About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

LOG IN
LOG IN


72 Denv. U. L. Rev. 971 (1994-1995)
Making Conditions Constitutional by Attaching Them to Welfare: The Dangers of Selective Contextual Ignorance of the Unconstitutional Conditions Doctrine

handle is hein.journals/denlr72 and id is 987 raw text is: MAKING CONDITIONS CONSTITUTIONAL BY ATTACHING THEM TO WELFARE: THE DANGERS OF SELECTIVE CONTEXTUAL IGNORANCE OF THE UNCONSTITUTIONAL CONDITIONS DOCTRINE JULIE A. NICE* Context matters, but it shouldn't. In this essay, I suggest that the context in which unconstitutional conditions problems arise may determine whether courts apply or ignore the unconstitutional conditions doctrine. The Supreme Court decisions that I explore reveal the Court's application of heightened scrutiny to conditions that burden unemployment insurance and building per- mits-popular government benefits-but mere rationality review to conditions that burden welfare-an unpopular government benefit. Should courts apply more lenient standards of review to conditions attached to unpopular benefits? Or should each provision of the Constitution be applied consistently regardless of the popularity of the benefit being conditioned? I suggest that the unconsti- tutional conditions doctrine requires consistent application of the level of scru- tiny that the Court normally applies for each constitutional provision, regard- less of the type of benefit at issue. My focus on the issue of context arises from the specific history of this symposium issue. Several faculty members at the University of Denver Col- lege of Law encountered unconstitutional conditions problems within their particular areas of study. Although these areas of study were quite diverse, we each reported a similar frustration with the selective application of the doctrine and the lack of a consensus identifying a coherent theoretical framework un- derlying the doctrine. We knew that many fine scholars with considerably more experience had attempted to analyze the doctrine, without reaching con- * Assistant Professor of Law, University of Denver College of Law. B.S., Northwestern University, 1982; J.D., Northwestern University, 1986. I thank Sue Chrisman, Leslie Pagett, Ryan Stem and Tina Schoeneweiss for research assistance, Lisa Banks for editorial assistance, Dean Dennis Lynch for his support of this symposium, the invited symposium participants, and the or- ganizing faculty members of Denver (Nancy Ehrenreich, Roberto Corrada, Alan Chen, Fred Cheever, and Martha Ertman) who brought considerable teamwork to the task of planning and coordinating this symposium. I thank Martha Ertman separately for revisiting my ideas in count- less conversations.