Abigail R. Moncrieff (Boston University School of Law) has posted The Role of Individual Substantive Rights in a Constitutional Technocracy on SSRN. Here is the abstract:
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This article presents a novel theory of substantive constitutional rights and of the role that they play in an increasingly technocratic legal world. The central descriptive assertion is that substantive rights serve as presumptions in favor of private ordering, which protect a limited set of regulatory regimes from technocratic tinkering, and that the characteristic that defines the set of protected regimes is a high degree of economic and moral uncertainty. Decisions to engage in speech, religion, association, reproduction, and parenting, the decisions that receive substantive constitutional protection under modern doctrine, are decisions that are of unusually uncertain individual and social value. The central normative assertion is that this defining characteristic provides a good reason to hinder regulation in these regimes because, in the presence of these deep uncertainties, technocratic regulators will have no legitimate regulatory theory to pursue. Regulation in these regimes, thus, will be more likely than average to constitute purely arbitrary infringements of liberty, even though some regulatory projects will address concrete harms or enact moral consensuses. Substantive constitutional rights provide an elegant tool for creating a conditional barrier to regulation, raising the cost of regulating without completely forbidding it.
