Whom Does the Constitution Command?: A Conceptual Analysis with Practical Implications

Alexander and Horton have attempted to untangle one of the most difficult and potentially far-reaching questions in constitutional law: at what point does constitutional law leave off and `plain old law' remain to occupy the US legal system's field of play? In addressing this question the authors take on two of the most murky concepts in constitutional law, `state action; and `under color of law.' In their attempt to make sense of these notions they develop models that potentially could provide coherent, principled answers to the problems created by the Supreme Court in its decisions in this area. . . . This work, the first monographic treatment of this question, is written purposely at a fairly high level of abstraction and is clearly intended for advanced students and judicial decision makers. Recommended for advanced students. Choice Despite the guidelines provided in the Constitution, many fundamental constitutional issues remain open to debate after two centuries. One of the thorniest centers on the division of authority. Who is actually mandated by the U.S. Constitution to carry out the duties it imposes? Alexander and Horton address this question by developing several models of constitutional interpretation and applying them to state action, under color of law, and other complex doctrines in constitutional jurisprudence that have been created to deal with problems of distinguishing unconstitutional from merely illegal authority. Presenting three basic analytical models--legalist, naturalist, and governmental--together with several possible permutations, the authors clarify the assumptions underlying these current doctrinal tangles and illuminate many conflicts and inner inconsistencies of modern constitutional law. They examine the implications of each model in terms of its application to relevant court precedent and the way it would deal with specific constitutional provisions such as the Thirteenth and Fourth Amendments and the Commerce Clause. The authors conclude that only two of the possible models can be considered to be principled.

Table of Contents:
Diagrams Preface Introduction Three Models of the Constitution and Its Referents The Legalist Model The Naturalist Model The Governmental Model Postscript to the Naturalist and Governmental Models: The Problem of Defining "Unconstitutional Acts" Three Hybrid Models A Summary Description of the Six Models Implications of the Choice of Models Choice of Forum, Remedy, and Defendant "State Action" and the Substantive Merits The Choice among Models: Its Implications Summarized Postscript: Do Different Models Apply to Different Constitutional Provisions? Appendix A: A Look at Some Post-Civil War Supreme Court Decisions through the Prism of the Models of Whom the Constitution Commands Appendix B: The Models of the Constitution's Referent (and States of Mind of Government Officials) in "Consitutional Tort" Actions Alphabetical List of Cases Chronological List of Cases Bibliography Index

About the Author :
LARRY ALEXANDER is Professor of Law at the University of San Diego. PAUL HORTON is Professor of Law at the University of San Diego.

Review :
?Alexander and Horton (law, University of San Diego) have attempted to untangle one of the most difficult and potentially farreaching questions in constitutional law: at what point does constitutional law leave off and "plain old law" remain to occupy the US legal system's field of play? In addressing this question the authors take on two of the most murky concepts in constitutional law, "state action" and "under color of law." In their attempt to make sense of these notions they develop models that potentially could provide coherent, principled answers to the problems created by the Supreme Court in its decisions in this area. The authors claim that failure to conceptualize the problem properly has resulted in Supreme Court decisions that are "inconsistent" and "incomprehensible." In the end they find only two models that can provide coherent principled ways to deal with this issue. This work, the first monographic treatment of this question, is written purposely at a fairly high level of abstraction and is clearly intended for advanced students and judicial decision makers. Contains a bibliography and listing of cases, both of which are presented chronologically as well as alphabetically. Recommended for advanced students.?-Choice "Alexander and Horton (law, University of San Diego) have attempted to untangle one of the most difficult and potentially farreaching questions in constitutional law: at what point does constitutional law leave off and "plain old law" remain to occupy the US legal system's field of play? In addressing this question the authors take on two of the most murky concepts in constitutional law, "state action" and "under color of law." In their attempt to make sense of these notions they develop models that potentially could provide coherent, principled answers to the problems created by the Supreme Court in its decisions in this area. The authors claim that failure to conceptualize the problem properly has resulted in Supreme Court decisions that are "inconsistent" and "incomprehensible." In the end they find only two models that can provide coherent principled ways to deal with this issue. This work, the first monographic treatment of this question, is written purposely at a fairly high level of abstraction and is clearly intended for advanced students and judicial decision makers. Contains a bibliography and listing of cases, both of which are presented chronologically as well as alphabetically. Recommended for advanced students."-Choice