concurring.
When this case was before the original panel the members were unanimous on the judgment which should be rendered but di*149vided respecting the doctrinal analysis supporting it. Two judges joined in an opinion supporting the judgment on one doctrinal approach. The third judge, the author of the majority opinion for the court in banc, filed a separate opinion. When, in accordance with its policy, the full court received copies of the opinions prior to filing, it voted to consider the case in banc. Now, after such consideration, seven of the nine judges are agreed on the identical judgment on which the panel was unanimous, but five of the nine have agreed with the author of what was the panel’s minority doctrinal view. Obviously, then, this is a ease in which the court is far less concerned with the outcome between the litigants before it than with the transcending effect in other cases of one doctrinal approach rather than another. The conflicting analyses must be perceived by the majority as having far different capacities for legal growth, and as resulting in far different social consequences. This extraordinary event, a court of appeals taken a case in banc chiefly for the purpose of reassigning the majority opinion, proclaims that those legal and social consequences will, in the majority view, be far reaching, and that those following from the majority’s approach are desirable.
Although the majority opinion does not disclose why the difference in analysis is of such transcending importance, or where its doctrine will lead, there is no doubt that the opinion casts a much different and much longer shadow than that of the panel majority. If the case is as significant as the majority of the full court obviously believes, then the competing considerations of social policy supporting one approach to its resolution over another should, it seems to me, be exposed for full public scrutiny. This opinion will attempt to do so.
I. THE PROBLEM
In a series of cases beginning with Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) and most recently including North Georgia Finishing v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975), the Supreme Court has, by application of the due process clause of the fourteenth amendment, significantly altered the relative power positions of creditors and debtors. It has done so by insisting that creditor remedies made available by virtue of state law meet certain specified requirements of notice and opportunity to be heard before property of debtors can be transformed into property of creditors. This change in the law respecting transfer of debtor property was accomplished by judicial lawmaking, but the effect of the change was no different than if it had been accomplished by congressional action pursuant to section 5 of the fourteenth amendment. That effect was to impose national minimum due process requirements for such transfer, standards uniformly applicable in state or federal courts.
Creditor groups generally, and some judges, were disturbed by the imposition of a new national law of minimum due process for the transactions in issue. In many cases the judicial disquiet arose from a judicial philosophy favorably disposed toward the protection of creditors.1 In other cases, the disquiet arose from a political philosophy of distrust of national lawmaking through the fourteenth amendment and of confidence only in the fairness and wisdom of local solutions.2 The obvious strategy of the creditor groups and like-minded judges was to devise a constitutional law doctrine which would not merely relegate to state courts all litigation between debtors and creditors over transfers of debtor property, but which would insulate creditor remedies *150altogether from the reach of national lawmaking under the fourteenth amendment.
II. THE CREDITOR STRATEGY
The law of permissible creditor remedies underwent an uneven but centripetal evolution in the direction of minimum national due process standards during the time from Sniadach v. Family Finance Gorp., supra to North Georgia Finishing v. Di-Chem, Inc., supra. Meanwhile, in a field entirely unrelated to creditor remedies there emerged evidence first of the arrest of a former centripetal legal development, and later, evidence of a centrifugal evolution back toward deference to localism. I refer, of course, to Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972) and Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974), in both of which the Supreme Court prevented the implementation of settled national law standards of conduct by refusing to find state action. These cases suggested the strategy for creditor groups. If federal courts could be persuaded to overlook the obvious distinctions between the state action issues posed in those cases and the state action issues posed in the context of seizure and foreclosure of debtor property, and to rely on those cases as appropriate analogies, then a large range of creditor remedies could be insulated from the reach of national lawmaking under the fourteenth amendment by Court or Congress.
III. THE COURT’S RESPONSE
The creditor strategy was first tried out in this court in Gibbs v. Titelman, 502 F.2d 1107 (3d Cir.), cert. denied sub nom. Gibbs v. Garver, 419 U.S. 1039, 95 S.Ct. 526, 42 L.Ed.2d 316 (1974), and it found a receptive climate. Treating state action for fourteenth amendment purposes as if it were a unitary concept, the Gibbs v. Titelman panel held that the foreclosure of a debtor’s interest in an automobile by a non-judicial sale did not involve state action and thus did not fall within the reach of the evolving national law of debtor property protection. Unlike in this case, however, those who objected to the doctrinal formulation of the panel opinion in Gibbs v. Titelman could not muster five votes for in banc reconsideration. The message of Gibbs v. Titelman to creditor group lobbyists and brief writers was clear. If one can prevail upon state legislators and courts to recognize non-judicial foreclosure methods, one may persuade this court, at least, that non-judicial creditor remedies are beyond the reach of national due process standards. Today the majority reiterates that message. Its insistence in this case upon the purity of its doctrine shows the strength of its commitment to fencing off from national law, wherever possible, whole areas in which action taken under color of state law can be “privatized.” The signal to creditor lobbyists and draftsmen will not be missed. Moreover the “privatizing”, strategy espoused by the majority has obvious ramifications for dismemberment of the fourteenth amendment in areas other than creditor remedies.
IV. STATE ACTION IS NOT A UNITARY CONCEPT
The majority opinion holds that a garage-man who retains possession of an automobile pursuant to a lien arising under Pennsylvania common law does not act under color of that law, while the same garage-man who sells the same car in foreclosing that lien on the authority of a Pennsylvania statute does act under color of that statute.3 In arriving at the peculiar distinction, in a decision based on political and social philosophy, the majority discusses the ease as if it has actually made no such decision but has merely yielded to the result compelled by precedent. But by the selection of precedent one can construct syllogisms of surface appeal to yield logically sound but nevertheless improper conclusions. By taking language from an opinion in which state action is presented in one context and applying it mechanically to a situation in *151which the state action is of an entirely different order, the majority has done precisely that. Using Judge Aldisert’s opinion Magill v. Avonworth Baseball Conference, 516 F.2d 1328 (3d Cir. 1975) as if it were intended as an all-inclusive analysis of state action issues for all contexts, it colormátches the instant case to the three contexts discussed therein, and then engages in the distinguishing game. But as his concurrence in Part IV of this opinion indicates, Judge Aldisert never intended that the Magill opinion freeze all fourteenth amendment jurisprudence in this circuit in a rigid framework, or limit all analysis to that which was appropriate to the disposition of that case. Indeed, the majority of this court rejected the very woodenness of the instant majority opinion in the more recent opinion in Braden v. University of Pittsburgh, et al, 552 F.2d 948. There, Judge Adams recognized that the appropriate model of state action analysis depends upon the setting in which the question is presented.4 The instant majority opinion ignores Braden.
Moreover, even if it were intended that Magill’s three categories be all inclusive, it would have to be recognized that they take on different meanings in different settings. For example “significant involvement” means one thing in the context of permitting an all-boys baseball team to use a public park, another in the context of allowing officers of a state university to engage in sex or race discrimination, and yet another in the context of making law, common or statutory. Certainly lawmaking is “significant involvement” in the activity governed by the law.
That incorporeal entity, “The State,” is presented in the case law of the fourteenth amendment in many different visages. Without pretending that the list I am about to suggest is more likely to be fully comprehensive than others which have been tried, I think it worthwhile to make an attempt at distribution, if for no other reason than to point out that some of the state action cases on which the majority opinion relies are not really relevant to the case before us, nor are many of those it “distinguishes.” I suggest, then, that we must endeavor to look discerningly at the several different ways in which a state may be functionally involved in action of a “private” party. I would classify these functions as (1) the state as a principal; (2) the state as a delegator of functions; (3) the state as a coercer, (4) the state as a sanctioner and facilitator of transactions; and (5) the state as a lawgiver. Since the state is an incorporeal entity, when one speaks of “state action” one cannot refer to action in the physical sense. Rather, in every instance one refers to the action of some person or persons, and determines that, because of its functional relationship to the state, the person’s action should be attributed to the state for purposes of the fourteenth amendment.
A. The state as a principal
Though incorporeal, the state, through agents, carries on governmental and proprietary functions on behalf of us all. Our recent Braden case is a typical example. If, as we have concluded, the University of Pittsburgh is actually an instrumentality of the Commonwealth, then the Commonwealth must insist that the University’s employees, its agents and ours, act toward persons dealing with it in an exemplary fashion. The fourteenth amendment imposes an affirmative obligation with which those agents must comply, even in cases where the state has by law imposed the same obligation. If the state or its subdivision owns a park, it cannot permit its agents in charge of that park to discriminate. Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486,15 L.Ed.2d 373 (1966).5 If a state or its subdivision operates what was once a private institution, its agents in charge of *152the institution may not be permitted to discriminate. Commonwealth of Pennsylvania v. Brown, 392 F.2d 120 (3d Cir.) (in banc), cert. denied 391 U.S. 921, 88 S.Ct. 1811, 20 L.Ed.2d 657 (1968). If the state or its subdivisions employ officers to perform the police function, those officers must perform them in an exemplary fashion, meeting a fourteenth amendment standard, even when their action is actually in violation of state law. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). If the state has a significant proprietary interest in business premises, the operators of that business may take on such a relationship with the state that they will be treated as agents, and the state as principal. Those operators, too, will be required to act in the same exemplary manner as must other state agents. Barton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). The governing principle of these state-as-principal cases is that the people as a commonwealth, a political unit, simply cannot do some things, or permit their agents to do some things, that as individuals they could do. But these cases have little or nothing to do with the state action issues in the instant case. The garagekeeper, whether he is retaining possession or foreclosing his lien by sale, is acting solely in his own interest, whereas the university president, the parkkeeper, the police officer and the innkeeper lessee of a publicly owned place of business are acting at least in part on behalf of the State.
B. The state as a delegator of functions
Given the rule that agents of the State must act on behalf of that principal in an exemplary manner, it is a necessary corollary that the principal cannot, by a process of delegation, isolate the action of persons who would otherwise be within the reach of the fourteenth amendment. Thus so-called private entities have been found to be engaging in state action when the State has permitted them to exercise functions formerly exercised more directly on its behalf. E. g., Evans v. Newton, supra (change of trustees of a municipal park); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946) (company town). There has been some recent indication that states may have more leeway in delegating functions than heretofore. Hudgens v. N. L. R. B., 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976). But we need not explore the cases on delegation. The cases on delegation like the state-as-principal cases of which they are corollaries, are irrelevant to the instant issues for the same reason. The garagekeeper is acting on his own behalf, not for the public.
C. The state as coercer
Where the action of private persons takes place in connection with a business or institution in which the state has no proprietary interest, and which can in no sense be regarded as governmental, that action may nevertheless be regarded as taking place under color of state law where the state, by statute, ordinance, or enforced custom in effect coerced the private actions. E. g, Adickes v. S. H. Kress & Go., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Robinson v. Florida, 378 U.S. 153, 84 S.Ct. 1693, 12 L.Ed.2d 771 (1964); Lombard v. Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338 (1963); Peterson v. Greenville, 373 U.S. 244, 83 S.Ct. 1119, 10 L.Ed.2d 323 (1963). These cases do not involve the obligation of the state’s agents to act in an exemplary manner, for in fact no proprietary or governmental activity is being carried on. Nor do they turn on the fact that the actors have become willing participants in a joint activity with such agents, for the outcome is the same whether the actors are willing or unwilling participants. They stand for the proposition that when the action by private persons which deprives others of constitutional rights is coerced by state law, whether the law is a statute, an ordinance, the common law or a custom or usage, its coercive effect, actual or potential, on the conduct of the actor suffices to make the action one under color of state law. The coerced action cases, too, are irrelevant to the instant problem, for as the majority opinion correctly points out, Pennsylvania *153has neither compelled nor coerced the defendants to retain the plaintiffs’ vehicles.6
Perhaps intermediate between the group of cases in which the state’s role is coercive and the group of cases in the next subsection in which the State appears as sanction-er and facilitator are Reitman v. Mulkey, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967) and Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 16 (1969). In these cases, while the state law in issue did not by its terms sanction or facilitate discrimination, it did so indirectly by repealing preexisting legal restraints upon such activity. The Court held that the State was implicated in the anticipated discrimination and the repealing legislation was challengeable under the fourteenth amendment. Casually, in a single sentence, the majority “distinguishes” these authorities with the observation that “[t]he private activity with which we are here concerned does not involve racial discrimination and therefore, like many of our sister circuits, we do not find the analysis of Reitman and Hunter controlling.” Majority Opinion at 137. With- , out explanation or analysis, the majority commits this Circuit to the proposition that the meaning of state action varies, not according to the relationship between the activity complained of and the authority of the Commonwealth, but according to whether race is involved. I had thought, until this throw-away line in the majority opinion received majority sanction, that we had in Magill v. Avon worth Baseball Conference, supra, firmly rejected such an approach. Certainly we declined in that case to establish a hierarchy of constitutional values, with race at the head of the list and sex somewhat lower. See also Hollenbaugh et a 1. v. Board of Trustees of Carnegie Free Public Library, 545 F.2d 382 (3d Cir. 1976).
The issues lurking in the majority’s adoption of a hierarchical approach to constitutional rights for purposes of determining the existence of state action are enormously complex and deserve less casual treatment. Implicit in the majority’s distinction of Reitman and Hunter is the assumption that the fourteenth amendment may apply differently when, for example, the president of a state university engages in race discrimination, or engages in sex discrimination, or inhibits speech or association, or deprives a teacher of property without due process of law. Judge Henry Friendly, in an article exploring, among other issues, some implications of the holdings of Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed. 1586 (1953) and Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), argues that a less stringent test for determining whether action is taken under color of state law should apply when a case involves racial discrimination than when it does not. Friendly, the Dartmouth College Case and The Public-Private Penumbra, 12 U.Tex.L.Q. 9 (1969). He rearticulated that thesis in Coleman v. Wagner College, 429 F.2d 1120, 1127 (2d Cir. 1970) (Friendly, J., concurring), and it has gained some currency in other opinions.7 The thesis has never been ap*154proved by this court, and so far the opinions of the district courts in the Third Circuit have rejected it. See, e. g., Isaacs v. Board of Trustees of Temple University, 385 F.Supp. 473, 485 n. 3 (E.D.Pa.1974) (Higginbotham, J.). Cf. Rackin v. University of Pennsylvania, 386 F.Supp. 992, 995-96 (E.D. Pa.1974) (Wiener, J.) (applies Second Circuit’s racial state action standard in a non-race case). In Braden v. University of Pittsburgh, supra, we relied extensively on Judge Higginbotham’s opinion, and at least implicitly rejected the contention that for determining whether action took place under color of state law there was a hierarchy of values between race and sex.
Judge Friendly’s effort to find a formula for state action based on a hierarchy of constitutional values is, ás with all his scholarly endeavors, impressive. I nonetheless find it unpersuasive. The result of its adoption would be to hinge the availability of the national law applicable to the states by virtue of the fourteenth amendment not on the relationship between the actor and the state but on a prejudgment by the judge, state or federal, of the importance of the rights being claimed on his subjective scale of constitutional values. It is true, of course, that in discussing the merits of claims for constitutional protection we make evaluations of the relative worth of competing claims of the opposing party and of society. But when we do so on the merits we are forced to articulate our reasons for tilting the scale one way or the other. By the device of a “non-decision,” turning the result on the absence of state action in a particular context, a judge makes subjective social policy decisions without exposing those reasons. The instant case is a particularly apt illustration.
Some judges in the majority are, on the evidence of prior opinions, uncomfortable with the evolution of a national law of debtor-creditor relations since Sniadach. By holding that there is no state action in the retention of chattels pursuant to a cornmon law garageman’s lien, because this is a due process case rather than an equal protection case, they can decide not to apply the national law without exploring for the parties and the public the reason for their discomfort. They can at the same time remain free to find action under color of state law by parties identically postured toward the state when the claim is more appealing to their subjective value system.
I would not adopt the hierarchical approach to constitutional values which the majority so casually espouses, not only because it presents too many opportunities for concealed subjectivity, but also because I know of no principled basis upon which to say that the national law in one area is less entitled to implementation by virtue of the Supremacy Clause than the national law in another area. State action is not a unitary concept, but neither is it a chameleon, changing hue depending on which provision of the Bill of Rights or which clause of the fourteenth amendment is involved.
D. The state as a sanctioner and facilitator of transactions
It is at least theoretically possible that in Rousseau’s state of nature, private transactions would take place without the sanction of a legal system and the facilitation provided by courts and sheriffs. But Pennsylvania is not that state. Its law sanctions the garagekeeper’s retention of possession, and sale, and its law prevents the owner’s resort to self-help to prevent either. The district court concluded, despite such sanction and facilitation, that neither the retention of possession nor the sale were under color of state law. The majority concludes that the former is not, but the latter is.
Fourteenth amendment jurisprudence could, of course, have taken the direction that state sanctioning or facilitation of private transactions is outside its reach. But it has taken a different direction. As the majority acknowledges, Barrows v. Jackson, 346 U.S. 249, 73 S.Ct. 1031, 97 L.Ed.2d 1586 *155(1953) and Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948) hold that some private transactions may not be sanctioned or facilitated. An attempt is made to distinguishing these cases on the ground that “. . . the defendants never invoked the assistance of the state courts to enforce their liens.” 8 Such a distinction is meritless, of course, as Judge Hunter’s concurring opinion ably demonstrates.
E. The state as law giver
The majority justifies its distinction, which in any functional sense is no distinction at all, by drawing a line between the common law which antedated the fourteenth amendment and a statute enacted thereafter.9 In drawing such a line the majority makes some fundamental assumption, with which I cannot agree, about the nature of positive law and about the nature of the state as an institution and its relationship to positive law.
(D
At the outset, I emphatically disagree that the ancient lineage of the repairman’s possessory lien bears at all upon the fourteenth amendment state action issue. The creation of property interests by state law prior to 1867 was state action, but that action did not at that time have to comport with constitutional limitations not then in existence. After ratification of the fourteenth amendment, however, a new form of scrutiny of state property law was required. See Jonnet v. Dollar Savings Bank, 530 F.2d 1123, 1133-36 (3d Cir. 1976) (concurring opinion). Gf. U. S. Industries, Inc. v. Gregg, 540 F.2d 142, 152, 154 (3d Cir. 1976). No state law classification can escape such scrutiny now, merely because it was made then.
(2)
Certainly the creation of law is state action. Indeed, state sovereignty, an incorporeal conception, is manifested chiefly if not solely by the common recognition of the sovereign’s law-making authority. The enactment of a statute, such as the foreclosure statute here challenged, must be recognized as state action in its purest form. This is no less true of a state’s common law. Since Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), it is acknowledged by federal judges that the common law is the law of a sovereign, state or federal. The common law possessory lien of which the plaintiffs complain has no more existence apart from the sanctioning authority of the Commonwealth’s sovereignty than has any Pennsylvania legislative enactment. Its initial pronouncement by a court rather than a legislature is irrelevant to the state action issue.
This is not to say that because all human activity takes place within the framework of law all human activity involves state action. The law may define an area within which collective society asserts no interest, and leave decisions therein to private ordering. For example, the law defines matters such as familial relationships and leaves to private family ordering large areas of internal family decision making. Thus a decision by a parent to censor the reading material of a juvenile family member is not within the reach of the fourteenth amendment simply because state law defines the status of minority. On the other hand, the state’s definition of that status, whether by common law or by statute, clearly is state action. Thus while a contention that the reading matter of an admittedly unemancipated juvenile is being censored would not implicate state action, a contention that the state classified women as unemancipated in *156a manner different from men, in violation of the equal protection clause, clearly would. See Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976); Stanton v. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43 L.Ed.2d 688 (1975); Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).
Similarly, the state law of contracts provides a framework within which private ordering may take place. That does not mean that every private contract must be measured against the minimum national standards of fourteenth amendment due process or equal protection. But clearly, when the state makes a classification as to what contracts are permissible, that classification is state action. Cf. Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 100, 58 S.Ct. 443, 82 L.Ed. 685 (1938) (existence of contract a federal question, notwithstanding determination to contrary by highest court of a state). If a gaming stakeholder refused to deliver the stake to the winner on the ground that the state law prohibited such a contract, his action would be taken under color of the state’s classification, and the permissibility of the classification would have to be evaluated against a fourteenth amendment backdrop.
Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 9 L.Ed.2d 265 (1946) and related cases illustrate the same principle. Marsh holds that a whole town cannot be “privatized” and removed from the scope of the fourteenth amendment by the expedient of transferring title to a private entity. That idea was extended in Amalgamated Food Employees Union, Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968). Although Logan Valley was later overruled, Hudgens v. N.L. R.B., 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976), the brute fact remains that even Hudgens reaffirms the essential principle of Marsh, Logan Valley and Indiana ex rel. Anderson v. Brand: the extent to which state law may relegate conduct to private ordering is a federal question. That very relegation is state action.
State law is also the source of the institution of private property, and defines the
incidents of that institution. See, e. g., Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974); cf. Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976); Kleppe v. New Mexico, 426 U.S. 529, 96 S.Ct. 2285, 49 L.Ed.2d 34 (1976). But while the definition of those incidents is state action, it does not follow that every choice by a property-holder among alternative uses permitted by the state’s definition is taken under color of state law. When the state has merely created a framework within which private choices are made, those elections often may be considered private. See, e. g., Hudgens v. N.L.R.B., 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). In contrast, when a person takes or withholds action in reliance upon a classification made not by such private choices but by the state itself, that person’s action necessarily is under color of state law. The law of testate and intestate succession provides an apt illustration. The state statute of wills may authorize a property owner to distribute his property on death to whomever he pleases. His choice, no matter how arbitrary, does not involve state action merely because it is made within the legal framework provided by the Wills Act. On the other hand, if he makes no will and his administrator makes distribution in accordance with a state law which excludes persons such as illegitimates, the administrator’s action is taken under color of state law, and the law relied upon is tested by fourteenth amendment standards. See Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972); Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971); Glona v. American Guaranty & Liability Insurance Co., 391 U.S. 73, 88 S.Ct. 1515, 20 L.Ed.2d 441 (1968); Levy v. Louisiana, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436 (1968). In such cases the state, not the testator, has by law defined the property interest, and the definition is state action. The fact that the property owner could have made a will in-*157eluding his illegitimate offspring in his largesse is irrelevant. The administrator’s action is taken not under color of the decedent’s private choice not to make a will, but under color of the state’s classification.
V. THERE IS STATE ACTION HERE
In the cases before us the retention of possession by the repairmen was not merely accomplished under color of a private agreement which the Commonwealth permits. Gibbs v. Titelman is therefore distinguishable. See 502 F.2d 1107 at 1113 n. 15a. In no case was the subject matter of the possessory lien even discussed between bailee and bailor. To the contrary, it was made under color of the common law of the Commonwealth of Pennsylvania which, entirely apart from any private agreement, created by operation of law in favor of the repairman a property interest superior to that of the owner. The defendants insist that their action should nevertheless be considered private. They support their position with two lines of argument.
They first urge that the plaintiffs could have avoided the operation of the possessory lien by insisting, in advance of delivery of their vehicles for repair, upon a contractual waiver of the lien. Thus, they argue, it was the plaintiffs’ private neglect to obtain such a contractual waiver which resulted in the creation of the lien. The argument is irrelevant, however, for purposes of the constitutional inquiry. Even if we accept defendants’ dubious proposition that a potential customer has a realistic chance of bargaining for a waiver of the lien, the fact remains that in these cases no releases were obtained. The ensuing exercises of dominion and control over the impounded vehicles by the repairmen must be traced directly to a single legitimizing source — state law. It should also be noted that in each of the illegitimacy cases a testator could have avoided application of the state law of intestate succession by drawing an instrument that conformed to the pertinent wills act. That the Supreme Court reached the merits of the constitutional challenge in each of those cases demonstrates that that fact was of no consequence for state action purposes.
The defendants next urge that because they could have surrendered possession of the impounded cars instead of continuing in possession as authorized by the lien law, the state is in no way implicated in their acts. But again, the fact is that in each instance the repairman did continue to assert his lien. The choice to continue in possession is a private election in the volitional sense, but it is Pennsylvania law that creates, purports to legitimize, and sanctions the right of continued possession that is availed of. The impoundment of the plaintiffs’ automobiles was action taken under the color of the Commonwealth’s law, and that law must satisfy fourteenth amendment criteria.
While it seems plain that the common law possessory lien is a product of state action, the foreclosure statute is, as the majority concedes, an a fortiori example. In the absence of an authorizing statute, a repairman could do no more than retain possession of a chattel while he sued in assumpsit to collect sums due. A judgment could be executed by levying on the retained chattel. Undoubtedly, rendering the judgment in assumpsit, levying execution and holding a judicial sale would all involve state action. Pennsylvania has by statute provided an alternative method of foreclosure. The issue is not whether, when the state provides a process for resolving disputes over interests in property, the process is state action. That has always been clear. See, e. g., Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). Rather, the issue is the dimension of the process that the state must afford parties to the property dispute. The complexity of the problem is well exemplified by a recent series of cases in which the Supreme Court and this court have considered attacks upon summary methods of resolving private disputes over interests in property. North Georgia Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601, 95 S.Ct. 719, 42 L.Ed.2d 751 (1975); Mitchell v. W. T. Grant Co., 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406 (1974); Fuentes v. Shevin, 407 U.S. 67, *15892 S.Ct. 1983, 32 L.Ed.2d 556 (1972); Jonnet v. Dollar Savings Bank, supra. The complaint here is that both the creation of the lien and the permitted method of foreclosure are entirely too summary. Both the creation and the method of foreclosure are creatures of state law.
Conceding, as they must, that the requisite state involvement would be present if state officials directly participated in the foreclosure, the defendants argue that because the Pennsylvania statute permits foreclosure by a private sale, the foreclosure method should be free from fourteenth amendment scrutiny. But the evidence shows that defendants’ characterization of the foreclosure process with respect to automobiles as purely private activity is inaccurate. The affidavit of Frank X. Garber, Director of the Bureau of Motor Vehicles of Pennsylvania, discloses that the Commonwealth actively participates and actively assists repairmen in lien foreclosures. Section 201(a) of the Vehicle Code, Pa.Stat. Ann. tit. 75, § 201(a), provides that
“(a) No person who is a resident of the Commonwealth shall own a motor vehicle . in this Commonwealth unless a certificate of title therefor shall have been obtained as provided in this act. it
The statutory command is made enforceable with criminal penalties. For the right of foreclosure to have any value to a garageman, therefore, the law must provide some easy means for transferring title to an impounded vehicle from the owner to the lienholder. According to Garber’s affidavit, the Pennsylvania authorities are very obliging. Upon request, the Bureau of Motor Vehicles will supply to a repairman Form MV-3, styled an “Application for Certificate of Title for a Motor’Vehicle or Trailer Acquired Thru Repossession or Operation of Law.” Upon receipt of a properly completed Form MV-3, together with other items required by § 208 of the Vehicle Code, Pa.Stat.Ann. tit. 75, § 208, a certificate of title will issue in the name of the foreclosing lienholder. It can thus be seen that the cooperation of state officials is instrumental to a lawful lien foreclosure. The involvement of the Commonwealth’s agents is both direct and indispensable. While this involvement is perhaps not state action in its purest form, it should be sufficient to cross the constitutional threshold. Clearly there is facilitation of the sale and sanctioning of the result.
I do not rely on the necessary involvement of state officers in the lien foreclosure to establish state action in this case, however, for although that should suffice, I think it is clear that any state law providing a method of foreclosure is state action, and any foreclosure taken pursuant to such a law is action under color of that state law. If, for example, the state were to provide by law for non-judicial foreclosure of mortgages, that law would still have to provide for the kind of process — notice to and opportunity to be heard for interested parties, for example — that the fourteenth amendment requires.
The defendants also rely on a line of cases which have described self-help repossession under § 9-503 of the Uniform Commercial Code as private activity to which the fourteenth amendment does not apply. Most prominent among those cases are this court’s decision in Gibbs v. Titelman, 502 F.2d 1107 (3d Cir.), cert. denied, 419 U.S. 1039, 95 S.Ct. 526, 42 L.Ed.2d 316 (1974), and the Supreme Court’s summary disposition of Benschoter v. First National Bank, 218 Kan. 144, 542 P.2d 1042 (1975), appeal dismissed for lack of a substantial federal question, 425 U.S. 928, 96 S.Ct. 1656, 48 L.Ed.2d 170 (1976).10 The latter judgment, through summary, is authoritative until overruled. Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). But this court has recognized that there is a significant distinction between a right to possession contractually agreed upon and a right to possession predicated solely upon a *159state law. In Gibbs v. Titelman, supra, we explicitly reserved decision with respect to the latter situation. 502 F.2d at 1113 n.l5a. And just as Gibbs v. Titelman involved a contractual undertaking, see 502 F.2d at 1109, so did Benschoter v. First National Bank, supra. See 218 Kan. at 145, 542 P.2d at 1044. Thus neither case is controlling on the state action issue presented in this case. As pointed out above, the state may provide a legal framework within which private ordering by contract may operate, and such private ordering may not involve state action. Here, however, both the creation of the lien and the method of foreclosure are creatures of law, not of private contract.11
The cases which I do find in point are Hernandez v. European Auto Collision, Inc., 487 F.2d 378 (2d Cir. 1973); Adams v. Department of Motor Vehicles, 11 Cal.3d 146, 113 Cal.Rptr. 145, 520 P.2d 961 (1974); Whitmore v. New Jersey Division of Motor Vehicles, 137 N.J.Super. 492, 349 A.2d 560 (Ch.Div.1975); Caesar v. Kiser, 387 F.Supp. 645 (M.D.N.C.1975); Mason v. Garris, 360 F.Supp. 420, modified, 364 F.Supp. 452 (N.D.Ga.1973) (per curiam); Straley v. Gassaway Motor Co., 359 F.Supp. 902 (S.D. W.Va.1973); Cockerel v. Caldwell, 378 F.Supp. 491 (W.D.Ky.1974), and Ford v. Dean’s O. K. Tire Store, Inc., CCH Pov.L. Rep. ¶ 16,856 (D.Nev.1973), all of which reached and decided the merits of challenges to repairman’s lien and lien foreclosure laws which were indistinguishable, for state action purposes, from Pennsylvania’s. Also closely in point are cases considering on the merits challenges to landlords’, innkeepers’, and mechanics’ possessory lien laws. See, e. g., Culbertson v. Leland, supra; Ragin v. Schwartz, 393 F.Supp. 152 (W.D.Pa.1975); Blye v. Globe Wernicke Realty Co., 33 N.Y.2d 15, 347 N.Y.S.2d 170, 300 N.E.2d 710 (1973); Johnson v. Riverside Hotel, Inc., 399 F.Supp. 1138 (S.D.Fla.1975); Barry Properties, Inc. v. Frick Brothers Roofing Co., 277 Md. 15, 353 A.2d 222 (1976).
The Seventh Circuit cases, Phillips v. Money, 503 F.2d 990 (7th Cir. 1974) (garagekeepers’ lien) and Anastasia v. Cosmopolitan National Bank, 527 F.2d 150 (7th Cir. 1975), cert. denied 423 U.S. 928, 96 S.Ct. 1143, 47 L.Ed.2d 338 (1976) (innkeepers’ lien), were in my view incorrectly decided to the extent that they predicate their holdings on the absence of state action in a non-contractual setting.
In summary, I conclude that the ground upon which the district court relied in granting summary judgment — the absence of state action — cannot sustain that judgment either on the impoundment claim or on the foreclosure by sale claim.
VI. THE MERITS OF THE FOURTEENTH AMENDMENT CHALLENGE
The Pennsylvania schema under consideration may be briefly summarized. Pa.Stat. Ann. tit. 6 & 11 recognizes a “common law lien” in favor of a repairman. Section 12 authorizes the repairman, while the property remains in his hands, to notify the owner in writing of the amount of the claimed repair indebtedness. If the claim remains unpaid for thirty days following the notice, the chattel can then be sold on ten days’ notice. Section 12 also describes the requirement of notice. Section 13 provides that the seller shall, upon demand within 6 months following sale, pay over to the owner the residue in excess of the lien costs. If no demand is made the residue escheats to the county for its use. Section 14 provides *160that all sales made pursuant to the foreclosure statute shall be conclusive as to the title conveyed.
If the owner disputes the notice of claim his sole remedy, according to § 11, is to institute an action in replevin within 30 days. The foreclosure statute does not describe that remedy. Under the recently amended Pennsylvania Rules of Civil Procedure governing replevin, Pa.R.Civ.P. 1071-87, however, a hearing on a complaint for a writ of seizure may be held within 48 hours, Pa.R.Civ.P. 1075. A double value bond is required for the issuance of such a writ. Pa.R.Civ.P. 1075.3. Thus the owner of an impounded vehicle cannot regain possession without posting a bond for twice the value of the property, or paying the disputed claim. Failing either he may be permanently deprived of that property.
The governing precedents against which this schema must be measured are North Georgia Finishing, Inc. v. Di-Chem, Inc., supra; Mitchell v. W. T. Grant Co., supra; Fuentes v. Shevin, supra; and this court’s recent synthesis of those cases in Jonnet v. Dollar Savings Bank, supra. In Jonnet we concluded that a balancing inquiry must be made between the interest of creditors in restraining a res from which their claims can be satisfied and the interest of debtors in retaining freedom of use and disposition of property. See 530 F.2d at 1129. Analytically, the retention lien and the statutory method of foreclosure present distinct problems, since the former involves only a temporary deprivation of use, while the latter totally terminates the owner’s property interest.
A. The retention lien
Common to this retention lien case and to Fuentes and Mitchell is the nature of the creditor-debtor relationship: a commercial creditor and a consumer debtor. But unique to this lien is the fact that the initial possession is consensual. The effect upon the debtor of the retention of possession in this case, however, is certainly analogous to the impact of the seizures in Fuentes, Mitchell, North Georgia Finishing and Jon-net. Yet in this case, unlike the other four, the retention is accomplished by self-help rather than by judicial process. Common to this and all the other cases is the fact that the “seizure”, whether by judicial process or by self-help retention of possession, is accomplished ex parte. In contrast with the other four cases, the retention of possession here is permitted without the filing of any pleading. In contrast with Fuentes, Mitchell and North Georgia Finishing, but in common with Jonnet, the “seizure” takes place without the posting of a bond. In all five cases state law provides for a dissolution procedure upon the posting of a debtor bond. In common with Mitchell, state law provides for a post-“seizure” hearing to determine probable cause for the continued change of possession, although unlike Mitchell the hearing is not mandatory and must be initiated by the debtor. Finally, in common with Fuentes and Mitchell, the debtor and the creditor both have property interests in the retained property, since Pennsylvania law recognizes a repairman’s interest in property to which he has presumptively added the value of parts and/or labor.
This recital of the similarities and differences between the governing precedents demonstrates that the validity of the retention lien is a question of some difficulty. Compounding the difficulty is the fact that the bare majority in North Georgia Finishing included Justice Douglas, while Justice Stevens’ position on summary creditor remedies is not yet known. Moreover, Justice Powell concurred in the result in North Georgia Finishing while strongly restating his view that the state had a legitimate interest in facilitating creditor collections through the use of provisional remedies. See 419 U.S. at 610, 95 S.Ct. 719. (Powell, J., concurring).
This thread of uncertainty runs through the lower federal and state courts as well. The Seventh Circuit in Phillips v. Money, supra, the Western District of Kentucky in Cockerel v. Caldwell, supra and the Middle District of North Carolina in Caesar v. Kiser, supra, all have concluded that the state’s *161interest, in encouraging the repairman’s service business by allowing him to retain possession of a chattel on which he has worked until he is paid, is sufficient to justify the retention lien. Cf. Ross v. Brown Title Gorp., 356 F.Supp. 595 (E.D. La.), aff’d mem., 412 U.S. 934, 93 S.Ct. 2788, 37 L.Ed.2d 394 (1973); Spielman-Ford, Inc. v. Hanson’s Inc., 379 F.Supp. 997 (D.Ariz. 1973), aff’d mem., 417 U.S. 901, 94 S.Ct. 2596, 41 L.Ed.2d 208 (1974). Hernandez v. European Auto Collision, Inc., supra; Mason v. Garris, supra; and Whitmore v. New Jersey Division of Motor Vehicles, supra, all adverted to the issue, but did not decide it. The Southern District of West Virginia in Straley v. Gassaway Motor Co., supra, and the District of Nevada in Ford v. Dean’s O.K. Tire Store, Inc., supra, struck down retention lien provisions. In none of these cases has the court made an analysis of sufficient lucidity to compel adherence. We are, in short, on our own.
I conclude, not without doubts, that the repairman’s common law retention lien is not invalid under the fourteenth amendment. The state’s interest in creating this property right by law is clear, since the service function rendered is socially significant, if not essential. I also attach significance to the fact that unlike the other four cases I principally look to for guidance, the initial change in possession here was consensual. See Adams v. Department of Motor Vehicles, supra. At common law the repairman could not accomplish a total ex-tinguishment of the owner’s property right, and I assume that apart from the foreclosure statute the repairman would still be required to resort to a suit and an execution. Even if apart from the foreclosure statute there would be no time limit on the common law lien, a replevin remedy has always been available to the debtor. A troublesome aspect of that remedy is the double value replevin bond requirement, as Chief Judge Seitz and Judge Aldisert point out. The issue is extremely close. Nevertheless, I conclude that in balancing the factors favoring the possessory lien against those mitigating against it, the choice made by Pennsylvania does not violate due procSince Mitchell, a balancing test has been required in defining the limits of due process in matters of debtor property. This court has recognized that rule, Jonnet v. Dollar Sav. Bank of New York, 530 F.2d 1123,1129 n.13 (3d Cir. 1976) (Rosenn, J.), as have the commentators, Note, 88 Harv.L. Rev. 41, 71, 72, 74-77 (1974). ess.
B. The foreclosure by sale statute
Standing in sharp contrast to the ambiguous response of state and lower federal courts to the question of the validity of repairmen’s retention liens is the concert of opinion respecting foreclosure by non-judicial sale. I have not been able to find a single case in the wake of Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1965), sustaining against due process challenge a repairman’s lien statute authorizing sale of the retained chattel without requiring some resort to the judicial process. Hernandez v. European Auto Collision, Inc., supra; Adams v. Department of Motor Vehicles, supra; Caesar v. Kiser, supra; Mason v. Garris, supra; Straley v. Gassaway Motor Co., supra; Cockerel v. Caldwell, supra; Ford v. Dean’s O.K. Tire Store, Inc., supra and Whitmore v. New Jersey Division of Motor Vehicles, supra, all hold that such a method of lien foreclosure is constitutionally impermissible. Different courts have emphasized different features of the statutes under review in reaching those conclusions, but several themes frequently recur.
Of paramount importance is the substantial difference between the non-final deprivation of possession with which Fuentes, Mitchell and North Georgia Finishing were concerned, and the absolute extinguishment of the debtor’s title which the non-judicial sale accomplishes. That deprivation is final even if in subsequent litigation the debtor establishes that the creditor’s claims lacked merit. Fuentes and North Georgia Finishing are, in terms of the magnitude of the deprivation, a fortiori cases. See, e. g., Hernandez v. European Auto Collision, Inc., supra; Caesar v. Kiser, supra.
*162A second theme that has been struck is the inadequacy of the replevin remedy, which (like Pennsylvania’s) typically requires the debtor to post a bond for an amount in excess of the value of the retained property as a condition precedent to contesting the underlying claims. See Whitmore v. New Jersey Division of Motor Vehicles, supra; see also Adams v. Department of Motor Vehicles, supra; Caesar v. Kiser, supra. A third theme is the substantial leverage given to the repairman in collecting a disputed bill by permitting him to sell retained property within a relatively short period of time without having to take any initiative in seeking a judicial declaration of the debt’s validity.
Each of these reasons weighs against Pennsylvania’s statutory foreclosure procedure in the constitutional balance. On the other side of the scale is the limited need for such a drastic foreclosure remedy in view of the repairman’s right to a possessory lien and his access to a court of law, perhaps even a small claims court, where judgment can be obtained and execution levied upon retained property. The scale tips rather lopsidedly in favor of the plaintiffs in this case. Pennsylvania’s lien foreclosure statute does not measure up to the requirements of due process.
CONCLUSION
Since I have concluded that the repairman’s right to retain possession is valid, I join in the judgment affirming the grant of summary judgment in favor of defendants against appellants Parks, Ellerbe, Williams and Muldowney, but not for the reasons relied upon in the majority opinion. Since I have concluded, as did the majority, that the foreclosure by non-judicial sale provisions of Pa.Stat.Ann. tit. 6, §§ 11-14 are invalid, I join in the judgment reversing the grant of summary judgment in favor of defendant North Penn Motors against appellant Dillon and remanding to the district court for further proceedings.
. The recent decision of this court on the nonretroactivity of Fuentes v. Shevin, supra is a singular example of such a viewpoint. See Kacher v. Pittsburgh Nat. Bank, 545 F.2d 842 (3d Cir. 1976).
. Striking examples of the results of such a philosophy are Vorchheimer v. School Dist. of Philadelphia, 532 F.2d 880 (3d Cir.), cert. granted, 429 U.S. 893, 97 S.Ct. 252, 50 L.Ed.2d 176 (1976), and Linmark Associates, Inc. v. Township of Wiiiingboro, 535 F.2d 786 (3d Cir.), cert. granted, 429 U.S. 938, 97 S.Ct. 351, 50 L.Ed.2d 307 (1976).
. Majority Opinion at 140-141.
. Braden v. University of Pittsburgh et al., majority opinion at 958 & n. 46.
. Obviously, the state as principal must refrain from violating any of the citizens’ constitutional rights, and the analysis is not limited to claims of racial discrimination. See pp. 152-155 infra.
. Majority Opinion at 135-136.
. E. g., Spark v. Catholic University of America, 167 U.S.App.D.C. 56, 510 F.2d 1277, 1281-82 (1975); Jackson v. Statler Foundation, 496 F.2d 623, 635 (2d Cir. 1974), cert. denied, 420 U.S. 927, 95 S.Ct. 1124, 43 L.Ed.2d 397 (1975); Adams v. Southern California First National Bank, 492 F.2d 324, 333 (9th Cir.), cert. denied, 419 U.S. 1006, 95 S.Ct. 325, 42 L.Ed.2d 282 (1974); Wahba v. New York University, 492 F.2d 96, 100-01 (2d Cir.) (Friendly, J.), cert. denied, 419 U.S. 874, 95 S.Ct. 135, 42 L.Ed.2d 113 (1974); Grafton v. Brooklyn Law School, 478 F.2d 1137 (2d Cir. 1974) (Friendly, J.). Cf. Anastasia v. Cosmopolitan Bank of Chicago, 527 F.2d 150, 155 (7th Cir. 1975), cert. denied, 424 U.S. 928, 96 S.Ct. 1143, 47 L.Ed.2d 338 (1976) (dictum); Greenya v. Washington University, 167 U.S.App.D.C. 379, 512 F.2d 556 (1975) (dictum); Fletcher v. Rhode Island Hospital Trust Nat’l Bank, 496 F.2d 927, 931 (1st Cir.), cert. denied, 419 U.S. 1001, 95 S.Ct. 320, 42 L.Ed.2d 277 (1974) (dictum). But cf. Weise v. Syracuse University, 522 F.2d 397 (2d Cir. 1975) (Second Circuit, originator of the race/non-race distinction applies less stringent state action test in a non-race context); Adams v. Southern California First National Bank, supra, at 333 n. 23 (“This should not result in a hierarchy of rights”).
The hierarchical approach finds no support in any Supreme Court cases. Of course, as the dismemberment of the fourteenth amendment proceeds apace, Judge Friendly’s position will *154gain adherence from civil libertarians seeking to prevent total victory by the states-rights activists. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 373-74, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974) (Marshall, J., dissenting).
. Majority Opinion at 135. We note that Judge Hunter’s thoughtful concurrence in this case manifests an awareness of the insufficiency of the majority’s discussion of this issue. While we do not agree with Judge Hunter’s conclusions, primarily because, for us, “race” is not a constitutional talisman, we fully agree with his identification of the issues.
. E.g., “In this case, it is clear that Pennsylvania recognized an artisan’s lien on property he had repaired or improved long before 1868,” Majority Opinion at 139; . the garageman’s power to sell property retained under his common law lien, unlike the lien itself, was not authorized prior to the enactment of the statute in 1925 . . . .” Id. at 141.
. The Kansas Supreme Court collected the relevant state and federal cases in Benschoter. See 218 Kan. at 147-148, 542 P.2d at 1046.
. The distinction between liens created by law and liens created by private contract permitted by law was recognized by the Ninth Circuit in Culbertson v. Leland, 528 F.2d 426, 429 (9th Cir. 1975), in distinguishing its holding in Adams v. Southern California State National Bank, 492 F.2d 324 (9th Cir. 1973), cert. denied, 419 U.S. 1006, 95 S.Ct. 325, 42 L.Ed.2d 282 (1974), that contractual self-help repossession did not involve state action. Candor requires the disclosure that the author of this opinion has always contended that Gibbs v. Titelman was incorrectly decided because of the necessary involvement of the Bureau of Motor Vehicles. Judge Hunter’s concurring opinion in this case suggests that even the author of Gibbs v. Titelman is having second thoughts. We do not, however, have any reason to reexamine the Gibbs v. Titelman holding in this case.