John Ely (1938–2003)

A rare book that combines brevity, wit, and powerful ideas. I was shocked by how accessible the book is, and I would recommend it even to non-lawyers. I am extremely impressed by how entertaining the book is, without losing the depth and clarity of Ely's very original ideas.

The book more or less introduces political process theory, a constitutional theory that the judiciary should intervene when the legislature cannot be trusted to properly represent the interests of the people. This is a response to the counter-majoritarian difficulty, which is the fact that every time a court strikes down a law as unconstitutional, the court in essence denies the legislature, which represents the people, from enacting their will. The legitimacy of judicial review is especially questionable since federal judges are unelected, and hold life tenure based on good behavior. The power of the court to strike down laws then appears to be in tension with the democratic belief that the people should rule. This book is essentially Ely's response to that tension.

Ely starts off by contrasting what he argues are the two dominant modes of constitutional theory, "interpretivism" and "noninterpretivism". Interpretivism purports to stay in the four corners of the constitution and essentially denies the judicial enforcement of unenumerated rights. Noninterpretivism seeks to enforce unenumerated rights judicially by looking at natural law, reason, neutral principles, consensus, and tradition. Ely argues that interpretivism is doomed because the constitution itself, particularly in the 9th amendment and even in the privileges and immunities clause of the 14th are open textured delegations to the future to look outside the text. Ely then refutes the noninterpretive sources of constitutional theory as either indeterminate, undemocratic, insufficiently protective of minorities, or unsuited for the judiciary to discover (this section is worth the read alone).

Ely then puts forward his affirmative theory that the judiciary should essentially protect the political process from legislative malfunction. Ely argues that the constitution is primarily about process, not substance and that the substantive portions i.e. the contracts clause and the second amendment have been judicially read out of the constitution. (this section too, is novel and worth the price of admission). Even amendments that are at first blush substantive actually contribute to the proper functioning of representative democracy. Ely argues that the political process theory gives clear implications for the portions of the constitution that are related to the political process. For example, Ely argues that first amendment doctrine takes two approaches to restricting speech, a balancing test approach and a categorical approach the protects per se or does not protect per se certain types of speech. Ely argues that legislators cannot be trusted with objectively balancing content based restrictions, so the per se approach should dominate for content-based restrictions but the balancing test approach should dominate for restrictions on the manner of speech. Ely similarly laudes the courts approach towards the right to vote cases (in particular the administrability of the one person one vote principle), since the current legislature could attempt to entrench itself.

Ely then discusses the Carolene Products footnote in relation his political process theory. In short, while the constitution and political process theory celebrate majoritarian rule there may be times that the minority cannot muster the electoral power to protect itself from the majority. Ely argues that in many cases, this issue can be resolved by tying the interests of minorities to the majority, and as an interesting example discusses Marshall's opinion in Mcculloch, which argued that Maryland cannot tax the federal branches with specific taxes that do not affect the Maryland banks because the Maryland legislature are likely to be unresponsive to the protests of non-Marylanders (Ely argues for the virtues of virtual representation, an irony he notes). But in some circumstances that cannot practically occur, so the court may have a role in examining closely under equal protection certain laws that have impacts on minority populations. What follows is a fascinating discussion of strict scrutiny. Ely does not think that strict scrutiny should force legislatures to declare their purpose, since the legislatures can always come up with vague purposes or laundry lists. Ely argues that immutability has been treated as a crucial ingredient to suspect classes because of the undeterrability of immutable characteristics. Ely also discusses the complexities of applying strict scrutiny to the categories of women and gay rights. In particular Ely argues that the defense of some gender-based laws by women means that no consensus amongst women have been formed over the issue, and the judiciary should not assume that one exists. However, Ely does argue that laws before the 19th amendment passed could be suspect and there is a colorable argument that they should be sent back to the voters (which now include women) for either rejection or ratification. I found Ely's discussion on stereotypes interesting. Ely argues that to a degree the use of stereotypes is inevitable where the legislators are making general laws. General laws rely on generalizations, but Ely argues that sometimes legislators cannot be trusted with balancing the veracity of the generalization against the costs of the general law to the "exceptions". This often occurs when the majority is making general laws that affect minorities, as majorities are prone to stereotypes that aggrandize themselves at the expense of the minority.

Part of the fun of reading the book is that it is also an interesting time capsule for the state of law at that time. For example, Ely does not anticipate the immediate scrutiny that will be applied to laws referring to gender. Ely expects the 27th amendment to be the ERA (which was rejected by the states. Ultimately the 27th amendment was an amendment proposed by the First Congress that was rediscovered by a bored college student who started a letter campaign). Ely also laments the rise of the administrative state. He argues that there is no point in forcing transparency in government if elected officials simply pass the buck of politically hard decisions by delegating to faceless bureaucrats. And as mentioned before, Ely argues that judiciary had read the second amendment out of the constitution.

The book is endlessly fascinating. But for the fact that Ely is a brilliant writer and his insights are interesting, the book can be accused of being disorganized (typical of legal theory books that start out as a series of articles). It is not a systemic treatment that marches down every avenue of possible objection and nuance. But it is a book that marches down the interesting avenues, and in a matter that leaves the reader in awe of the journey.… (lisätietoja)

Democracy and Distrust has a very, very strong claim to be the most important book on legal theory to be published in the second half of the 20th century. It serves as the encapsulation of the entire liberal jurisprudential project dating from the Warren court era -- why and when can judges overturn popularly enacted legislation? The answer is when those laws are the products of (or seek to create) a democratic process failure -- the systematic exclusion of certain members of the polity (typically minorities) from the normal democratic game. It is exceptionally well-argued and deservedly influential. If one is a liberal, this book will quickly become your go-to source. If one is a conservative, this is the target you've got to take down.… (lisätietoja)

Lawyer Chibli Mallat has chosen to discuss John Hart Ely's Democracy and Distrust, on FiveBooks as one of the top five on his subject - Maverick Political Thought, saying that:

“Of the immense legal literature on US democracy and the role of the American Supreme Court this is the one book that has most profoundly affected my understanding of the rule of law, and of the role of the judges in compensating for the failures of democracy. Democracy is defined by majoritarianism – you win the majority of the vote and you rule. But there are minorities who don’t have the means to counter the rule of the majority by definition, because they are a minority and don’t have enough votes. This judicial counter-majoritarianism started under Chief Justice Earl Warren, for whom Ely clerked, when the Supreme Court ruled to end bus and school segregation in 1954, sparking the Civil Rights movement which eventually led to Barack Obama becoming president.”

The full interview is available here: http://five-books.com/interviews/chibli-mallat… (lisätietoja)