I linked to Charles Lane’s discussion of the Civil Rights Act, and two friends, Jacob Levy and Will Baude, suggested that he got a few important things wrong. Really, it’s the Volokh Conspiracy that should be tackling this, or our friends at Bench Memos, but I will step into the breach with a link to an article on the state action doctrine by John C. Harrison and Lillian Riemer BeVier, kindly forwarded to me by Will:

The article is an entry in a long-standing debate concerning the soundness of the state action principle in American constitutional law. According to that principle, exercises of private rights by private people are not subject to the constitutional rules that apply to the government, even though those private decisions are supported by the government’s coercive power. For many decades, some scholars have argued that the principle is irrational and also inconsistent with the purpose of some of the constitutional norms that it limits, such as the First Amendment. The article defends the principle from its critics, a group that includes a number of important contemporary constitutional theorists. We maintain that the state action principle is a reasonable implementation of the Constitution’s basic distinction between public and private decision makers, and that it is consistent with a plausible and we think persuasive, understanding of the particular constitutional rules that the critics maintain the state action principle arbitrarily limits.

As Jacob patiently explained to me, Lane’s central argument — can the coercive power of the state be used to defend the right of a racist Nepalese restaurant owner to exclude people of Bangladeshi origin from his establishment? — has a flaw. Here’s Lane again:

Conversely, it is precisely because of this nexus between private discrimination and public enforcement that the larger community, through the political and judicial process, acquires a valid interest in legislating against discrimination. The public is entitled to say whether their tax money should pay for arresting black trespassers on whites-only property.

In a series of tweets, Jacob responded:

Lane proves far too much- eliminates state action doctrine entirely, leaves no difference btw private & public
church has constitutional right to exclude nonbelievers– even if that means calling on police to evict, tho’ they couldn’t…
evict a nonbeliever from public property. Reliance of private rights on public support =/= legal equivalence of private &public
In other words– they *are* different but Lane’s argument can’t ground their difference. Doesn’t draw lines in right place.
Difference has to do with slavery/ caste/ Jim Crow and special history behind 14th amendment. But Lane doesn’t discuss that.

And so we return to the historical argument, which I agree has a great deal of force. The general principle of defending the freedom of association might be sound. But in the case of racial exclusion and subordination, we have special reason to intervene.

This reminds me that I really, really mangled a discussion of some of these issues on the radio, to my eternal shame and frustration. Unfortunately, I can’t travel back in time.

At least not yet …