The Fourteenth Amendment remains the great Rorschach test of one's underlying jurisprudential beliefs. For those of a "progressive" bent, the amendment is a "sweeping mandate," while those more inclined toward powdered wigs and judicial formalism criticize the amendment as an instrument of "freewheeling judicial] lawmaking." It is a philosophical impasse, one that centers around the apparently ambiguous prohibition against deprivations of due process and denials of equal protection. Unfortunately, the strictures from the high court and Congress remain equally ambiguous-particularly in the realm of state action. Metaphors, such as "winks and nods," "sifting facts and weighing circumstances " and "under color of any statute," guide the analysis. The result is not merely a meandering precedent of inconsistent verdicts, but a serious epistemological quandary that leaves one to wonder what values are to be assigned to "close nexus" and "entwinement," and how future jurists should apply such precedent.
Michael A. Culpepper,
A Matter of Normative Judgment: Brentwood and the Emergence of the "Pervasive Entwinement" Test,
U. Rich. L. Rev.
Available at: https://scholarship.richmond.edu/lawreview/vol35/iss4/6