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INTRODUCTION
Charles Black's Foreword: "State Action, " Equal Protection, and California's Proposition 14(1) is among the most-cited law review articles of all time,2 undoubtedly for its crisp statement that the state action doctrine was "a conceptual disaster area."3 Thirty years later, Black's book, A New Birth of Freedom, argued that the Supreme Court should-and someday would-develop constitutional protection for social welfare rights, such as the right to minimally adequate shelter and a minimum income.4 In this Essay we argue that Black's later argument actually revisits his earlier one: The state action issue is, at bottom, a question of whether the Constitution guarantees social welfare rights.
Part I of this Essay outlines Black's argument in his earlier Foreword and demonstrates that Black recognized the connection between the state action issue and social welfare rights, but muted his discussion in service of a vigorous argument that the state action doctrine should not limit constitutional protections for African-Americans. Part I goes on to outline Black's argument in A New Birth of Freedom for recognizing social welfare rights.
Part II develops the analytic connection between the state action issue and social welfare rights. In brief: The state action doctrine is about the constitutional implications of distribution of the background rights of property, contract, and tort. These background rights authorize private actors to engage in activities that become subject to constitutional challenge; a private property owner's exclusion of a black person from her restaurant, for example, may in the first instance be authorized by background rules of private property. The state action doctrine offers private actors a defense: Effects flowing from the distribution of background rights are invulnerable to constitutional challenge. If no state action is found, the restaurateur, as the property right holder, may exclude people from her restaurant without the application of substantive equal protection norms. If state action is found, the Constitution makes these activities vulnerable to challenge.
The question of social welfare rights is analytically the mirror image of the state action doctrine. The issue of the existence of social welfare rights arises only when someone challenges the economic consequences flowing from the distribution of background rights on the ground that the distribution has not produced a constitutionally acceptable apportionment of the nation's material resources. To...
