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Extending Rights' ReachConstitutions, Private Law, and Judicial Power$
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Jud Mathews

Print publication date: 2018

Print ISBN-13: 9780190682910

Published to Oxford Scholarship Online: April 2018

DOI: 10.1093/oso/9780190682910.001.0001

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The American Constitution: First and Second Foundings

The American Constitution: First and Second Foundings

Chapter:
(p.91) 4 The American Constitution: First and Second Foundings
Source:
Extending Rights' Reach
Author(s):

Jud Mathews

Publisher:
Oxford University Press
DOI:10.1093/oso/9780190682910.003.0004

Officially, the U.S. Supreme Court hews to a strong state action requirement and rejects the idea that constitutional rights can shape what private parties owe each other. To highlight some of the peculiarities of the state action doctrine, this chapter begins with a detailed discussion of a modern case, Brooks v. Flagg Brothers. Then, to understand the doctrine’s origins, the chapter turns to history. This chapter illuminates the political logic of the state action requirement at the time when the Court first imposed it, in the late nineteenth century. The chapter also highlights more flexible approaches to conceptualizing rights in the American tradition that were closed off with the choice for a strong state action rule.

Keywords:   United States, U.S. Supreme Court, state action, nineteenth century, constitutional rights

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