Privatizing Public Rights: Common Law and State Action in the United States
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Description
The chapters in this volume reflect a diversity of approaches to the question of the “boundaries of rights” and the positive obligations of state and private actors. As stated, the question appears to rest on two assumptions: that a legal system recognizes legally grounded obligations to provide goods and services—education, housing, and the like—and that these obligations extend to nongovernmental actors as well as to the state. Both of these assumptions run counter to conventional understandings of United States (US) constitutional doctrine. First, the US Supreme Court has consistently interpreted the federal Constitution as affording no right to government-provided assistance of the sort included in many national constitutions adopted after World War II. Second, constitutional rights in the US (other than the right not to be enslaved by another individual) by their terms seem to extend vertically only against “state action” and not horizontally against private action. Although political analysts see sovereignty as dispersed between private and public actors—and so fragmented, diffuse, outsourced, and hybrid—the US Supreme Court persists in maintaining an “essential dichotomy” between the wrongdoing of government and that of nongovernmental actors, locating the latter outside the boundary of federal-constitutional enforcement. The state-action divide is pervasive throughout federal constitutional law and applies not only to individuals deciding whether to invite someone for dinner, but also to “Alpha Institutions”—Bayless Manning’s provocative term—carrying out government-authorized programs that affect individuals even in intimate matters such as health care. 8 From the US perspective, it thus seems odd to talk about the boundary of a positive constitutional obligation that does not exist within a legal system that does not recognize constitutional rights outside a narrow sphere of public activity. Nevertheless, locating the boundaries of rights, especially positive constitutional rights, holds theoretical and practical significance for US law. The boundary question is particularly important when the government contracts with private companies for the planning, production, and delivery of social goods – a practice known as privatization or outsourcing. In a familiar argument, the public sector enlists privatization because it promises benefits such as efficiency and innovation that are said to be stifled by regulation. On the other hand, privatization also creates opportunities for rent seeking that, unchecked, allow private companies to misuse public power in ways that threaten to dilute service quality, subvert individual rights, and undermine constitutional norms. Even if outsourcing involves goods and services that are not of constitutional dimension, their distribution nevertheless raises questions about procedural regularity and fair treatment that are encompassed within the public-law requirements of due process and equal protection. By placing the activity of government contractors outside the sphere of “state actions,” privatization effectively eliminates constitutional constraints in settings where administrative or common-law remedies may be insufficient to ensure respect for democratic norms. I approach the boundary question as a matter of US constitutional law, asking whether constitutional norms can play a role in regulating privatization without transforming all private action into state action. I do so from the perspective of subsidiarity and proportionality, two concepts said to be somewhat alien to US legal discourse, and, instead, are associated with judicial practices within the European Union and its relation to member states. By subsidiarity I mean the principle that collective activities should be undertaken, when feasible, through mediating structures that often are located at the local level, with the aim of nourishing democratic politics and preventing “an overcentralization of power.” The principle as used here embraces not only local deference but also a “positive dimension” intended to ensure “that the body assigned a particular function be able to carry it out effectively.” By proportionality I adopt the definition associated with Robert Alexy of rights conceptualized as “optimization” principles, requiring “the realization of something to the greatest extent possible, given countervailing concerns.” Alexy’s definition pitches proportionality at a high level of abstraction, but for present purposes, it has the advantage of subsuming the different versions of proportionality analysis applied by judicial systems around the world, including the specific form of review practiced by the European Court of Human Rights.
Source Publication
Boundaries of State, Boundaries of Rights: Human Rights, Private Actors, and Positive Obligations
Source Editors/Authors
Tsvi Kahana, Anat Scolnicov
Publication Date
2016
Recommended Citation
Hershkoff, Helen, "Privatizing Public Rights: Common Law and State Action in the United States" (2016). Faculty Chapters. 769.
https://gretchen.law.nyu.edu/fac-chapt/769
