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Regulatory RightsSupreme Court Activism, the Public Interest, and the Making of Constitutional Law$
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Larry Yackle

Print publication date: 2007

Print ISBN-13: 9780226944715

Published to Chicago Scholarship Online: March 2013

DOI: 10.7208/chicago/9780226944739.001.0001

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The Documentary Constitution

The Documentary Constitution

(p.11) Chapter One The Documentary Constitution
Regulatory Rights
University of Chicago Press

This chapter explains that conventional thinking about the Constitution is crippled by the irrepressible misconception that the Constitution is one and the same with the storied document. It examines the visceral insistence that the document specifies constitutional meaning by its literal text, either alone or in company with the intentions of its “framers.” The Supreme Court does make up constitutional law. The social compact explanation for the written Constitution's appeal is equally flawed. Supreme Court justices obviously cannot do whatever they want without regard for the political repercussions. The text of the written Constitution resists techniques devised for statutory construction. Constitutional meaning lies in contemporary judgment, exercised by the men and women who sit on the constantly changing committee—the Supreme Court.

Keywords:   Constitution, constitutional meaning, Supreme Court justices, contemporary judgment, constitutional law

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