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University of Alabama




There is an uncertainty abroad in the land. At its root, to speak boldly, lies the fear that the fate of individual liberty in this Nation is in the hands of a Supreme Court whose newest members, cast in the intellectual likeness of a disgraced Executive, lack sufficient sensitivity to libertarian ideals to preserve the American democracy as we know it. Particularly for those who found in the Warren Court the moral leadership necessary to move the country toward a just resolution of the perplexing social problems that plague us all, the skies seem dark. Our constitutional system has always recognized that majorities can be expected to show little respect for individual liberty and that, accordingly, the power of legislatures and executive officers must be held in check by adherence to enduring principles of law that fix the boundaries of governmental action. This is the place of the Bill of Rights and its analogue, the fourteenth amendment. And it is, of course, the Supreme Court's role to enforce those limitations in order to protect the individual rights and liberties so critical in a free society. Against this background, intransigence in the judicial department is sobering. The doubt runs deep; it will not easily be dispelled. Nevertheless, we do well to examine the Burger Court on its record, for it is only on the reported decisions that the Court's performance, indeed its character, can fairly be judged. This article will evaluate the Burger Court's "state action" decisions-those in which the Court has defined the reach of the Federal Constitution for the protection of individual liberty. At the outset, it will be necessary to review some fundamentals and to trace the development of the state action concept from the earliest cases following the Civil War through the Warren Court years. Then, the Burger Court's decisions will be treated, with a view toward identifying the extent to which the present Court has rejected the expansive notion of state action forged by its predecessor and adopted in its place a much more restrained approach.



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