Democracy and distrust book review
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 law making 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 of judicial 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 yet potentially 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 Distrust came 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 of