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Democracy and Distrust: A Theory of Judicial Review (Harvard Paperbacks) Paperback – September 14, 1981

ISBN-13: 978-0674196377 ISBN-10: 0674196376 Edition: New Ed

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Product Details

  • Series: Harvard Paperbacks
  • Paperback: 268 pages
  • Publisher: Harvard University Press; New Ed edition (September 14, 1981)
  • Language: English
  • ISBN-10: 0674196376
  • ISBN-13: 978-0674196377
  • Product Dimensions: 9.2 x 6 x 0.7 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: #309,837 in Books (See Top 100 in Books)

Editorial Reviews


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)

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Most Helpful Customer Reviews

20 of 20 people found the following review helpful By George P. Shadroui on July 11, 2001
Format: Paperback Verified Purchase
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.
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18 of 18 people found the following review helpful By P. Mann VINE VOICE on January 16, 1998
Format: 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.
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24 of 26 people found the following review helpful By A Customer on October 4, 1999
Format: 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.Read more ›
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