State Action and the Constitution’s Middle Band

Louis Michael Seidman*

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 not too much.

This Article’s first aim is to identify and describe this puzzling structure. It also examines a variety of doctrinal principles that produce and, perhaps, justify the state action doctrine’s three bands. The Article then argues that these seemingly disparate principles are all related to the special constitutional problems produced by the emergence of the middle band of government regulation. Finally, the Article concludes with some brief speculation about whether the modern tripartite structure can survive.

*Carmack Waterhouse Professor of Constitutional Law, Georgetown Law. My thanks to Kiel Brennan-Marquez, William Buzbee, Eric Claeys, Lee Fennell, Anne Fleming, Brian Galle, Todd Henderson, Aziz Huq, Paul Kominers, Genevieve Lakier, Martin Lederman, Saul Levmore, Gary Peller, Lawrence Solum, Mark Tushnet, Laura Weinrib and participants at the Georgetown Law Center Faculty Workshop, the Harvard Law School Public Law Workshop, and the University of Chicago Law School Work in Progress Workshop for commenting on an earlier draft of this article. I had superb research assistance from Jonathan Hawley.

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