Court used federalism to give the state action doctrine content.
b. Facts: 1875 CRA provided that all persons were entitled to full/equal enjoyment of public accommodations/amusement regardless of race, color, or previous servitude. Private persons violating these rights were subject to civil damages and crim penalties. The CRA was invalidated because Congress lacked the power to make such a law (ultimately an enum powers case.)
c. Bradley’s Opinion:
i. Congress certainly didn’t have the power to pass such a law before the passage of the Civil Rights Ams. The Court holds that the 14th Am’s DP and EP guarantees apply by their own terms (cl. 2) solely to the states (entities with stars in the flag) and cannot reach ind invasion of ind rights. The CRA declares ind acts offenses punishable by the courts and does not correct a state con’l wrong. Even the enforcement clause (§5) does not allow Congress to regulate solely private conduct. “A wrongful act of an ind is a PRIVATE wrong—an invasion of the rights of the injured party, but if not sanctioned in some way by the State, or not under State authority, [the party’s] rights remain in full force, and may presumably be vindicated by resort to the laws of the State for redress.”
ii. The Court agreed that 13th Am is diff and is primary and direct in character and can reach private conduct, but the CRA was also not authorized under the 13th Am. because refusal to serve is a civil injury, not slavery. “When a man has emerged from slavery…there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the spec fav of the law.”
d. Harlan’s dissent: Congress’ power to make this law comes from the 13th Am’s enforcement clause because the purpose is to remedy slavery including elevated their inferior status to that of freepersons. He also disagrees tha

st, action when a state court enforces a private covenant not to sell. But does enforcing that covenant violate the EPC/neutrality?

B. Pure Inaction & The Theory of Governmental Neutrality

1. Two rubrics for complex (hard) state action issues:
a. Private actor must be subject to C’al reqMs b/c the state has delegated a trad’l state (public) fxn to that private entity.
b. Private actor must be subject to C’al reqMs
i. because the state has become entangled with a private entity or
ii. because the state has approved, encouraged, or facilitated private conduct.
2. Deshaney v. Winnebago County Dept of Social Services (1989) US SC [1589] (The paradigmatic pure inaction case)
a. Facts: WY court awarded custody to P’s father. 2 years later social workers received reports that father was physically abusing P. They noted the reports but took no action. Subsequently, father beat him viciously and caused severe brain injuries leaving him perm retarded. P and his mother sued the state dept b/c it deprived him of his liberty in violation of the DPC of the 14th Am.