CONTENTS INTRODUCTION I. IS DEMOCRATIC PARTICIPATION A PRINCIPLE TO GUIDE CONSTITUTIONAL INTERPRETATION? II. COHERENTISM IN ELY, DWORKIN, AND RAWLS A. A Coherentist Reading of Democracy and Distrust B. Why Can't We Just Muddle Through? C. The Problem of Bad Coherence III. ELY'S IDEAL CONSTITUTION CONCLUSION INTRODUCTION
A quarter of a century after its publication, Democracy and Distrust (1) remains the single most perceptive justificatory account of the work of the Warren Court and arguably of modern constitutional law more broadly. Yet the continuing influence of John Hart Ely's process theory of American constitutional law may seem surprising, given that the account has been incisively criticized as both too limited and too sweeping. Beginning with Laurence Tribe's The Puzzling Persistence of Process-Based Constitutional Theories and culminating in the work of Ronald Dworkin and others, critics have argued that the representation-reinforcing approach to interpreting the Constitution is no less laden with controversial value judgments than other, more openly substantive methods and, therefore, that judicial review ought not be restricted in the way Ely thought it should be. (2) From the other side, those whom Ely called "interpretivists" have invoked the same set of arguments as a basis for concluding that the Constitution's open-ended provisions should be given neither substantive nor procedural content apart from what is narrowly entailed by the original understanding of its Framers and ratifiers. (3)
In light of these mirroring critiques, what accounts for the staying power of Democracy and Distrust? The answer, to which Ely himself points in the opening pages of the book, is the popularity of representative democracy. (4) "We have as a society from the beginning," he writes, "and now almost instinctively, accepted the notion that a representative democracy must be our form of government." (5) By making representative democracy the centerpiece of his account of judicial review, Ely trades on this deeply rooted instinct. Throughout Democracy and Distrust, he invokes "the basic democratic theory of our government" (6) as the standard against which an approach to judicial review should be measured.
Although Ely ultimately attaches weight to the value of representative democracy because of its longstanding and continuing acceptance by the people, the core of his affirmative argument--which appears in chapter four--purports to derive that value principally from the constitutional text and structure. In barely fourteen pages he establishes that most of the Constitution consists of structural provisions about offices, elections, and so forth, going on to explain that even some of the relatively few provisions setting forth individual rights might also best be understood as structural or procedural. (7) Having apparently derived the democratic criterion from the Constitution's text and structure, Ely devotes the balance of Democracy and Distrust to explaining how that principle can be used to guide judicial interpretation of open-ended provisions like the Ninth Amendment and the Fourteenth Amendment's Equal Protection and Privileges or Immunities Clauses. (8)
In getting the project off the ground, however, the text and structure do not bear the weight that Ely appears to place on them in chapter four. Given the Constitution's manifest interest in fracturing the authority of any actor or institution to speak on behalf of the people as a whole, one might at least as readily infer the opposite master principle of limited government, a principle that is also furthered by the document's substantive rights provisions. If representative democracy were really the guiding principle that Ely claims, there would seem to be little need for a written constitution at all, except perhaps to specify, as in pre-Human Rights Act Great Britain under the classical Diceyan conception, that the national legislature is sovereign. (9)
In any event, no master principle--not representative democracy, limited government, individual liberty, equality, free enterprise, or any other principle--can plausibly be made to stand for the whole of the Constitution. It is the purpose of the document to frame a government that serves multiple, often conflicting aims.
If Democracy and Distrust thus sets forth an implausible positive account of the Constitution, it nonetheless seems to provide an attractive normative account of judicial review. The central principle of the Constitution is not democracy, but the central problem facing life-tenured judges charged with enforcing open-ended language like that found in the Bill of Rights and the Fourteenth Amendment is one of reconciling their job with democracy. That is not because the very concept of democracy requires that all important decisions be made entirely by politically accountable bodies. It is because in the absence of some set of limiting principles to govern interpretation of the Constitution's open-ended provisions, there would be nothing to stop courts from entirely supplanting politically accountable bodies. Such a state of affairs would be inconsistent with a Constitution that makes representative democracy a very important principle.
The normative argument I have just sketched on Ely's behalf is nonetheless still partly positive. If a constitution manifested no concern with self-government--if, for example, it set forth judicially enforceable limits on government power without empowering the people, as in, say, a system of limited benign dictatorship--then a theory of representation reinforcement would have little purchase as an account of how the judiciary ought to enforce that constitution. So the fact that the actual Constitution embraces a considerable measure of popular rule does indeed play a substantial role in the argument for representation-reinforcing, and only representation-reinforcing, judicial review of open-ended provisions.
But, to repeat, the argument ultimately succeeds because of the widespread normative appeal of democracy. As Ely explains in the book's opening passages, in the modern world we almost reflexively value self-government. Thus, for constitutional lawyers, the Court has a countermajoritarian difficulty; Congress does not have a "counterindividual" difficulty. If we took limited government as our starting point, we might well see matters differently. Yet democracy comes first. To be sure, we as a people greatly value limits on government power as well as representative democracy, but, to use Madison's phrase, judicial delineation and enforcement of these limits is at best "auxiliary" to government's "dependence on the people." (10) So democracy turns out to be important both for its own sake--so that the people can carry out their projects--and for limiting government's potential excesses.
That is the largely unspoken piece of Ely's argument: that representative democracy is good. Stated that way, the point sounds banal, and it is. But is it even true? Is democracy good? Democracy and Distrust argues that representative democracy is not--or at least is not inevitably-self-sustaining; it may need the aid of an unelected judiciary armed with a broadly worded constitution. The book takes for granted the more basic point that democracy is worth sustaining.
I am not suggesting that Democracy and Distrust is a flawed work for its failure to make an argument for the value of democracy. Ely was perfectly justified in assuming that his audience would see its value. But the value of democracy--as opposed to monarchy, autocracy, theocracy, and other systems of government--is not universally acknowledged. (11) More importantly, even among those who value it, there are substantial differences about how and how much to value the popular will. Other than the fact that most of his audience would share his view, what justified Ely--and Alexander Bickel and others--in casting democratic participation as central to our constitutional system, such that the framing of Democracy and Distrust as a response to a countermajoritarian difficulty seemed and still seems perfectly natural?
This article suggests a tentative answer by forging a link between Ely's work and that of coherentists like Ronald Dworkin and John Rawls. Critics of Rawls's A Theory of Justice (12) argued that, where Rawls purported to derive universal principles of political justice, he in fact simply affirmed principles of liberal democracy common to the twentieth-century West. (13) In his successor volume, Political Liberalism, Rawls acknowledged the socially and historically contingent character of his political principles but denied that this contingency rendered these principles any less principles of justice. (14)
Ely could have made a parallel maneuver. He might have argued that, although representation reinforcement is not simply entailed by the Constitution as a matter of text and structure, it is nonetheless the best account of our collective understanding of the function of judicial review in a constitutional democracy. Indeed, there are many passages in Democracy and Distrust that suggest that Ely understood his account of American judicial review as contingent in just the same way that Rawls came to acknowledge that his account of liberal democracy was. This article pulls together these "contingentist" strands to fashion--and then critique--a prolegomenon to a work that would be to Democracy and Distrust what Political Liberalism is to A Theory of Justice.
Part I describes how, under the conventional reading, Democracy and Distrust trades on the reader's sympathy for democracy. It concludes that someone who does not come to the book with that sympathy will not find enough in the Constitution itself for Ely's argument to be successful.
Part II sets forth a coherentist version of Ely's argument along the same lines as, albeit with content that differs from, the sort of account of...