This Article has both theoretical and practical objectives, which are closely interrelated. The theoretical objective is to develop a framework for understanding the "transaction structure" of constitutional rights. By this, I refer to the different rules that determine when the government may purchase, condemn, or otherwise extinguish constitutional rights. The practical objective is to consider different options that may be available to the government, as part of a broader effort to reduce the incidence of smoking, to curtail tobacco advertising that would otherwise be protected under the First Amendment. It is my hope that the theoretical framework will illuminate the practical problem. Conversely, however, I also anticipate that consideration of the practical problem will suggest refinements in or limitations on the theoretical framework.
The transaction structure that applies to constitutional rights includes four principal options. Sometimes constitutional rights are deemed nonwaivable. Thus, when the courts apply the unconstitutional conditions doctrine to strike down an arrangement in which a constitutional right is given up in exchange for some government benefit, this may mean that the right cannot be waived under any circumstances. In other settings – for example, with respect to plea bargaining – the courts have been quite willing to permit persons to waive their constitutional rights in return for some quid pro quo like a reduced sentence. In still other settings, most prominently where contract and property rights are concerned, the government is permitted to condemn constitutionally protected interests without the rightholder's consent upon payment of judicially determined compensation. Finally, there are many circumstances where courts have concluded that the government has such a strong interest in preventing certain harms that constitutional rights can be overcome by legislative action without consent and without paying any compensation at all. This is what happens When a right is said to be trumped by the government's police power.
Thomas W. Merrill,
The Constitution and the Cathedral: Prohibiting, Purchasing, and Possibly Condemning Tobacco Advertising,
Nw. U. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/359