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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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Regulatory Rights

Regulatory Rights

(p.83) Chapter Three Regulatory Rights
Regulatory Rights
University of Chicago Press

This chapter discusses the reach of rational instrumentalism in the Supreme Court's development of substantive rights in order to explain and appreciate how thoroughly instrumentalism predominates. It primarily concentrates on individual rights (against both federal and state governmental power) associated with the Due Process Clauses of the Fifth and Fourteenth Amendments and the Equal Protection Clause of the Fourteenth. Rational instrumentalism is the basic doctrinal definition of substantive rights, and is also the doctrinal anchor in equal protection cases. Several bodies of Supreme Court case law are conventionally regarded as illustrations of equal protection doctrine in action. Rational instrumentalism dominates the doctrinal tests the Court has established for First Amendment cases. It has proved to be the Court's tool for implementing the lessons of that experience in the endless cases demanding attention. In general, instrumentalism has proved to be an effective doctrinal device for realizing the lessons of that history.

Keywords:   rational instrumentalism, Supreme Court, substantive rights, individual rights, Due Process Clauses, Equal Protection Clause

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