Regulatory Rights
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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)

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

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
S
upreme 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-

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
INTRODUCTION 3
document and its amendments. Yet I have no ambition to pitch instru-
mentalism at a level with any general theory of American constitutional-
ism. Theoretical arguments attend to antecedent questions much mooted

good justices who adhere to the Constitution nor bad justices who don’t.
We have only justices who exercise their best judgment in a system that
counts that judgment as the Constitution. A good judge, in my view, is
one who grapples seriously with real problems, honestly examines the
relevant factors in the mix, tries his or her level best to come up with
solutions that serve the country, and explains results realistically to the
rest of us. This is the way things are and, I think, the only way things
could be.
4
4 INTRODUCTION
We live in interesting times. Many observers detect a certain mal-
aise in legal thought, linked to postmodern themes both in jurispru-
dence and in allied fi elds. To put the matter bluntly, we have lost faith in
the idea that judicial decision making can be principled—that justices
of the Supreme Court can rest their pronouncements of constitutional
meaning on an objective foundation that cabins their personal predilec-
tions.
5
Mark Tushnet contends that we are experiencing a corresponding
sea change in American thinking about the very nature and capacity of
government.
6
We have, he insists, a new constitutional order in which our
aspirations for government are much diminished, our hopes for prosper-
ity seriously reduced.
7
The evidence is there for all to see in the behavior
of the Congress and successive presidents.
8
The Supreme Court has participated in this turn of intellectual events.

banish value judgments from their analysis; they do not enforce founda-
tional law with an existence apart from their own decisions.
Legal scholarship has responded to the new constitutional order in
general and to the Court’s controversial decisions in particular. I do not
say that the one has followed the other as action begets reaction. Acade-
micians scarcely require worldly events to stimulate their creative ener-
gies. Still, the Court’s decisions have reached down to the fundamen-
tals of the system, making academic exploration of those regions more
urgent. I scarcely propose in this book to engage the massive literature
in point. Certainly, I have nothing to add to (or detract from) the work
of theorists who would abandon the entire business of a constitutional
system centered around the Supreme Court and focus, instead, on other
forums in which the Constitution operates.
10
I lay aside Judge Easter-
brook’s insistence that the Court’s preeminent voice with respect to the
Constitution cannot simply be assumed and concentrate my attention on
the Supreme Court’s elaboration of constitutional meaning.
11
I do chal-
lenge the twin notions that the historical document and its amendments
fi x a wide range of policies in constitutional stone and that we are obliged
to accept those policies as our own, unless and until we adopt additional
amendments. By those accounts, the justices are neither charged to for-
mulate constitutional law nor entitled to do so. Instead, they have the
duty and responsibility to derive constitutional meaning from the docu-
ment in its historical context. I critique strong arguments along those
lines.
12
I acknowledge, of course, that other academic specialists adopt

performance must depend on that and that alone.
If we accept that the Court determines practical constitutional mean-
ing, we are obliged to look hard at the doctrinal framework the justices
fi x as their guide and, in turn, at the way they resolve actual cases. Pro-
fessor Powell has illuminated how Supreme Court justices and others
struggled with important questions in the nineteenth century and in the
early twentieth. After a fashion, I hope to pick up where Powell leaves
off, examining modern Supreme Court decision making in one context.
Along the way, I compare what I have to say with ostensibly similar
treatments in the literature.
15
Suffi ce it to say now that, in the case of
substantive rights, I argue that the justices rely on rational instrumental-
ism to realize the fundamental building blocks of modern constitutional
jurisprudence. When they turn to specifi c cases, they deploy instrumen-
talism to marshal the relevant issues, albeit not seriously to predict the
results they should reach. My argument proceeds in four stages.
In chapter 1, I explain that conventional thinking about the Consti-
tution is crippled by the irrepressible misconception that the Constitu-
tion is one and the same with the storied document. It is easy enough to
understand the document’s appeal, and I explore a number of overlap-
ping explanations. Yet I challenge the very idea that we are governed by
a written Constitution. Relatedly, I explore the visceral insistence that
the document specifi es constitutional meaning by its literal text, either
alone or in company with the intentions of its “framers.” I canvass the
many reasons why the text does not function in that way, but should be
understood as a symbol of nationhood. The historical writing typically
characterized as the Constitution casts a certain spell that has to be bro-
INTRODUCTION 7
ken. That spell is of our own creation. American children are not born


I want to argue that in the case of substantive rights the supposed link
between the document and the Court’s work simply does not exist. The
Court creates the real Constitution as it goes along, free of any serious
connection to the text. Apart from the buildup of decided cases, we
have only the doctrine the Court itself supplies, which operates (albeit
roughly) to explain the Court’s own decisions, to guide lower courts in
the near term, and to channel the Court’s approach to similar cases in
the future. In turn, rational instrumentalism pervades substantive rights
doctrine so completely as to dwarf any other factor in the mix. Virtually
8 INTRODUCTION
everything about substantive constitutional rights is doctrinal, and virtu-
ally everything doctrinal is instrumental.
In subsequent chapters, I make a sustained effort to establish ratio-
nal instrumentalism as the doctrinal guide to the content of substantive
rights. In chapter 2, I identify the jurisprudential foundations on which
instrumentalism depends and for which it now operates. My principal
mission in that chapter is to demonstrate that rational instrumentalism is
nothing new, but draws on hard experience with alternative understand-
ings of the way the Court should elaborate the content of substantive
rights. To begin, I explain that courts (and the Supreme Court in partic-
ular) are not distinguishable from legislative bodies on the ground that
they alone must have reasons for their actions. The duty to act rationally
cuts across institutional lines and forms the doctrinal content of substan-
tive rights against governmental power of any ilk. Then I collate various
related strains in the development of the American political system, the
confl uence of which accounts for rational instrumentalism as the main-
stay of constitutional doctrine regarding substantive rights.
There is a good deal of history in chapter 2, but I make no claim to a
coherent linear narrative. Instead, I organize the materials around four

I focus in chapter 3 primarily on individual rights (against both fed-
eral and state governmental power) associated with the Due Process
Clauses of the Fifth and Fourteenth Amendments and the Equal Protec-
tion Clause of the Fourteenth. But I also turn to the freedom of expres-
sion and religion generally ascribed to the First Amendment and to the
substantive rights identifi ed with the Eighth Amendment’s prohibition of
cruel and unusual punishments. I do not contend that the Court never ar-
ticulates doctrine in any other way. Additional doctrinal wrinkles some -
times appear. I do claim, however, that if we parse the Court’s doctrinal
accounts of substantive rights, we fi nd that rational instrumentalism pro-
vides the basic organizational design throughout.
In chapter 4, the heart of my project, I explore the Court’s use of ra-
tional instrumentalism to arrange the issues that demand resolution in
actual cases. The Court does not simply sift the interests at stake ad hoc,
but employs rational instrumentalism to capture salient considerations
for serious judgment. The headings of the analysis are easy to state. The
justices must characterize the governmental action said to violate sub-
stantive rights, they must specify the individual interests affected, and
they must assess the purposes offered to explain and justify the result-
ing distribution of costs and benefi ts. But the task of working those mat-
ters out is exquisitely diffi cult. At every stage, the justices wrestle with
deeper problems that, in turn, leave enormous space for reasonable de-
bate. As the justices face those problems and settle disagreements by
majority vote, they create the content of substantive individual rights.
This is no occasion for regret. The issues the justices address pursuant
to these arrangements are the right issues, representing long-standing in-
sights concerning governmental power. The Court has not often reached
the results I would have preferred—I’m a McGovern Democrat—nor
come within striking distance of my preferences. I do regret many of the
decisions I examine in chapter 4, though I am quite pleased with some.

Ronald Dworkin declares, “We have a con-
stitutional text. We do not disagree about which inscriptions comprise
that text; nobody argues about which series of letters and spaces make it
up.”
3
But this is only partially true and, in the main, misleading. Michael
Moore has explained that those inscriptions exist in a basic “syntactic”
sense only as so many “uninterpreted symbols” in a string.
4
If they are to
12 CHAPTER ONE
have meaning, we must impose it on them. That meaning, in turn, is not
merely a creature of language and grammar—the logical structure that
distinguishes lines that human beings deliberately draw on the page (or
in the sand) from those left behind by the wind and the waves.
Most Americans may think that the document (as amended) is the
Constitution. But among specialists the popular understanding of the
Constitution is problematic. William Harris says that “the presumption
that a political world can be constructed and controlled with words” is
preposterous.
5
It is hard to think that a few scratches on ancient pages
can bear the necessary weight. The goal of university education on the
subject is to dispel the simplistic assumption that the document alone
resolves tough questions. As a matter of experience, we have never de-
rived answers to the really diffi cult problems of government from this
old writing. We have come up with our own answers and then, at most,
ascribed them to it. We have done this largely through judicial decision
making.
The trend around the world is toward written constitutions, not away