Democracy and distrust after twenty years: Ely's process theory and constitutional law from 1990 to 2000.

AuthorBoynton, Brian
PositionJohn Hart Ely

INTRODUCTION

The Constitution speaks in terse, general language. Yet it is this language that the nine unelected, life-tenured Justices of the Supreme Court must interpret when they strike down democratically produced laws. Judicial review is necessary to safeguard minority rights, but democracy is the principle around which this nation's government was formed. This tension between minority rights and majority role is precisely what John Hart Ely hoped to resolve in his now famous book, Democracy and Distrust.(1) Ely argues that a process-oriented, representation-reinforcing approach to interpreting the Constitution can reconcile these competing interests, and he urges the Supreme Court to follow such an approach.

The goal of this note is to compare the decisions of the United States Supreme Court in the last decade with the outcomes for specific areas of constitutional law that Professor Ely suggests in Democracy and Distrust.(2) I hope to add to the body of scholarship that has critiqued Ely's theory and to shed light on the continuing importance (or unimportance) of Ely's theory to modern constitutional interpretation. Part I will describe Ely's book and theory. Part II will briefly examine the response Ely's work has generated in the academic community, and it will explain where this note fits into that body of work. Finally, Part III will summarize the prescriptions Ely's theory has for specific areas of law and explore the relevant Supreme Court cases from the last decade to see to what extent Ely's prescriptions have been followed.(3)

  1. ELY'S THEORY OF CONSTITUTIONAL INTERPRETATION

    1. Chapter One: The Allure of Interpretivism

      Ely opens Democracy and Distrust by introducing the "interpretivism"/ "noninterpretivism" distinction.(4) Interpretivists believe that "judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution" while noninterpretivists think that "courts should go beyond that set of references and enforce norms that cannot be discovered within the four comers of the document."(5) Interpretivists will overturn the work of the political branches only if a law is inconsistent with an inference whose starting point is the text of the Constitution.(6)

      Ely finds interpretivism, thus defined, to be attractive for two reasons. First, interpretivism comports with our general notions of statutory interpretation. Second (and more importantly), it is attractive because it is consistent with majoritarian democracy in a way that Ely believes noninterpretivism cannot be.(7) Judicial review of legislation has inherently undemocratic tendencies; it is, after all, the revocation of the will of the majority on the basis of a decision by (in the federal case) life-tenured, unelected judges. But when this revocation finds its basis in the will of the people, as is the case when a judge looks not to natural law, or fundamental values, or some other extra-textual source, but to the text of the Constitution, it can be reconciled with democracy.(8) As Ely puts it: "Thus the judges do not check the people, the Constitution does, which means the people are ultimately checking themselves."(9)

    2. Chapter Two: The Impossibility of Clause-Bound Interpretivism

      Having just extolled the virtues of interpretivism, Ely turns around and begins to critique it. Interpretivism, at least when a narrow, clause-bound approach is adopted, suggests that "various provisions of the Constitution be approached essentially as self-contained units and interpreted on the basis of their language, with whatever interpretive help the legislative history can provide, without significant injection of content from outside the provision."(10) Unfortunately, this brand of interpretivism, Ely concludes, is fatally flawed because "the constitutional document itself, the interpretivist's Bible, contains several provisions whose invitation to look beyond their four corners--whose invitation, if you will, to become at least to that extent a noninterpretivist--cannot be construed away."(11)

      Ely next sets out to canvas the Constitution in support of his assertion that clause-bound interpretivism must fail because some clauses explicitly call for the injection of content from without. He argues that the Constitution contains clauses that range along a spectrum from specific to open. On the specific end are clauses like the requirement that the President have attained the age of thirty-five.(12) On the other end are clauses like the Ninth Amendment and the Fourteenth Amendment's Equal Protection and Privileges or Immunities Clauses. In between are provisions like the First Amendment and the Eighth Amendment's Cruel and Unusual Punishment Clause.(13) While these provisions that fall in the middle ground are to a degree open-ended, (14) they are bounded by subject matter, and unlike the Fourteenth and Ninth Amendments they do not allow judicial review of "the entire range of government action."(15)

      At this point Ely dives headlong into some of the most important provisions of the Constitution in order to prove how open-ended some of them are. He ultimately concludes that any substantive values that the Court might want to read into the Constitution should rest on the Ninth Amendment, the Equal Protection Clause, and the Privileges or Immunities Clause. We could simply accept this conclusion and move on to look at how Ely plans to supply that content in a manner consistent with democratic rule. But Ely's conclusions are sufficiently startling to warrant at least a quick review of his analysis.(16)

      1. Due process.

        Substantive due process, the body of law that brought us Lochner(17) as well as Roe v. Wade,(18) Ely states, "is a contradiction in terms--sort of like `green pastel redness.'"(19) Not only is the argument that "due process" contains a substantive component textually implausible, argues Ely, but it is also historically unsubstantiated.(20) This is tree for both the Fourteenth and Fifth Amendments.(21) For these reasons, and in order to prevent inhibitions on the intelligent growth of procedural due process jurisprudence, Ely argues that any substantive component to both Amendments should be rooted elsewhere.(22)

      2. Privileges or Immunities.

        If the Fourteenth Amendment is to embody a substantive component, Ely believes it should do so in the Privileges or Immunities Clause. That Clause reads: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States."(23)This language, Ely asserts, unlike that of the Due Process Clause, facially appears to guarantee unenumerated substantive rights.(24) Such a broad reading, he recognizes, directly contradicts the Slaughter-House Cases.(25) But Ely argues that the case was wrongly decided. First, the Slaughter-House Court's reading of the Clause as only encompassing rights already protected in the Constitution is textually unsound,(26) and second, the legislative history in no way supports such a view.(27) Ely concludes:

        Thus the most plausible interpretation of the Privileges or Immunities Clause is, as it must be, the one suggested by its language--that it was a delegation to future constitutional decision-makers to protect certain rights that the document neither lists, at least not exhaustively, nor even in any specific way gives directions for finding.(28) 3. Equal protection.

        Ely argues that from the face of the Equal Protection Clause it is clear that the Clause is about equality, and from the history of the framing of the Fourteenth Amendment we know that equality for African Americans was a major goal of the provision.(29) He also submits that we know that the choice of "general language, not tied to race, was a conscious one."(30) This might lead us to scrutinize all unequal classifications (economic, racial, and otherwise). Once we do that, however, we are forced to adopt a two-tiered approach to equal protection: deferential review for economic regulation and strict review of laws that racially classify. But the text of the Clause gives us little guidance. This open-endedness is even more severe when one considers that "any challenge, can be put in an equal protection framework by competent counsel."(31) Thus Ely concludes that the Equal Protection Clause amounts to "a rather sweeping mandate to judge ... the validity of governmental choices."(32)

        As for the problem of reverse incorporation of the Equal Protection Clause, Ely, consistent with his view that the Due Process Clauses of the Fifth and Fourteenth Amendments should be procedural only,(33) urges that the Ninth Amendment is the proper vehicle for such a move.(34)

      3. Ninth Amendment.

        Ely describes the Ninth Amendment, which applies to the federal government and states that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,"(35) as "that old constitutional jester."(36) But for Ely the prospect of giving content to the Ninth Amendment is no laughing matter. Ely puts more stock in the language of the Ninth Amendment than your typical commentator and the language speaks of unenumerated rights. He recognizes that other accounts of the Amendment are possible, but in the end asserts: "[T]he conclusion that the Ninth Amendment was intended to signal the existence of federal constitutional rights beyond those specifically enumerated in the Constitution is the only conclusion its language seems comfortably able to support."(37)

        With that, Ely has taken us on a tour of the Constitution, reshaped the landscape a bit, and hopefully convinced us that some provisions of the Constitution simply cannot be understood according to a clause-bound interpretivist theory; they call for the injection of content from outside the individual clauses. But the narrow form of interpretivism that Ely has just shown to be impossible is not the...

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