Hiding in Plain Sight: Private Prejudice, State Action, and “Devotion to Democracy”

Abstract

State action has proven a treacherous constitutional field in recent decades, with the U.S. Supreme Court all too frequently confusing state action analysis with the merits of the constitutional claim. Buckeye continues this unhelpful trend. Logically, state action analysis should be undertaken first, and without regard to the merits, because if the state is not responsible for the conduct complained of, either directly or by entanglement with private actors, then the Fourteenth Amendment cannot be invoked at all.