In this Article, Professor Sunstein suggests that the unconstitutional conditions doctrine embodies issues too discreet and particular to be embodied in a general doctrine. Whether a condition is permissible is a function of the particular constitutional provision at issue; anything so general as an unconstitutional conditions doctrine is likely to be quite unhelpful. The author argues for particularism in cases involving unconstitutional conditions: for an inquiry into whether the particular infringement affects a protected interest in a constitutionally troublesome way, and, if so, whether the government is able to justify any such effect.
Cass R. Sustein,
Is There an Unconstitutional Conditions Doctrine,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol26/iss2/11