Democracy and Distrust
John Hart Ely
The United States constitution is generally regarded as setting out two distinct sets of rules : procedural rules describing the functioning of the government and substantive rules setting out the fundamental rights the people retains against the government. Put another way, the procedural rules relate to the lawmaking process and the substantive rules relate to the fundamental rights the laws cannot infringe. In Democracy and Distrust, Ely argues that the constitution is in fact overwhelmingly concerned with the law making process and that so called substantive rights should better be understood as merely necessary to the proper functioning of this law making process. Accordingly, Ely proposes a theory ofjudicial review where the role of the courts is limited to a review of the law making process - denying the courts any active role in the protection of justice or freedom and leaving it up to the government alone to weigh these ideals with its own idea of public interest.
At first, this view seems dangerous inasmuch as it prohibits the courts to second guess the government's democratic yetpotentially liberticidal laws and fails to draw any conclusion from the second world war, which showed that democracies were not immune from totalitarian and racist behaviour. Indeed, Ely's view seems to go against the global trend of reinforcing courts' checks on governments (and peoples) in a desperate move to prevent similar atrocities from coming back up again. In fact, Democracy and Distrustcame up in a completely different context, namely the judicial activism of the Warren court, which from 1953 to 1969 rendered some of the supreme court's most progressive decisions, ending racial segregation, extending the application of the Bill of Rights to the states and ending mandatory prayers in public schools. The hallmark of the Warren court was its departure from a textual interpretation ofthe constitution towards a more liberal interpretation that was thought would better suit the ideal of justice. It is in response to this idea of judicial activism that Ely proposed a new interpretation of the court's approach to judicial review supporting his call for judicial restraint. Ely did not reject all ideas of justice, however. He maintains that his theory of judicial review wouldequally be able to preserve freedom and breaks the issue into two : opposing the rule of the majority with the fate of the minority - or more exactly - the various “discrete and insular minorities” that share no interest with the majority and that are so insular that they are unable to engage in vote trading. Ely explains that the majority is in a position to maintain the government under tight controland can thus protect itself against liberticidal laws. The core of Ely's theory then focuses on the minority, which remains at the mercy of the majority. As Ely puts it, “Most often the [constitution] has proceeded on the assumption that assuring access is the best way of assuring that someone's interests will be considered, and so in fact it usually is. Other provisions, however – centrally butnot exclusively the Equal Protection Clause – reflect a realization that access will not always be sufficient”. Indeed, if the minority clearly can free ride on the majority's efforts to scrutinize liberticidal laws that are equally prejudicial to both of them, it remains that the majority has no incentive to prevent liberticidal laws that are only prejudicial to the minority. According to Ely,it is only where the minority cannot free ride on the efforts of the majority that courts should intervene to safeguard its interests. He argues that by striking down liberticidal laws that are only prejudicial to the minority, the courts will be able to reinstate a level playing field between the majority and the minority, realign their interests and permit the minority to free ride on the...