Regulatory Rights Supreme Court Activism, the Public Interest, and the Making of Constitutional Law
by Larry Yackle
University of Chicago Press, 2007
Cloth: 978-0-226-94471-5 | Electronic: 978-0-226-94473-9
ABOUT THIS BOOKAUTHOR BIOGRAPHYREVIEWSTABLE OF CONTENTS

ABOUT THIS BOOK

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.

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.
 
 

 

REVIEWS

"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

TABLE OF CONTENTS

Acknowledgments

Introduction

1. The Documentary Constitution

Constitutional Law

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

2. Constitutional Common Law

Rights

Natural Rights

Rights and Formalism

The Positive Present

The Unregulated Baseline

The Regulatory Present

Natural Rights (Again)

The Police Power

Formalism (Again)

Laissez-Faire

Class Legislation

Efficiency and Elections

3. Regulatory Rights

Restraints Neither Internal nor External

Regulatory Rights in the Literature

Due Process

The Substance of Process

Market Freedom

Procedural Rights

Substantive Rights

Beyond the Bill of Rights

Abusive Behavior

Equal Protection

Equality and Purpose

The Overlap with Due Process

Ordinary Classifications

Suspicious Classifications

Freedom of Expression

Free Speech

Freedom of Religion

Cruel and Unusual Punishments

4. Rational Instrumentalism

Standards of Review

The Rational-Basis Test

Close Scrutiny

The Level-of-Generality Question

Disproportionate Impact

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

Index