About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

35 Colum. L. Rev. 321 (1935)
Unconstitutional Conditions and Constitutional Rights

handle is hein.journals/clr35 and id is 409 raw text is: COLUMBIA LAW REVIEW VOL. XXXV MARCH, 1935 NO. 3 UNCONSTITUTIONAL CONDITIONS AND CONSTITUTIONAL RIGHTS Because the government cannot imprison me or make me pay dam- ages for doing certain acts, we are apt to assert that I have a constitu- tional right to do them. Strictly speaking, there is no constitutional guaranty that I may do the acts-my constitutional right is against the penalties which sanction the prohibition. There are many other acts ivhich the government can and does forbid me, sanctioned by the cus- tomary penalties; and it may induce me, as the price of being permitted to do them, to forego some of the acts which could not be forbidden by imprisonment or suits for damages. It may even induce me to contract to forego the liberty to do these acts; and after making a valid contract, I have relinquished pro tanto my constitutional right, even in the stricter sense of the term; for, by enforcing the contract against me, the state may now forbid me by direct sanctions to do those things which it could not so forbid in the absence of the contract. This bargaining away of my constitutional rights is done under compulsion; but the compulsion can be effective only if, in my own estimation, the surrender of my constitutional right is less harsh than the prohibition to do the other acts to which I have no constitutional right. The unconditional prohibition of these latter, unlike the uncon- ditional imprisonment of me, is within the state's constitutional power. It has accordingly been asserted by the Supreme Court in numerous cases that where the state may withhold a privilege from me altogether, it may condition the grant of its privilege on my foregoing a constitu- tional right, on the theory that the greater power includes the lesser. The same proposition, however, has been frequently denied, and by the same judges, on the theory that a condition attached by a state to a privi- lege is unconstitutional if it requires the relinquishment of a constitu- tional right. This doctrine of unconstitutional conditions, as so stated, is difficult to support logically. If I have no ground for complaint at being denied a privilege absolutely, it is difficult to see how I acquire such a ground merely because the state, instead of denying me a privilege outright.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most