Philip Hamburger Manuscript: “Consent No Cure for Unconstitutional Conditions”

Professor Philip Hamburger of Columbia University appreciated the scholarly comments he received from Volokh Conspiracy readers last year when I blogged his Privileges or Immunities article. He therefore has now asked me to seek comments on another manuscript, this one called “Consent No Cure for Unconstitutional Conditions.” The abstract summarizes:

Although consent is said to justify unconstitutional conditions, consent is no cure. Of course, within the government’s constitutional authority, consent often is a measure of what the government can do. But outside such authority, it is another matter. Constitutional powers and rights are legal limits imposed by the people. Therefore the consent of mere individuals, states, or private institutions cannot justify the government in going beyond these limits.

Though I have just skimmed the piece, it appears very interesting and important, for it takes a new approach to unconstitutional conditions. In essence, it explores whether the federal government can cure an unconstitutional action by obtaining someone’s consent to do what it wants to do. The paper can be found at SSRN. If you have suggestions, you may email him at Columbia (his email address is listed at SSRN, if you click on his name in the abstract).

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