Regulatory Rights: Supreme Court Activism, the Public Interest, and the Making of Constitutional Law
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.
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accompanying text Amar American analysis argued argument basis behavior beneﬁts Bill of Rights chapter classiﬁcation common law concurring constitutional law constitutional meaning constitutionally contends Court’s decisions deﬁned deﬁnition difﬁculties discrimination dissenting document Dorf Due Process Clause equal protection ernmental example explained federal ﬁnd ﬁrst Fourteenth Amendment Fourth Amendment framers freedom fundamental rights Glucksberg governmental action Harv hereafter cited idea identiﬁed individual rights insisted Interpretation Jed Rubenfeld judgment judicial Justice Kennedy Justice O’Connor Justice Scalia Lawrence legislative legislatures liberty Lochner means/ends ment Michael modern natural rights ofﬁcers originalist Peckham police power political Professor provisions public interest public-regarding purpose question race racial Randy Barnett rational instrumentalism reason reﬂected regulation regulatory Rubenfeld rule signiﬁcance speciﬁc standard of review state’s statute substantive due process substantive rights sufﬁcient Sunstein supra note Supreme Court text accompanying notes textual theory tice tion tional written Constitution Yale L. J.