The Elysian fields of the law.

• Author: Sullivan, Kathleen M.
• Position: John Hart Ely, law professor - Testimonial

INTRODUCTION

John Hart Ely (4) was a great one for believing that "[t]he most archaic-sounding provisions of our founding document, their purposes intelligently unpacked, generate commands of complete contemporary relevance." (1) In Democracy and Distrust, (2) his unpacking produced a theory of judicial review devoted to "clearing the channels of political change" (3) and to "facilitating the representation of minorities." (4) Conversely, in War and Responsibility, (5) his unpacking produced an argument for congressional primacy in decisions to use military force because of a constitutional commitment to "clogging rather than facilitating [the change from peace to] war." (6)

Democracy and Distrust and War and Responsibility were written more than a dozen years apart. And yet, because they are both classics, they have acquired a certain timeless quality. There's something a little jarring, then, in realizing that the very Warren Court years that John celebrated in Democracy and Distrust were also the Vietnam years that he decried in War and Responsibility. (7) If the sentiment of the first book was that "You don't need many heroes if you choose carefully," (8) then the message of the second may be that "You'll end up with too many heroes--and they'll be dead ones, killed in pointless wars--if you choose carelessly."

In April 2004, many of John's friends, colleagues, students, and admirers gathered at Stanford Law School to celebrate his life and work. The articles in this issue of the Stanford Law Review grow out of the two panel discussions, each centered on one of John's books. It's in the nature of such events to be retrospective, even elegiac. But this foreword looks forward. Although John's theory clearly grew out of critical issues of his time--the Warren Court and the Vietnam War--we must never forget it was a constitution he was expounding. A theory framed with one generation's problems in mind can have continuing vitality for another's. And so we consider what insights John's work sheds on the issues our generation of constitutional lawyers face. To do this, we discuss four recent Supreme Court decisions that map onto the central preoccupations in John's work: McConnell v. Federal Election Commission, (9) Lawrence v. Texas, (10) Vieth v. Jubelirer, (11) and Hamdi v. Rumsfeld. (12)

John himself was famous not simply for intelligently unpacking archaic-sounding constitutional provisions, such as the Marque and Reprisal Clause of Article I, Section 8, (13) but for distilling a theory of judicial review from a single footnote in an otherwise forgettable case involving the Filled Milk Act of 1923: United States v. Carolene Products Co. (14) There, in the course of explaining why the Court was prepared to presume that "some rational basis within the knowledge and experience of the legislators" justified Congress's differential treatment of butter substitutes and imitation milk, Justice Stone identified three classes of cases in which there might be "narrower scope for operation of the presumption of constitutionality": first, "when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments"; second, when a challenged law "restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation"; and third, when challenged statutes are "directed at particular religious, ... national, ... or racial minorities," in light of the possibility that "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities...." (15) John wove the second and third justifications into "a participation-oriented, representation-reinforcing approach to judicial review," (16) designed to enhance, rather than to supplant, democratic decisionmaking. Courts, John argued, should intervene when the political process is undeserving of trust or judicial deference because "(1) the ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out"--what we might call the problem of entrenchment--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"--the problem of discrimination. (17) Thus, both Carolene Products and Ely identified an antientrenchment and an antidiscrimination rationale for judicial intervention.

The recent decisions we discuss all contain echoes of John's central concerns. McConnell raises important questions about how the Court ought to approach campaign finance legislation, given crosscutting concerns with problems of entrenchment. Lawrence offers an intriguing variation on judicial protection of discrete and insular minorities. Vieth shows how reapportionment issues lie at the intersection of John's two representation-reinforcing rationales for judicial review. And Hamdi presents the question of how judicial review can reinforce congressional responsibility with respect to the use of military force, given a world in which our most threatening enemies are no longer other nations.

1. MCCONNELL V. FEDERAL ELECTION COMMISSION

   For John, keeping democracy a fluid enterprise, open to participation and influence by all, was one of the core principles justifying judicial review. The central argument of Democracy and Distrust was that instead of enforcing substantive values they were ill equipped to discern, courts should serve as umpires or trust-busters of democratic processes, "clearing the channels of political change." (18) Their job was to focus on "whether the opportunity to participate either in the political processes by which values are appropriately identified and accommodated, or in the accommodation those processes have reached, has been unduly constricted." (19)

   John extended this principle to encompass a wide variety of constitutional clauses, including the First Amendment's protection of freedom of speech. Assimilating talk about politics to the larger category of political participation, he described "the central function" of the First Amendment as "assuring an open political dialogue and process." (20) And he read an implicit free speech component into the second paragraph of Carolene Products footnote four, which spoke of the need for "exacting judicial scrutiny" of "legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation." (21) In John's translation, this meant that "it is an appropriate function of the Court to keep the machinery of democratic government running as it should, to make sure the channels of political participation and communication are kept open. (22)

   Speech restrictions thus struck John as one potentially suspect species in the genus of political malfunctions by which "the ins are choking off the channels of political change to ensure that they will stay in and the outs will stay out." (23) While he ridiculed free speech absolutism, and conceded the permissibility of a range of regulations such as time, place, and manner laws that aimed at harms "independent of the message being regulated," (24) he advocated a strong, categorical approach to judicial review of content-based regulations of speech. Distrusting judges to employ reliably any version of a "clear or present danger" test or any other probabilistic assessment of the harm speech might cause, he proposed instead an "unprotected messages" approach: "[w]here state officials seek to silence a message because they think it's dangerous," they violate the First Amendment unless "the message fall[s] within some clearly and narrowly bounded category of expression we have designated in advance as unentitled to protection." (25) He conceded that such an approach "cannot guarantee liberty--nothing can," but insisted that "it's the surest hedge against judicial capitulation that humans have available." (26)

   What, then, could possibly trigger more alarm under John's theory than efforts by Congress to restrict the use of money to finance messages disseminated in political campaigns? Few pieces of legislation could so plainly raise a concern that a legislative majority is seeking to entrench itself by suppressing speech that challenges its accumulated power. Alas, we have only a glimmer of John's thought on the matter, a brief aside he wrote on Buckley v. Valeo. (27) That 1976 decision, which reviewed Federal Election Campaign Act (FECA) amendments that had sought to limit both expenditures by and contributions to political candidates, split the difference, holding that limits on expenditures violated the First Amendment, but that limits on contributions did not, as they were adequately related to a government interest in preventing the corruption of candidates through quids pro quo. (28) In a footnote in Democracy and Distrust, published four years later, John criticized the latter portion of the decision, expressing concern that the Burger Court was balancing away freedom of speech that the Warren Court had protected more robustly. He stated that Buckley involved "clearly political expression," and that the Court's decision was part of a disturbing pattern in which "speech that does not come within an unprotected category may nonetheless be proscribed because of fears of how people will react to it. " (29) The campaign finance regulation partially upheld in Buckley thus seemed to John an example of "the hazards of political distortion and judicial acquiescence." (30)

   Now fast-forward a quarter-century to ask what John might have thought of the Court's decision last Term...