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With 2 notable exceptions, the constitution does not reach private conduct. It draws a sharp (if artificial) distinction between government and private action. The distinction is fine in theory, but has proven problematic in application. That's because the "state" acts in juridical terms only when it creates "law." Yet, lawmaking is not the only activity that can interfere with citizens' rights, Government operates through individuals, who may or may not act under a badge of state authority. Nonetheless, the Supreme Court has bifurcated the world into public and private spheres, holding only the former accountable for constitutional injury.
It is useful for doctrinal purposes to think of "state action" in categories, although in real life they fail to capture many of the nuances that mark the types of power private entities wield. The categories your authors use (and which I find suitable) are: 1) private parties performing sovereign functions; 2) private parties acting pursuant to delegated power, or with the endorsement of the state; and 3) a strong nexus (entanglement, entwinement, interdependence) between private and state actors.
One can think of SAD either as a doctrine of inclusion (here are the instances when private parties are subject to constitutional restraint) or exclusion (here are the instances where constitutional injuries cannot be addressed). Those whose judicial philosophy is to minimize constitutional rights usually adopt narrow rules for SAD, while those who embrace a broad rights jurisprudence will apply SAD sparingly. And remember, SAD not only limits the reach of constitutional rights, but federal statutory rights as well (through formalistic and narrow interpretation of congress' civil rights powers).
Recapping SAD
Under the Sovereign Function strand, a private party will be constructively seen as a state actor when it performs a function that normally only the state performs in its sovereign capacity. Voting was an early example. Company towns are another. But this strand is self-fulfilling, because the more often private parties perform particular functions (e.g., providing education, police services), the less likely will the function be seen as exclusively the province of the state. As a result, this is a disappearing strand of SAD. Consider the case of private prisons, now common in most states. Are the guards there subject to 8th and 14th amendment restraint? Or have punishment and incarceration become so "privatized" (as education, security, health) as to no longer be the exclusive prerogatives of the state.
The Delegation/Endorsement strand covers those actions of private parties that have the imprimatur of the state itself. Where the state affirmatively delegates power to private entities (e.g., authorizing trade associations or other private groups to set enforceable industry standards) or ratifies decisions made by private parties, then the private actor seems not so private. Bear in mind that many private actions rely on state enforcement (e.g., contracts), but in most such cases, the state takes a neutral stance toward the action itself. The American system prefers organized/controlled enforcement of decisions over self-help, so it is not surprising that the state lends its enforcement apparatus (police, courts) to its citizenry. But lest everytime the police enforce a property right the owner becomes a state actor, something more than mere official involvement is required. That something more is approval by the state of the underlying decision that ultimately causes constitutional injury. Thus, if the state enforces only those land covenants with which it agrees, and (for instance) requires a landowner to discriminate, then the private action has all the trappings of state approval.
Entanglement/Entwinement/Nexus is the most ad hoc of all the SAD strands. It looks to the quality and nature of state/private actor interactions. Factors such as funding, pariticipation by state officials, mutuality of benefit ("symbiotic relationship"), appearance of state approval, and so on, are relevant in determining whether the interrelationship of state and private party is sufficient to treat them in a unitary fashion. None of these factors alone (even total funding by the state) is sufficient. But the totality of the circumstances may suggest a degree of interdependence that satisfies a skeptical court.
The fruits of SAD are to transmute much de jure injuries into de facto ones, and place them beyond constitutional (and congressional) redress. Coupled with a state's non-obligation (and often its disability) to prevent or cure privately-caused injuries, we can see how the majestic panoply of constitutional rights fades away under a conservative jurisprudence.
Posted by The Professor at November 4, 2005 03:46 AM