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“He was probably the most creative constitutional theorist of the past twenty years.” Professor John Hart Ely wrote that line about another professor in Democracy and Distrust: A Theory of Judicial Review, his seminal 1980 book on constitutional law. But it equally describes Ely himself, who died Oct. 25 at age 64. Anyone who ever wonders, “What gives the Supreme Court the right to do that?” is starting to stumble down the same road that Ely masterfully charted in his book. And anyone who answers, “Because it’s promoting democracy,” is channeling Ely’s key insight. That’s a radically different view than the one most people take, assuming as they do (myself often included) that constitutional law is about promoting the “fundamental rights” of Americans. Ely, however, saw the Constitution as focusing on process. Specifically, his view is that the only legitimate way for judges to use their wide discretion is to promote democracy and equality by ensuring that the political process is open to all and does not discriminate against groups that are vulnerable to prejudice. Though Ely was liberal in his personal politics, his constitutional theory was neither liberal nor conservative — he basically annoyed everybody. TO UNBLOCK STOPPAGES The knot that Ely sought to untangle was this: What gives a relative handful of unelected judges the right to call the shots in a society that claims to be a democracy? He wasn’t the first to ask the question. This “countermajoritarian” difficulty has been an engine driving constitutional theories for at least a hundred years. Legitimizing the role of powerful unelected judges in a system built on democratic principles is something of a holy grail — a search for a theory of everything — that bedevils constitutional scholars to this day. And Ely had an answer that, despite years of attack, still looks quite coherent. Judges must not use their discretion to impose their personal preferences on society. Rather, they should recognize that the Constitution doesn’t primarily concern itself with guaranteeing substantive or fundamental rights; instead, it’s a “frame of government” that overwhelmingly concerns itself with process. So when judges find themselves with a little (or a lot of) discretion to exercise, they should “keep[] faith with the document’s promise” of democratic participation and equality, so that “a majority [does] not systematically treat others less well than it treats itself.” Ely called this a “representation-reinforcing” approach to judicial review. Under Ely’s theory, when a law limits voting rights, it’s perfectly appropriate for judges to strike down the law: “[U]nblocking stoppages in the democratic process is what judicial review ought preeminently to be about, and the denial of the vote seems the quintessential stoppage.” Ditto for laws exhibiting racial prejudice against minorities. Such laws indicate that even if African-Americans, say, have gained “voices and votes,” others in the political system may still be refusing to wheel and deal with blacks as they would with others. Ely did not conjure his theory out of thin air. Democracy and Distrust emphasizes that the idea comes from the Supreme Court itself. Specifically, it comes from a footnote in the Court’s 1938 decision in United States v. Carolene Products Co., where the Court indicated that it would generally give stricter scrutiny to laws that “restrict[] those political processes which can ordinarily be expected to bring about repeal of undesirable legislation” and to laws that target “discrete and insular minorities.” Carolene Products sketches a theory of judicial review that points to effective participation in democracy as the value most deserving of judicial protection. The only problem, according to Ely, is that the Court so often refuses to follow its own good advice. STICKING TO HIS GUNS Ely wrote that the Court has gone farthest astray when it finds in the Constitution substantive fundamental rights — at least, substantive fundamental rights absent from the explicit text of the Constitution itself (and he explained that there are only a few rights clearly there). Arguably the biggest departure from the text in creating rights, he wrote, was the Supreme Court’s 1973 decision in Roe v. Wade. Though he only briefly discussed abortion in Democracy and Distrust, Ely wrote in a 1973 Yale Law Journal article that the Court had made abortion into a “super-protected right [that] is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure.” And he wrote that as someone who supported women’s right to have an abortion — so long as an elected legislature, rather than the courts, provided it. Abortion is a good example of how Ely’s ideas differ from those of most people on what constitutional law is about. Rather than being seduced by a siren song of fundamental rights, he sticks to his process guns, even when they lead to a policy that he personally disagrees with. While some would then say that Ely’s theory is too restrictive, it’s worth noting how much power it gives to judges. Ely’s theory goes a long way toward supporting, for instance, the Court’s decisions last term upholding affirmative action ( Grutter v. Bollinger) and striking down a criminal law prohibiting gay sex ( Lawrence v. Texas) — two results that have been criticized for creating substantive rights based on the justices’ personal preferences. But there’s a good case to be made that the two decisions have firm footing in Ely’s process-oriented approach to constitutional law. IS IT PREJUDICE? In defining which groups deserve increased judicial protection, the touchstone for Ely is prejudice. The revealing characteristics of prejudice appear when the law at issue plays on a stereotype of a minority group, where the stereotype invokes hostility from the majority, where that hostility is widespread, where there are few or no people in the stereotyped group among those writing the law, and where the law burdens members of the minority without similarly burdening members of the majority. Taken together, Ely wrote in Democracy and Distrust, laws against homosexuals or homosexual acts fit that description. And worse (as was true when Ely was writing in 1980, and is still true to a lesser extent today), homosexuals can’t freely tell people that they’re gay, thus disproving the stereotypes. Social interaction between groups is a key concept for Ely. Lack of it allows prejudice and callous disregard to flourish. And enough of it tends to suggest that prejudice won’t play a significant role in groups’ actions vis-à-vis each other. When a legislature passes a law that burdens members of one group while benefiting members of another group from whom the legislature is mainly drawn, that’s a good indication that there hasn’t been enough social interaction for the legislators to be sufficiently sensitive to others. And that, in turn, is when judges can correctly step in to strike down the law, wrote Ely. The importance that Ely placed on social interaction also might help explain his view toward affirmative action. “Increased social intercourse is likely not only to diminish the hostility that often accompanies unfamiliarity, but also to rein somewhat our tendency to stereotype in ways that exaggerate the superiority of those groups to which we belong,” he wrote. That’s pretty close to the much-maligned diversity rationale that the Court used in Grutter to uphold the affirmative action plan at the University of Michigan Law School. At the same time, increased social interaction is not the official explanation that Ely gave for supporting affirmative action. For him, the constitutional question raised by a predominantly white legislature passing a law that helps blacks and burdens whites was not difficult. Whites have plenty of social interaction with whites. Whites know enough whites to overcome stereotypes against them. And whites don’t tend to be prejudiced against whites or to show widespread hostility to them. A majority group that voluntarily burdens itself to help a minority group isn’t violating principles of democracy, participation, or inclusion — quite the opposite. (That said, his theory leaves open the question of how to view a majority-black legislature that institutes racial preferences for blacks. Nor does his theory address how to deal with the situation where white and black legislators together implement affirmative action programs that burden Asian-Americans.) RAPID DISMISSAL Leaving Ely’s own theory aside for a moment, Democracy and Distrust also leads the reader on a devastating tour of other theories that seek to bound judicial discretion: Focusing narrowly on the words of the Constitution to limit judicial power has, ironically, the effect of granting judges a virtual blank check, given the number of open-ended constitutional clauses. Natural law — the idea that some universal precepts outside the Constitution should inform one’s reading of the constitutional text — produces similarly indeterminate results (“the list of causes natural law has supported is almost infinite”). Using reasoning to determine morality, and thus constitutional meaning, puts judges at the mercy of philosophers who can’t seem to agree on a single truth. Looking to consensus can also be a maddening task, as well as one that allows the judiciary to kick aside an elected legislature whose decisions would, after all, seem to approximate consensus (“as between courts and legislatures, it is clear that the latter are better situated to reflect consensus”). And tradition fails not only because it substitutes our grandparents’ views of the world for our own, but because it’s too rich with examples on all sides of a debate; it “can be invoked in support of almost any cause” — including some pretty nasty ones. All these theories, mind you, are still very much alive. After reading Ely’s book, though, it’s impossible to read much of today’s constitutional discourse with a completely straight face. And there are, to be sure, plenty of people with plenty of criticism for Ely. So many, in fact, that they’ve contributed to making him (according to one recent study) the fourth most-cited legal scholar of all time. He has been attacked for advocating that judges exercise too much discretion and that they exercise too little. At least one law review article takes Ely to task for smuggling in under the banner of “prejudice” exactly the sort of substantive judgments that his theory targets. Ely was himself aware that his work was honored mainly in the breach. He wrote in 1999 that “ Democracy and Distrust is characteristically the object of ritual compliment and rapid dismissal.” The title of John Hart Ely’s book alludes to the fact that we’ve given our unelected judiciary a powerful role precisely because of our fundamental distrust of democratic outcomes. And his solution was to try to use another sort of distrust — by judges, of the motives of those who make the laws — to ensure a fair and democratic political system. There’s nothing to dismiss about that. Evan P. Schultz is associate opinion editor at Legal Times. His column, “Controversies & Cases,” appears regularly. He can be reached at [email protected].

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