Document Type

Article

Publication Title

San Diego Law Review

Abstract

In this paper, I should like to consider again the doctrine of unconstitutional conditions, which I recently examined at far greater length in my Foreword to the Harvard Law Review's Supreme Court issue. This article should not be regarded as a simple summary of material that has been presented at far greater length elsewhere, for with summary comes clarification, extension, reconsideration, qualification, and defense. My ambition, therefore, is to move the analysis further in two directions, one theoretical and one practical. My first goal is to show how the doctrine of unconstitutional conditions can operate as an effective barrier against the dissipation of the social gains that are otherwise obtainable by collective social action. The second goal is to show how the doctrine of unconstitutional conditions, notwithstanding its nineteenth century origins, continues to play an important intellectual role in modern constitutional theory. The outline of the paper is as follows. In the first section of this paper, I shall state the dilemma which gives rise to the problem of unconstitutional conditions. In the second section, I shall make explicit the linkage between the problem of unconstitutional conditions and the model of the "Two Pies" that I have developed at length in my Takings book. In it, I show how the unconstitutional conditions doctrine performs a useful social function even in situations where the Pareto conditions have been met. In the third section, I give five separate numerical examples in order to isolate the types of conditions that raise special questions of unconstitutional conditions, as opposed to ordinary takings problems or, indeed, no constitutional problems at all. The fourth and final section examines the necessary role for the doctrine of unconstitutional conditions both before and after the constitutional watershed of 1937. In that section, I explain why the doctrine of unconstitutional conditions will be a necessary part of constitutional law so long as there are two spheres of government action - one in which there is a presumption in favor of government power, and a second in which there is the opposite presumption in favor of individual liberties. The doctrine arises as an effort to determine the constitutionality of government action which touches upon these two separate realms simultaneously. The exact demarcations between these two domains only tells where the doctrine will surface. But so long as the two domains do coexist, as they must, the doctrine will continue to have as much vitality in the present regulatory environment as it did in the pre-1937 era.

First Page

189

Volume

26

Publication Date

1989

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