May 2012, Volume 98, Issue 3
Unconstitutional Conditions: The Irrelevance of Consent
by Philip Hamburger
98 Va. L. Rev. 479 (2012)
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The unconstitutional conditions problem is the Gordian Knot of constitutional law. The standard solution is to cut through the knot with consent--to conclude that consent excuses otherwise unconstitutional restrictions. Of course, this leaves open the danger that the government can evade most of its constitutional limitations, and the literature on unconstitutional conditions therefore focuses on when consent has a curative effect and when it does not. In other words, the conventional analysis uses consent to hack half-way through unconstitutional conditions, but not all the way. It thereby creates many loose ends, without fully solving the problem. Indeed, current doctrine on unconstitutional conditions is widely recognized to be as incoherent and inconsistent as it is important.
It therefore is necessary to reconsider the reliance on consent. Rather than a solution that can cut through the problem, consent is the source of confusion.
This Article unravels the different roles of consent to understand what it can do and what it cannot. On this basis, the Article concludes that consent is irrelevant for restrictions that go beyond the government’s power. Undoubtedly, under the Constitution’s enumerated powers, consent often allows the government to impose restrictions it could not impose directly. But this does not mean that consent can justify the government in going beyond its legal limits. The Constitution’s limits on the government’s authority are legal limits imposed with the consent of the people. Therefore, private consent (whether from individuals or institutions) cannot alter these limits or otherwise enlarge the government’s constitutional power.
This is most clear as to the separation of powers and the enumerated rights. Most of these limits, unlike the enumerated powers, do not define government power in terms of consent. As a result, there is no question of whether consent allows the government to impose restrictions it could not impose directly. Instead, the question is merely whether private consent can relieve the government of its constitutional limitations, permitting it to do what the Constitution forbids. Therefore, at least as to the separation of powers and the enumerated rights, the government cannot do by consent what it could not otherwise do by law.
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