University of Michigan
Contemporary constitutional theory, John Hart Ely argues in Democracy and Distrust, is dominated by a false dichotomy between "clause-bound interpretivism" and "noninterpretivism." Clausebound interpretivists, such as the late Justice Hugo Black, believe that "judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution" (p. 1). Noninterpretivists, such as the Supreme Court that produced the majority opinion in Roe v. Wade,2 contend that "courts should go beyond that set of references and enforce [substantive] norms that cannot be discovered within the four comers of the document" (p. 1). The genius of Ely's approach is that it leads to a middle ground, a "third theory" (p. vii) that seeks to avoid the pitfalls and incorporate the strengths of these falsely dichotomous op- posites (pp. 12, 88 & n.*), in the form of a structure-bound "ultimate interpretivism" (p. 88). According to this "participation-oriented, representation-reinforcing approach to judicial review" (p. 87), "the Court should enforce the 'specific' provisions of the Constitution" (p. 76). Moreover, it should set aside decisions of elected representa- tives when the process of representative democracy is undeserving of trust - namely, "when (1) the ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out, or (2) though no one is actually denied a voice or a vote, representatives beholden to an effective majority are systematically disadvantaging some minority. . ." (p. 103). In terms of the titles of Ely's chapters 4, 5, and 6, the proper function of the Supreme Court in American representative democracy is that of "policing the process of representation" by "clearing the channels of political change" and "facilitating the representation of minorities."
A Critique of John Hart Ely's Quest for the Ultimate Constitutional Interpretivism of Representative Democracy
Michigan Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2694