[...]... enough, that if the document is the Constitution, it must fairly control any constitutional law the Supreme Court announces And if it doesn’t, something is amiss The justices must be dishonest They must fashion law on their own without warrant in the authentic Constitution and perhaps in defiance of it The charge of duplicity is unwarranted The Supreme Court does make up constitutional law That law is not... judicial decisions about the text, theorists insist that the warp and woof of constitutional law is still traceable to the written document and must be, given that the document and only the document counts as the Constitution.10 But this is sophistry and a pernicious brand of sophistry in that it generates misunderstanding and distrust Ordinary people accustomed to the ordinary use of language expect, naturally... religion as the foundation of civil society, his endorsement of the divine and hereditary right of English kings to rule, his promotion of accumulated wealth in the hands of the few, and above all his disdain for common people and for the idea of government by the consent of the governed All those views offend any modern democrat.20 Nevertheless, at the level of language, Burke’s conception of a constitution... ning force of the Constitution itself Professor Fallon’s basic thesis is sound: We can best understand the Supreme Court in light of its responsibility to effectuate constitutional meaning in actual cases But consider two objections to the notion that there is some genuine light between what the Court says and does, on the one hand, and the true Constitution somewhere in the background, on the other Fallon... alternative understandings of the way the Court should elaborate the content of substantive rights To begin, I explain that courts (and the Supreme Court in particular) 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 substantive rights against governmental... particular document, but rather the label applied to the “constituent parts” of the state (in the case of England, the Crown and Parliament) Before the Philadelphia Convention, that had been the general understanding A society’s constitution simply identified the laws, institutions, and related arrangements of which the society was constituted.19 Now then, Burke has much to answer for: his celebration of religion... of the Fifth and Fourteenth Amendments and the Equal Protection Clause of the Fourteenth But I also turn to the freedom of expression and religion generally ascribed to the First Amendment and to the substantive rights identified with the Eighth Amendment’s prohibition of cruel and unusual punishments I do not contend that the Court never articulates doctrine in any other way Additional doctrinal wrinkles... citing the text of the document, together with its history, to justify constitutional decisions That style of opinion writing (and I do think references to the text and its history are largely matters of style) encourages academics to try again (and again and again) to succeed where they and others have failed before My aim is primarily to organize the arguments and counterarguments and to expose the. .. they held seats on the highest tribunal in the land I think not Not, at least, where substantive rights are concerned I don’t suggest that the judgments the justices make are personal matters of taste Justices of the Supreme Court are constrained by the conventions of legal practice, collegial decision making, and opinion-writing; by their own precedents; and, certainly, by the relative fragility of. .. lament hit the mark It is “awfully hard to be a credible constitutional thinker by treating the Constitution as irrelevant.” 16 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, . alt="" Regulatory Rights Distance: 0.44 in Regulatory Rights Supreme Court Activism, the Public Interest, and the Making of Constitutional Law larry. (cloth) Library of Congress Cataloging-in-Publication Data Yackle, Larry W. Regulatory rights : Supreme Court activism, the public interest, and the making of constitutional