Unconstitutional Conditions

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Although government may not be obligated to provide its citizens with a certain benefit or privilege, it is not free to condition granting the benefit or privilege on the recipient's relinquishing a constitutional right. Likewise, the government may not withhold or cancel the benefit by way of penalizing the assertion of a constitutional right. For example, in sherbert v. verner (1963) the Supreme Court held South Carolina's unemployment compensation act unconstitutional as applied to exclude a Seventh Day Adventist from benefits when she would not find a job releasing her from work on Saturdays. Withholding the benefits effectively penalized exercise of the claimant's religious liberty.

It has sometimes been argued that a legislature's greater power of withholding a benefit must necessarily include the lesser power of granting the benefit with restrictions. On this theory, the recipient of the benefit is deprived of no right, for the right can be retained simply by rejecting the proffered benefit. This logic leads to drastic consequences as government becomes increasingly involved in supplying such vital needs as jobs, housing, welfare, and education.

As early as Frost & Frost Trucking Company v. Railroad Commission (1926) the Court recognized the potential for excess conditions on the exercise of constitutional rights: "If the state may compel the surrender of one constitutional right as a condition of its favor, it may, in like manner, compel a surrender of all. It is inconceivable that guarantees embedded in the Constitution of the United States may thus be manipulated out of existence."

Subsequent courts have rarely been persuaded by arguments claiming an absolute power of government to condition and limit the grant of general benefits. Rather, they have generally recognized that the revocation of benefits amounts to regulatory activity by government, for which sufficient justification must be established if constitutional rights are restricted. This doctrine of unconstitutional conditions has been successfully applied to restrain assertions of unlimited governmental power in four major substantial areas: the privilege of out-of-state corporations to engage in local business; the use of public property and facilities; the receipt of entitlements and social service benefits; and government employment.

As early as 1839, the Supreme Court announced that a state might exclude out-of-state corporations from conducting business within its borders. In early cases, this power to exclude was held sufficient to justify highly unreasonable conditions on entry and even the arbitrary revocation of a corporation's license. Subsequent Court decisions, however, have subjected such regulations to due process standards. Given the Court's increasing sensitivity to national interests in economic growth and the smooth functioning of the federal system, it is not surprising that the Court invoked the doctrine of unconstitutional conditions to check a power previously thought to be virtually absolute.

In 1897 the Court upheld an ordinance that prohibited public speaking in a municipal park without a permit from the mayor. The Court reasoned that ownership of the land gave the city the right to withhold access completely; the city therefore could grant access on any conditions, including those restricting first amendment freedoms. This logic has been invalidated by later decisions which have viewed the manipulation of access to streets and parks as regulatory activity subject to constitutional attack. (See public forum.)

Given the large number of benefits now provided by government, the imposition of conditions on the recipients of such benefits raises a significant possibility of undermining individual liberties. The Supreme Court has used unconstitutional condition analysis to prevent such a result in cases involving unemployment compensation, welfare benefits, public housing, tax exemptions, public education, and the mail services. One leading doctrinal basis for these decisions has been the guarantee of procedural due process.

In McAuliffe v. Mayor of New England (1892) the Massachusetts Supreme Judicial Court denied the petition of a policeman who had been fined for violating a regulation restricting his political activity. Justice oliver wendell holmes, speaking for the state court, stated: "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.… There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well as of idleness, by the implied terms of his contract. The servant cannot complain, as he takes his employment on the terms which are offered him." More recently, however, courts have found conditions on employees unconstitutional irrespective of any abstract right to public employment. The courts have asked whether the condition restricts employment in a "patently arbitrary and discriminatory manner" in violation of due process, as set forth in wieman v. updegraff (1952), and whether, in withholding or revoking employment under conditions capable of improper application, the state is penalizing specific constitutional freedoms.

Although claims of unconstitutional conditions in these four areas have become less common in recent years, the doctrine has recently emerged in the sphere of criminal procedure, particularly in cases involving the guilty plea. plea bargaining effectively penalizes the exercise of the right to trial by rewarding those who plead guilty. In addition, it denies the individual the right against self-incrimination and the right to confront and cross-examine witnesses against him. The Court, however, has endorsed the use of plea bargaining. Rather than address the challenges raised by the unconstitutional conditions doctrine, the Court has insisted only that guilty pleas be "voluntary and intelligent" and that the plea bargaining process conform to certain standards of fairness. The tension between the principle of unconstitutional conditions and the Court's endorsement of plea bargaining seems likely to produce future controversy.

Arthur Rosett


Van Alstyne, William W. 1968 The Demise of the Right-Privilege Distinction in Constitutional Law. Harvard Law Review 81:1439–1464.