State Action

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....

Amendment XIV, Section 1

In the course of interpreting and applying the Fourteenth Amendment, lawyers, legislators, and judges have identified two broad state-action questions. First, are the directives in Section 1 aimed only at states and those acting under state authority? Second, is Congress's power under Section 5 to enforce the prohibitions in Section 1 limited to enacting laws aimed at states and those acting under state authority? The original understanding of the Fourteenth Amendment supports an affirmative answer to both these questions.

The prohibitions in Section 1 can be understood by placing the language in its relevant textual and historical context. Of first importance in determining the original meaning are the exact words of the provision. Those words identify three kinds of prohibited conduct: (1) a state making or enforcing any law "which shall abridge the privileges or immunities of citizens of the United States"; (2) a state depriving "any person of life, liberty, or property, without due process of law"; and (3) a state denying "to any person within its jurisdiction the equal protection of the laws." Although each prohibition seems to forbid a different kind of conduct, all three seem aimed at state action, or conduct fairly attributable to a state. The close proximity of these prohibitions in the text tends to reinforce the conclusion that the language of each individual prohibition points to state action.

The historical context of the adoption of the Fourteenth Amendment would have been known to the contemporary members of the amendment's intended audience and would no doubt have influenced greatly their understanding of its meaning. Congress drafted the Fourteenth Amendment and sent it to the states for approval in 1866, after the required supermajority of Congress had voted to overturn President Andrew Johnson's veto of the Civil Rights Act of 1866. In his veto message, President Johnson had questioned the constitutionality of that act. Sections 1 and 5 of the Fourteenth Amendment together were obviously intended to provide a solid constitutional base for the act, and Section 1 was intended to embed the essential proscriptions of the act in the Constitution itself, safe from subsequent repeal by mere legislative action. Congress had drafted the act to overturn the effects of the infamous "Black Codes" enacted by the reconstituted Southern state governments in 1865 and 1866 under President Johnson's Reconstruction policies. Those codes limited in important ways the basic civil rights of the freed slaves to contract, to own property, and to sue. To stop these evils, the Civil Rights Act of 1866 provided:

That all citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains and penalties, and to none other....

Reading the words of Section 1 against this history, the contemporary reader would probably have concluded that they were aimed at the state actions that the Civil Rights Act of 1866 intended to outlaw, namely, actions by state officials that treated the freed slaves differently from whites with respect to basic litigation, contract, and property rights, or that imposed on the freed slaves different punishment, pains, or penalties than would be imposed on whites for the same conduct.

Some modern commentators argue for a broader interpretation of the state-action language than the likely originally understood meaning. One common modern argument is that Section 1 of the Fourteenth Amendment recognized a broad, general, constitutional principle of equality. Thus, any pattern of behavior by private individuals that undermines equality becomes state action if it is not prohibited by the state. This reading would wipe out the distinction between state action and private behavior that the prohibitions in Section 1 seem on their face to recognize and embody. The Supreme Court has rejected this argument.

One can identify the original understanding of Section 5, too, by focusing on its specific language and placing that language in its relevant textual and historical context. Section 5 gives Congress the power to enforce the other provisions of the Fourteenth Amendment. Section 1 contains prohibitions against certain state actions, directed at states and those acting on behalf of states. The ordinary understanding of the power to enforce those prohibitions, then, would be to enforce those prohibitions against those to whom they were exclusively directed. An earlier proposed amendment, proposed in 1865, would have empowered Congress to enact "all necessary and proper laws to secure to all persons in every State of the Union equal protection in their rights of life, liberty, and property." Congressman John A. Bingham, who later drafted the Fourteenth Amendment, was the author of this sweeping proposal. The Joint Committee on Reconstruction reported his proposal to Congress, but it was ultimately defeated precisely because many in Congress believed that the wording would give the federal government plenary power to protect life, liberty, and property by passing laws directed to the conduct of private individuals. Such a power could supplant state civil and criminal law. Comparing the language of this earlier, defeated proposal with the ultimate wording of Sections 1 and 5 supports the conclusion that the different language was used to make clear that Congress would have only the limited power to legislate against the states to enforce the prohibitions in Section 1.

Nonetheless, an argument for a broader interpretation of Congress's power under Section 5 arose not long after the ratification of the amendment. According to this line of argument, Section 1 forbids a state to deny a person the "equal protection of the laws." "The laws" in that directive would include the long-established common law that protected the right of any member of the public to be served by those who hold themselves out to provide a service to the public. For the courts of a state to refuse to enforce this common-law right when asserted by a newly freed slave would be to deny him the equal protection of the laws. Similarly, for a state legislature to overturn that common-law rule by simple, nondiscriminatory legislation would, for exactly the same reason, deny the equal protection of the laws. One way for Congress to rectify or to foreclose these violations of Section 1 would be to enact a general law under Section 5 protecting everyone's common-law right to public accommodations. This could plausibly be understood as Congress "enforcing" the right to equal protection of the laws recognized in Section 1.

Congress did exactly that in the Civil Rights Act of 1875, which mandated equal access to public accommodations, common carriers, and places of amusement. Because many of the Members of Congress who voted for the Civil Rights Act of 1875 were Members of Congress in 1866, when Congress approved the Fourteenth Amendment, some argue that their votes are evidence that the intended meaning of Section 5 was broad enough to support the 1875 act. Later conduct expressing the subjective understanding of legislators as to the meaning of a constitutional amendment is not controlling on the question of its proper interpretation, however, as the legislators can only act authoritatively by following the prescribed forms for proposing a constitutional amendment. The Fourteenth Amendment was ratified by the action of three-quarters of the state legislatures, following the procedures in Article V. There is no indication that those state legislatures would have understood Section 5 as a broad delegation of power to Congress to regulate private behavior.

The Supreme Court in the Civil Rights Cases (1883) held that the Federal Civil Rights Act of 1875, which had prohibited private racial discrimination in public accommodations, was unconstitutional. In holding that Congress had no power under Section 1 and Section 5 of the Fourteenth Amendment to enact that legislation, the Court reasoned:

The prohibitions of the amendment are against State laws and acts done under State authority. [But the Civil Rights Act of 1875] makes no reference to any supposed or apprehended violation of the Fourteenth Amendment on the part of the State....[It] lays down rules for the conduct of individuals in society towards each other, and imposes sanctions for the enforcement of those rules, without referring in any manner to any supposed actions of the states or its authorities.

In United States v. Guest (1966), the Supreme Court held that Congress, under Section 5, could regulate the conduct of private individuals who conspired with state officials to deprive persons of their rights under Section 1. The conspiracy with state officials was enough to bring the conduct within the state-action requirement. In two concurring opinions, some Justices said that Congress could use its Section 5 powers to reach purely private conduct. However, no case since then has embraced the Guest concurrences, and the Court later avoided the issue in cases like Katzenbach v. Morgan (1966). Finally, in United States v. Morrison (2000), the Supreme Court reaffirmed the holding of the Civil Rights Cases, explicitly rejected the Guest dictum, and struck down the part of the federal Violence Against Women Act that had provided a federal civil remedy for victims of sex-motivated violence. The Court held that the act exceeded Congress's power under Section 5 of the Fourteenth Amendment because it was "directed not at any state or state action, but at individuals who have committed criminal acts motivated by gender bias."

The Supreme Court has consistently held that some sort of state action is a prerequisite to judicial enforcement of the prohibitions in Section 1 of the Fourteenth Amendment. The remaining question is what counts as state action. In cases raising that question, the Supreme Court has recognized that in certain unusual circumstances, conduct by a nominally private entity may qualify as state action. Many cases seem to fall into one of two categories: (1) when private entities perform public functions or exercise powers traditionally exclusively reserved to the state; and (2) when a government becomes so inextricably entangled with a private entity that the entity in effect acts as the government.

The leading public-function cases are the "white primary" cases, in which the Supreme Court repeatedly held that ostensibly private political parties could not constitutionally exclude blacks from their primary elections held to nominate candidates for office at the state's general elections. Nixon v. Condon (1932), Smith v. Allwright (1944), Terry v. Adams (1953). Additionally, the Court has held that actions by those in control of a company town or a public park operated by private trustees also constitute state action. Marsh v. Alabama (1946), Evans v. Newton (1966).

The leading cases finding an inextricable entanglement are Burton v. Wilmington Parking Authority (1961), in which racial discrimination by a restaurant leasing space in a publicly owned parking garage was held to be state action, and Lugar v. Edmondson Oil Co. (1982), in which a private entity's filing an ex parte petition for prejudgment attachment of an adversary's property, carried out by the court clerk and the sheriff, was held to be state action.

Examples in which racial discrimination by private action was authorized or enforced by seemingly neutral state actions are Shelley v. Kraemer (1948) and Reitman v. Mulkey (1967). In Shelley, the Supreme Court held that judicial enforcement of a private restrictive covenant barring occupancy of the restricted property by "any person not of the Caucasian race" was state action denying equal protection of the laws to the black buyer of the property. This was so, even though the law the court enforced was the racially neutral common-law rule that certain private restrictions on property use in restrictive covenants were valid and judicially enforceable. The fact that the state court was asked to use the state's judicial power to enjoin the private contract between a willing buyer and willing seller may have led the Court to find state action.

In Reitman, the Supreme Court held unconstitutional a California constitutional amendment that barred the enactment of any law limiting the right of any property owner to refuse to sell his or her property to any buyer for any reason. This was so, even though the Fourteenth Amendment did not require the state to enact fair-housing legislation, and the California amendment was on its face racially neutral. The Court appeared to argue that the state constitutional amendment itself was the state act that violated equal protection because it singled out this type of legislation for special protection.

The Supreme Court has continued to limit state-action claims against private individuals or entities. It has held that the prohibitions in Section 1 of the Fourteenth Amendment do not reach electric utilities when they terminate service to its customers, Jackson v. Metropolitan Edison Co. (1974). Nor did it hold liable under Section 1 a warehouseman's sale of stored property to make good back payments, Flagg Brothers, Inc. v. Brooks (1978), or prominent sports accrediting organizations, San Francisco Arts & Athletics v. United States Olympic Comm. (1987), National Collegiate Athletic Ass'n. v. Tarkanian (1988).

Patrick J. Kelley
Professor of Law
Southern Illinois University School of Law