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

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 Efficiency 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 Classifications 113 Ordinary Classifications 113 Fundamental interests (Again) 114 Suspicious Classifications 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 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