Due Process
Democracy and Distrust: A Theory of Judicial Review.
by John Hart Ely.
Harvard University Press. 268 pp. $15.00.
The Burger era of the Supreme Court is now ten years old. Throughout its life, legal scholars have complained that the Burger Court is making a “counterassault” on the earlier work of the Warren Court, or at the very least is “sniping” at it. Yet for some time now commentators have also been examining more fundamentally the work of both Courts, which faces them with some cruel issues concerning the scope of Supreme Court review of government actions.
Liberal proponents of “structural reform,” for example, one of the trendy developments in contemporary constitutional scholarship which seeks to use “public law litigation” to reorganize the major institutions of society, need a very active Supreme Court with broad powers if they are to effect large-scale changes. But notwithstanding Roe v. Wade, the very liberal abortion decision, these reformers are also frightened of what the conservative Burger Court might do with such powers. Others are struggling with the issue of the Court’s role because of Roe v. Wade itself. Many constitutional lawyers, even liberal ones, see the decision as something of a public scandal, a brutal exercise in “substantive due process” in which the Court simply proclaimed one of its favorite middle-class values.
John Hart Ely, a young Harvard Law School professor, was one of those appalled by Roe v. Wade (his 1973 article on the case is now a classic), and he wants everyone to understand how badly the Burger Court’s enforcement of “fundamental values,” such as abortion, contrasts with the work of the Warren Court. It is not, however, as one might expect, that Ely simply likes the Warren Court’s fundamental values better. On the contrary, he is convinced that, whatever the public might believe, the Warren Court did not play the game of proclaiming its favorite values; its famous activism was actually, in his view, a powerful support for representative democracy. In his new book, Democracy and Distrust, Ely works this conviction into a broad and careful reargument of the old and protracted controversy over the proper scope of judicial review.
The result is a rare and superior book that runs counter to the fashionable academic line that is fully committed to the fundamental-values view. Whether or not the reader finally agrees that the work of the Warren Court was a major support for democracy, he will likely believe that Ely’s book is. Together with other signs of the growing popularity of judicial conservatism—the belief that “out of a respect for the democratic process, . . . the Court should keep its hands off the legislature’s value judgments”—the book constitutes a welcome and heartening event. And as Ely, clearly a political liberal, understands, judicial conservatism does not imply either political conservatism, as many now think, or political liberalism, as others thought fifty years ago. It means simply that the judges will, like referees, “intervene only when one team is gaining unfair advantage, not because the ‘wrong’ team has scored.”
Ely’s book is a reworking of law-review articles published over the past several years, and while it deploys all the machinery of legal scholarship, it is wholly unlike the usual graceless legal prose. The book is closely reasoned and demands close reading, but Ely writes with a directness and wit that make even the fine print in his notes engrossing. More importantly, he sees clearly and speaks candidly. Best of all, Ely argues fairly and always tries to confront the strongest arguments against his own positions. One who disagrees with Ely can relax while reading him, confident that he will, in due course, reach the reader’s favorite arguments and will state them accurately.
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An outline of Ely’s reasoning will at least suggest the strength and persuasiveness, and some of the important detail, of his argument. The question to be answered is this: when judges decide constitutional issues, where do they find the principles they use? The question has given rise to a long-standing dispute between “interpretivism,” the view that in applying constitutional clauses judges should enforce only those principles that are expressed or implied by their language, and “noninterpretivism,” the view that judges should enforce principles not found in the Constitution itself and for which they must go to some outside source. Noninterpretivism is fatally vulnerable to the charge that it is incompatible with democracy and, as Ely says, “[t]his, in America, is a charge that matters.” Interpretivism, too, because it imposes on the present generation the views of past ones, may to some extent be anti-democratic, but it fits much more closely with our usual ideas about law and written documents and how they work. Interpretivism is, therefore, far preferable. But it has a difficulty of its own.
Constitutional clauses run from the specific and easy to interpret (the President shall “have attained to the age of thirty-five years”), through those for which interpretation is more difficult but still possible (“cruel and unusual punishments [shall not be] inflicted”), to those which do not offer enough content to permit interpretation of any kind and which, if they are to be used at all, require a look to some source beyond the words. These “open-ended” clauses are the Fourteenth Amendment provisions that no state “shall abridge the privileges or immunities of citizens” or deny persons “the equal protection of the laws,” and, Ely argues, the Ninth Amendment which states that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” As Ely says, however, the Fifth and Fourteenth Amendment clauses prohibiting the deprivation of “life, liberty, or property, without due process of law” are definitely not among the open-ended clauses.
Because interpretivism relies upon constitutional language, but the language of the open-ended clauses calls for reference to some other unspecified sources (what are the immunities of citizens, for example?), interpretivism contains a contradiction. Nevertheless, it does no good—indeed, it produces only anti-democratic disaster—to look to noninterpretivism as the way a judge might find fundamental values outside the Constitution. In a devastating and scornful chapter that frequently draws blood (“is [the Constitution] really supposed to keep up with the New York Review of Books?”), Ely describes the efforts of the leading commentators (like J. Skelly Wright, Laurence Tribe, Archibald Cox, Harry Wellington, Ronald Dworkin, Thomas Grey, Kenneth Karst, Harold Horowitz, Frank Michelman, and Abram Chayes, to name just a few) to concoct formulas to justify the Court’s declaring their own favorite (usually upper-middle-class) values to be “fundamental” and thus constitutionally enforceable. They mix their strange farragoes out of any source that comes to hand: a judge’s own views, natural law, “neutral principles,” reason (moral philosophy), tradition, a judge’s perception of popular consensus (“the Fuehrer principle”), and a prediction of future consensus. Ely believes that even so superior a constitutional lawyer as the late Alexander Bickel, a man he greatly admires, was misled into searching for fundamental values (a search Bickel himself came to realize was futile) by the false premise that it was the Supreme Court’s role to define such values.
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If our only choice were between a “clause-bound” interpretivism and noninterpretivism, Ely would opt for the former and simply have the courts stay away from the open-ended clauses. He believes, however, that there is another choice. Ely argues for a kind of expanded interpretivism, one which is entirely consistent with the usual construction of legal documents. He would seek principles for enforcing the open-ended clauses in the basic purposes and structure of the Constitution as a whole. Because the Constitution deals very little in pure values and is overwhelmingly a procedural document (which, as Ely suggests, merely the reading of a few pages will show), it follows that such principles must also pertain to procedural matters.
Among the procedural mechanisms of the Constitution are, of course, those of representative government, and Ely would use the open-ended clauses to insure the proper working of these mechanisms. But there is more to the Constitution’s representative government than just machinery; there is also the principle of “virtual representation.” Because of prejudice on the part of the majority, certain minorities, even if they have the vote, may not have effective actual representation sufficient to protect their interests through ordinary political wheeling and dealing. Racial minorities, illegitimate children, and aliens (who have no vote at all) are the classic examples of such groups. They may still enjoy “virtual representation,” however, through other similarly situated groups who have greater political influence, and who by taking care of themselves will also take care of the minorities. But virtual representation will work only if the hostile majority is not permitted to subject the minorities to harsher treatment than it gives itself. If it does treat the minorities differently, it must do so for substantial reasons unrelated to an intent to injure them.
This, then, is Ely’s theory: the open-ended clauses authorize a limited judicial review that would enforce “due process of lawmaking” (a phrase Ely borrows from Hans Linde) by policing the machinery of representation and virtual representation. Such a theory would leave the people to spell out fundamental values for themselves, and would confine judges to functions they can perform well.
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Ely did not invent his interpretivism. It was first expressed judicially in a famous footnote by Justice Stone in the 1938 case of United States v. Carolene Products Co., which held that a statute prohibiting shipment of filled milk was “rational” and, therefore, valid. Justice Stone suggested that the Court might subject to more severe scrutiny than a mere test of rationality a statute that restricted “political processes” (that is, the machinery of representative government) or was “directed at particular . . . minorities” or embodied “prejudice against discrete and insular minorities” (and, thereby, deprived such groups, which are politically powerless, of virtual representation).
Ely believes that the Supreme Court actually began to implement Carolene Products only with the advent of the Warren era. He analyzes the Court’s decisions since then to show that they fall into a pattern consistent with his theory (even though, as he acknowledges, the Warren Court itself often used the language of fundamental values). Ely effectively rationalizes many of the free-speech and voting-rights cases and argues for the revival of judicial review of legislative delegations of authority to administrative agencies. Such review died in the 1930’s a “death by association” with substantive due-process doctrines of laissez-faire economics. It is needed now, however, to overcome the desire of legislatures to avoid difficult political decisions by passing them on to politically unaccountable agencies.
Ely also analyzes the Supreme Court’s cases protecting minorities. He makes good sense of the equal-protection doctrines that require a “rational basis” for all legislation and subject “suspect classifications” to “special scrutiny,” and he says illuminating things about affirmative action and the dealth penalty. His analysis also leads to many clear-eyed conclusions (which, however, will be objectionable to some): the Constitution gives the poor no remedy for poverty because poverty does not stem from government action intended to hurt them; the political progress and influence of women is such that they are no longer a discrete and insular group (never having been a minority) needing protection, although they may still need protection from laws passed in earlier times.
But it is here also that the tightness and power of Ely’s argument begins to unravel. His effort to fit every decision into his scheme is sometimes dazzling, but not always persuasive. For one who honors constitutional language so much, Ely is too quick to acquiesce in decisions, like those in some First Amendment cases, that he concedes go beyond what the words will bear, and to agree with Reynolds v. Sims that the Fourteenth Amendment applies to voting rights, notwithstanding the apparent import of Sections 1 and 2 read together. Finally, to give minorities the last measure of protection, Ely would have judges assessing attitudes, such as the empathy of legislators, which he demonstrates elsewhere judges are unable to do.
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One does not, however, have to agree with Ely’s reading of every case to recognize that his book is a major work from which believers in democracy can take heart. It will not, of course, settle issues which have been fought over for generations. But those who want to press on with their judicial campaigns for reform of one kind or another must now deal with it (and they can no longer get away with simply proclaiming, as one scholar did recently, that the judge’s task is to search “for what is true, right, or just”). For those, on the other hand, who believe with Ely that the majority can take care of itself, and who have their own ideas about fundamental values on which they do not need instruction from judges, Ely’s book is satisfying and cheering.
