in Regulatory Rights

Published by University of Chicago Press

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

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This chapter presents a summary on the assessment of the Constitution and the substantive rights with which it is associated. The only guidance the Supreme Court has in constitutional cases touching substantive rights lies in the doctrine the Court itself has established. Rational instrumentalism reflects underlying ideas that have shaped the system now in place. Instrumentalism does not determine results and, in fact, scarcely limits the justices at all. It only (though importantly) helps to identify the issues and considerations and to organize them for attention. The justices themselves appreciate the nature of their task, and often explain their judgments as though they are deductions from doctrinal rules that genuinely cabin judicial discretion. Yet, they also candidly acknowledge the inevitable truth.

Keywords: substantive rights; Constitution; Supreme Court; rational instrumentalism; justices; judgments; doctrinal rules; judicial discretion

Chapter.  700 words. 

Subjects: Company and Commercial Law

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