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26 San Diego L. Rev. 337 (1989)
Is There an Unconstitutional Conditions Doctrine

handle is hein.journals/sanlr26 and id is 349 raw text is: Is There an Unconstitutional Conditions Doctrine? t CASS R. SUNSTEIN* I In a number of areas of public law, a set of issues is organized around a doctrine that purports to give order and regularity to problems that might otherwise be treated as discrete and unrelated. Ordinarily, organizing strategies of this sort are no cause for alarm; they help provide structure and direction in areas that are indeed closely connected. But on occasion, such strategies are highly mis- leading. By combining problems that are quite discrete, and by treat- ing them at a high level of generality, they deflect attention from more particular considerations that ought to be the central focus of judicial attention. One of the most prominent examples here is the political question doctrine - a doctrine that is said to help courts decide when to remove themselves from nonlegal controversies. To be sure, some de- cisions should not be subject to judicial resolution, but not because of a unitary or general political question doctrine.' When decisions are immunized from the courts, it is because no particular constitu- tional provision forbids the governmental action at issue - a point t All rights reserved. * Karl N. Llewellyn Professor of Jurisprudence, Law School and Department of Political Science, University of Chicago. This essay is a revised version of a presentation to the Constitutional Law Section of the Association of American Law Schools in Janu- ary 1989. Akhil Amar and Michael McConnell gave helpful comments on an earlier draft. Some of the ideas in this essay are discussed in more detail, and from a different angle, in Sunstein, Why the Unconstitutional Conditions Doctrine Is An Anachronism (forthcoming). 1. This is the central argument in Henkin, Is There A Political Question Doc- trine?, 85 YALE L.J. 597 (1976).