Castan Centre for Human Rights Law

"The State Action Issue in Comparative Constitutional Law"

Mark Tushnet
Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center

1. Introduction: Difficult and Easy Cases

United States: Shelley v. Kraemer
Judicial action as state action, but highly controversial and limited in application

Canada: Dolphin Delivery
Courts as not part of "the government" to which the Charter applies

South Africa: DuPlessis
Change between interim and final Constitution, with quite awkward terminology in final Constitution: "binds all natural and juristic persons, if, and to the extent that, it is applicable, taking into account the nature of the right and any duty imposed by the right"

Germany: Luth
Indirect horizontal application through control of law-development by ordinary courts

Contrast with the Czech case holding that a court decision upholding a landlord's eviction of a tenant because she had been away at a hospital for over eighteen months (and therefore had abandoned the apartment) violated the constitutional right to free movement

2. The constitutional language in each instance is susceptible of interpretation limiting the constitution to vertical application or expanding it for horizontal application

3. One dimension of variation is the extent to which the constitutional court has a role in ordinary law-making and statutory interpretation

Non-specialized high courts in non-federal systems can more easily invoke indirect horizontality, and thereby make the state action question less pressing

The problem will not disappear, however, because of limits, even if only conventional, on the ability of statutory interpretation to reconcile a statute's words and its history with constitutional norms, and of similar limits on the size of incremental developments in the common-law manner of ordinary law

The problem will be more severe with a specialized constitutional court, which can instruct the ordinary courts that they must interpret ordinary law in line with constitutional norms, but may either lack the capacity to supervise the development of ordinary law by those courts adequately, or (alternatively) completely displace the ordinary courts by determining in each instance whether an interpretation by those courts adequately accommodates constitutional norms

It will be more severe in a federal system in which the constitutional (or high) court must take the law developed by courts or legislatures of the component units as it is given to the high court, which makes indirect horizontality unavailable

4. A second dimension along which the difficulty of the state action question varies is the degree to which the nation is committed to constitutionalized social welfare rights

Previous work by me and Louis Michael Seidman treated the state action problem as a response to the constitutional transformation in U.S. constitutional law in the New Deal, but it now appears to me that this is simply an example of the more general point about social welfare rights

Horizontality can be understood in two ways, which would lead to different doctrinal formulations

(a) As a response to the threat to liberty posed by concentrated power in market actors

In this understanding, market actors constrain liberty by limiting opportunities to obtain social welfare benefits in market transactions as well as by directly impairing constitutional values such as antidiscrimination norms

(b) As the application of social welfare rights in a market context

Market actors absorb some of the social welfare obligations created by constitutionalizing social welfare rights

5. Solutions to the state action problem have been at hand almost from the beginning

(a) If horizontality is understood as a response to the threat to liberty [4(a)], all actors must comply with the norms applicable to clearly governmental actors

Nondiscrimination in employment, at-will employment limited by norms against disciplining for non-work-related speech

(b) Alternatively, the same norms apply to all actors, but some offsetting values - such as autonomy and privacy - are implicated in the non-state context but are absent in the state context

This is a way of understanding the language in the final South African Constitution

Systems less comfortable with social welfare rights will identify a larger range of offsetting values, such as the autonomy of market actors to act in the market as they wish

(c) Horizontality means that the rules applied by courts must conform to constitutional norms

Some have put it thus: The constitution regulates the legal relations among private actors, not the actions taken by them

This is the best understanding of current U.S. law

(d) Finally, widely expressed concerns about constitutionalized social welfare rights can be accommodated by a careful formulation of what the constitutional norm is

Grootboom as requiring reasonable efforts on the government's part to ensure social welfare rights

With that formulation, it remains open to a government to say that social welfare rights are reasonably advanced by market processes