The elusive search for constitutional integrity: a memorial for John Hart Ely.

AuthorIssacharoff, Samuel
PositionTestimonial

Constitutions tend to be open-textured, and the American Constitution notoriously so. Elusive placeholders such as due process or equal protection or republican guarantees all point to major concerns of the time of their ratification. But how they are to be implemented and made to function in a society of increased size and complexity is the transcendent problem of constitutional law. Take but one small and noncontroversial example of the problems of an aging text. Article I, Section 8 of the Constitution authorizes the Congress to provide and maintain armies and a navy, then quite explicitly defines this power as the ability to regulate "land and naval Forces." Does this make the creation and funding of an air force unconstitutional? No one that I am aware of has taken a fascination with either textualism or originalism so far as to demand the abolition of the air force, or its devolution to the states. And yet there is a difficult balance to be struck between what Hamilton disparagingly called "old parchments, or musty records" (1) and some level of "obduracy" (2) that constrains the exercise of governmental power.

The major advances in American constitutional theory have come incrementally, following the lawyer's craft of addressing major questions as they are presented concretely in defining cases such as Plessy, or Lochner, or Brown, or Roe--the equivalent legal stars to the one-named icons of the pop world, such as Sting or Madonna. As a result, constitutional scholarship in our time has generally not been dominated by books. The fluidity of law, the groundedness of it, and the resources behind it all seem to push in the direction of journal articles. There are, of course, books published in law all the time. But leaving aside the casebooks and the treatises, few have achieved a transcendent importance, one that protects them from the remainder bins at campus bookstores.

Democracy and Distrust (3) is clearly one work that distinguishes itself in postwar American law. The interesting question is why. Part of the answer may have to do with the quirky and irrepressible voice of its formidable author, John Hart Ely. Ely's idiosyncratic turns of phrase are always arresting. We find argument embellished as being "plain as a pikestaff," (4) as if the armaments of foot soldiers remain the cultural standard. Or elsewhere, we find that gerrymandered districts were "routinely dissected, nay scrimshawed" (5) to gather up black constituents, again as if the tools of the whaling trade pressed upon us as vividly as they had upon the pursuers of Moby Dick. But this is, of course, the same John Ely who would have his telephone answering machine bark out, "Call me Voice Mail."

The substantial part of why Democracy and Distrust stands out, however, is the rare gift of being able to capture the issues of the moment in a way that invites the inquiry of the future. And there is no mistaking that Democracy and Distrust was a book of its moment. The subtitle, A Theory of Judicial Review, makes clear that the book's goal was to provide a theoretical mooring for the Warren Court amid the Bickelian concerns for the "countermajoritarian dilemma" (6) and Ely's own discomfort with the apparently unbounded quality of Roe v. Wade. (7) This concern for the "countermajoritarian dilemma" is evident from the first of the two related questions that occupy this magisterial work. As posed in the subhead of the title, the first question is what justifies judicial review in a democratic society. The more specific question, and the one that gave the book its conceptual vitality, is upon what grounds may a court legitimately strike down the preferences of the legislative branches, presumably the embodiment of the choices of the majority of the polity. The issue may be conceptualized as the wholehearted endorsement Ely wished to give the Brown Court, but the sense of discomfort he felt before the apparent first-order policy choices animating Roe.

John opens the book by restating the classic problem of judicial review: "When a court invalidates an act of the political branches on constitutional grounds, however, it is overruling their judgment, and normally doing so in a way not subject to 'correction' by the ordinary lawmaking process." (8) Almost immediately, the book announces its direction away from the conventional accounts of either originalism or the then-orthodox response of an organic, evolving constitutionalism. Instead, Ely makes a bold move toward political theory, grounding the role of the judiciary in the concern inherited from Federalist No. 10 (9) of democratic majoritarianism consuming itself. Accordingly, the challenge in finding a theory of judicial review is presented thusly: "An untrammeled majority is indeed a dangerous thing, but it will require a heroic inference to get from that realization to the conclusion that the enforcement by unelected officials of an 'unwritten constitution' is an appropriate response in a democratic republic." (10)

At one level, the answer to the countermajoritarian challenge was to retreat into a variant of the process theories of an earlier group of Harvard luminaries, Henry Hart and Albert Sacks. (11) The legendary Hart and Sacks teaching materials laid the foundation for the legal process school of postwar legal thought. Hart and Sacks believed that integrity in law followed from procedural order and the ability to harness the institutional competence of multiple actors. In formulating the legal process school, Hart and Sacks focused primarily on the relation of the common law and administrative oversight to the primacy of private ordering. Hart and Sacks were ever distrustful...

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