Are State Constitutional Rights for Sale? Protecting State Constitutional Rights from Unconstitutional Conditions

29 Pages Posted: 10 May 2022 Last revised: 23 Aug 2022

See all articles by Kay L. Levine

Kay L. Levine

Emory University School of Law

Jonathan Remy Nash

Emory University School of Law

Robert A. Schapiro

University of San Diego School of Law

Date Written: May 6, 2022

Abstract

The unconstitutional conditions doctrine limits the ability of governments to force individuals to choose between retaining a right and enjoying a government benefit. The doctrine has primarily remained a creature of federal law, with neither courts nor commentators focusing on the potentially important role of state doctrines of unconstitutional conditions. This omission has become especially significant during the COVID-19 pandemic, as actions by state and local governments have presented unconstitutional conditions questions in a range of novel contexts.

As attention turns to distinctive state constitutional rights, in the context of COVID-19 litigation and more generally, state courts should develop their own state doctrines of unconstitutional conditions, rather than simply reverting to federal unconstitutional conditions analysis. Three reasons in particular drive this doctrinal imperative. First, the unconstitutional conditions doctrine helps to define the scope and weight of a constitutional right. A court that ignores the unconstitutional conditions doctrine when considering the constitutionality of a statute or regulation risks undermining the very nature of the right. Second, uncritically adopting federal doctrine ignores the state’s distinctive legal framework, interests and history, all of which might be relevant when assessing that state’s permitting or licensing scheme to regulate behavior. Third, legal development in our federal system depends in part upon the interplay of different interpreters. When state courts and federal courts engage in independent interpretative activity, they create the possibility of dialogue and mutual learning. This interpretive interplay enhances federal doctrine, as well as doctrine in other states. Given the gaps and inconsistencies in the unconstitutional conditions doctrine, such interjurisdictional enlightenment is especially needed in this area. After explaining why states should develop their own doctrines of unconstitutional conditions, we suggest the relevant considerations that should guide states in formulating their doctrines.

Keywords: constitutional law, state constitutional law, unconstitutional conditions doctrine, constitutional rights, criminal law, criminal procedure

JEL Classification: K10, K14, K19

Suggested Citation

Levine, Kay L. and Nash, Jonathan and Schapiro, Robert A., Are State Constitutional Rights for Sale? Protecting State Constitutional Rights from Unconstitutional Conditions (May 6, 2022). UC Davis Law Review, 2022, Emory Legal Studies Research Paper 22-22, San Diego Legal Studies Paper , Available at SSRN: https://ssrn.com/abstract=4101981 or http://dx.doi.org/10.2139/ssrn.4101981

Kay L. Levine

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

Jonathan Nash (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

Robert A. Schapiro

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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