at 346–47 But the difficulty for the Court has been when the conduct complained of is not so clearly the action of a state. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition and as he acts in the name and for the State, and is clothed with the State’s power, his act is that of the State.” Id. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. “A State acts by its legislative, its executive, or its judicial authorities. In addition, acts by other branches of government “by whatever instruments or in whatever modes that action may be taken” can result in a finding of “state action.” 7 Footnote Ex parte Virginia, 100 U.S. 244 (1963), holding that trespass convictions of African Americans “sitting-in” at a lunch counter over the objection of the manager cannot stand because of a local ordinance commanding such separation, irrespective of the manager’s probable attitude if no such ordinance existed. A prime example is the statutory requirement of racially segregated schools condemned in Brown v. 991 (1982).Ĭertainly, an act passed by a state legislature that directs a discriminatory result is state action and would violate the first section of the Fourteenth Amendment. 5 Footnote Recently, however, because of broadening due process conceptions and the resulting litigation, issues of state action have been raised with respect to the Due Process Clause. the doctrine is most often associated with the application of the Equal Protection Clause to the states. and to federal governmental actions, 4 Footnote The scope and reach of the “state action” doctrine is the same whether a state or the National Government is concerned. Several other constitutional rights are similarly limited-the Fifteenth Amendment (racial discrimination in voting), the Nineteenth Amendment (sex discrimination in voting), and the Twenty-Sixth Amendment (voting rights for eighteen-year-olds)-although the Thirteenth Amendment, banning slavery and involuntary servitude, is not. For discussion of the latter, see Amdt14.S5.1 Overview of Enforcement Clause to Amdt14.S5.4 Modern Doctrine on Enforcement Clause. It also applies to Congress’s enforcement powers under Section 5 of the Amendment. Although state action requirements also apply to other provisions of the Constitution 3 Footnote The doctrine applies to other rights protected of the Fourteenth Amendment, such as privileges and immunities and failure to provide due process. It nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty or property without due process of law, or which denies to any of them the equal protection of the laws.” Civil Rights Cases, 109 U.S. Individual invasion of individual rights is not the subject-matter of the amendment. “It is State action of a particular character that is prohibited. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.” 2 Footnote Shelley v. As the Court has noted, “the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. These statutes, however, are generally based on Congress’s power to regulate commerce. See, e.g., Civil Rights Act of 1964, Title II, 78 Stat. There are, of course, numerous federal statutes that prohibit discrimination by private parties. 1 Footnote The Amendment provides that “o State” and “nor shall any State” engage in the proscribed conduct. The Fourteenth Amendment, by its terms, limits discrimination only by governmental entities, not by private parties.
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