IMAGES OF THE CITIZEN AND THE STATE: RESOLVING THE PARADOX OF PUBLIC AND PRIVATE POWER IN CONSTITUTIONAL LAW by Larry W. Beeferman. Lanham, MD: University Press of America, 1996. 494pp. ISBN 0-7618-0232-0.

Reviewed by Craig R. Ducat, Department of Political Science, Northern Illinois University.
 

Normally, the title or subtitle provides a clue as to what a book is about. That sort of help is absent here. The preface discloses that it is a volume devoted to discussion of the "state action" doctrine. The author portrays the "state action" doctrine as a jerry-rigged structure that has grown somewhat like Topsy, because it has emerged common-law-style from the disposition of individual cases. What seems understandable in the particular seems contradictory and even incoherent when generalized across cases. IN BURTON V. WILMINGTON PARKING AUTHORITY, 365 U.S. 715 (1961)---still an old standard in some constitutional law casebooks---the Supreme Court virtually conceded as much, saying that its decision was not fashioned "from any readily applicable formulae" or "universal truths" but was drawn "from the facts and circumstances of this record." Beeferman finds this business of deciding on the basis of case-specific factors unsatisfactory and sets out to develop a theory---a model---of "state action" that offers better possibilities or, at least, looks less like Topsy.

Although criticizing the Court for contradictions and incoherence in its doctrines is hardly novel or, sometimes even very taxing, Beeferman’s concerns are quite legitimate (as such concerns usually are). When I teach the "state action" doctrine in my constitutional law class, I love to use JACKSON V. METROPOLITAN EDISON CO., 419 U.S. 345 (1974) for exactly that reason. As some readers may recall, that case involved a challenge to a utility that shut off customer service for nonpayment of bills. The utility acted summarily and without even observing the most rudimentary elements of due process, notwithstanding the fact that the company was a heavily regulated monopoly. When it decided that there was insufficient governmental involvement to color the electric company’s behavior as "state action," Justice Marshall in dissent asked whether the Court’s conclusion would have been the same if the electric company had originally refused to provide Ms. Jackson with service because she was black. A good question, I thought, and one that has intrigued me for years. Does Marshall’s conundrum demonstrate the Court’s disregard for neutral principles? Or does it point up inadequacy in the Court’s list of factors to be taken into consideration? Or does it show that "state action" is a concept that varies by the substance of the policy issue? Or does it just call attention to the Court’s changing political composition?

As I read Beeferman’s preface, he was prepared to tackle the difficult question and not beg off on legal realist grounds, as the last question allows. He was willing to consider that "state action" might be a concept that depended on the substance of the policy issue itself. This, of course, is rather different from being asked to identify more carefully what factors demonstrate sufficient governmental involvement. A more ambitious approach demands a theoretical structure, not just a better list. For a public law author, this is a high-stakes game. And the stakes increase, almost exponentially, as one widens the number and kinds of cases to be considered.

There are several reasons why I cannot say Beeferman’s effort succeeds. First are the cases considered. The book is devoted to analyzing numerous cases and many of them are not clearly of the sort to be found in the "state action" section of constitutional law casebooks, even the bigger ones. This substantially increases the diversity of the database. I am not sure, by the way, what the criteria were for selecting the cases considered in the book. Putting that substantial concern aside, the database invites difficulty in the level of generalization. The more one moves outward from the core of what are traditionally regarded as the "state action" cases -- such as BURTON and JACKSON -- the more ambitious the theoretical structure must be. This is particularly problematic with concepts such as "state action" and "the right of privacy," as I know from having done a book on the latter a couple of decades ago. If the theoretical structure is too broad -- is generalized at too high a level -- then it encompasses virtually every significant question in constitutional law. This is particularly true of "state action" and privacy, and for the same reason: because each demands that we draw a line between the public and private sectors on virtually every substantive issue. Each concept, pushed to its limit, necessitates the construction of an entire theory of government, not just a doctrine of constitutional law. A tall order, indeed.

Second is the model and the theory. The author proposes that the concept of "state action" be replaced by the concept of "state choice." As the author pictures it, this means that the two-step process by which the Court first identifies a threshold relationship between the individual and the state and then determines whether there is a violation of the third-party’s constitutional rights should be replaced with a single inquiry about whether a substantive constitutional wrong has been committed. This approach "merge[s] the decision on the matter of ‘state action’ with that on the ‘merits’." It entails an examination of what rights the third party has against the state and what coercive measures can be undertaken to vindicate the rights of the third party. This "offer[s] a more convincing way to understand how, in fact, a broad range of ‘state action’ cases have been decided by the Court." Perhaps, but I’m not very convinced.

One of the reasons why is that the notion is dribbled out in the book and is buried by a vast overgrowth of case analysis that completely obfuscates any real understanding of it. I didn’t see much theory here, and if the reader has to go, machete in hand, whacking his way through the book to find it, I’m prepared to say it isn’t there. The author tells us in the beginning that it’s coming, and he tells us at the end that it was there; it’s the in-between I’m not so sure about. Maybe the author just tries to do too much.

Third is the method of presentation. The author treats the decisions as evidence and proceeds to test his hypothesis by case analysis. I have no problem with this as a tool, generally speaking. The author has obviously spent much time and effort on this volume, and he has analyzed each case with much diligence and attention to detail. Goodness knows there is more than enough citation. But presenting such a lengthy work of scholarship involves more than technical competence or even technical virtuosity. However technically dazzling, books are unlikely to make an impact unless they persuade, and to persuade they must first be read.

I would have begun this book by clearly describing the model and making clear its theoretical relevance so that the reader would not be kept in doubt. From the model I would have derived the hypotheses, and then I would have tested them with a more manageable number of cases. Instead, the author launches straightaway into an endless presentation of constitutional law cases, comparing and contrasting them and, of course, subjecting the Court’s reasoning in each to thorough scrutiny. While this inductive approach affords the author the opportunity to perform many intellectual pirouettes, its fascination for the reader wears very thin. In their design and reasoning, the chapters of the book seem like so many law review articles laid end to end. Who among us, halfway through a law review article, has not cried out, "Where is this going and why does it matter?" For me -- and I suspect for many others -- whether one would rather read a lengthy law review article, or be poked in the eye with a sharp stick instead, is to be confronted with a difficult choice, one that is a whole lot closer than it usually needs to be. If you like reading long, intricate law review articles, this volume will enthrall you. If not, it becomes very frustrating. Telling the reader that the "state choice" concept will be disclosed anon just doesn’t work. Even in the hands of a good storyteller, one whose prose fairly snaps, crackles, and pops, playing the suspense game is risky business. For suspense supposes one still has the reader’s attention. What is needed here is a strong, firm, direct presentation of the author’s concept and argument from the beginning.

The reader’s frustration is only intensified by the book’s frequent recourse to long and tedious excerpts from opinions which are then parsed to a fare-thee-well. When all of this goes on chapter after chapter and without any clear goal, the effect on the reader is numbing.

I would describe this work as an example of legal pointillism. As with that style of painting, when one stands too close to the canvass, no clear image (see the book’s title) is discernible, only the dots that presumably comprise one. The standing-too-close problem in scholarship is normally addressed by theoretical structure that imposes distance and affords perspective. In short, what is wanted in this book is much more attention to connecting the dots.

Six or seven years ago, a dear friend and I did an auto tour of Cape Breton Island. About midafternoon on our last day, we stopped for the night at Baddeck, Nova Scotia. I had heard the Alexander Graham Bell Museum was located there, and I wanted to see the telephone. After checking in to our motel, we set out for the museum. The building was quite attractive and its grounds were truly beautiful. The flowerbeds exploded in a profusion of bright colors. They were set on a rolling lawn against the backdrop of the small harbor with its deep blue water and quaint lighthouse. The scene was postcard-perfect. Our Kodak Moment behind us and flushed with the sense of promise, we pushed open the museum’s front door. Then things changed. Inside, there was one exhibit after another, and they ranged as far as the eye could see. There was, of course, an exhibit on Alexander Graham Bell the man, and this was followed by another about his work with the deaf, then another about his system of Visible Speech. Then there was an exhibit about his immediate family, then his extended family, then his friends, then his friends’ friends. There was an exhibit about people Bell knew in the nineteenth century, then other people who had lived in the nineteenth century, then people who could spell "nineteenth century." You get the idea. Our frustration mounted with each digression, and after a bit, we just walked out. I never saw the telephone. This book reminded me a lot of the Alexander Graham Bell Museum.