Madry- Private Accountability and the Fourteenth Amendment
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Madry- Private Accountability and the Fourteenth Amendment
Missouri Law ReviewVolume 59Issue 3 Summer 1994Summer 1994Article 1Private Accountability and the Fourteenth Amendment; stateAction, Federalism and Co Madry- Private Accountability and the Fourteenth AmendmentongressAlan R. MadryFollow this and additional works at: https://scholarship.law.missouri.edu/mlr Ô* Part of the Law CommonsRecommended CitationAlan R. Madry, Private Accountability and the Fourteenth Amendment; State Action. Federalism and Congress, 59 Mo. L. Rev. (1994)Available at: https://schola Madry- Private Accountability and the Fourteenth Amendmentrship.law.missouri.edU/mlr/vol59/iss3/1This Article is brought to you for free and open access by the Law Journals at University of Missouri School ofMadry- Private Accountability and the Fourteenth Amendment
Law Scholarship Repository. It has been accepted for inclusion in Missouri Law Review by an authorized editor of University of Missouri School of LawMissouri Law ReviewVolume 59Issue 3 Summer 1994Summer 1994Article 1Private Accountability and the Fourteenth Amendment; stateAction, Federalism and Co Madry- Private Accountability and the Fourteenth AmendmentIV4IIICIIVMISSOURI LAW REVIEWVolume 59SUMMER 1994NUMBER 3Private Accountability and the Fourteenth Amendment; state Action, Federalism and CongressAlan R. Madry*The great and chief end... of men’s uniting into common-wealths, and putting themselves under government, is the preservation of their [liv Madry- Private Accountability and the Fourteenth Amendmentes, liberties and estates].John Locke**The rights and duties of allegiance and protection are corresponding rights and duties... [Wherever] I owe alleMadry- Private Accountability and the Fourteenth Amendment
giance to my country, there it owes me protection, and wherever my Government owes me no protection I owe it no allegiance and can commit no treason.CMissouri Law ReviewVolume 59Issue 3 Summer 1994Summer 1994Article 1Private Accountability and the Fourteenth Amendment; stateAction, Federalism and Co Madry- Private Accountability and the Fourteenth Amendment its citizens against invasion by private actors.Chief Justice William Rehnquist”*’* Assistant Professor, Marquette University Law School. B.A., 1974; J.D. 1981, University of Michigan. Research for this Article was generously supported by the Bradley Institute for Democracy and Public Values of Mar Madry- Private Accountability and the Fourteenth Amendmentquette University. I would also like to thank Patricia Bradford, Jacquelyn Core, Judith McMullen and Phoebe Williams for commenting on early versionsMadry- Private Accountability and the Fourteenth Amendment
of this Article, listening to the revisions, editing and in many cases pushing me much harder in directions that I might not otherwise have seen with Missouri Law ReviewVolume 59Issue 3 Summer 1994Summer 1994Article 1Private Accountability and the Fourteenth Amendment; stateAction, Federalism and Co Madry- Private Accountability and the Fourteenth Amendmentt their lives too will be much happier and more secure when everyone enjoys as fundamental rights their same opportunities.♦♦ Second Treatise of Government Section 123-24 (C. B. McPherson ed., 1980) (1690) (emphasis in original).♦♦♦ Cong. Globe, 39th Cong., 1st Sess. 1263-64 (1866) (successfully urg Madry- Private Accountability and the Fourteenth Amendmenting enactment of the Civil Rights Act over the veto of President Andrew Johnson).♦♦♦♦ DeShaney V. Winnebago County Dep’t of Social Servs., 489 U.S. 18Madry- Private Accountability and the Fourteenth Amendment
9,195500Missouri Law Review, Vol. 59, Iss. 3 [1994], Art. .MISSOURI LA w REVIEW[Vol. 59IntroductionThe state action doctrine of the Fourteenth AmendmeMissouri Law ReviewVolume 59Issue 3 Summer 1994Summer 1994Article 1Private Accountability and the Fourteenth Amendment; stateAction, Federalism and Co Madry- Private Accountability and the Fourteenth Amendmento complain about its lack of coherence.* 1 2 The problem with the state action doctrine is far deeper. It reflects a profound ignorance of the workings of federalism and the origins and concerns of the Fourteenth Amendment, particularly the Privileges and Immunities Clause.3 In that respect, the doc Madry- Private Accountability and the Fourteenth Amendmenttrine continues to bear the scars of the Slaughter-House Cases4 of 1873.This article seeks to resolve the quagmire of the state action doctrine by reeMadry- Private Accountability and the Fourteenth Amendment
xamining what is perhaps the most paradoxical dimension of the Supreme Court’s interpretation of that illusive phrase "No State shall" which introduceMissouri Law ReviewVolume 59Issue 3 Summer 1994Summer 1994Article 1Private Accountability and the Fourteenth Amendment; stateAction, Federalism and Co Madry- Private Accountability and the Fourteenth Amendmentrily, concerns the proper and complementary roles of the Supreme Court, Congress and the states in securing the fundamental interests of citizenship against violation from any quarter.(1989).1.Charles L. Black, Foreword: "State Action," Equal Protection, and California’s Proposition 14, 81 Harv. L. Madry- Private Accountability and the Fourteenth AmendmentRev. 69, 95 (1967). I have argued elsewhere that in the hands of Justice Rehnquist the doctrine is in fact becoming more coherent, but even more perniMadry- Private Accountability and the Fourteenth Amendment
cious for the effort. See Alan R. Madry, State Action and the Obligation of the States to Prevent Private Harm: The Rehnquist Transformation and the BMissouri Law ReviewVolume 59Issue 3 Summer 1994Summer 1994Article 1Private Accountability and the Fourteenth Amendment; stateAction, Federalism and CoMissouri Law ReviewVolume 59Issue 3 Summer 1994Summer 1994Article 1Private Accountability and the Fourteenth Amendment; stateAction, Federalism and CoGọi ngay
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