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rules— or the people applying them—are to outside journalists. Part II of this Essay examines two recent high-profile cases that highlight this problem
misidentifying this man as a threat. There is a way in which these things in fact might be true—but is this the place to make that point? Would it
the heart of the antitotalitarianism thesis they advance, and that their disagreement with us on these issues, and the related question of how to
interest, but rather the private interests of groups that ei- ther have "captured" regulatory bodies, or have controlled them from the start through their
requires legal standards that respond to the right theory of discrimination. If weight is like race, then anything less than immutability ought to defeat
than dismissing those views as mysticism or ancestor worship in the way that Jefferson’s skepticism seems to dismiss them. The first part of the
membership in the majority party. This makes good sense. As political appointees integrate into agencies, those that did not have to go through Senate
they confronted these challenges. Throughout his more than forty-year judicial career, he diligently took up what he believed to be the courts’ the
of constitu- tional freedoms—and, thus, by far the more sensible lens through which to read and understand them—is that the Founding generation wished
is what rights they can in- voke.268 Our thesis is that the key consideration in deciding whether those sub- ject to regulation can assert third