Where the (State) Action is

Abstract

The questions of how and to what extent constitutional rights do or should bind the actions of private actors have sparked enormous interest among legal scholars worldwide in the last few years. This is not only because of the great practical importance of the subject in the wake of the spectacular burst of constitution-making since 1989 but also because the very range of situations with which many of these new constitutions have been designed to deal - from post-apartheid to post-communism - has challenged scholars to think anew about the nature and function of constitutions.

This essay, reviewing "The Constitution in Private Relations: Expanding Constitutionalism," a timely and broad-ranging collection of articles edited by Andras Sajo and Renata Uitz, identifies and then seeks to clarify or resolve four key issues that recur both throughout the book and in the broader scholarly debate. These issues are: (1) the best way to conceptualize the issue of state action/horizontal effect and the spectrum of possible positions a constitution may take on it; (2) the relation between state action/horizontal effect and positive constitutional duties placed on the state; (3) the role of substantive law and commitments in assessing the impact of constitutional rights on private actors; and (4) the best understanding of the position that the U.S. Constitution takes on the general issue. My discussion of this last issue attempts to explain and resolve two somewhat contradictory understandings of the actual position of the U.S. - a more vertical and a more horizontal one - that are quite common in comparative discussions.

Keywords: state action, horizontal effect, private actors and constitutional law, constitutional structure, constitutional rights