193 This point was made as long ago as 1883, see Civil Rights Cases 109 U.S. 3, 26 (1883): ‘An individual cannot deprive a man of his right[s] ... he may by force or fraud, interfere with the enjoyment of the right in a particular case; [but] unless protected in these wrongful acts by some shield of State law or state authority, he cannot destroy or injure the right.’
194 Retail, Wholesale & Department Store Union v Dolphin Delivery Ltd (1986) 2 SCR 573, 600-01. See Brian Slattery, ‘The Charter’s Relevance to Private Litigation: Does Dolphin Deliver?’ (1987) 32 McGill Law Journal 905.
195 Dolphin Delivery (1986) 2 SCR 573, 600-01.
196 See Slattery, above n 191, 918-19.
197 Ibid, 919.
198 Lange (1997) 189 CLR 520, 564-65.
199 As a consequence, federal courts have no general power to develop the common law Erie RR v Tompkins 304 US 64 (1938).
200 The incorporation doctrine, depends on an elaborate interpretation of the Fourteenth Amendment ‘due process’ requirement. The Fourteenth Amendment requires that ‘No State shall ... deprive any person of life, liberty or property, without due process of law’. Although the Supreme Court resisted the argument that the requirement to act with ‘due process of law’ meant that the states were bound by the first ten amendments (the Bill of Rights) in its entirety, it has allowed ‘selective incorporation’. That is, it has recognized on a piecemeal or case-by-case basis that ‘due process’ requires adherence to Bill of Rights requirements. The cumulative effect of this is that most of the Bill of Rights now applies to states and, indeed, the notion of ‘due process’ is even broader. See Tribe, above n 77, 772-74.
201 It could also be that the High Court is placing some emphasis on the words ‘any law’ in the Fourteenth Amendment, words that it quotes. Lange (1997) 189 CLR 520, 663. (The Amendment reads, ‘[n]o State shall make or enforce any law which shall abridge the privileges and immunities of citizenship.’) Perhaps the argument is that these words explain why the rights of the American Bill of Rights apply to the common law. If this is the argument two answers can be made. The first is technical. As a matter of American constitutional doctrine, the incorporation of the Bill of Rights against the states is an interpretation of the ‘due process’ clause (which does not include those words) not the ‘privileges and immunities’ clause. See Tribe above n 77, 772. Second, and more importantly, that explanation is not consistent with the reasoning in cases like New York Times. It is clear from these cases that the Court applies the Constitution to the common law not in response to the text of the Constitution but because it regards judicial enforcement of the common law as a ‘form of … state power’. See above nn 189 and accompanying text.
202 See above Part III B (2).
203 The High Court’s position that the common law and the Constitution form ‘one system of jurisprudence’ in which the common law must conform to the Constitution is drawn from Dixon’s essays. See, ‘Sources of Legal Authority’ in Jesting Pilate (1965) 198. See also, ‘The Law and the Constitution’; ‘The Common Law as an Ultimate Constitutional Foundation’ in Jesting Pilate (1965) 38, 203.
204 (1951) 83 CLR 1. See generally, Waite above n 132.
205 See Theo Varvaressos ‘Lange v The Australian Broadcasting Corporation: A Case Study of the Interaction of the Constitution and the Common Law’, Honours Thesis, Faculty of Law, Australian National University (1998) 16, who completes the argument, explaining that consistently with Dixon’s view the Constitution ordinarily prevails over the common law just as any statute prevails over inconsistent rules of the common law.
206 Waite, above n 132
207 See above n 185.
208 Slattery makes the same point with respect to the Canadian position requiring the Court to develop the common law consistently with fundamental constitutional values: ‘The problem is that any such judicial role seems inconsistent with the premise that the Charter does not extend to private disputes governed by the common law … If the Courts ‘ought’ to develop the common law in the way suggested, this can only mean that they have some sort of duty to do so. This duty must stem from the Constitution itself, for it is difficult to see where else it might come from.’ Slattery, above n 191, 920-21.
209 On the advantages of building upon an established body of law rather than inventing a new ‘free standing’ constitutional doctrine, see Adrienne Stone, ‘The Freedom of Political Communication, the Constitution and the Common Law’ (1998) 26 Federal Law Review 219.
210 See above n 162.
211 In one influential account, it was described as ‘little more than a name for a contention that has failed to make any lasting place for itself as a decisional ground that has failed of intellectual clarification’; Charles L. Black Jr ‘Foreword: ‘State Action,’ Equal Protection and California's Proposition 14.’ (1967) 81 Harvard Law Review 69, 95. See also, Reitman v. Mulkey, 387 US 369, 378 (1976): ‘This Court has never attempted the ‘impossible task’ of formulating an infallible test for determining whether the State ‘in any of its manifestations’ has become significantly involved in private discriminations. ‘Only by sifting facts and weighing circumstances’ on a case-by-case basis can a ‘nonobvious involvement of the State in private conduct be attributed its true significance.’ Burton v. Wilmington Parking Authority, 365 U.S. 715, 722 (1961).’
212 344 US 1 (1948)
213 344 US 1, 19 (1948): The Court held: ‘We have no doubt that there has been state action in these cases in the full and complete sense of the phrase. The undisputed facts disclose that petitioners were willing purchaser of properties upon which they desired to establish homes. The owners of the properties were willing sellers … it is clear that but for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint.’
214 Gerald Gunther and Kathleen Sullivan, Constitutional Law (13th ed, 1997), 938. See also Herbert Wechsler, ‘Toward Neutral Principles of Constitutional Law’(1959) 73 Harvard Law Review 1, 29-31.
215 I have adapted an illustration given by Professor Wechsler, ibid, 31.
216 At least where the private property is a private home, rather than a privately owned area used by the public. See above n 162.
217 Tribe, above n 77, 1711: ‘the general proposition that common law is state action - that is, that the state ‘acts’ when its courts create and enforce common law rules - is hardly controversial.’ See also, Wechsler above n 211, 29. Despite his criticism of Shelley, Wechsler acknowledges nonetheless: ‘[t]hat the action of the court is action of the state ... is, of course is entirely obvious.’ Ibid. For attempts to define the limits of state action, see Louis Henkin ‘Shelley v. Kraemer: Notes for a Revised Opinion’ 110 University of Pennsylvania Law Review 473, 481-487 (1962); Tribe, above n 77, 1700.
218 Laurence Tribe has suggested that Shelley could be explained on the basis that ‘neutrality does not suffice in matters of racial segregation in housing, or that the state’s contract and property rules … were not in fact neutral in their enforcement of racial restraints on alienation while treating many other restrains as unenforceable.’ Tribe, above n 77, 1715 (footnote omitted).
219 Lange was a unanimous judgment that followed a number of divided decisions on the freedom of political communication and implications from representative government generally (see Theophanous (1994) 182 CLR 104, Stephens v West Australian Newspapers (1994) 182 CLR 211, McGinty v Western Australia (1996) 186 CLR 140) and required most justices to abandon some aspect of their previously held opinion. Professor Winterton has written of the case, ‘who could have predicted that five justices – Brennan CJ, Dawson, McHugh, Toohey and Gaudron JJ – would abandon previously held views?’ Winterton, above n 131, 4 n 15.