A review of Democracy and Distrust: A Theory of Judicial Review, by John Hart Ely

The proper role of the Supreme Court in the American constitutional order has been vigorously debated from the inception of the Constitution. Today the argument usually forms around the question of whether the Court should be "activist" or "nonactivist." More often than not, the argument centers on the Court's role in interpreting the Fourteenth Amend­ment, particularly the Equal Protection Clause. What distinguishes today's de­bates from those of previous years is that today's arguments are no longer couched in terms of the necessities and requirements of judicial statesmanship. The great jurists—Chief Justice Marshall preeminent among them—thought the Court's role was primarily one of bring­ing the enduring principles of the Ameri­can polity to bear on particular constitu­tional issues. Today's jurists are more likely to view the Constitution as a pro­cedural instrument informed by no purposes or principles beyond the proce­dures themselves.

There is little doubt, for example, that equal protection of the laws is intimately connected to constitutional government. All civil liberties, in one form or another, are traceable to this basic constitutional precept. As a constitutional precept, equal protection of the laws derives its dignity from the fact that it is the conven­tional reflection of the principles that flow directly from natural human equal­ity. Questions of equal protection thus inevitably propel us into considerations of first principles, or what used to be known as regime questions. Such funda­mental questions lay bare the principles of the regime and provide, as it were, occasions for the periodic return to the origins of the regime. However, these questions of principle are no longer known as "regime questions." This is attributable to a very simple reason: the Supreme Court and most authoritative commentators no longer believe that the United States is a regime, let alone one informed by fundamental principles. Justice Stevens, for example, quoted favorably this remarkable statement in a recent case: ". . . the last few years have reawakened our appreciation of the primacy of process over product in a free society. . . . If this republic is remembered in the distant history of law, it is likely to be for its enduring adherence to legitimate institutions and processes, not for its perfection of unique principles of justice, and certainly not for the rationality of its laws."

Most of those who debated the Reconstruction Amendments knew they were engaged in a debate about fundamental principles, and not simply about the procedures and processes of the Constitution. Such an artificial separation of the consideration of means and ends was not a part of the intellectual horizon of the 1860's. Indeed, the Reconstruction Amendments can be properly viewed only as an attempt to complete the work of the Founding. The regime of the Founders was incomplete precisely because it had countenanced the continued existence of slavery. Even if the Constitution placed the institution of chattel slavery on what Lincoln rightly termed "the road to ultimate extinction," the Constitution was still inconsistent with the principled injunctions of the Declaration: that "all men are created equal" and—as a necessary consequence of equality—that the moving principle of legitimate government is the "consent of the governed." These principles—in the words of The Federalist, "the fundamental principles of the revolution"—provided theanimus of the Constitution.

Thaddeus Stevens, the leading Radical Republican, made this precise point in a speech urging the adoption of the Fourteenth Amendment before the House on May 8, 1866.

I beg gentlemen to consider the magnitude of the task which was imposed upon the [Joint Committee on Re­construction]. They were expected to suggest a plan for rebuilding a shattered nationa nation which though not dissevered was yet shaken and riven . . . through four years of bloody war. It cannot be denied that this terrible struggle sprang from the vicious principles incorporated into the institutions of our country. Our fathers had been compelled to postpone the principles of their great Declaration, and wait for their full establish­ment till a more propitious time. That time ought to be present now.

References to the Declaration as "organic law" were so frequent throughout the debates that one can hardly doubt that the Reconstruction Congress was self­-consciously engaged, in some sense, in ratifying a refounding of the regime by embodying in the Constitu­tion the victories that had been won on the battlefields of the Civil War.

Professor John Hart Ely's Democracy and Distrust: A Theory of Judicial Review is the most recent attempt to interpret the Constitution as an exclusively procedural document. Ely self-consciously represents his "theory of judicial review" as a dialectical mean between the extremes of constitutional interpretation—what he terms "interpretivism" and "non-interpretivism." The "interpretivist" maintains that constitutional issues can be resolved by "enforcing norms that are stated or dearly implicit in the written Constitution." The "non-interpretivist," on the other hand, asserts that it is necessary to go beyond the Constitution and "enforce norms that cannot be discovered within the four corners of the document." Both of these positions are defective in Ely's view; the "interpretivist" because it can provide no guidance for interpreting the Constitution's "open-textured" phrases (e.g., Equal Protection, Due Process, Ninth Amendment), and the "non-interpretivist" be­cause it can provide no reliable standards outside the Constitution. Such purported standards as "natural law," "neutral principles," "reason," "tradition," "con­sensus," and "progress" are all tested by Ely's irrefrag­able logic and found lacking as potential sources for informing or illuminating the Constitution. Ely never identifies the adherents of these two schools of constitu­tional interpretation with any precision, and indeed it would be difficult to find anyone who adhered exclu­sively to one position or the other. Ely's own position, as it turns out, is virtually indistinguishable from the "non-interpretivist" position.

According to Ely, the defects of both the "interpre­tivist" and the "non-interpretivist" position can be avoided by viewing the Constitution as a procedural instrument which is indifferent to "substantive values."

Contrary to the standard characterization of the Con­stitution as an "enduring but evolving statement of general values," is that in fact the selection and accommodation of substantive values is left almost entirely to the political process and instead the document is over­whelmingly concerned, on the one hand, with pro­cedural fairness in the resolution of individual disputes (process writ small), and on the other, with what might capaciously be designated process writ largewith in­suring broad participation in the processes and distribu­tions of government, (p. 87)

In this regard the Warren Court represents for Ely the epitome of process oriented constitutional interpreta­tion. It sought not only "to insure that the political process . . . was open to those of all viewpoints on something approaching an equal basis," but also "that everyone was being similarly accommodated" with respect to the "bounty of representative government," i.e., the "patterns of distribution generally" (p, 74).

Ely ultimately proves to be wrestling with a problem that is endemic to democracy and one that the Framers of the Constitution understood quite well. According to Ely,

Rule in accord with the consent of the majority of those governed is the core of the American governmental system. Just as obviously, however, that cannot be the whole story, since a majority with untrammeled power . . . is in a position to deal itself benefits at the expense of the remaining minority. . . . This . . . has been under­stood from the beginning, and indeed the Constitution contains several sorts of devices . . . to combat it. The tricky task has been and remains that of devising a way or ways of protecting minorities from majority tyranny that is not a flagrant contradiction of the principle of majority rule. . . . (pp. 7-8)

His solution is at once to charge the Supreme Court with insuring that the channels of political participation (the representative process) remain open, and to insulate minorities from "majority tyranny." The latter he would accomplish by casting the Court in the role of virtual representative of "discrete and insular minorities," any group "we know to be the object of widespread vilifica­tion, groups we know others . . . might wish to injure" (p. 153, emphasis added). Ely would thus literally engraft onto the Constitution a theory of virtual representation, not only for the vindication of constitutional entitlements but also for "constitutionally gratui­tous" rights as well—"benefits, goods, rights, exemp­tions, or whatever" (p. 136). He maintains this view is justified by a "literal", reading of the Constitution's "open-textured" phrases, particularly the Fourteenth Amendment's Equal Protection Clause and the Ninth Amendment. But this literal reading proves to be nothing more than a vehicle for reading into the Constitution an extended liberalism. Ely's reading of the Constitution thus reveals him to be the quintessential "non-interpretivist." What, we might be allowed to wonder, are the standards that Ely uses to vindicate his own new found brand of "non-interpretivism?"

Interesting in this respect is Ely's treatment of the question of natural law. Ely concedes that the Declara­tion of Independence had referred to "the laws of Na­ture and Nature's God" as the standard of legitimate government. But, according to Ely, this reference was not serious.

The Declaration of Independence was, to put it bluntly, a brief. . . . People writing briefs are likely, and often well advised, to throw in arguments of every hue. People writing briefs for revolution are obviously un­likely to have apparent positive law on their side, and are therefore well advised to rely on natural law. This the argument for our Revolution did, combining natural law, both English and colonial, to the genuine 'will of the people,' to the 'rights of Englishmen'in short with references to anything that seemed to help. (p. 49)

Ely goes on to note that, in any case, "The idea [of natural law] is a discredited one in our society" and, he adds, "for good reason." According to Ely, natural law arguments can be used to support any position or preference because they are so "uselessly vague" that one is forced "to choose between triviality and implausibility" (pp. 50-52). It is certainly true today that the idea of natural law has generally been discredited, but it is emphatically not true that the Framers regarded the arguments of the Declaration as merely a "lawyer's brief." In fact, the arguments flowing from "the laws of Nature and Nature's God"—the central proposition being that "all men are created equal"—were rightly considered by the Framers as the only reasonable (i.e., nonarbitrary) basis for human society. They believed that any government which does not rest on this univer­sal proposition will become despotic because it does not depend upon law, but upon human fiat. Government is necessary to protect rights, but it is not the creator of those rights. Rights exist because of natural equality, that unique human distinction which makes each individual by nature the executor of his own life, liberty, and pursuit of happiness. If we begin with any proposition other than natural human equality, we introduce arbitrary and unreasonable class distinctions among human beings. "Consent of the governed," as the mov­ing principle of legitimate government, is a necessary inference from the "Laws of Nature and Nature's God," and thus the only reasonable basis for human society. One wonders how Ely can posit "equal concern and respect" as the central problem of constitutional govern­ment without some notion of natural equality. Without this "natural law" proposition, Ely's preference for "equal concern and respect" is arbitrary. Needless to say, the regime he would envision to foster his prefer­ence would be arbitrary as well.

Ely does not believe that reason has any constitutional role to play because "reason alone can't tell you any­thing: it can only connect premises to conclusions." Besides, reason is "so flagrantly elitist and undemocratic that it should be dismissed forthwith" and, in any case, could only support the values of "the reasoning class" (p. 56). But Jefferson knew that reason was not the exclusive preserve of any particular social or economic class, and would serve as the certain means of overturn­ing the feudal system which was based on what he called "monkish ignorance." Without reason—without what might be called the irrefragable dictates of the "Laws of Nature and Nature's God"—what grounds are there for human community? One might appeal to tra­dition or consensus. Ely rejects these as well, because tradition and consensus do not always support demo­cratic values. Why one should value democracy on Ely's terms remains a mystery; presumably because it can be valued without itself being a value. One wonders, in addition, to what extent there could be democratic values without a democratic tradition or consensus, both of which would seem to be necessary (but not sufficient) conditions of any constitutional regime based on the "consent of the governed." Lincoln remarked that in democracies "public sentiment is everything. With public sentiment nothing can fail; without it, nothing can succeed. Consequently he who molds public sentiment goes deeper than he who enacts statutes or pronounces decisions." To say, therefore, as Ely in effect does, that tradition and consensus are not the sufficient conditions for the preservation of democratic values, does not mean ipso facto that they are not neces­sary conditions.

It is difficult to imagine that one of the nation's leading legal scholars would reason that the law finds its sup­port neither in nature, nor reason, nor tradition, nor consensus, but in some basically arbitrary (i.e., un­reasoning) preference for democratic procedural values. Statesmanship—particularly judicial statesmanship—is the ability to distinguish between the necessary and sufficient conditions of democratic constitutional order, and to gauge their interplay within the interstices of specific constitutional pronouncements. The Framers understood that statesmanship is more complex and variegated than a mere adherence to procedures and processes. And, as Ely himself ultimately demonstrates, there is no way to avoid difficult substantive questions in politics. A precise theoretical understanding of first principles is a necessary requisite to the prudential choices demanded of true statesmen.

Ely's argument that the Supreme Court should serve as the virtual representative of "disfavored classes," as a way of overcoming the characteristic problem of re­publican government, is one that the Framers of the Constitution considered dangerous to constitutional government. The intrusion of class politics into the Con­stitution is clearly at odds with the principles of the regime—principles which are ultimately derived from the proposition that "all men are created equal." Class considerations explicitly deny this notion of equality by abstracting from the individual and ascribing to him class characteristics that are different from—and neces­sarily unequal to—those of other classes. If there were no inequalities implicit in class distinctions, such dis­tinctions would simply be superfluous.

The Framers of the regime knew well that class poli­tics, whatever its character, was incompatible with the moving principles of liberal government. In a large di­verse republic, Madison reasoned, it would rarely be in the interest of the majority to invade the rights of the minority. In Madison's own words, there is less proba­bility that "a majority will have a common motive to invade the rights of other citizens." It is unlikely that there would be either permanent class interests, or that there would be permanent majorities and permanent minorities. Thus the majority would never develop a sense of its own identity and interest as a majority. The majorities that do form will be essentially composed of coalitions of minorities that come together for limited self-interested purposes. As private interest groups, they remain largely unaffected by the fact that they have become a part of the majority. By and large the solution of the Framers has worked remarkably well.

Nonetheless, Professor Ely is at odds with this under­standing. He argues that,

We are a nation of minorities and our system thus depends on the ability and willingness of various groups to apprehend those overlapping interests that can bind them into a majority on a given issue; prejudice blinds us to overlapping interests that in fact exist. As Frank Goodman put it so well eight years ago: "Race prejudice divides groups that have much in common (blacks and poor whites) and unites groups (white, rich and poor) that have little else in common than their antagonism for the radical minority. Race prejudice, in short, pro­vides the 'majority of the whole' with that 'common motive to invade the rights of other citizens' that Madison believed improbable in a pluralistic society.

Ely points to no specific examples but, like the Supreme Court in some of its recent cases, assumes the existence of a "monolithic" white majority from which "discrete and insular minorities" are permanently excluded. But the kind of permanent white majority that Ely and a majority of the Court have manufactured, has never existed in American politics, not even before the Civil War. Nevertheless, Ely would establish as a solution a modified version of Kant's categorical imperative, one that does not depend on its universality as a guarantee of justice, but one that rests on the positive disad­vantage of the majority. He argues that only legislation which imposes disadvantages upon the majority would be constitutionally nonsuspect. Only the imposition of such disadvantages insures the possibility that legisla­tion, which on its face has no discriminatory purpose, is really nondiscriminatory.

The Court has come very close to this position in its recent interpretations of the Fourteenth Amendment, the Civil Rights Act of 1964 (Weber), The Voting Rights Act of 1965 (United Jewish Organizations), and the Public Works Employment Act of 1977 (Fullilove). The Court has viewed these essentially as remedies fashioned by a permanent, monolithic majority for the relief of discrete and insular minorities. These remedies necessarily impose disadvantages on individual members of the majority. But the Court, like Professor Ely, is mistaken; the guarantee of justice does not rest upon a test of who is disadvantaged or whether the disadvantage amounts to "stigma," but whether the common good is served. The most obvious cases in point are the Civil Rights Act of 1964 and the Voting Rights Act of 1965. The singular fact to emerge from the 1960 election was the solid vote of urban blacks which accounted for Kennedy's narrow margin of victory over Nixon. Since this same urban vote had gone for Eisenhower in 1956, the evident politi­cal strategy for the Democrats in the 1960's was to con­solidate this vote in the Democratic camp. The Civil Rights Act of 1964 and the Voting Rights Act of 1965, whatever altruism they may have displayed as remedies for "historic" discrimination, were a large part of the attempt to keep the urban black vote solidly Democratic. They were thus, not laws intended to protect those who were "isolated from the majoritarian political process," but a recognition that blacks had become a significant and crucial part of the governing majority.

This is Madisonian politics at its best, creating a situa­tion where it is in the interest of the majority to protect and extend the rights and interests of the minority. Probably no finer examples of legislation serving the common good in this respect can be found than the Civil Rights Act of 1964 and the Voting Rights Act of 1965. But treating these acts as class remedies for class injuries undermines the ground of the common good upon which they rest. Understanding American politics in terms of "monolithic" majorities and "discrete and insu­lar minorities" precludes the possibility of creating a common interest or common ground that transcends racial or class considerations. By transforming the Fourteenth Amendment into an instrument of class politics, the Court—and Professor Ely—run the consid­erable risk either of making a majority faction more likely, as the majority inevitably becomes more aware of itself as a majority, or of transforming the liberal regime into one no longer based on majority rule.