Democracy and Distrust: A Theory of Judicial Review

This powerfully argued appraisal of judicial review may change the face of American law. Written for layman and scholar alike, the book addresses one of the most important issues facing Americans today: within what guidelines shall the Supreme Court apply the strictures of the Constitution to the complexities of modern life? Until now legal experts have proposed two basic approaches to the Constitution. The first, "interpretivism," maintains that we should stick as closely as possible to what is explicit in the document itself. The second, predominant in recent academic theorizing, argues that the courts should be guided by what they see as the fundamental values of American society. John Hart Ely demonstrates that both of these approaches are inherently incomplete and inadequate. Democracy and Distrust sets forth a new and persuasive basis for determining the role of the Supreme Court today. Ely's proposal is centered on the view that the Court should devote itself to assuring majority governance while protecting minority rights. "The Constitution," he writes, "has proceeded from the sensible assumption that an effective majority will not unreasonably threaten its own rights, and has sought to assure that such a majority not systematically treat others less well than it treats itself. It has done so by structuring decision processes at all levels in an attempt to ensure, first, that everyone's interests will be represented when decisions are made, and second, that the application of those decisions will not be manipulated so as to reintroduce in practice the sort of discrimination that is impermissible in theory." Thus, Ely's emphasis is on the procedural side of due process, on the preservation of governmental structure rather than on the recognition of elusive social values. At the same time, his approach is free of interpretivism's rigidity because it is fully responsive to the changing wishes of a popular majority. Consequently, his book will have a profound impact on legal opinion at all levels-from experts in constitutional law, to lawyers with general practices, to concerned citizens watching the bewildering changes in American law.

Table of Contents:
1. The Allure of Interpretivism 2. The Impossibility of a Clause-Bound Interpretivism 3. Discovering Fundamental Values 4. Policing the Process of Representation: The Court as Referee 5. Clearing the Channels of Political Change 6. Facilitating the Representation of Minorities Conclusion Notes Index

About the Author :
John Hart Ely was Robert E. Paradise Professor of Law, Stanford Law School.

Review :
John Ely takes a fresh and bold look at one of our oldest national mysteries, the justification for judicial power in a democracy. He slices away at some of my favorite legal theories, and he is devastating. But he does it with such understanding and even humor that it seems not bloody but enlightening. We are dealing, ladies and gentlemen, with a truly stylish mind in Mr. Ely. Even if one rejects his argument…one cannot fail to enjoy the intellectual zest with which he tackles a host of issues, large and small, along the way… Ely’s mere presence on the scene is almost enough to guarantee a stimulating period in constitutional theory during the years to come. Wry, witty, and endowed with both dignity and informality. Would that more lawyers (including judges) could write half so well. Democracy and Distrust will have a wide influence for a long time… Ely writes simply and engagingly with a sense of humor. Yet the reader had better keep his wits about him lest he miss the subtleties. Much of the charm is in the author’s candor in facing hard questions. Much of it lies in his good common sense. This is the most important book about law in at least fifteen years. It is a great book… In developing his new and exciting theory, Ely spins off important insights like sparks from a generator. This is the rare book that lives up to its dust-cover raves. The single most important contribution to the American theory of judicial review written in this century.