Unconstitutional Conditions: The Irrelevance of Consent

Philip Hamburger

Columbia University - Law School

March 14, 2012

Virginia Law Review, Vol. 98, 2012

Unconstitutional conditions constitute the Gordian Knot of constitutional law. The standard solution is to slice through the knot with consent — to conclude that consent excuses otherwise unconstitutional restrictions. The role of consent, however, needs to be reconsidered. Rather than a solution, consent is the source of confusion.

The article concludes that private or state consent cannot justify the federal government in going beyond its legal limits. The Constitution’s limits on the government are legal limits imposed with the consent of the people. Therefore, neither private nor state consent can alter these limits or otherwise enlarge the federal government’s constitutional power.

Number of Pages in PDF File: 102

Keywords: constitution, unconstitutional conditions, rights, First Amendment

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Date posted: March 15, 2012  

Suggested Citation

Hamburger, Philip, Unconstitutional Conditions: The Irrelevance of Consent (March 14, 2012). Virginia Law Review, Vol. 98, 2012. Available at SSRN: https://ssrn.com/abstract=2021682

Contact Information

Philip Hamburger (Contact Author)
Columbia University - Law School ( email )
435 West 116th Street
New York, NY 10025
United States

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