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4 Cornell J. L. & Pub. Pol'y 460 (1994-1995)
Supreme Court and Unconstitutional Conditions: Federalism and Individual Rights

handle is hein.journals/cjlpp4 and id is 464 raw text is: THE SUPREME COURT AND
Jesse H. Chopert
The Supreme Court's record when enforcing the general
prohibition against unconstitutional conditions has been quite
mixed. Though the Court's efforts have been fairly vigorous in
regard to individual rights, its efforts in regard to national
power's constitutional limits vis-a-vis the states have been mini-
mal. I agree with these choices. Nonetheless, the Supreme
Court's rationale for the distinction between individual rights
and states' rights is seriously flawed.
Here is a brief review of the Court's position. For nearly
four decades the Supreme Court, in regard to individual rights,
has quite forcefully held that the Government cannot accom-
plish indirectly - through conditioning the allocation of benefits
such as employment or tax subsidies - that which it is barred
from doing directly.
The 1958 case of Speiser v. Randall' held that the state
could not deny a property tax exemption to members of the
Communist Party. In 1963, Sherbert v. Verner2 held that the
state could not deny unemployment compensation benefits to a
Sabbatarian who left her job because of her religion. In 1984,
Federal Communications Commission v. League of Women
Voters' held that Congress could not award subsidies to public
broadcasting stations on the condition that they not engage in
any editorializing.
On the other hand, the Court's record on unconstitutional
conditions for the exercise of individual rights has not been
unexceptionably protective. Its most egregious failure has been
in regard to abortion. The important cases are Maher v. Roe4
in 1977, and Harris v. McRae5 in 1980, in which the Court
reviewed state and federal limitations on the use of medical
t Earl Warren Professor of Public Law, University of California at Berke-
ley (Boalt Hall).
1 357 U.S. 513 (1958).
2 374 U.S. 398 (1963).
3 468 U.S. 364 (1984).
4 432 U.S. 464 (1977).
1448 U.S. 297 (1980).


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