Democracy and Distrust: A Theory of Judicial Review (Harvard Paperbacks) [Paperback]

John Ely (Author)

Book Description

Publication Date: August 10, 1980 | ISBN-10: 0674196376 | ISBN-13: 978-0674196377

This powerfully argued appraisal of judicial review may change the face of American law. Written for layman and scholar alike, the book addresses one of the most important issues facing Americans today: within what guidelines shall the Supreme Court apply the strictures of the Constitution to the complexities of modern life?

Until now legal experts have proposed two basic approaches to the Constitution. The first, "interpretivism," maintains that we should stick as closely as possible to what is explicit in the document itself. The second, predominant in recent academic theorizing, argues that the courts should be guided by what they see as the fundamental values of American society. Mr. Ely demonstrates that both of these approaches are inherently incomplete and inadequate. Democracy and Distrust sets forth a new and persuasive basis for determining the role of the Supreme Court today.

Ely's proposal is centered on the view that the Court should devote itself to assuring majority governance while protecting minority rights. "The Constitution," he writes, "has proceeded from the sensible assumption that an effective majority will not unreasonably threaten its own rights, and has sought to assure that such a majority not systematically treat others less well than it treats itself. It has done so by structuring decision processes at all levels in an attempt to ensure, first, that everyone's interests will be represented when decisions are made, and second, that the application of those decisions will not be manipulated so as to reintroduce in practice the sort of discrimination that is impermissible in theory.

Thus, Ely's emphasis is on the procedural side of due process, on the preservation of governmental structure rather than on the recognition of elusive social values. At the same time, his approach is free of interpretivism's rigidity because it is fully responsive to the changing wishes of a popular majority. Consequently, his book will have a profound impact on legal opinion at all levels-from experts in constitutional law, to lawyers with general practices, to concerned citizens watching the bewildering changes in American law.

Editorial Reviews

Review

The single most important contribution to the American theory of judicial review written in this century.
--Henry P. Monaghan (Columbia Law School )

Democracy and Distrust will have a wide influence for a long time...Ely writes simply and engaginly with a sense of humor. Yet the reader had better keep his wits about him lest he miss the subtleties. Much of the charm is in the author's candor in facing hard questions. Much of it lies in his good common sense.
--Archibald Cox (Harvard Law Review )

Wry, witty, and endowed with both dignity and informality. Would that more lawyers (including judges) could write half so well.
--Telford Taylor (New York Times Book Review )

This is the most important book about law in at least fifteen years. It is a great book...In developing his new and exciting theory, Ely spins off important insights like sparks from a generator.
--Daniel J. Kornstein (New York Law Journal )

This is the rare book that lives up to its dust-cover raves.
--Andrew L. Kaufman (Harvard Law School )

Product Details

• Paperback: 268 pages
• Publisher: Harvard University Press (August 10, 1980)
• Language: English
• ISBN-10: 0674196376
• ISBN-13: 978-0674196377
• Product Dimensions: 9.4 x 6.2 x 0.8 inches
• Shipping Weight: 14.4 ounces (View shipping rates and policies)
• Average Customer Review: 4.4 out of 5 stars  See all reviews (8 customer reviews)
• Amazon Best Sellers Rank: #271,160 in Books (See Top 100 in Books)

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Most Helpful Customer Reviews

19 of 19 people found the following review helpful:

4.0 out of 5 stars Juridprudence: Is there a middle ground?, July 11, 2001

By 

George P. Shadroui (Memphis, Tennessee United States) - See all my reviews
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This review is from: Democracy and Distrust: A Theory of Judicial Review (Harvard Paperbacks) (Paperback)

This excellent little book tries to find a middle ground between the judicial activism advocated by Ronald Dworkin, for example, and the strict original intent approach eloquently defended by Robert Bork. Philosophy of jurisprudence is not always a concept easily grasped, however. In the first chapter, Ely takes us through the discussion of where and how judges drive their activist approach through the door. Ely agrees that the due process clause of the constitution is not the place where an activist jurist should hang his hat. The due process clause, he argues, is concerned strictly with procedural matters, though it can be forcefully enforced within that context. Likewise, he argues, the 14th amendment, with its equality clause and privileges and immunities clause, also has been used to broadly expand judicial oversight on a number of issues. Again, Ely dissents by arguing that the 9th amendment is the more appropriate vehicle because of the procedure issue that constrains the due process clause as well in the 14th amendment.

Judicial review must be rooted in some kind of context - but the noninterpretivist must choose, traditionally, from a long list of inadequate places: individual values of a jurist is inadequate; natural law is vague, as is moral philosophy generally; consensus is imprecise and debatable and neutral principle is damn near impossible to define. He roots his own support of Warren court in participation, which is rooted in our very notion of democracy. His phrase: "participatory responsiveness." We need not grasp at high moral claims to justify supporting civil rights, but in the simple idea that what is available to the majority, must be equally available to the minority. They must be allowed to participate equally, he seems to be arguing, a notion that is easily found in our own legal and constitutional history.

Next Ely walks us through the ways we might address specific issues within his theoretical approach, such as free speech, which need not be defended always in the broadest terms, but might be better addressed as a procedural or participatory issue - that is to say, if the court acts to limit free speech, it is best to do so through categories of unprotected speech rather than appealing to abstract rights or dangers, such as Holmes did when he spoke of imminent danger. (I hope I am following him here). He also addresses the issue of apportionment, and again seeks to have the court avoid such political entanglements by searching for the best way to allow all citizens the right to participate in our democracy - and one person, one vote became the only tenable way to do so. Ely includes in chapter 4 a short but helpful review of the constitution in which he discusses the document for what it is - not an abstract or ideological document, but rather a governing tool that seeks to protect a system, not push an ideological agenda. I wish he had added specific cases and shown how he might have handled them through his approach, particularly tough cases like abortion, for example. THe last chapter rambles a bit and is hard to follow but this is an interesting book, given that the hotly debated issue about judicial activism continues.

17 of 17 people found the following review helpful:

5.0 out of 5 stars One of the great law books, January 16, 1998

By 

P. Mann (Los Angeles) - See all my reviews
(VINE VOICE)    (REAL NAME)   

This review is from: Democracy and Distrust: A Theory of Judicial Review (Harvard Paperbacks) (Paperback)

Professor John Hart Ely's "Democracy and Distrust" is, quite simply, one of the great books about American constitutional law. Ely's task, to come up with a cohesive and coherent theory for judicial review, is far from a simple task, and yet his writing is so smooth and easy that the task *seems* easy. It is relatively easy to summarize Ely's general theory in few words. He argues that the American process is essentially democratic and that the role of the courts should be to police that process. In particular, Ely focuses on the voting-rights amendments, the First Amendment (as speech is essential to a free and open democracy), and the protection of "discrete and insular minorities."

What is perhaps most startling about Ely's work is that, despite the fact that he comes from what may accurately be termed a liberal perspective, he rejects fundamental values as a means of making constitutional law. This rejection is particularly surprising in that so many of the liberal constitutional advances have come in the name of fundamental values. Yet Ely makes his case persuasively, listing and rejecting many of the possible bases for such values (from natural law to the judges' own values to consensus, e.g.).

"Democracy and Distrust" is an eminently accessible book for anyone with even a small background in constitutional law. Though the book would probably be beyond the ken of high-school students or college undergraduates without any exposure to legal thought, certainly no degree in law is required to understand the book. Ely aptly avoids excessive legal jargon and outlines his theory in language designed to persuade, not to impress.

If there is any criticism of "Democracy and Distrust" (and there is), it is that Ely presents his theory nearly in a vacuum. There are most assuredly other theories of judicial review, many of which are quite different from Ely's (to the point, almost, that one suspects there must be more than one Constitution to produce such disparate theories). In addition, there are clearly parts of the Constitution that are not directly concerned with democracy (the Fourth Amendment, for example, which Ely only mentions in passing), and the theory in this book cannot be comprehensive for failure to accommodate these parts of the Constitution.

For anyone with an interest in constitutional law, Ely should be required reading.

24 of 26 people found the following review helpful:

5.0 out of 5 stars A true classic, October 4, 1999

By A Customer

This review is from: Democracy and Distrust: A Theory of Judicial Review (Harvard Paperbacks) (Paperback)

John Ely's masterpiece on the the proper scope of judicial review is a must-read for anyone interested in the Supreme Court or just law in general. In short, Ely feels the Court should limit its power to assuring adequate access to the political process for all and not to giving answers to substantive issues such as abortion, affirmative action, economic rights, etc. In short, the book is a strong defense of the activism of the Warren Court (Ely clerked for Chief Justice Earl Warren and the book is dedicated to his memory). Though the emphasis on the work of the Warren Court may make the book seem a little outdated, the book is nevertheless relevant since it provides a partial justification for the abandonment of substantive due process that conservatives such as Antonin Scalia and Robert Bork have argued for in the 80's and 90's while at the same time defending certain types of judicial activism (for example, in voting rights or gay rights cases) that appeal to liberals. Though Ely's insights into constitutional law are brilliant (his corpus of law review articles from the 70's, many of which form the foundation for this book, provides some of the most well-thought arguments on many diverse areas of constitutional scholarship), his arguments are not without their weakpoints (though you may have to read the book a few times to find them- not a bad idea in any case). Specifically, the manner in which he derives his so-called "representation reinforcement" theory is problematic. It seems to be somewhat of a non sequiter to argue, as he does, that since one of the main themes of constitutional development has been the extension of access to the political process (in the form of the extension of the franchise, abolition of the federal poll tax, etc), the Court's should use such a development as a cue for how to read the Constitution. It not only seems to cheapen the amendment process, but also begs the question of why more democracy is desirable. In addition, Ely's theory of equal protection depends upon a good deal of psychology (trying to read the feelings that motivated legislators and their constituents) that sometimes leaves you scratching your head. While the arguments of the book are not perfect, it would be a mistake to think that any of them are severe enough to detract from the sum total of the wisdom contained in this unparalleled piece of legal scholarship.