Horizontality and the "Spooky" Doctrines of American Law

American constitutional law maintains a fundamental distinction between government action and private conduct, limiting constitutional protections to state action under the Fourteenth Amendment. This article examines whether comparative constitutional jurisprudence offers alternatives to this rigid binary approach. The author analyzes how foreign courts and scholars embrace "horizontality"—the principle that constitutional rights can apply to relations between private parties. Drawing on German constitutional theory and Robert Alexy's work on third-party effects of rights, Hershkoff explores whether American doctrine might benefit from recognizing that constitutional values penetrate private relationships. The article argues that while American law has recognized exceptions to state action doctrine in cases like Shelley v. Kraemer and New York Times v. Sullivan, the underlying methodology differs from horizontality approaches. The author contends that a horizontality principle, adapted to American constitutional practice, could help address the privatization of governance and hold private actors accountable for conduct affecting fundamental rights.

Topics: Constitutional Law · Federalism

Keywords: state action doctrine · horizontality · third-party effect · Shelley v. Kraemer · Robert Alexy · constitutional rights · private actors