In this Introduction to a symposium on Unconstitutional Conditions, Professor Alexander provides an overview of the constitutional doctrine that there are certain governmental programs that are constitutionally permissible but not constitutionally required. From this doctrine arises the principle that there are alternative states of affairs in which no one has any valid complaint of unconstitutional treatment. The author dubs this state of affairs "constitutionally optional baselines." The question is then posed of whether it is possible construct a model of constitutionally guaranteed rights married coherently to the notion of constitutionally optional baselines. Six approaches are put forth to deal with the question and the approaches are discussed within the context of the various Articles submitted for the symposium.
Understanding Constitutional Rights in a World of Optional Baselines,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol26/iss2/2