Ely and the idea of democracy.

• Author: Schacter, Jane S.

INTRODUCTION I. ELY ON DEMOCRACY II. COMPETING CONCEPTIONS OF ELYIST DEMOCRACY A. Two Lines of Cases 1. Accountability reinforcement 2. Horizontal democracy B. Locating Ely III. SHORTCOMINGS IN ELY'S CONCEPT OF DEMOCRACY INTRODUCTION

It is a great honor to be part of this symposium. John Hart Ely's classic book has helped to shape the intellectual agenda of constitutional scholars ever since it appeared. Democracy and Distrust (1) came out the year before I began law school, and my undergraduate constitutional law professor and mentor told me it was the single book I should read before beginning law school. I did, and Ely's elegant extrapolation of footnote four has profoundly affected my own thinking ever since.

But here is a curious question, given the book's canonical role in the literature on constitutionalism and democracy: what, exactly, did Ely mean by "democracy"? In the avalanche of scholarship triggered by his influential book, scholars have probed from many angles the soundness of Ely's theory about how judicial review might be reconciled with democratic theory. (2) But significant questions about the conceptual contours of democracy as Ely understood it have gone unasked and unanswered by both Ely and his interlocutors.

Democratic theorist Robert Dahl has characterized democracy as "the freedom of self-determination in making collective and binding decisions: the self-determination of citizens entitled to participate as political equals in making the laws and rules under which they will live together as citizens." (3) That characterization may be sufficiently capacious and abstract to secure substantial agreement among democratic theorists, but beyond that, consensus breaks down, and there is a wide range of debate and disagreement about what democracy means. Consider some important questions that have surfaced in this debate: Should democracy be understood in terms of pluralist or deliberative values? As a procedural or a substantive concept? Is democracy established by virtue of regular, competitive elections alone, or is more extensive participation by citizens required? If the latter, what sort of participation satisfies the demands of democratic theory? What does democratic representation mean, and what does it entail? How about citizenship? Political equality? Deliberation? Are there social, economic, or other preconditions for the operation of democracy, and if so, what are they? (4)

In this Article, I explore the underlying concept of democracy that animates Ely's approach and argue three principal points. First, there are significant ambiguities in the concept of democracy as Ely employed it, and these ambiguities are highlighted by exploring two contrasting lines of Supreme Court cases that might be seen as inspired by Ely's ideas. Second, Ely's theory failed to treat democracy as the essentially contested concept that it is and, instead, largely embraced the normative equation of majoritarianism with democracy. In choosing this course, Ely failed to pursue fully the implications of his own powerful insights about the links between social inequality and democracy. Third, the equation of democracy and majoritarianism is unfortunate for many reasons, including an unappreciated one that I focus on here: it rests upon strong assumptions about political accountability that do not fare well under empirical analysis.

1. ELY ON DEMOCRACY

   In Democracy and Distrust, Ely set up the dilemma of constitutionalism in a democracy by pitting "clause-bound interpretivism" (an approach that tethers judges to the clear meaning of constitutional commands) against "noninterpretivism" (an approach that allows judges to use extraconstitutional norms and values to give meaning to ambiguous or open-ended constitutional provisions), (5) and then dismissed both. Interpretivism, Ely lamented, is the more democratic choice, because it restricts courts to value choices already made by "the People" in adopting the Constitution. But he found interpretivism unworkable because so little of the Constitution's text yields to any singular, determinate reading. Ely also rejected noninterpretivist approaches, like those grounded in notions of "fundamental rights" or "natural law," finding them hopelessly indeterminate and, therefore, hopelessly undemocratic by virtue of the judicial license they grant.

   Ely's analysis of the democratic bona tides of interpretivism and noninterpretivism strongly suggests an equation of democracy and majoritarianism. The central menace that Ely attributed to both approaches is the judicial discretion they grant. Indeed, Ely is quite explicit about invoking the countermajoritarian difficulty in its most conventional form: "the central problem[] of judicial review [is that] a body that is not elected or otherwise politically responsible in any significant way is telling the people's elected representatives that they cannot govern as they'd like." (6) He is likewise explicit about seeing "majoritarian democracy" as the "core of our entire system," a system committed to "rule in accord with the consent of a majority of those governed." (7)

   Having used the metric of majoritarianism to reject two leading approaches to constitutional interpretation, Ely then set out his own third way, which appears in the book as a muscular form of proceduralism. For Ely, the Constitution is principally about protecting fair process, not contestable substantive values. Although Ely did not say that he was doing so, here, he did seem to wade into one controversy in the literature on democratic theory--the controversy over whether democracy is best understood as a procedural or substantive concept (8)--and he came down firmly on the side of procedure. (9) Judges, he argued, can be champions of a fair political process without doing violence to the demands of democratic theory. Echoing the second and third paragraphs of the famous Carolene Products footnote four, (10) Ely identified two sorts of characteristic political malfunctions that corrode the democratic process:

   (1) the ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out, or (2) though no one is actually denied a voice or a vote, representatives beholden to an effective majority are systematically disadvantaging some minority out of simple hostility or a prejudiced refusal to recognize commonalities of interest, and thereby denying that minority the protection afforded other groups by a representative system. (11) Ely justified singling out what he took to be democracy's two central malfunctions by appealing to ideas about process and participation. Consider his defense of these concepts of malfunction as they were originally expressed in footnote four:

   I have suggested that both Carolene Products themes are concerned with participation: they ask us to focus not on whether this or that substantive value is unusually important or fundamental, but rather on whether the opportunity to participate either in the political process by which values are appropriately identified and accommodated, or in the accommodation those processes have reached, has been unduly constricted. (12) Having thus specified the two key threats to democracy, Ely offered up two corresponding corrective principles to guide a constitutionally mandated judicial effort to keep the political playing field level. He argued, first, that judges ought to find in the Constitution a principle that insists upon "[c]learing the [c]hannels of [p]olitical [c]hange." (13) This responsibility must fall to judges, not elected legislators, he argued, because "[w]e cannot trust the ins to decide who stays out." (14) Second, Ely argued that judges ought self-consciously to reinforce the political representation given to those minorities whose interests are systematically undervalued by elected officials because the "prejudice" against these groups is "a lens that distorts reality." (15) Contending that minorities who are the object of pervasive hostility are functionally "barred from the pluralist's bazaar," (16) Ely argued that this sort of structural inequality undermines the representative system and merits judicial intervention in the name of fair process. Underscoring the fact that he grounded these concerns about inequality in democratic theory, Ely specifically noted that "[p]opular control and egalitarianism are surely both ancient American ideals; indeed, dictionary definitions of 'democracy' tend to incorporate both." (17)

   Where do Ely's twin principles of open political channels and representation reinforcement lead us in terms of unearthing his underlying concept of democracy? Well, here is where things begin to get ambiguous. On the one hand, Ely remained a strong devotee of the majoritarianism on which he lavished such singular praise in describing the "core" of our system. (18) Indeed, he explicitly offered his democracy-enhancing principles in service of majoritarianism, (19) though perhaps it is more accurate to say he did so in service of a fair majoritarianism. Ely did not want so much to alter or dismantle the "pluralist's bazaar" as to open it to all comers.

   On the other hand, Ely's strong concern with chronically disadvantaged groups suggests that his concept of egalitarianism as part of democracy might go beyond the standard majoritarian understanding. That standard understanding typically chooses formal over substantive equality by calling for universal suffrage; one person, one vote; or other measures connected to the franchise, but does not venture into the uncertain domain of social bias. Ely's focus on the distorting lens of prejudice opens up the possibility that he saw some measure of social equality as part of political equality, (20) or at least that his thematic emphasis on "participation" contemplates participation by disadvantaged groups in a range of settings, not just in voting and elections. That Ely may...