= process by which regulatory agencies may come to be dominated by the interests they are meant to regulate and not by the public interest
=> An agency has its closest relationship to them.
=> The industry usually has the strongest reasons to pay close attention to the agency, participate in its processes and try to influence its policy.
=> argues that judges should focus on maintaining a well-functioning democratic process and guard against systematic biases in the legislative process
=> Enforcing constitutional rights against the states:
Brown v. Board of Education (1954) – desegregating Southern schools
Mapp v. Ohio (1961); Gideon v. Wainwright (1963); Miranda v. Arizona (1965) – federal constitutional protections for criminal suspects
Engel v. Vitale (1962) – states may not require prayer in schools
New York Times v. Sullivan (1964) – press freedom; high threshold for defamation laws
Griswold v. Connecticut (1965) – constitutional right to privacy prohibits bans on contraception
Esp. Baker v. Carr (1962); Reynolds v. Sims (1964) – invalidating rules disenfranchising Africa-American voters
Loving v. Virginia (1967) – interracial marriage
Rationality
Economic and Social Welfare Laws
Differentiation between two people based on it
Judicial Deference: a court should defer to the government provided the law or the classification is rationally related to a legitimate interest of the government
Fundamental rights
If a law or a classification concerns fundamental rights, however, the standard of review is more demanding.
Strict Scrutiny
Racial Discrimination
This is a much more demanding test than rationality:
The government must show that it is pursuing an ‘overriding end’ or a ‘compelling interest’ …
… and the Court must examine whether this promotion of this overriding interest is necessary
Intermediate review
Sex discrimination, legitimacy
a standard in between the other two
A classification must have a ‘substantial relationship’ to an ‘important government interest’
Much stronger than rationality, but weaker than strict scrutiny
= reading the Bill of Rights (first ten amendments) into the 14th Amendment so they become enforceable against the states
getting the right cast of characters
acting as an effective judicial audience
creating a conducive intellectual climate
Why is Originalism so effective?
It is a powerful legitimacy argument
It is a powerful response to the Warren Court
It is an effective way to attack large-scale constitutional change that have not produced textual amendment
The Warren Court, and the New Deal
It is strategically powerful for conservatives
Given the Art V difficulties, it is a way to any resist federal constitutional change (since constitutional amendment is virtually impossible)
Progressive reforms are, by definition, newer/involve change
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