Academic journal article Constitutional Commentary

Constitutional Theory and Constitutionally Optional Benefits and Burdens

Academic journal article Constitutional Commentary

Constitutional Theory and Constitutionally Optional Benefits and Burdens

Article excerpt

A bedrock assumption of almost all judicial and academic interpreters of the Constitution is that the Constitution is in large part permissive. That is, most laws or governmental actions are neither forbidden nor required by the Constitution but are merely permitted.(1) I will call this presumably rather large set of governmental actions "constitutionally optional."

The purpose of this essay is to show that this assumption--that there are (many) constitutionally optional laws and governmental actions--gives rise to some immense and perhaps intractable difficulties in justifying large areas of constitutional doctrine. At stake is the entire domain of the Equal Protection Clause (and the equal protection component of Fifth Amendment due process), as well as the "equal protection" component of other constitutional rights, which is sometimes dealt with as a matter of equal protection, and sometimes as a matter of unconstitutional conditions on the rights in question.(2) At the most general level, the theoretical difficulties I elaborate are all bound up in the question of why the greater power to choose the option or to forgo it does not include the lesser powers to place conditions on it or to distribute it unequally. How is it that one can have a constitutional complaint over conditions attached to or inequalities in the distribution of a benefit that one has no constitutional right to in the first place? Unless that question can be given an answer, much of constitutional law will lack a solid theoretical foundation.



The notion of constitutional optionality applies to any type of governmental action that can be subject to constraint by constitutional norms. Thus, a law or an administrative rule can be constitutionally optional, but so too can an administrative or judicial decision in an individual case not covered by a pre-existing rule. Thus, a decision by a governmental official about whom to hire for a particular job might be a matter of optionality within a range of possibilities. So, too, might a decision by a judge about how severely to sentence offenders.

An important corollary to the constitutional optionality of laws and governmental actions is that their omission--the failure to enact those laws or undertake those actions--is likewise constitutionally optional. If, for example, public welfare or public education is a constitutionally optional benefit, then not only is provision of such benefits constitutionally permissible, but so too is the repeal of those benefits or the failure to provide those benefits initially.

That omissions are constitutionally optional if their corresponding actions are optional might seem trivial because it is analytically true. Nonetheless, it becomes important if optionality forces a consideration of governmental motives: motives behind failures to act are frequently much more opaque than motives behind actions.

Frequently, the notion of constitutional optionality is associated with benefits, particularly the benefits of the modern welfare state. Thus, the Supreme Court has stated or implied that welfare payments, public schools, public libraries, and public health care are constitutionally optional.(3) The domain of constitutional optionality, however, is much broader than those public welfare benefits. It includes any other benefits that government is constitutionally at liberty to provide or not to provide. And it includes as well all burdens with respect to which the government has a similar liberty.

Thus, if the government has the constitutional liberty to impose five years of imprisonment for robbery or ten years, then ten years of imprisonment is a constitutionally optional burden on those serving such a sentence. Likewise, if government has the constitutional liberty to regulate taxi service in particular ways or to leave it unregulated, the regulation of taxi service in those ways is a constitutionally optional burden on those regulated. …

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