Academic journal article Stanford Law Review

Ely and the Idea of Democracy

Academic journal article Stanford Law Review

Ely and the Idea of Democracy

Article excerpt

INTRODUCTION
I. ELY ON DEMOCRACY
II. COMPETING CONCEPTIONS OF ELYIST DEMOCRACY
    A. Two Lines of Cases
       1. Accountability reinforcement
       2. Horizontal democracy
    B. Locating Ely
III. SHORTCOMINGS IN ELY'S CONCEPT OF DEMOCRACY

INTRODUCTION

It is a great honor to be part of this symposium. John Hart Ely's classic book has helped to shape the intellectual agenda of constitutional scholars ever since it appeared. Democracy and Distrust (1) came out the year before I began law school, and my undergraduate constitutional law professor and mentor told me it was the single book I should read before beginning law school. I did, and Ely's elegant extrapolation of footnote four has profoundly affected my own thinking ever since.

But here is a curious question, given the book's canonical role in the literature on constitutionalism and democracy: what, exactly, did Ely mean by "democracy"? In the avalanche of scholarship triggered by his influential book, scholars have probed from many angles the soundness of Ely's theory about how judicial review might be reconciled with democratic theory. (2) But significant questions about the conceptual contours of democracy as Ely understood it have gone unasked and unanswered by both Ely and his interlocutors.

Democratic theorist Robert Dahl has characterized democracy as "the freedom of self-determination in making collective and binding decisions: the self-determination of citizens entitled to participate as political equals in making the laws and rules under which they will live together as citizens." (3) That characterization may be sufficiently capacious and abstract to secure substantial agreement among democratic theorists, but beyond that, consensus breaks down, and there is a wide range of debate and disagreement about what democracy means. Consider some important questions that have surfaced in this debate: Should democracy be understood in terms of pluralist or deliberative values? As a procedural or a substantive concept? Is democracy established by virtue of regular, competitive elections alone, or is more extensive participation by citizens required? If the latter, what sort of participation satisfies the demands of democratic theory? What does democratic representation mean, and what does it entail? How about citizenship? Political equality? Deliberation? Are there social, economic, or other preconditions for the operation of democracy, and if so, what are they? (4)

In this Article, I explore the underlying concept of democracy that animates Ely's approach and argue three principal points. First, there are significant ambiguities in the concept of democracy as Ely employed it, and these ambiguities are highlighted by exploring two contrasting lines of Supreme Court cases that might be seen as inspired by Ely's ideas. Second, Ely's theory failed to treat democracy as the essentially contested concept that it is and, instead, largely embraced the normative equation of majoritarianism with democracy. In choosing this course, Ely failed to pursue fully the implications of his own powerful insights about the links between social inequality and democracy. Third, the equation of democracy and majoritarianism is unfortunate for many reasons, including an unappreciated one that I focus on here: it rests upon strong assumptions about political accountability that do not fare well under empirical analysis.

I. ELY ON DEMOCRACY

In Democracy and Distrust, Ely set up the dilemma of constitutionalism in a democracy by pitting "clause-bound interpretivism" (an approach that tethers judges to the clear meaning of constitutional commands) against "noninterpretivism" (an approach that allows judges to use extraconstitutional norms and values to give meaning to ambiguous or open-ended constitutional provisions), (5) and then dismissed both. Interpretivism, Ely lamented, is the more democratic choice, because it restricts courts to value choices already made by "the People" in adopting the Constitution. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.