Louis Fisher has posted Contracting Around the Constitution: An Anticommodificationist Perspective on Unconstitutional Conditions (University of Pennsylvania Journal of Constitutional Law, Forthcoming) on SSRN. Here is the abstract:
The doctrine of unconstitutional conditions is notoriously opaque and complex, and scholars have long struggled to explain not only how it functions, but also why it exists in the first place. This Article draws on concepts from moral philosophy to provide new insight into these two important questions, at a time when clarity is urgently needed: the doctrine of unconstitutional conditions has increased markedly in current relevance during the Trump Administration, from challenges to the executive order threatening to defund “sanctuary cities” to the reimplementation of the “Global Gag Rule,” which prohibits non-governmental organizations that provide abortion counseling from receive federal funding.
This Article argues that “anticommodification discourse,” a set of moral arguments that holds certain goods and ideas must not be treated as “commodities” that can be bought and sold for money, elucidates recent developments in unconstitutional conditions jurisprudence and provides a coherent theory for how the Supreme Court has approached these kinds of cases. Moreover, the idea that rights, and even aspects of constitutional structure, should not be treated as commodities actually provides the normative underpinning for the doctrine’s existence. To demonstrate the analytical power of anticommodification discourse, the Article applies those principles to explain various problems in the realm of unconstitutional conditions, including recent Supreme Court cases on the First Amendment and the Affordable Care Act, the prevalence and acceptance of plea-bargaining, and the constitutional challenge to President Trump’s executive order on sanctuary cities. In doing so, the Article fills an important gap in the scholarship on unconstitutional conditions, as scholars have long overlooked the importance of anticommodificationist principles to explaining, understanding, and justifying the unconstitutional conditions doctrine.