An Offer She Can't Refuse: When Fundamental Rights and Conditions on Government Benefits Collide

Abstract

This article criticizes the Maher/Harris conditions doctrine on two levels. At the first level, it suggests that the Maher/Harris doctrine cannot justify the Court’s decisions to uphold government withdrawals of funding from rights-exercises. At the second level, after exposing and contrasting the definitional presuppositions of the Court in Maher and Harris with previous cases, the article suggests that the Maher/Harris doctrine is a failure because it uses utterly inadequate rights theory to resolve emerging issues of conflicting human need and conscience, issues which are mediated by government action. The author creates a space for a discussion of a new framework for adjudicating the role of government when it acts as intervenor among citizens through public benefits choices.

Keywords: Counter-ethic of responsibility, rights, government benefits, Maher/Harris, withholding benefits, public benefits