Towards a Nonunifying Theory of Unconstitutional Conditions: The Example of the Religion Clauses

In this Article, Professor Marshall claims that a general theoretical approach to the unconstitutional conditions doctrine is futile. To suggest a comprehensive theory would suggest a unifying theory cutting across all of constitutional law. The author suggests that whether a governmentally imposed condition upon the receipt of a benefit is unconstitutional depends upon the definition of the particular constitutional protection involved and not upon the application of an independent theory purportedly universal to all unconstitutional conditions analysis. To explain his claim, the author discusses the unconstitutional doctrine within the context of the establishment clause of the Constitution.