Acknowledgments
Introduction
Chapter 1. The Documentary Constitution
Constitutional Law
Explanations
The Constancy of a Writing
The Legitimacy of a Compact
A Constitution Made by Judges
Textualism
Yawning Gaps
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
Chapter 2. Constitutional Common Law
Rights
Natural Rights
Rights and Formalism
The Positive Present
Markets
The Unregulated Baseline
The Regulatory Present
The Public Interest
Natural Rights (Again)
The Police Power
Formalism (Again)
Laissez Faire
Class Legislation
Efficiency and Elections
Chapter 3. Regulatory Rights
Preliminaries
Restraints Neither Internal nor External
Regulatory Rights in the Literature
Due Process
The Substance of Process
Market Freedom
Fundamental Interests
Procedural Rights
Substantive Rights
Beyond the Bill of Rights
Abusive Behavior
Equal Protection
Equality and Purpose
The Overlap with Due Process
Classifications
Ordinary Classifications
Fundamental Interests (Again)
Suspicious Classifications
Freedom of Expression
Free Speech
Freedom of Religion
Cruel and Unusual Punishments
Chapter 4. Rational Instrumentalism
Standards of Review
The Rational Basis Test
Close Scrutiny
Means
The Level-of-Generality Question
Disproportionate Impact
Knowing a Means by Its Purpose
Individual Interests
Rights (Again)
The Level-of-Generality Question (Again)
Ends
The Search for Purpose
Techniques
Illustrations
A Purpose to Work With
Compelling Objectives
Impermissible Explanations
Tautological Ends
Of Conduct and Status
Conclusion
Notes