"Under Color of Law"? Rogue Officials and the Real State Action Problem

It is black letter law that violations of section one of the Fourteenth Amendment can only be committed by “the state.” For it is “the state” that the amendment commands not to abridge privileges or immunities of citizens, deprive persons of life, liberty, and property without due process of law, or deny persons equal protection of the law. And this prompts the question, how do we know when the state has acted? One way the state acts is by legislating, by enacting rules of conduct. Lawmaking is a paradigmatically state action. This state also acts by enforcing or implementing the laws that have been enacted, and by adjudicating disputes that arise under those laws. In such cases, the state acts through its agents—police, prosecutors, judges, and, indeed, all other public employees. But what if one of these agents of the state acts, not in pursuance of the state’s laws, but in contravention of those laws? Is this agent still acting as “the state”? Can such an agent violate the Fourteenth Amendment when, at the same time, he is acting contrary to the law of his state? That is the question I mean to raise in this article. I mean to raise it despite the fact that the Supreme Court has answered it—although its more recent answer contradicts an answer it gave previously. The issue that this question raises is what I call the real state action issue. It is different from what constitutional law casebooks and most constitutional law scholars call the state action issue, an issue that seems to bedevil both courts and scholars. I believe, however, that this latter state issue is misconceived. For if correctly analyzed, it is easily resolved. What will be difficult, if there be difficulty, will not be whether there is state action, but rather whether the state action that is present is violative of the Constitution.