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| title | tags | date | draft | |||
|---|---|---|---|---|---|---|
| Judicial Action is State Action? |
|
2024-01-22 | true |
Warning
CW: historical racism, a chaotic good doctrine
There's an interesting legal argument that sadly never got off the ground called state-action doctrine. If applied to current events, it would fascinatingly provide for more protection of individual rights.
State Action as a gap-filler
At the time of the founding (as well as in England before that), common law (judge-made law) afforded the people remedies for infringement of all their private rights: to be let alone in their homes, to be free from physical attacks, to maintain possession of their physical property, and others. If the King's Courts could not enforce a legal/compensatory remedy (usually by some technicality), the courts of equity could still provide a remedy at equity.
Now, people have many more rights which have no founding in common law. They exist because they were written into existence through statutes or the Constitution, including our modern concept of civil rights. But who are these rights enforceable against? The state-action doctrine says that Constitutional rights are only enforceable against the government, not private citizens. It's why Facebook banning you isn't a violation of your free speech rights, among other things. i.e., the wrong for which you seek a remedy must be an action taken by the State, not a private entity. But what constitutes a "state action"?
The M. Night Shyamalan of Property Law
Enter Shelley v. Kraemer. In 1948, this case went up to the Supreme Court to determine whether a