When may the government require that citizens waive their constitutional rights in order to obtain benefits the government has no obligation to provide them? The answer, given by the so-called "doctrine" of unconstitutional conditions, is that sometimes the government may condition discretionary benefits on the waiver of rights, and sometimes it may not. The Supreme Court has never offered a satisfactory rationale for this doctrine, or why it "roams about constitutional law like Banquo's ghost, invoked in some cases, but not in others."'
The unconstitutional conditions doctrine directs courts not to enforce certain contracts that waive constitutional rights. Perhaps it is only natural, therefore, that the dominant tradition in seeking to justify the doctrine focuses on possible defects in the bargaining process. The assumption is that contracts waiving constitutional rights should not be enforced because no genuine consent was given to this contract in the first place. There are, however, several serious problems with the consent theory of unconstitutional conditions.
The most commonly cited reason for finding a lack of consent is that the waiver of rights was "coerced" by the government.2 As others have observed, however, application of the concept of coercion in this context is problematic. 3 To note just one difficulty,4 the ordinary understanding of what constitutes government coercion refers to the imposition of some sanction (imprisonment, fine, or forfeiture) for doing X, with the consequence that the individual is left with a less attractive set of options after the government announces the sanction than existed before.5 This, however, does not describe what is at issue in the typical unconstitutional conditions case. Rather, in the typical case the government has offered a discretionary benefit (i.e., a benefit that the government is not legally obligated to provide) in return for a waiver of rights. The government intervention creates a set of options that is more, rather than less, attractive (at least relative to the status quo ante with no possibility of obtaining the benefit). In terms of doctrines of contract formation, therefore, the unconstitutional conditions doctrine does not concern the problem of coercion- at least as conventionally understood.6
Thomas W. Merrill,
Dolan v. City of Tigard: Constitutional Rights as Public Goods,
Denv. U. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/365