Unconstitutional Conditions: The Irrelevance of Consent

102 Pages Posted: 15 Mar 2012

Date Written: March 14, 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.

Keywords: constitution, unconstitutional conditions, rights, First Amendment

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

Philip Hamburger (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

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