by Larry Yackle. Chicago: The University of Chicago Press, 2007. 256pp. Cloth. $35.00. ISBN: 9780226944715.

Reviewed by Amanda Harmon Cooley, North Carolina A & T State University. Email: abcooley [at]


Often, textbook definitions of constitutional interpretation are divided into a formulaic delineation: there is a textualist or originalist approach, and there is a Living Constitution or dynamic approach (with little or no explanation as to the distinctions within each of these two, main categorical labels). In REGULATORY RIGHTS: SUPREME COURT ACTIVISM, THE PUBLIC INTEREST, AND THE MAKING OF CONSTITUTIONAL LAW, Larry Yackle attempts to break down the boundaries of this conventional classification by arguing that the textualist and originalist approaches are invalid, and by positing a theory of constitutional interpretation that goes beyond the mere Living Constitution approach. Yackle boldly asserts that constitutional law is activism in the purest sense of the word (and without all of the negative connotations that usually accompany the term); that the nine Supreme Court justices are not relegated to the mere interpretation of the Constitution (the meaning of which is redefined by the author); and that, instead, these justices “create individual constitutional rights” (emphasis added) through a process the author has deemed “rational instrumentalism” (p.1).

Yackle’s primary thesis is that

"substantive federal constitutional rights draw their meaning exclusively from the great body of relevant Supreme Court decisions and that the only content those rights enjoy, abstracted from the Court’s decisions, can be reduced to a single doctrinal idea: Government acts constitutionally if it acts instrumentally, adopting policy as a sensible means of achieving public ends. (pp.2-3)"

Because of the admittedly unorthodox nature of Yackle’s central argument and the inherent paradigmatic shift that is required to agree with all of the author’s claims, it appears that REGULATORY RIGHTS will serve as a bone of contention for today’s constitutional scholars and political scientists. However, an in-depth examination of the four-part structure of Yackle’s argument proves that the author provides a compelling, yet not entirely convincing, argument regarding the Supreme Court’s jurisprudence of substantive constitutional rights.

In Chapter One, the author’s overall intent is to dispel the asserted “myth” that the United States is governed by the historical, documentary Constitution, as drafted in 1787, ratified in 1789, and subsequently amended. Yackle acknowledges the importance of the written Constitution as a cultural and political symbol. However, he asserts that the “real Constitution” cannot be found within the four corners of the document itself; rather, it “resides in the stream of incremental judgments the Supreme Court makes in individual [*144] cases and in the doctrine the Court offers to organize its thinking” (p.51). In arriving at this “redefinition” of the Constitution (as opposed to both popular and certain academic conceptions of the Constitution), Yackle also outlines why textualism and originalism are completely inadequate measures for constitutional interpretation, stating that the “Court only pretends to invoke the text of the historical document as the source of constitutional meaning and actually decides hard cases on the basis of pragmatic judgment” (p.35), and that the “Court’s actual decisions regarding hard constitutional questions openly defy any sort of originalist foundation” (p.50).

Yackle’s extensive use of historical and contemporary sources in Chapter One bolsters his markedly persuasive claims as to the invalidity of textualism and originalism (of course, this reading would not likely convince those individuals in the Scalia camp of constitutional interpretation). The author’s perspective on the composition of the “real Constitution” may not have commensurate, persuasive sway on all of the readers of this volume. Essentially, Yackle’s claim that the predominant conception of the documentary Constitution is an emperor [who] has no clothes might not find complete resonance in today’s discourse on constitutional meaning. Be that as it may, Yackle’s novel thesis, as expressed in the remaining chapters of the text, requires further analysis in order to arrive at a complete explication of the significance of this book in the context of constitutional debate.

In Chapter Two, Yackle outlines the historical, philosophical, and political underpinnings of the process of rational instrumentalism that he asserts as the basis for the making of constitutional law. He couches these foundational ideas “around four overlapping themes: the rejection of natural-rights theory, the concomitant recognition that government is largely responsible for the measure of freedom that individuals enjoy, the acceptance of governmental power to regulate private activities for the larger social good, and the abiding effort to distribute authority between the Supreme Court and more politically accountable institutions” (p.8). Several points within these themes are of particular import in the formulation of Yackle’s substantive theory. First, in his discussion of the “premise underlying rational instrumentalism . . . that individual freedom depends on the laws that human beings create for themselves – not natural rights,” Yackle outlines the progression of this premise from Lockean theory to modern jurisprudence, using the oft-cited LOCHNER v. NEW YORK (1905) case as illustrative support to his argument. While this analysis is worthy of note, of more interest is Yackle’s treatment of WEST COAST HOTEL v. PARRISH (1937), in which the author concludes that there “is no liberty of contract arising from a previous state of nature. There is only the constitutional right to due process of law, triggered by a deprivation of life, liberty, or property” (p.63). Yackle’s conclusion here with respect to the Court’s dialectic between rights and liberties is emblematic of his overall treatment of the Court’s doctrinal articulations of substantive constitutional rights in Chapters Three and Four. Therefore, an understanding of the author’s contentions in his discussion of the positivist perspective of today’s judicial system is central to a comprehension of Yackle’s entire thesis. [*145]

Yackle’s assertions in the third section of Chapter Two that “government is free to make regulatory adjustments in the interests of society as a whole” (p.68), which he illustrates through the line of reasoning in the police power Supreme Court decisions, and that, in those cases, “government generally is entitled to wide discretion” (p.74), provide further support for the existence of rational instrumentalism as a judicial, deliberative process. These assertions also strengthen his fourth theme in Chapter Two that the judiciary’s deference to legislative authority is a rational-judgment, democratic response and that the Court’s “role is not generally to second-guess the wisdom of the policies selected by more politically sensitive institutions, but to ensure that governmental action genuinely serves the public interest” (p.82).

With his thematic foundation in place, Yackle proceeds in Chapter Three to explain how the means/ends inquiry of rational instrumentalism can be found “in all the doctrinal formulations the Court offers for substantive rights” (p.84), which include the right to due process of law, the right to equal protection of the law, the rights of freedom of speech and religion, and the right of freedom from cruel and unusual punishments. In his treatment of the right to substantive due process, Yackle returns to his distinction between rights and liberties within Supreme Court rhetoric and decision-making, stating that the Court does not “really mean that substantive due process serves only to introduce other independent rights into the mix. They mean . . . that the right to be enforced is the right to due process itself, and they only confuse matters by using the terms rights, liberty, and interest interchangeably” (p.100). This discussion, as applied to the First and the Fourth Amendment, leads Yackle to the same conclusion that he has asserted throughout the text: when it comes to difficult constitutional questions, the “basic standard is always essential reasonableness and, accordingly, rational instrumentalism” (p.106). This conclusion permeates the discussion of equal protection, freedom of expression, and Eighth Amendment cases that compose the remainder of Chapter Three.

Interestingly, Yackle cites the prominent language in TROP v. DULLES (1958), in which the Supreme Court stated that, in Eighth Amendment cases, it must draw “meaning from the evolving standards of decency that mark the progress of a maturing society.” However, instead of addressing the dynamic approach to constitutional interpretation that is articulated in this decision and how his claims elaborate or improve upon that approach, Yackle states that “it is only important to recognize that they [the justices] exercise judgment within the familiar framework provided by rational instrumentalism” (p.121).

Chapter Four provides a culmination of the themes and theories put forth in the preceding chapters. In this chapter, Yackle’s objective is “to examine modern illustrations of the work the justices actually perform in cases involving substantive rights” and to “illuminate the difficult judgments that rational instrumentalism calls on the justices to make” (pp.125-126). After this articulation of purpose, Yackle catalogues the standards of review employed by the Court, with the underlying proviso that, no matter which standard of review is selected, the “justices exercise reasoned judgment” [*146] (p.127). The analysis of Supreme Court deliberation then proceeds to a discussion of the importance of characterizing the “means by which government has chosen to regulate” in cases. Yackle uses the LAWRENCE v. TEXAS (2003) case as the epitome of the type of “judgment that rational instrumentalism calls on the justices to exercise” (p.142). In this example and in his overall discussion of this stage of the judicial process, the author continues to fortify the theme that, “in the end, the justices can only consult their best judgment” (p.144). This notion continues as an undercurrent to the discussion of the characterization by the Supreme Court of the individual interests at stake and the ends that governmental means may permissibly serve. These characterizations are illustrated by a wide variety of cases, ranging from ROE v. WADE (1973) to GRUTTER v. BOLLINGER (2003), in which Yackle highlights the “numerous problems that rational instrumentalism brings to the fore and, concomitantly, the expansive room this doctrinal formulation allows for judgment” (p.173).

REGULATORY RIGHTS concludes with the same type of bold assertion with which it begins; Yackle states that rational instrumentalism “does not determine results . . . it only . . . helps to identify the issues,” and he asserts that his “account of substantive rights leaves them pretty much up to the men and women who reach the Supreme Court” (p.173). Some readers of this text may not be prepared to agree fully with these types of claims. However, Yackle has provided a clear and innovative perspective on constitutional analysis and meaning, which ambitiously expands upon the staid, conventional approaches to constitutional interpretation. While one may not agree with all of Yackle’s ideas, his identification of rational instrumentalism as a key component of Supreme Court decision-making will be an important aspect to evaluate in certain 2007 Term Cases, specifically in BAZE v. REES (2008) and CRAWFORD v. MARION COUNTY ELECTION BOARD (2008). Within the oral arguments for each of these cases, many of Yackle’s themes can be seen; the content and substance of the written decisions may propel REGULATORY RIGHTS into the forefront of debate over the Supreme Court and constitutional law.

BAZE v. REES, (No. 07-5439), __ U.S. __ (2008).

CRAWFORD v. MARION COUNTY ELECTION BOARD, (No. 07-21), __ U.S. __ (2008).

GRUTTER v. BOLLINGER, 539 U.S. 306 (2003).

LAWRENCE v. TEXAS, 539 U.S. 558 (2003).

LOCHNER v. NEW YORK, 198 U.S. 45 (1905).

ROE v. WADE, 410 U.S. 113 (1973).

TROP v. DULLES, 356 U.S. 86 (1958).

WEST COAST HOTEL v. PARRISH, 300 U.S. 379 (1937).

© Copyright 2008 by the author, Amanda Harmon Cooley.