This is a bit unusual for LTB. I'm linking to a classic article--Charle's Black's Foreward to the 1966 Harvard Law Review Supreme Court issue. My thanks to Marty Lederman for reminding me of this brilliant but now somewhat neglected piece. Charles L. Black, Jr., The Supreme Court, 1966 Term -- Foreword: "State Action," Equal Protection, and California's Proposition 14. Here is a short excerpt from the introduction:
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"State action" again? Yes, because the "state action" problem is the most important problem in American law. This follows inexorably from two things. First, the most important single task to which American law must address itself is the task of eradicating racism. How we would like to forget this, and turn to problems amenable-to a more cheerful engineering, problems of venial failure rather than of sweating national shame! One Sunday last April, I happened to look at two articles of quite different sorts. One, in The New York Times' Magazine, was by James Baldwin. He tells of reading, in Moss Hart's autobiography, how Hart early one morning saw a boy doing "some morning errand before school," and how thrilled Hart was to think that, in America, such a boy might rise to any eminence, attain any ambition - for- getting, of course, to add that all this could be said only because the boy was white.1 The other article,2 by a famous economist, dis- cussed what must have seemed to him all the saliently relevant con- siderations bearing on the propriety of turning federal money over to the states without important limitations on its use; but he omitted to deal with the objection that such a step would mean giving much of this money to states whose racist policies, and defiance of national law in the furtherance of these, are unhidden. These two examples, so different, converge on a single point- menscklich allzu menschlick, we yearn for the rite that will exorcise this most stubborn of our at- tendant demons, our old capricious cruelty now in.its third century, the crime that bloodies our sacred arrows and puts around us that odor the Cheyenne smelt around the man who defiled the ultimate covenant by killing a tribal brother,3 as our racism defiles our covenant with each other and with the world. We want to think that all this will disappear, that it is really some other problem ("immigration," "poverty"), by that recharacterization merged in the manageable. But it does not disappear, it will not merge, and if justice is the business of law, then, easily and by far, the first item on our law's agenda is and always ought to have been the use of every resource and technique of the law to deal with racism. Strong words? I wish they were stronger.
Secondly, the strategy of this war now plainly must address itself in chief to the barrier of the so-called state action "doctrine" -and to the standardized errors of attitude which go with that "doctrine." State-originated or state-supported discriminations against Negroes have always been held banned. So long as the Court declined to perceive segregation as a stigma, "an assertion of their inferiority," 4 this major premise was lamed for work. The Court did finally bring it- self to take note of the plain public meaning of the segregation charade, and by necessity the battleground shifted. The only strategic hope left for the maintenance of de facto racism, in whatever part of public life, now lies in the "no state action" contention. The amenability of racial injustice to national legal correction is inversely proportional to the durability and scope of the state action "doctrine," and of the ways of thinking to which it is linked.6 It is not too much to have said that the state action problem is the most important problem in American law. We cannot think about it too much; we ought to talk about it until we settle on a view both conceptually and functionally right.
Reitman v. Mulkey,7 decided last Term, touched this problem. I shall first state a rationale which I hope can at least contribute to discourse. I shall then make some general remarks on the "doctrine," suggesting that what may impend, and what ought to occur, is a major shift in point of view.
