State Action and Constitutional Containment
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This chapter explores the U.S. Supreme Court’s use of, and departures from, the state action rule. It begins by reconstructing the state action rule’s origins in the Civil Rights Cases. From the late nineteenth century onward, the state action rule served as a constitutional containment device, bolstering the Court’s monopoly over constitutional interpretation and eliminating uncomfortable questions about what rights meant for the ordering of American society. A changing political context and the emergence of new normative demands in the twentieth century put this regime under pressure, which the Court managed through a series of strategic evasions of the state action rule, even while pledging fealty to it.
2019 ◽
Vol 124
(4)
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pp. 1278-1289
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2007 ◽
Vol 86
(2)
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pp. 278-313
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2021 ◽
Vol 5
(2)
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pp. 227-242
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