Tài liệu Regulatory Rights Supreme Court Activism, the Public Interest, and the Making of

Regulatory Rights

Regulatory Rights

Supreme Court Activism, the

Public Interest, and the Making of

Constitutional Law

larry yackle

the university of chicago press chicago and london

larry yackle is professor of law and the Basil Yanakakis Research Scholar at Boston

University School of Law. He has taught and written about constitutional law throughout

his academic career, and he is the author of fi ve other books, including Reform and Regret

and Reclaiming the Federal Courts.

The University of Chicago Press, Chicago 60637

The University of Chicago Press, Ltd., London

© 2007 by The University of Chicago

All rights reserved. Published 2007

Printed in the United States of America

16 15 14 13 12 11 10 09 08 07 1 2 3 4 5

isbn-13: 978-0-226-94471-5 (cloth)

isbn-10: 0-226-94471-9 (cloth)

Library of Congress Cataloging-in-Publication Data

Yackle, Larry W.

Regulatory rights : Supreme Court activism, the public interest, and the making of

constitutional law / Larry Yackle.

p. cm.

Includes bibliographical references and index.

ISBN-13: 978-0-226-94471-5 (cloth : alk. paper)

ISBN-10: 0-226-94471-9 (cloth : alk. paper)

1. Constitutional law—United States—Interpretation and construction. 2. Police

power—United States. 3. United States. Supreme Court. 4. Civil rights—United

States. I. Title.

KF4552 .Y33 2007

342.73—dc22

2007005605

The paper used in this publication meets the minimum requirements of the Ameri can

National Standard for Information Sciences—Permanence of Paper for Printed Library

Materials, ansi z39.48-1992.

for jeanette

Contents

Acknowledgments xi

Introduction 1

1. The Documentary Constitution 11

Constitutional Law 13

Explanations 15

The Constancy of a Writing 15

The Legitimacy of a Compact 19

A Constitution Made by Judges 23

Textualism 25

Yawning Gaps 27

Vague and Ambiguous Terms 29

The Analogy to Statutes 30

The Text Writ Large 31

The Text in Context 32

Negative Examples 35

Originalism 40

The Framers 41

The Founding Generation 47

More Negative Examples 48

2. Constitutional Common Law 52

Rights 57

Natural Rights 58

Rights and Formalism 61

The Positive Present 62

Markets 64

The Unregulated Baseline 64

The Regulatory Present 66

The Public Interest 68

Natural Rights (Again) 68

The Police Power 70

Formalism (Again) 72

Laissez-Faire 74

Class Legislation 76

Effi ciency and Elections 79

3. Regulatory Rights 83

Preliminaries 84

Restraints Neither Internal nor External 84

Regulatory Rights in the Literature 87

Due Process 94

The Substance of Process 95

Market Freedom 97

Fundamental Interests 99

Procedural Rights 101

Substantive Rights 101

Beyond the Bill of Rights 102

Abusive Behavior 104

Equal Protection 106

Equality and Purpose 107

The Overlap with Due Process 108

Classifi cations 113

Ordinary Classifi cations 113

Fundamental Interests (Again) 114

Suspicious Classifi cations 114

Freedom of Expression 115

Free Speech 116

Freedom of Religion 119

Cruel and Unusual Punishments 120

4. Rational Instrumentalism 125

Standards of Review 126

The Rational-Basis Test 128

Close Scrutiny 129

Means 135

The Level-of-Generality Question 135

Disproportionate Impact 139

VIII CONTENTS

Knowing a Means by Its Purpose 144

Individual Interests 144

Rights (Again) 145

The Level-of-Generality Question (Again) 148

Ends 152

The Search for Purpose 153

Techniques 157

Illustrations 158

A Purpose to Work With 159

Compelling Objectives 163

Impermissible Explanations 167

Tautological Ends 168

Of Conduct and Status 169

Conclusion 172

Notes 175

Index 253

CONTENTS IX

Acknowledgments

Numerous friends and colleagues helped me with this project, among

them Winston Bowman, Robert Brickman, Krikor Dekermenjian, Mor￾ton J. Horwitz, William Kaleva, Pnina Lahav, Gary Lawson, David

Lyons, Tracey Maclin, Michael Meurer, Ryann M. Muir, Teresa Gallego

O’Rourke, Mark Pettit, H. Jefferson Powell, David Seipp, Aviam Soifer,

and Jeanette Yackle.

Introduction

Supreme Court justices are an aging tribe. Their longevity is a product

of the legal safeguards established to ensure their independence.

They are entitled to serve (and keep on serving) during “good behav￾ior,” which means (in practical effect) as long as they want to. And they

invariably want to for a very long time. The justices now in place are an

especially elderly lot. Then again, they, too, are mortal. Vacancies oc￾casionally appear to be fi lled by comparatively youthful men and women

whose nominations evoke heated debate. Most arguments regarding in￾dividual candidates are packaged as claims about Supreme Court jus￾tices’ proper function once they are on the bench. We are told, in par￾ticular, that justices should not create constitutional rights; rather, they

should enforce the rights the Constitution enshrines. In this book, I hope

to convince you that arguments of that kind fundamentally misconceive

the work justices do and, beyond that, the character of the American

Constitution in whose name they do it. If we can once get the job de￾scription right, we will understand why battles over nominees are hard￾fought and worth fi ghting. It matters who sits on the Supreme Court; it

matters a great deal. It matters because the justices do create individual

constitutional rights—the only rights we have, the only rights we have

ever had, and the only rights we can hope to have.

I mean to argue that substantive federal constitutional rights draw

their meaning exclusively from the great body of relevant Supreme Court

2 INTRODUCTION

decisions and that the only content those rights enjoy, abstracted from

the Court’s decisions, can be reduced to a single doctrinal idea: Govern￾ment acts constitutionally if it acts instrumentally, adopting policy as a

sensible means of achieving public ends. This is an unorthodox claim. I

do not propose merely that instrumentalism fi gures in the common un￾derstanding of rights associated with the Constitution. No one doubts

that. Scarcely any doctrinal formulation is more commonplace. Rational

instrumentalism is ubiquitous in the Court’s treatment of discrete pro￾visions of the historical document adopted in 1789 (and subsequently

amended twenty-seven ways), in the themes commonly inferred from the

document as a whole, and in the underlying theories the document is

said to embody. My argument runs deeper. With respect to the content

of substantive individual rights, instrumentalism occupies the fi eld en￾tirely. Nothing else matters—not the textual provisions conventionally

thought to establish rights, not the history behind those provisions, not

the philosophical notions with which the Constitution is associated. I

contend that rational instrumentalism is far more than a common ele￾ment circulating through many bodies of constitutional law regarding

substantive rights. Instrumentalism is the central doctrinal idea around

which all else circulates.

I limit my claim to substantive rights—namely, rights that impede gov￾ernmental action in the interest of individual freedom. Much the same

argument might be advanced with respect to procedural rights, which

generally govern the administration of substantive policies in particular

instances. There, too, the text of the historical document does precious

little work, rational instrumentalism a great deal more. But I make no

effort to develop that argument. Nor do I contend that the text is irrel￾evant, and rational instrumentalism pervasive, with respect to constitu￾tional concepts apart from individual rights. Provisions of the written

Constitution do prescribe the basic nature and architecture of American

government—for example, provisions explicitly calling for periodic elec￾tions and bicameralism in the legislative branch and implicitly for the

separation of national powers and federalism.1

I do think that when the

Court takes up questions about those arrangements, the text itself offers

little guidance. The answers the justices deliver rest on judgment, which,

in turn, is often informed by means-ends instrumentalism.2

But I do not

press those arguments here.

My claim regarding substantive rights is conceptual in the modest

sense that it locates constitutional signifi cance at some remove from the