Unconstitutional Conditions Questions Everywhere: The Implications of Exit and Sorting for Constitutional Law and Theory

Abstract

Unconstitutional conditions questions are supposed to be hard and rare. This article contends that, however hard, nearly every constitutional question can be converted into an unconstitutional conditions question. One reason is that the frames of reference in constitutional disputes are often arbitrary, and expanding the frame can turn a constitutional burden into a package deal with discretionary benefits supplied by the very same government. A related reason is more fundamental and inspirational: constitutional claimants are almost always allowed to exit the relevant institution and enter another. This possibility of sorting across multiple institutions generates unconstitutional conditions questions by making nearly every government imposition at least nominally optional. Moreover, exit and sorting dynamics operate in contexts far beyond people physically migrating to new locations. The full implications of exit and sorting have been neglected by constitutional theorists, who tend to assume a static population within one political community or to focus on crude arguments about “voting with your feet.” This article is an initial effort to check these tendencies, and to move exit and sorting toward the center of constitutional law and theory.