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70 B.U. L. Rev. 593 (1990)
Why the Unconstitutional Conditions Doctrine is an Anachronism (with Particular Reference to Religion, Speech, and Abortion)

handle is hein.journals/bulr70 and id is 599 raw text is: VOLUME 70 NUMBER 4 JULY 1990 BOSTON UNIVERSITY LAW REVIEW WHY THE UNCONSTITUTIONAL CONDITIONS DOCTRINE IS AN ANACHRONISM (WITH PARTICULAR REFERENCE TO RELIGION, SPEECH, AND ABORTION) CASS R. SUNSTEIN* Many of the most vexing questions in constitutional law result from the rise of the modem regulatory state, which has allowed government to affect constitutional rights, not through criminal sanctions, but instead through spending, licensing, and employment.1 It may well be in these areas that constitutional doctrine is least well developed. It is here that constitutional law promises to receive its most serious tests in the next generation. Under current law, the unconstitutional conditions doctrine serves to mediate the boundary between constitutional rights and government prerog- atives in the areas of spending, licensing, and employment.2 The doctrine operates as a shorthand response to the view that those who voluntarily par- * Karl N. Llewellyn Professor of Jurisprudence, Law School and Department of Political Science, University of Chicago. This essay is a revised version of a speech in the Boston University School of Law Distinguished Lecturer Series, delivered at Boston University on December 1, 1989. I am most grateful to my hosts at Boston University for their hospitality and help during that occasion. I would like to give special thanks to Richard Epstein, Michael McConnell, and Kathleen Sullivan for their conversation (and writings) on this subject. I am also grateful to Bruce Ackerman, Mary Becker, Frank Easterbrook, Larry Kramer, Frederick Schauer, Joseph Singer, and David Strauss for helpful comments. I Many years ago, Justice Jackson made the basic point: [T]he task of translating the majestic generalities of the Bill of Rights . . . into concrete restraints on officials dealing with the problems of the twentieth century, is one to disturb self-confidence. These principles grew in soil which also produced a philosophy that the individual['s] ... liberty was attainable through mere absence of governmental restraints .... We must transplant these rights to a soil in which the laissez-faire concept or principle of non-interference has withered at least as to economic affairs, and social advancements are increasingly sought through closer integration of society and through expanded and strengthened governmental controls. West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 639-40 (1943). 2 In brief, the doctrine holds that although government may choose not to provide certain benefits altogether, it may not condition the conferral of a benefit, once provided,