The Supreme Court has badly misread the purpose of the state action doctrine. The Supreme Court has failed to recognize that the fundamental value that is served by the state action doctrine is not "individual freedom" but rather "democratic choice." As a result the Court has narrowly construed the concept of state action, and has underestimated the necessity of applying constitutional norms to the exercise of combined private and state power. The Supreme Court has also misconstrued the distinction between state action and state inaction. Once protective laws have been enacted through the democratic process state action exists, and constitutional norms govern the execution of those laws. The principle of democratic choice means that the American people have the discretion to determine whether and to what extent individuals and private organizations have the duty to observe constitutional norms such as fairness, tolerance, and equality.
Progressive legal scholars also fail to appreciate the true meaning of state action doctrine. The state action doctrine stands for the proposition that the people alone have the final say in determining the nature and the degree of governmental services that they will support with their tax dollars. Once it is understood that the state action doctrine serves and is controlled by the principle of democratic choice, the errors of both the Supreme Court and its progressive critics become obvious, and the doctrine emerges as a rational and coherent building block of our democracy.
Huhn, Wilson R.
"The State Action Doctrine and the Principle of Democratic Choice,"
Hofstra Law Review: Vol. 34
, Article 5.
Available at: https://scholarlycommons.law.hofstra.edu/hlr/vol34/iss4/5