Hofstra Law Review Volume 9 | Issue 3 Article 6 1981 Democracy and Distrust. By John Hart Ely Andrew L. Kaufman Follow this and additional works at: http://scholarlycommons.law.hofstra.edu/hlr Recommended Citation Kaufman, Andrew L. (1981) "Democracy and Distrust. By John Hart Ely," Hofstra Law Review: Vol. 9: Iss. 3, Article 6. Available at: http://scholarlycommons.law.hofstra.edu/hlr/vol9/iss3/6 This document is brought to you for free and open access by Scholarly Commons at Hofstra Law. It has been accepted for inclusion in Hofstra Law Review by an authorized administrator of Scholarly Commons at Hofstra Law. For more information, please contact [email protected]. Kaufman: Democracy and Distrust. By John Hart Ely BOOK REVIEW DEMOCRACY AND DISTRUST. By JOHN HART ELY.* Cambridge: Harvard University Press, 1980. Pp. viii, 261. $15.00. Andrew L. Kaufman** My opinion of John Ely's new book, Democracy and Distrust, is revealed by the fact that I agreed to write this review. I do not ordinarily review books by friends or colleagues; criticism would be indelicate and praise suspect. Ely's book is so wonderful and so im- portant and it issues such a challenge to scholarly debate that I have made an exception. This is the rare book that lives up to its dust-cover raves. It must be read by anyone who has any interest in the role of courts in our constitutional scheme. And it can be read easily. Ely is that rare modem legal scholar who knows how to present the most subtle and complex thought in simple English, with charm and often with humor. Beg, borrow, or better yet buy this book, for you will want to have it in your library. The subject is timeless. The book has several major themes. It begins with a discus- sion of the major alternative views of the appropriate method of constitutional adjudication. Ely uses the currently popular labels of interpretivism and noninterpretivism: the former indicating that judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution, the latter the con- trary view that courts should go beyond that set of references and enforce norms that cannot be discovered within the four cor- ners of the document.1 Addressing interpretivism first, Ely points to its obvious at- tractions. Our usual conception of a court's role in interpreting a * Professor of Law, Harvard University. ** Professor of Law, Harvard University,A.B., 1951, LL.B. 1954, Harvard Uni- versity. 1. J. ELY, DEMOCRACY AND DISTRUST 1 (1980) (footnote omitted) (citing Grey, Do We Have an Unwritten Constitution?, 27 STAN. L. REV. 703 (1975)). Published by Scholarly Commons at Hofstra Law, 1981 1 Hofstra Law Review, Vol. 9, Iss. 3 [1981], Art. 6 HOFSTRA LAW REVIEW [Vol. 9:1111 writing is that it limits itself to the express or implicit purposes of the language. Any other theory has enormous difficulty "'reconcil[ing] itself with the underlying democratic theory of our government." 2 He distinguishes two kinds of interpretivism. The first is a "clause bound" interpretivism that seeks to interpret a constitutional provision on the basis of its language and any rele- vant legislative history. The second is a broad form of interpre- tivism proceeding from a realization that a more open-ended constitutional provision cannot be sensibly interpreted solely on the basis of its language and legislative history, and so looks be- yond these criteria. It derives meaning, however, from "general themes of the entire constitutional document and not from some source entirely beyond its four corners." 3 I am sure that no one will accuse me of the premature revelation that "the butler did it" if I say that a broad-form, process-oriented interpretivism is Ely's choice. First, however, Ely demolishes the contenders. Clause-bound interpretivism is easy. Moving from the somewhat open-textured provisions of the Constitution, such as the first and eighth amend- ments, to the extremely open-ended equal protection clause, privi- leges or immunities clause, and ninth amendment,4 Ely demon- strates quite persuasively that these important provisions cannot sensibly be interpreted within their four corners. While their lan- guage and history indicate general concerns, their more specific contents are simply not apparent. I am delighted to see the power- ful support he gives to arguments for a major substantive role for both the privileges or immunities clause and the ninth amend- ment,5 for I have long thought that they were the appropriate um- 2. Id. at 4. 3. Id. at 12. 4. Ely argues that the privileges or immunities clause and the ninth amend- ment, and not the due process clause, should have been the vehicles for considera- tion of constitutional issues, other than those relating to fair procedures, that are not specifically dealt with elsewhere in the Constitution. Id. at 22-41. His argument, based on the language and history of the ninth and fourteenth amendments, is quite powerful, except that it becomes marred to some extent by his rather expansive no- tions of process. His argument is not made for the esthetic purpose of tidying up the Court's his- torically muddled treament of the fourteenth amendment. Ely sees the Court's fal- tering protection of so-called "procedural" due process in Paul v. Davis, 424 U.S. 693 (1976), and its progeny as attributable, at least in part, to its fear of the unconfined nature of the due process clause after "substantive" due process was re- invigorated. J. ELY, supra note 1, at 19. 5. J. ELY, supra note 1, at 22-30, 34-41. Ely quotes with approval Justice http://scholarlycommons.law.hofstra.edu/hlr/vol9/iss3/6 2 Kaufman: Democracy and Distrust. By John Hart Ely 1981] BOOK REVIEW brellas under which much of substantive due process should have been sheltered. Ely's demonstration of the "impossibility of a clause-bound interpretivism" ends on a curious note that sets the tone for the rest of the book. He states: "If a principled approach to judicial en- forcement of the Constitution's open-ended provisions cannot be developed, one that is not hopelessly inconsistent with our nation's commitment to representative democracy, responsible commenta- tors must consider seriously the possibility that courts simply should stay away from them." 6 There are, of course, other possibil- ities. If there is a clash between the words of the open-ended pro- visions and some theory of "representative democracy," Ely's com- mon sense insistence that we focus heavily on the words of the document points to the conclusion that the words should prevail. After all, "representative democracy" is not constitutional language. Any potential theory of "democracy" that is to be given constitu- tional status by inference should be inferred from all the provisions of the Constitution, including the very important open-ended pro- visions. Such a prospect might cause one with Ely's concerns to reexamine the institution of judicial review itself. Short of that, however, a new amendment-e.g., the fourteenth amendment- ought not to be viewed as judicially unenforceable because judges or scholars think its judicial enforcement to be inconsistent with their view of "our representative democracy." That would be the height of anti-constitutionalism. Ely does not pursue this hypothetical problem. Instead, he next considers an alternative theory of constitutional adjudication, noninterpretivism, by which the content of open-ended constitu- tional clauses is provided by identifying those principles that seem "fundamental" at any given time. He identifies several method- ologies for selecting those principles: The judge's own values, natu- Field's dissent in the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1872), which ob- served that if the privileges or immunities clause only refers, as held by the majority of the court in their opinion, to such privileges and immunities as were before its adoption specially designated in the Constitution or necessarily implied as belonging to citizens of the United States, it was a vain and idle enactment, which accomplished noth- ing, and most unnecessarily excited Congress and the people on its passage. Id. at 96 (Field, J., dissenting), quoted in J. ELY, supra, at 22. As to the ninth amend- ment, Ely's point is simply that to reject its open-textured provision of rights and yet accept substantive interpretations of the due process clause "puts the world exactly upside down .... for whereas the Due Process Clause speaks of process, the Ninth Amendment refers to unenumerated rights." J. ELY, supra note 1, at 34. 6. J. ELY, supra note 1, at 41. Published by Scholarly Commons at Hofstra Law, 1981 3 Hofstra Law Review, Vol. 9, Iss. 3 [1981], Art. 6 HOFSTRA LAW REVIEW [Vol. 9:1111 ral law, neutral principles, reason, tradition, consensus, and pre- dicting progress. The judge's own values7 is Ely's bugaboo for, although that methodology is seldom advocated openly, he believes that judges who adopt the noninterpretivist position often reach decisions based simply on their own values. Natural law8 is quickly dismissed as either providing such general or abstract principles as to be useless in adjudication or as losing its universality if specific content is sought. Herbert Wechsler's neutral principles9 also fail the test because they "do not provide a source of substantive con- tent."10 Reason, 1" that is, moral reasoning, also fails because it pro- vides too much substantive content. One person's moral right is so often another's moral wrong. Tradition 12 has a similar problem: Whose tradition? Moreover, tradition, which is backward looking, seems an odd source of values for an open-ended provision capable of growth.