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Protecting State Constitutional Rights from Unconstitutional Conditions

Kay L. Levine, Jonathan Remy Nash, Robert A. Schapiro

Vol. 56

November 2022

Page 247

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. The overruling of Roe v. Wade and the resulting focus on state constitutional rights to abortion will offer additional new settings for state unconstitutional conditions analysis.

As attention turns to distinctive state constitutional rights — in the context of COVID-19 disputes, abortion 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 claim. First, the unconstitutional conditions doctrine helps to define the scope and weight of a constitutional right. A state court that ignores the unconstitutional conditions doctrine when considering the constitutionality of a state 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 lead to a deviation from federal law. With respect to the topics on which unconstitutional conditions litigation typically focuses, such as licenses and permits, the federal-state disparities are especially stark. Third, robust legal development in our federal system depends in part upon the interplay of different institutional 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 doctrinal development 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. View Full Article

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