Skip to main content

Regulatory Rights

Supreme Court Activism, the Public Interest, and the Making of Constitutional Law

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.

256 pages | 6 x 9 | © 2007

Law and Legal Studies: General Legal Studies, Law and Society, Legal Thought, The Constitution and the Courts


"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


Chapter 1. The Documentary Constitution 
Constitutional Law
The Constancy of a Writing
The Legitimacy of a Compact
A Constitution Made by Judges
Yawning Gaps
Vague and Ambiguous Terms
The Analogy to Statutes
The Text Writ Large
The Text in Context
Negative Examples
The Framers
The Founding Generation
More Negative Examples

Chapter 2. Constitutional Common Law
Natural Rights
Rights and Formalism
The Positive Present
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
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
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
The Level-of-Generality Question
Disproportionate Impact
Knowing a Means by Its Purpose
Individual Interests
Rights (Again)
The Level-of-Generality Question (Again)
The Search for Purpose
A Purpose to Work With
Compelling Objectives
Impermissible Explanations
Tautological Ends
Of Conduct and Status


Be the first to know

Get the latest updates on new releases, special offers, and media highlights when you subscribe to our email lists!

Sign up here for updates about the Press