Democracy and Distrust: Theory of Judicial Review (Harvard Paperbacks) [Paperback]

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.

What is perhaps most startling about Ely's work is that, despite the fact that he comes from what may accurately be termed a liberal perspective, he rejects fundamental values as a means of making constitutional law. This rejection is particularly surprising in that so many of the liberal constitutional advances have come in the name of fundamental values. Yet Ely makes his case persuasively, listing and rejecting many of the possible bases for such values (from natural law to the judges' own values to consensus, e.g.).

"Democracy and Distrust" is an eminently accessible book for anyone with even a small background in constitutional law. Though the book would probably be beyond the ken of high-school students or college undergraduates without any exposure to legal thought, certainly no degree in law is required to understand the book. Ely aptly avoids excessive legal jargon and outlines his theory in language designed to persuade, not to impress.

If there is any criticism of "Democracy and Distrust" (and there is), it is that Ely presents his theory nearly in a vacuum. There are most assuredly other theories of judicial review, many of which are quite different from Ely's (to the point, almost, that one suspects there must be more than one Constitution to produce such disparate theories). In addition, there are clearly parts of the Constitution that are not directly concerned with democracy (the Fourth Amendment, for example, which Ely only mentions in passing), and the theory in this book cannot be comprehensive for failure to accommodate these parts of the Constitution.

For anyone with an interest in constitutional law, Ely should be required reading.