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

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.

This book is very interesting for those that wish to understand the American constitutional system a little better. The author is detailed in his argument about the fallacy of a clause-bound interpretivism. He then analyses the different values-based approaches to constitutional interpretation by delving into theories such as “Substantive Due Process”, “Natural Law”, and Tradition. In the end the author attempts to highlight the ethos of the constitution and its evolution from a structural document, which laid out how the government is to function, to one that empowered the Courts to play the role of an arbiter that serves a counter majoritarian function in the American representative democracy, insofar as it allows for equal participation and protection of minority rights. At the same time the author rejects the notion that within this function the constitution grants the Courts a role in the substantive questions of the day.This book is very detailed and well argued. The author was a well-respected legal theorist and took care to develop every point and counterpoint. I recommend this to all.

Ely's  Democracy and Distrust: A Theory of Judicial Review  attempts to square the circle of the judicial review literature. Ely argues that an interpretivist approach to constitutional review doesn't encounter the same countermajoritarian difficulties of other approaches. Indeed, judicial review and the constitution focus on procedural rules that make democracy workable by protecting every individual's right to participate and vote in democracy. This is different from protecting substantive values, which Ely claims are more ephemeral and shouldn't be constitutionalized (see, 18th amendment). Sometimes Ely's writing is marred by long and confusing sentences. He seems to like sentences interrupted by dashes and completely new ideas. This shouldn't discourage people from reading the book, but might mean it'll take a bit more work to understand his arguments.

john ely's democracy and distrust is a masterfully written book, not terribly thick, destined to be one of the finest discussions / reviews on constitutional law written in the 20th century. i can envision how his thinking took shape and evolved in his days at harvard law. it's a bit soporific, frankly, much of the time, but, within that framework, his writing is a real dream! it's 29 years old, but, it remains, today, a keystone. i wonder if he would have foreseen developments of the last 3 decades? this is outstanding and it is well worth your reading it! A+!

First class analytical approach to constitutional jurisprudence explaining when a constitutional court should decide cases on the merits and when it should defer to other institutions of government. Unfortunately, a majority of the current members of the reject sound analysis in favor of their ideological commitments.

I read this in law school in 1985. I was so impressed that I featured its concepts in my own novel, "By Force Of Patriots," published in 2012.

Lawyers, thinkers and debaters should love this book. It is a travel into deep thinking about judicial review in the US.