In this Article, Professor Sullivan postulates that the unconstitutional conditions doctrine is a doctrine in search of a theory. Three theories have been put forth, but have proven unsatisfactory. The author describes the three theories and then suggests an alternative approach. The unconstitutional doctrine is necessary to preserve three distributive functions: (1) checking the power of the state by preserving a private order; (2) imposing obligations of government neutrality among rightholders who, for example, speak, worship, or procreate according to different lights; and (3) barring a system of constitutional caste among rightholders. The alternative approach embodies a distributive analysis of unconstitutional conditions that considers the balance of power and freedom in the polity as a whole.
Kathleen M. Sullivan,
Unconstitutional Conditions and the Distribution of Liberty,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol26/iss2/10