Constitutional Common Law

in Regulatory Rights

Published by University of Chicago Press

Published in print October 2007 | ISBN: 9780226944715
Published online March 2013 | e-ISBN: 9780226944739 | DOI:
Constitutional Common Law

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This chapter determines the jurisprudential foundations on which instrumentalism depends and for which it now operates. The principal mission is to demonstrate that rational instrumentalism is nothing new, but draws on hard experience with alternative understandings of the way the Supreme Court should elaborate the content of substantive rights. In particular, the chapter shows that rational instrumentalism has a history, not that it has a history of any particular length. Individual freedom depends on the laws that human beings create for themselves. It also appears that natural rights had some purchase on the Supreme Court's jurisprudence early on. The Supreme Court had no immediate occasion to elaborate the nature and scope of the emerging police power. The Court also came to appreciate its role in a democratic society.

Keywords: rational instrumentalism; Supreme Court; substantive rights; individual freedom; natural rights; jurisprudence; democratic society

Chapter.  12316 words. 

Subjects: Company and Commercial Law

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