Vanderbilt Law Review

Article Title

The Impact of Constitutional Liability on the Privatization Movement After "Richardson v. McKnight"


Paul H. Morris


"Privatization" is the process of delegating control of a govern- mental function to the private sector. Although privatization is a relatively new words the concept of privatization can be traced back to the very founding of this continent. Christopher Columbus was a private contractor for the Spanish monarch when he accidentally ran into America while trying to find a quicker route to China. Since Columbus' blooper and the subsequent formation of the United States, privatization has been a part of this country's political culture. Over the last twenty years privatization has experienced an unprecedented level of global support and has become a central part of a strong American anti-government political movement. This political climate has prompted different levels of government to contract with private companies for the performance of services as varied as prison operation, fire protection, and electricity production and distribution.

Proponents of privatization claim that the private sector can perform governmental functions better and with less expense. Proponents argue that government-provided service is inherently inefficient because the government lacks profit motive and competition. Critics of privatization, on the other hand, argue that any value created by privatization comes at the expense of the general public good, and that privatization only benefits greedy corporations. Critics complain that the private sector uses its delegated governmental power to sacrifice equality of service, privacy, and individual liberty for profit.

The critics' fear of this lost liberty and equality raises the issue of how courts should treat private performers of governmental services with regards to constitutional liability. Three alternatives exist. First, courts could treat these parties like other private industries and apply no constitutional scrutiny to their actions. Second, courts could recognize the delegated governmental power of private performers of governmental services and treat them as governmental actors for purposes of constitutional scrutiny. Third, courts could respond to the critics' fear by applying a higher degree of constitutional scrutiny to the actions of private providers of governmental services than to the actions of the government itself.