Draft to be presented at Yale Law School Memorial Symposium in honor of John Hart Ely.
Nearly a quarter of a century after its publication, Democracy and Distrust remains the single most perceptive justificatory account of the work of the Warren Court and modern constitutional law more broadly. Yet, the continuing influence of John Hart Ely’s process theory of American constitutional law may seem surprising, given that the account has been incisively criticized as both too limited and too sweeping. Beginning with Laurence Tribe’s "Puzzling Persistence of Process-Based Constitutional Theories" and culminating in the work of Ronald Dworkin and others, critics have argued that the representation-reinforcing approach to interpreting the Constitution is no less laden with controversial value judgments than other, more openly substantive methods, and that therefore, judicial review ought not to be restricted in the way that Ely thought it should be. From the other side, those that Ely called "interpretivists" have invoked (more or less) the same set of arguments as a basis for concluding that the Constitution’s open-ended provisions should be given neither substantive nor procedural content apart from what is narrowly entailed by the original understanding of its framers and ratifiers.
In light of these mirroring critiques, what accounts for the staying power of Democracy and Distrust? The answer, to which Ely himself points in the opening pages of the book, is the popularity of democracy. "We have as a society from the beginning," he writes, "and now almost instinctively, accepted the notion that a representative democracy must be our form of government." By making more-or-less-majoritarian democracy the centerpiece of his account of judicial review, Ely trades on this deeply rooted instinct. Throughout Democracy and Distrust, he invokes "the basic democratic theory of our government" as the standard against which an approach to judicial review should be measured.
Date of Authorship for this Version
Dorf, Michael C., "Putting the Democracy in Democracy and Distrust: The Coherentist Case for Representation Reinforcement" (2004). Columbia Public Law & Legal Theory Working Papers. 0477.