Scholarship in philosophy proceeds at a slower pace than in the law. As Tom Lehrer, the poet laureate of a recent generation, might have said, the law biz travels on a faster track. Or so it seems to a philosopher who has recently been treading the tracks of constitutional lawyers.
And so it is with apprehension that I take as my text a book that was published as long ago as 1980. As the title of this lecture might suggest to someone with so long a memory, the book is John Hart Ely's Democracy and Distrust.' That work provoked an impressive secondary literature.2 But as the pace of commentary has slowed considerably, we who travel in the slower track have had an opportunity to catch up.
I choose Ely's book as my text because I appreciate its merits and regret that it did not rise more above the common run of contemporary constitutional theory. I believe, however, that reflecting on its limits can help us to sharpen our thinking about judicial review.
Fifteen years ago Judge (then Professor) Bork wrdte, "A persistently disturbing aspect of constitutional law is its lack of theory... ." -3 I have a slightly different concern, namely, the impaired development of the theory as it currently exists. I hope it is not ungenerous to mention that I include Bork's own ventures into constitutional theory within the compass of my concern.
I shall first recount Ely's principal ideas and relate them to the theoretical framework into which they were introduced. I shall then suggest some theoretical issues that Ely's ideas raise. I do not offer conclusions but items to be placed upon the agenda of constitutional theory. It may seem as if the literature has already answered some of the questions I shall discuss. My point is that answers are not enough; we suffer from a shortage of well-developed reasons to believe them.
David B. Lyons,
Substance, Process and Outcome in Constitutional Theory
Cornell Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2802