Regulatory Rights
Supreme Court Activism, the Public Interest, and the Making of Constitutional Law
256 pages
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6 x 9
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© 2007
We often hear—with particular frequency during recent Supreme Court nomination hearings—that justices should not create constitutional rights, but should instead enforce the rights that the Constitution enshrines. In Regulatory 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 justices do create 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 Rights is a bracing read that will be heatedly debated by all those interested in constitutional law and the judiciary.
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 Rights is a bracing read that will be heatedly debated by all those interested in constitutional law and the judiciary.
“Larry Yackle’s immensely important book directly undermines much that has long been commonplace in constitutional law. In challenging the very idea that we are governed by a written Constitution, Yackle has written the kind of book that comes along only once or twice in a generation, as in the works of Alexander Bickel, Charles Black, and John Hart Ely. His writing is unusually clear, accessible, and even entertaining. Regulatory Rights ought to be read by everyone interested in constitutional governance.”—Aviam Soifer, Dean and Professor, William S. Richardson School of Law, University of Hawaii
“Larry Yackle’s book is insightful, important, and timely. His argument is profound: The Constitution does not constrain the Supreme Court’s decisions about rights; we are instead forced to depend on justices who exercise their best judgment, in a system that counts that judgment as the Constitution. Regulatory Rights will strike most readers, whether within the academy or not, as jarring or even heretical. But it demands attention, even by those (and perhaps especially by those) who will be outraged by it. This book could be one of the most important books on constitutional law of our generation.”—Kent Greenfield, Boston College Law School and author of The Failure of Corporate Law
“Regulatory Rights is a book of great erudition and insight. It is a hard-headed and thorough-going application of the fundamental idea that substantive constitutional rights are the verbal formulations by which the Supreme Court requires the political branches to observe instrumental rationality. The results are radical, but if you want to disagree with Yackle, you need to grapple with the persuasive power of his interpretation of individual-rights jurisprudence. Controversial but an indispensable read, this book will become one of the benchmarks of serious thought about constitutional law."—H. Jefferson Powell, Professor of Law, Duke University, and author of A Community Built on Words
“Professor Yackle provides an invigorating reexamination of some of the Supreme Court's most controversial decisions. Beneath all of the confusion and debate, he sees a unifying principle: the Court's demand that government actions be designed to promote the public welfare. His analysis is a refreshing change from the endless debates about exactly what the Framers did or did not mean two hundred years ago.”—Daniel A. Farber, Sho Sato Professor of Law, University of California, Berkeley Boalt Hall School of Law
"Yackle has provided a clear and innovative perspective on constitutional analysis and meaning, which ambitiously expands upon the staid, conventional approaches to constitutional interpretation."—Amanda Harmon Cooley, Law and Politics
Contents
Acknowledgments
Introduction
Chapter 1. The Documentary Constitution
Chapter 2. Constitutional Common Law
Chapter 3. Regulatory Rights
Chapter 4. Rational Instrumentalism
Conclusion
Notes
Introduction
Chapter 1. The Documentary Constitution
Constitutional Law
Explanations
Explanations
The Constancy of a Writing
The Legitimacy of a Compact
The Legitimacy of a Compact
A Constitution Made by Judges
Textualism
Textualism
Yawning Gaps
Vague and Ambiguous Terms
The Analogy to Statutes
The Text Writ Large
The Text in Context
Negative Examples
Vague and Ambiguous Terms
The Analogy to Statutes
The Text Writ Large
The Text in Context
Negative Examples
Originalism
The Framers
The Founding Generation
More Negative Examples
The Founding Generation
More Negative Examples
Chapter 2. Constitutional Common Law
Rights
Natural Rights
Rights and Formalism
The Positive Present
Rights and Formalism
The Positive Present
Markets
The Unregulated Baseline
The Regulatory Present
The Regulatory Present
The Public Interest
Natural Rights (Again)
The Police Power
The Police Power
Formalism (Again)
Laissez Faire
Class Legislation
Laissez Faire
Class Legislation
Efficiency and Elections
Chapter 3. Regulatory Rights
Preliminaries
Restraints Neither Internal nor External
Regulatory Rights in the Literature
Regulatory Rights in the Literature
Due Process
The Substance of Process
Market Freedom
Fundamental Interests
Market Freedom
Fundamental Interests
Procedural Rights
Substantive Rights
Beyond the Bill of Rights
Substantive Rights
Beyond the Bill of Rights
Abusive Behavior
Equal Protection
Equality and Purpose
The Overlap with Due Process
Classifications
The Overlap with Due Process
Classifications
Ordinary Classifications
Fundamental Interests (Again)
Suspicious Classifications
Fundamental Interests (Again)
Suspicious Classifications
Freedom of Expression
Free Speech
Freedom of Religion
Freedom of Religion
Cruel and Unusual Punishments
Chapter 4. Rational Instrumentalism
Standards of Review
The Rational Basis Test
Close Scrutiny
Close Scrutiny
Means
The Level-of-Generality Question
Disproportionate Impact
Knowing a Means by Its Purpose
Disproportionate Impact
Knowing a Means by Its Purpose
Individual Interests
Rights (Again)
The Level-of-Generality Question (Again)
The Level-of-Generality Question (Again)
Ends
The Search for Purpose
Techniques
Illustrations
Illustrations
A Purpose to Work With
Compelling Objectives
Impermissible Explanations
Compelling Objectives
Impermissible Explanations
Tautological Ends
Of Conduct and Status
Of Conduct and Status
Conclusion
Notes
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Law and Legal Studies: General Legal Studies | Law and Society | Legal Thought | The Constitution and the Courts
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