Regulatory Rights

by Yackle, Larry W.

• ISBN13: 9780226944715
• ISBN10: 0226944719
• Format: Hardcover
• Copyright: 2007-10-01
• Publisher: Univ of Chicago Pr

Summary

We often hearwith particular frequency during recent Supreme Court nomination hearingsthat justices should not create constitutional rights, but should instead enforce the rights that the Constitution enshrines. InRegulatory Rights, Larry Yackle sets out to convince readers that such arguments fundamentally misconceive both the work that justices do and the character of the American Constitution in whose name they do it. It matters who sits on the Supreme Court, he argues, precisely because justicesdocreate individual constitutional rights. Traversing a wide range of Supreme Court decisions that established crucial precedents about racial discrimination, the death penalty, and sexual freedom, Yackle contends that the rights we enjoy are neither more nor less than what the justices choose to make of them.Regulatory Rightsis a bracing read that will be heatedly debated by all those interested in constitutional law and the judiciary.

Author Biography

Larry Yackle is professor of law and the Basil Yanakakis Research Scholar at Boston University School of Law. He is the author of several books, including Reclaiming the Federal Courts and Reform and Regret.

 

 

 

Table of Contents

Acknowledgments	p. xi
Introduction	p. 1
The Documentary Constitution	p. 11
Constitutional Law	p. 13
Explanations	p. 15
The Constancy of a Writing	p. 15
The Legitimacy of a Compact	p. 19
A Constitution Made by Judges	p. 23
Textualism	p. 25
Yawning Gaps	p. 27
Vague and Ambiguous Terms	p. 29
The Analogy to Statutes	p. 30
The Text Writ Large	p. 31
The Text in Context	p. 32
Negative Examples	p. 35
Originalism	p. 40
The Framers	p. 41
The Founding Generation	p. 47
More Negative Examples	p. 48
Constitutional Common Law	p. 52
Rights	p. 57
Natural Rights	p. 58
Rights and Formalism	p. 61
The Positive Present	p. 62
Markets	p. 64
The Unregulated Baseline	p. 64
The Regulatory Present	p. 66
The Public Interest	p. 68
Natural Rights (Again)	p. 68
The Police Power	p. 70
Formalism (Again)	p. 72
Laissez-Faire	p. 74
Class Legislation	p. 76
Efficiency and Elections	p. 79
Regulatory Rights	p. 83
Preliminaries	p. 84
Restraints Neither Internal nor External	p. 84
Regulatory Rights in the Literature	p. 87
Due Process	p. 94
The Substance of Process	p. 95
Market Freedom	p. 97
Fundamental Interests	p. 99
Procedural Rights	p. 101
Substantive Rights	p. 101
Beyond the Bill of Rights	p. 102
Abusive Behavior	p. 104
Equal Protection	p. 106
Equality and Purpose	p. 107
The Overlap with Due Process	p. 108
Classifications	p. 113
Ordinary Classifications	p. 113
Fundamental Interests (Again)	p. 114
Suspicious Classifications	p. 114
Freedom of Expression	p. 115
Free Speech	p. 116
Freedom of Religion	p. 119
Cruel and Unusual Punishments	p. 120
Rational Instrumentalism	p. 125
Standards of Review	p. 126
The Rational-Basis Test	p. 128
Close Scrutiny	p. 129
Means	p. 135
The Level-of-Generality Question	p. 135
Disproportionate Impact	p. 139
Knowing a Means by Its Purpose	p. 144
Individual Interests	p. 144
Rights (Again)	p. 145
The Level-of-Generality Question (Again)	p. 148
Ends	p. 152
The Search for Purpose	p. 153
Techniques	p. 157
Illustrations	p. 158
A Purpose to Work With	p. 159
Compelling Objectives	p. 163
Impermissible Explanations	p. 167
Tautological Ends	p. 168
Of Conduct and Status	p. 169
Conclusion	p. 172
Notes	p. 175
Index	p. 253
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