Democracy and Distrust after Twenty Years: Ely's Process Theory and Constitutional Law from 1990 to 2000

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INTRODUCTION

The Constitution speaks in terse, general language. Yet it is this language that the nine unelected, life-tenured Justices of the Supreme Court must interpret when they strike down democratically produced laws. Judicial review is necessary to safeguard minority rights, but democracy is the principle around which this nation's government was formed. This tension between minority rights and majority role is precisely what John Hart Ely hoped to resolve in his now famous book, Democracy and Distrust.(1) Ely argues that a process-oriented, representation-reinforcing approach to interpreting the Constitution can reconcile these competing interests, and he urges the Supreme Court to follow such an approach.

The goal of this note is to compare the decisions of the United States Supreme Court in the last decade with the outcomes for specific areas of constitutional law that Professor Ely suggests in Democracy and Distrust.(2) I hope to add to the body of scholarship that has critiqued Ely's theory and to shed light on the continuing importance (or unimportance) of Ely's theory to modern constitutional interpretation. Part I will describe Ely's book and theory. Part II will briefly examine the response Ely's work has generated in the academic community, and it will explain where this note fits into that body of work. Finally, Part III will summarize the prescriptions Ely's theory has for specific areas of law and explore the relevant Supreme Court cases from the last decade to see to what extent Ely's prescriptions have been followed.(3)

I. ELY'S THEORY OF CONSTITUTIONAL INTERPRETATION

A. Chapter One: The Allure of Interpretivism

Ely opens Democracy and Distrust by introducing the "interpretivism"/ "noninterpretivism" distinction.(4) Interpretivists believe that "judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution" while noninterpretivists think that "courts should go beyond that set of references and enforce norms that cannot be discovered within the four comers of the document."(5) Interpretivists will overturn the work of the political branches only if a law is inconsistent with an inference whose starting point is the text of the Constitution.(6)

Ely finds interpretivism, thus defined, to be attractive for two reasons. First, interpretivism comports with our general notions of statutory interpretation. Second (and more importantly), it is attractive because it is consistent with majoritarian democracy in a way that Ely believes noninterpretivism cannot be.(7) Judicial review of legislation has inherently undemocratic tendencies; it is, after all, the revocation of the will of the majority on the basis of a decision by (in the federal case) life-tenured, unelected judges. But when this revocation finds its basis in the will of the people, as is the case when a judge looks not to natural law, or fundamental values, or some other extra-textual source, but to the text of the Constitution, it can be reconciled with democracy.(8) As Ely puts it: "Thus the judges do not check the people, the Constitution does, which means the people are ultimately checking themselves."(9)

B. Chapter Two: The Impossibility of Clause-Bound Interpretivism

Having just extolled the virtues of interpretivism, Ely turns around and begins to critique it. Interpretivism, at least when a narrow, clause-bound approach is adopted, suggests that "various provisions of the Constitution be approached essentially as self-contained units and interpreted on the basis of their language, with whatever interpretive help the legislative history can provide, without significant injection of content from outside the provision."(10) Unfortunately, this brand of interpretivism, Ely concludes, is fatally flawed because "the constitutional document itself, the interpretivist's Bible, contains several provisions whose invitation to look beyond their four corners--whose invitation, if you will, to become at least to that extent a noninterpretivist--cannot be construed away. …