three contemporary theories of judicial review: a · pdf filethree contemporary theories of...

Three Contemporary Theories ofJudicial Review: A Critical Review

Taking Rights Seriously. By Ronald Dworkin. (Cambridge:Harvard University Press, 1977).

Judicial Review in the National Political Process: A FunctionalReconsideration of the Role of the Supreme Court. By JesseChoper. (Chicago: University of Chicago Press, 1980).

Democracy and Distrust: A Theory of Judicial Review. By JohnHart Ely. (Cambridge: Harvard University Press, 1980).

Pluralism" can be a devastating weapon. While on the surfaceit strikes people as neutral or open to all possibilities, in fact it

represents a choice for one thing and against another. To establish"pluralism" is to reject the idea of a single norm.

One example of this process is the emerging vocabulary of "inter-pretive" and "non-interpretive" judicial review. From one perspec-tive, this characterization of the different approaches is verydesirable and long overdue. It makes explicit what has heretoforetoo often been misunderstood, downplayed, or ignored: namely,that many approaches to judicial review have little or nothing to dowith the Constitution.

On the other hand, the casual acceptance of this terminology,without protest, tends in a certain sense to concede the legitimacy ofboth approaches. We may prefer one approach or another, it seemsto imply, but we are all operating within the framework of a com-monly accepted principle, i.e. judicial review. In effect, acceptingthe very notion of "non-interpretive" judicial review gives away thewhole game to the advocates of that approach.

Those who defend "interpretive" judicial review argue that thevery foundation of judicial review in our regime was-and in thepublic mind generally continues to be-constitutional interpreta-tion. Judicial review could be described as a byproduct of the judge'sduty to interpret the Constitution. No Constitution, no power tostrike down laws.

From that perspective, talking about " interpretive" judicial

From The Rise of Modern Judicial Review by Christopher Wolfe.Copyright © 1986 by Basic Books, Inc. By permission of Basic Books, Inc.

216 THE POLITICAL SCIENCE REVIEWER

review is redundant-all judicial review is rooted in constitutionalinterpretation. "Non-interpretive" judicial review is an oxy-moron-like talking about a "boneless vertebrae" or "cowardlyheroism." To treat "non-interpretive" judicial review as a categoryof or form of judicial review-to accept a "pluralism" of judicialreviews-would be to concede the essential question between inter-pretive and non-interpretive judicial review.

What this means is that the term "judicial review" is becomingequivocal today. It no longer refers to something definite, but ratherapplies to two essentially different things.

The form of judicial review described and defended in earlyAmerican history is, by and large, irrelevant to modern constitu-tional law, except as an alternative to contemporary practice. Alex-ander Bickel was one of the first to point this out clearly, devotingthe first chapters of The Least Dangerous Branch l to an attemptedrefutation of Marbury v. Madison and the rest of the book to an ef-fort to elaborate a new and distinctive conception of judicial review.Thomas Grey drew the lines very clearly in his seminal 1975 article"Do We Have An Unwritten Constitution?", arguing that mostmodern constitutional law cannot be defended as "interpretation" ofthe Constitution, but only as the result of "non-interpretivist"judicial review.'

Recent years have seen an increasing number of attempts to pro-vide a theoretical justification for non-interpretive judicial review,as well as some sharp attacks on it.' Some of these contemporary

1. Indianapolis: Bobbs Merrill, 1962.2. 27 Stanford Law Review 703 (1975). Grey argues that non-interpretive judicialreview has always existed in American politics and that its credentials are at least asgood as those of interpretive judicial review. While I would concede that there wereearly isolated instances of non-interpretive judicial review, I would argue that "tradi-tional" (Marbury v. Madison) judicial review was the preeminent or mainstream formuntil the end of the nineteenth century, and that its preeminence in the SupremeCourt's self-understanding of its role lasted until 1937. See "A Theory of U.S. Constitu-tional History" 43 Journal of Politics 292 (1981). Gary Jacobsohn also has a thoughtfulcritique of Grey on this issue: "E.T.: The Extra-Textual in Constitutional Interpreta-tion" 1 Constitutional Commentary 21 (1984).3. Raoul Berger has been its most influential academic opponent: Government ByJudiciary: The Transformation of the Fourteenth Amendment (Cambridge: HarvardUniversity Press, 1977). For an interesting head-on clash between Berger and his critics(most of whom reject his premise of the authority of original intent), see 6 HastingsConstitutional Law Quarterly No. 2 (Winter, 1979). A broader range of that literatureis surveyed in William Gangi, "Judicial Expansionism: An Evaluation of the OngoingDebate" 8 Ohio Northern University Law Review 1 (1981).

THEORIES OF JUDICIAL REVIEW 217

theorists of judicial review offer a straightforward and unabasheddefense of thorough-going judicial activism. Others accept the im-plicit "activist" assumptions underlying non-interpretive judicialreview, but for a variety of reasons feel the need to elaborate atheory with coherent and principled limits on judicial power.

In this article I would like to examine the attempts to provide anew theoretical foundation for judicial review of three leading con-temporary legal commentators: Ronald Dworkin, Jesse Choper, andJohn Hart Ely. The authors all, in my opinion, are agreed in theiracceptance of modern judicial review, which assumes that judges ex-ercise what is fundamentally a legislative power, but they representvery different approaches. Dworkin is an unrepentant activist, ex-plaining judicial review in terms which accord judges an extraor-dinary breadth of power, with little or no concern about its anti-majoritarian character. Choper is probably the closest of the threeto the mainstream of contemporary legal commentary, absolutelycommitted to a very broad judicial role in the area of "individualrights," but with enough sensitivity to the anti-majoritarian im-plications of judicial review to establish strong, principled limits toit in other areas. Ely is the one most disturbed about the potentialanti-democratic character of judicial review, and therefore heelaborates a theoretical basis for its exercise which is the mostrestrictive in theory if not in practice, even toying with the claimthat his approach is broadly "interpretivist."

The very fact that these books have been written and widely ac-claimed gives testimony to the current "felt need" for a new theoryof judicial review. The Warren Court era approach to judicialreview (among lawyers and political scientists as well as justices)often seemed to be "let's be pragmatic and simply do justice, insteadof worrying about theoretical niceties." That seems inadequate to-day, whether because of a deep-seated desire for coherent legal prin-ciples, or perhaps because of the potential political threats to ajudiciary which has alienated many groups, or perhaps the specter(partly realized, in fact) of a judiciary controlled by differentpolitical forces. At any rate, the theoretical grounds for judicialreview have been given renewed attention, and in most cases (e.g.Choper and Ely, though not Dworkin) with explicit concern to limitit in some way.

Whether the limits are very effective ones is another question. Tothe extent that they are not, we might want to rethink judicialreview even more "radically." We might even consider returning to


the traditional conception of judicial review articulated by thefounders of the American regime.

"Taking Rights Seriously"

Ronald Dworkin ' s appointment as successor to H.L.A. Hart inOxford's Chair of Jurisprudence is an indication of his prestige in thefield of philosophy of law. Taking Rights Seriously is a collection ofhis articles which is intended to "define and defend a liberal theoryof law." Much of the book is beyond the scope of our present con-cerns, but there are several sections which explicitly take up the ac-tivity of judges in the area of constitutional law, and others whichdeal with it tangentially.

Chapter 5, "Constitutional Cases, " turns on a fundamentaldistinction Dworkin makes between "concepts" and "conceptions."The example he uses is the following: What is my meaning if I tellmy children not to treat others unfairly? I might have some ex-amples in mind, but in addition: 1) I would expect them to apply myinstructions to situations I had not and could not have thoughtabout, and 2) I stand ready to admit, if they can persuade me, that aparticular act I thought was fair when I spoke is actually unfair.(That new view of the act is to be regarded as included in my in-structions, not changing them). I mean that my family should "beguided by the concept of fairness, not by any specific conception offairness I might have had in mind."

Similarly, when a group believes that there are certain acts whichare unfair, its members may agree on a great number of standardcases which are used as benchmarks against which to test other,more controversial cases. They share a concept of unfairness, yetthey may differ on a large number of cases. This is possible becausethey may differ on which more fundamental principles must berelied on to show that a particular act is unfair, in which case theyhave different conceptions of fairness.

If this group gives instructions in the name of fairness, then, itmay be doing one of two very different things. First, it may be ap-pealing to the concept of fairness, charging those it instructs withthe responsibility of developing and applying their own conceptionof fairness. (This is not, he says, giving them discretion to act as theylike, for the standard assumes that one conception is superior toanother.) Second, it may be laying down a particular conception offairness, e.g. by listing its wishes with respect to controversial cases


or by specifying some controversial and explicit theory of fairnesssuch as Bentham's utilitarian ethics.

Dworkin summarizes the difference in this way. When I appeal tothe concept of fairness, my views have no special standing, while myviews are the heart of the issue if I appeal to a conception of fairness.Appealing to the concept of fairness poses a moral issue, while layingdown my conception of fairness is answering it.

The applicaton of this distinction to constitutional law is fairlyobvious. The Constitution establishes concepts, not conceptions. So,for example, if the framers' conception of cruel and unusual punish-ment did not include the death penalty, that does not determine theconstitutional question as to whether the concept of cruel andunusual punishment is violated by the death penalty. The Court, ifit decides that the death penalty is unconstitutional, has not changedthe Constitution, because it "can enforce what the Constitution saysonly by making up its own mind about what is cruel."

The broad clauses of the Constitution are not "vague"-theywould only be so if they were intended to be conceptions. Theframers did not choose the language conventionally used to offerparticular theories of the concepts in question, however. They in-tended to establish certain concepts, which "could not be mademore precise by being more detailed." It is less misleading, he foot-notes, to say that the Constitution "delegates" power to the Court toenforce its own conceptions of political morality, as long as onequalifies this by recognizing that the Court must justify its concep-tion by reference to "the standard cases" (e.g. show why the prin-ciples which make the rack and thumbscrew cruel also make thedeath penalty so).

Dworkin poses the question of judicial activism vs. judicialrestraint, and devotes considerable time to refuting the latter.Judicial restraint, he says, is based either on a theory of politicalskepticism (which denies that there are any objective moral rightsand would protect against only plain and uncontroversial violationsof the political morality of the framers or established lines of prece-dent) or a theory of judicial deference (which holds that citizenshave moral rights, but that the character and strength of these aredebatable and should be decided by political institutions other thanthe courts). Dworkin points out that few Americans would acceptthe premises necessary to establish complete moral skepticism. Thearguments for deference, he says, are weaker than they appear. This"democratic" argument assumes that all unsettled issues, including


moral and political principles, should be resolved by institutionswhich are politically responsible in ways the courts are not. It is notclear that democracy has so precise a meaning (or would bedesirable if it did) or that such a theory is embraced by the Constitu-tion (which provides no rule limiting judicial review to clear cases)or our political tradition (our courts have by no means consistentlyaccepted that argument). Are democratic institutions likelegislatures in fact likely to make sounder decisions than courts onunderlying constitutional issues such as the individual's moral rightsagainst the state? Dworkin gives a lengthy analysis of AlexanderBickel's work to conclude that such a view could rest only on themoral skepticism rejected earlier.

Recent history does not show (as Bickel thinks) that policies suchas desegregation and reapportionment fail because they are based on"principles," which necessarily fall short of the complexity of socialorganization. Moreover, the idea that the organic political processwill secure genuine rights (e.g. those of blacks, suspects, atheists,etc.) if not hindered by the rationalistic intrusion of the courts is a"bizarre proposition," disguising skepticism about rights. Burke andothers may be right that society will produce institutions that bestsuit it by evolution, but rights are claims that require society to settlefor institutions that do not suit it comfortably.

Is it for some reason fairer, Dworkin asks, that democratic institu-tions rather than courts should decide such issues (apart from thelikelihood of sounder decisions)? Issues of rights should not be left tomajorities, for constitutionalism is intended to restrain majorities,and to make a majority, in effect, a judge in its own cause seems in-consistent and unjust. It is true that in many issues, political deci-sions in the U.S. are made not by one stable majority, but rather bymany different political institutions, each representing a differentconstituency and reviewing decisions of other branches. But indisputes respecting individual rights, Dworkin argues, the interestsof those in political control of the various institutions of governmentare both homogenous and hostile. Thus, national decisions are sub-ject to no effective review except in the courts.

The argument from democracy, then, seems to say that those inpolitical power are invited to be the sole judge of their own deci-sions, to see whether they have the right to do what they have decid-ed they want to do. This argument is not a final proof that judicialactivism is superior to deference, because the risk of judicial tyrannyimplicit in activism may outweigh the unfairness of asking a majori-


ty to be judge in its own cause. But it does undermine the argumentthat the majority, in fairness, must be allowed to decide the limits ofits own power.

A second discussion of constitutional adjudication is contained inthe most important chapter of the book (Chapter 4 "Hard Cases")which outlines a broad theory of adjudication. Dworkindistinguishes between policies, which deal with collective goals ofthe community, and principles, which deal with individual or grouprights. Judicial arguments are those generated by principle andjudicial decisions enforce existing political rights. These rights are"institutional rights," which justify a decision by some particularpolitical institution, rather than general "background rights,"which justify political decisions by society in the abstract.

Judicial decisions are characterized through an interestinganalogy. The game of chess has its general "institutional" rules,which take precedence over more general or abstract rights. (A per-son is said to be the winner of a game in a tournament on the basis ofthe rules of chess, even if that person is rich, and one believes that,abstractly, the poor have a right to money from the rich.) Some rulesof chess may require interpretation, for example, that one playermay not "unreasonably" annoy another, but the chess referee shouldnot be characterized as one "free to legislate in the open texture ofimprecise rules" (i.e. as judging is often characterized today).Rather, the referee must choose interpretations which protect the"character" of the game. This "character" is known, first, by whateveryone knows: the conventions exhibited in attitudes, manners,and the history of the game. But this may be incomplete. If BobbyFischer complains that he is being unreasonably annoyed when theRussian grandmaster Tal smiles at him during play, does he have aright to forfeiture? The referee must "construct" the character of thegame to decide such a question. He might note that chess is an in-tellectual game, but this concept is still incomplete or "contested."Do the features of the game support one view? If not, he might haveto look at the concept of intellect more closely to decide the case:which conception offers a deeper or more successful account of whatintellect really is?

Ultimately, since chess is based on the tacit consent orunderstanding of the parties, this hard case asks what it is fair tosuppose the players did when they consented to the forfeiture rule.The decision will rest on the general character of the game, for theplayers have consented not just to a set of rules but to the enterpriseas a whole.


Legal arguments in hard cases are "contested concepts," similar tothe concept of the "character of the game" in the chess analogy. Ifthe judge accepts the settled practices of his legal system, then hemust accept some general theory that justifies these practices, anddecide cases in light of this theory.

Dworkin invents Hercules, an American judge who accepts themain uncontroversial constitutive and regulative rules of law, e.g.statutes have general power to create and extinguish legal rights,judges have a general duty to follow earlier decisions whose ra-tionales apply to a case. As one hard case, Dworkin chooses a con-stitutional question: does the prohibition of an establishment ofreligion include a prohibition of a law providing free busing toparochial school children?

Hercules need not be concerned with "background rights" exclud-ed by the settled principles of the Constitution, e.g. "all citizenshave a right to salvation through an unestablished church." He does,however, need a constitutional theory which explains the Constitu-tion's settled principles. He may find, as in this case, that more thanone theory fits the provisions. The religion provisions could be basedon the theory that it is wrong for government to enact any legislationthat causes great social tension or disorder, or on the theory thatthere is a "background" right to religious liberty. Hercules thenmust see which theory fits the whole scheme most smoothly, as thelatter theory does in this case. Even that, however, may not be suffi-ciently concrete. Does the right to religious liberty mean that thereshould be no taxes to help a religion survive or that no taxes are tobenefit one religion at the expense of another? At this point, thejudge must consider the question as an issue of political philosophy:which conception is the more satisfactory elaboration of the generalidea of religious liberty?

The action of a judge may be summed up in this way then. Hemust develop a theory of the Constitution, a complex set of prin-ciples and policies that justify the scheme of government. Thistheory must be developed by referring alternately to politicalphilosophy and institutional detail. This requires the generation ofpolitical theories which justify different aspects of the scheme andthe testing of these theories against the broader institution, and it re-quires the elaboration of the contested concepts the successful theoryemploys.

This theory of adjudication, Dworkin argues, does not pit thejudge's political morality against that of the community. Rather, the


judge identifies a particular perception of community morality asdecisive, namely, the political morality presupposed by the laws andinstitutions of the community. His decision may be controversial,especially when he appeals to some contested concept such asfairness, liberality, or equality, but it is still not the same as a deci-sion based on a judge's belief in some "background" rights, but adecision based on his own sense of what community morality pro-vides. The example Dworkin uses in this regard is abortion. A judgemust elaborate the contested concept of "human dignity" implicit inthe due process clause. If his theory of dignity connects it with in-dependence-not being forced to devote an important part of activi-ty to the concerns of others-then he will say abortion is a constitu-tional right.

Should the judge defer to the judgment of most members of thecommunity about what community morality is (on grounds ofdemocratic principles)? No, says Dworkin. First, he cannot assumethat the man on the street who disapproves of abortion has con-sidered whether the constitutional concept of dignity supports hisposition (neither casual expression of preferences nor voting can beassumed to involve the dialectical skill displayed when one self-consciously defends his position). Second, why should the judge takethe ordinary man's opinion as decisive, if he thinks that the ordinaryman is wrong about community morality? His job is to decide cases,and he cheats the parties of what they are entitled to if he does notdecide according to those rights.

Of course, judges are fallible too. But they cannot simply foregothe effort to determine the institutional rights of parties beforethem: the possibility of producing unjust decisions does not meanthey should make no effort to produce just ones. Besides, to whomelse should the hard cases be submitted? There is no reason to creditany other particular group with better facilities of moral judgment;and if there were, then the process of selecting judges-not thetechniques of judging-ought to be changed.

Gaps in the Activist Rationale

Dworkin begins his analysis of judicial review with the distinctionbetween "concept" and "conceptions." This distinction has the ef-fect of elevating the meaning of the Constitution to a very high levelof generality, cutting it off from the substantive content the framersunderstood it to have. The generality of the concepts they estab-


lished is quite extreme, it seems, for besides "cruelty" it includes con-cepts such as "equality," "legality," and "dignity." With thisanalysis the framers' views on the applicablity of the concepts toparticular cases "have no special standing," and in fact the framersmust figuratively "stand ready to admit that some particular act"they intended to be covered (or not covered) by their language is not(or is) .

The evidence Dworkin offers to show that the framers intended toestablish concepts, not their conceptions, is their words: "if thosewho enacted the broad clauses had meant to lay down particularconceptions, they would have found the sort of language conven-tionally used to do this, that is, they would have offered particulartheories of the concepts in question." (136) In effect, the framerscharged future interpreters "with the responsibility of developingand applying their own conception[s]" as controversial cases arose.

It is reasonably clear that Dworkin is correct in saying that theframers did not mean to limit the provisions of the Constitution tothe particulars with which they were familiar. (They would expectthe commerce power to be applied to planes and the war power tomodern weapons.) Is there any reason to assume that they an-ticipated future interpreters would have the authority to vary themeaning of the Constitution with respect to what they did have inmind? For example, did they "stand ready to admit" that future in-terpreters could demonstrate the inadequacy of the framers's con-ception that the death penalty was not "cruel and unusual"? Ofcourse, the framers would be open to a general discussion of theissue, but would they have argued that, without amendment, afuture judge could apply their "concept" to override a clear "con-ception" of theirs? This question is especially sharp when the "con-ception" appears as an implication of a constitutional provision: thedue process clause implies that a person may be deprived of life,with due process of law.

On Dworkin's analysis, the only way that the framers could havelegislated their conception regarding the death penalty would havebeen to specify in clear language that the death penalty was notcruel and unusual. But this goes quite contrary to the notion that aConstitution cannot specify every possible case, because it wouldbecome too prolix (and thus inaccessible to the people) and too easilyoutdated. Are the framers "stuck" then, with the power to legislateonly vague concepts? An alternative suggestion is that the framers'"concept" of cruel and unusual punishment, was a reference to a


well-developed body of law on the subject: the common law. Thisbody of benchmark cases included not only the proposition that the"rack and screw" are cruel and unusual, but also the propositionthat the death penalty is not. Of course, the framers might add, thelegislature is free to expand the protection beyond the minimum ofthe benchmark cases, but that is not within the authority of an "in -

terpreter. "

Dworkin's case is at the strongest with the Eighth Amendment,since it is arguable that the reference to "unusual" punishment mayallow for consideration of society's contemporary norms andbecause "cruelty" has more content than some other "concepts." It ismore problematic with respect to other examples he uses. Withrespect to such general concepts as "equality" and "dignity," is thereany historical evidence to support the argument that the framers in-tended to delegate to the Court the power to enforce its conceptionsof political morality, as long as these conceptions are adequatelyjustified by reference to "standard" cases of the concept? A survey ofjudicial review in the founding era would show, I think, that there issimply no evidence of any such intent.

Despite Dworkin's passing reference to the framers' intention, inorder to justify his distinction between concept and conception, itseems ultimately that the framers' intention is secondary-decisivelysubordinated to other factors. Dworkin explicitly calls into questionthat "fidelity to the spirit of the text [is the] overriding principle ofconstitutional adjudication." (136) Respect for decisions of othergovernmental institutions or the desire to protect established legaldoctrines, for example, may take precedence. Whatever the alter-natives, "it is crucial to recognize that these other policies competewith the principle that the constitution is the fundamental and im-perative source of constitutional law." (137)

This is implicit in his discussion of "Hard Cases" as well. The firstjob of the judge is to find a theory which most smoothly explains theConstitution's settled principles. There is no suggestion that it oughtto be the theory of the framers, which after all was the one whichactually produced the Constitution's principles. (Of course, someparts of the Constitution may reflect not a single theory, but rathercompromises among different theories. If so, however, that com-promise is in a sense the theory underlying those parts.) In fact,Dworkin says that there may be more than one theory that fitssmoothly. If so, the judge "must turn to the remaining constitutionalrules and settled practices under these rules" to see which theory


provides a smoother fit. (106) It would seem that if settled prac-tice-especially judicial precedents-has departed from the framers'intentions, then the judge is almost obligated not to adhere to thoseintentions. Finally, the judge must consider the questions stillunresolved at that point as questions of political philosophy,deciding which conception is a more satisfactory elaboration of thegiven general idea.

Dworkin's approach to constitutional adjudication gives the judgeconsiderable power, to say the least. It is not unlimited, of course;he cannot argue that the First Amendment requires an establishedchurch. But given Dworkin's understanding of the generality of theconstitution's "concepts" and the minimization of the framers' inten-tions, an imaginative judge will have very broad leeway to read con-stitutional provisions to accord with his personal politicalpreferences. As Dworkin argues later in chapter 5, since the judge islikely to value most of the concepts that figure in the justification ofhis community's institutions (e.g. "religious liberty"), he would putto himself (not some hypothetical self) the questions about "the deepmorality that gives the concept value." Thus,

the sharp distinction between background and institutional moralitywill fade, not because institutional morality is displaced by institu-tional convictions, but because personal convictions have become themost reliable guide he has to institutional morality. (128)

The surest guide to the Constitution for the judge will be his owndeep convictions about what its very general concepts demand. Sothe judge's deep convictions about "equality," "dignity," etc. willshape his constitutional decision-making.

Dworkin is certainly aware of the majoritarian democratic cri-tique of such broad judicial power, and he responds to it. Thedemocratic argument says that all unsettled issues (including issuesof moral and political principle) should be resolved by institutionsmore politically responsible than courts. Dworkin denies that this isnecessarily the precise meaning of democracy (without saying why),and if it is, that only raises the question of why we should havedemocracy (again, he does not say why we should not). He does givea reason why we cannot argue that the Constitution establishes atheory of democracy that excludes wider review, namely, that itprovides no rule limiting judicial review to clear cases. WhatDworkin does not point out is that the Constitution does not providea rule for judicial review in unclear cases because it does not explicit-


ly provide a rule for judicial review at all. Dworkin, like mostmodern commentators, glides over the fact that the argument forjudicial review was originally based only on constitutional implica-tions and that an examination of this argument suggests a narrowerscope for such an implied power. If the Constitution does not ex-plicitly reject a notion of judicial power as broad as Dworkin's, itseems likely that the reason was that no one in the founding erawould have made such claims for judicial review. And if later courtshave not been willing to accept such restrictions on their power, thatdoes not disprove the argument from democracy.

Dworkin then argues that there is no reason to believe thatdemocratic institutions such as legislatures make sounder decisionsor that it is fairer that they decide controversial issues. It is not fairerbecause it, in effect, makes a majority a judge in its own case. Whenit comes to individual rights issues, the controlling interests in ourgovernmental institutions have been both homogeneous and hostile,and are subject to no review if not court review. But, as Dworkinhimself points out, this is no proof for the superiority of judicial ac-tivism, because of the risk of tyranny the latter involves, which mayoverride the "unfairness" of asking the majority to be judge in itsown case.

There is no way around the principle that ultimate social powermust reside somewhere,' and that ultimate social power must deter-mine the limits of its own power. The framers of the U.S. Constitu-tion tried to limit the power of the people by the principle of the ruleof law, one part of which was the rule of the fundamental law, theConstitution, over the people in their ordinary governmentalcapacity, acting through the political branches of government(legislature and executive) . This law was to be enforced by impartialjudges. But what kept the judges impartial-and kept them frombecoming "judges in their own cases"-was that they too werelimited by the rule of that fundamental law. Once judicial reviewbecomes effectively detached from the Constitution, i.e. remains at-tached only by the vaguest of concepts, such as "equality,""dignity," etc., and allows great latitude to the judge's "deepest con-victions" about those concepts, then judicial power has been "freed"from the rule of law, and judges have become judges in their owncause, i.e. the cause of their own power generally and the causes oftheir own political preferences on particular issues.

4. Cf. Tocqueville, Democracy in America, chap. 15 (New York: Vintage, 1944), I,270.


The democratic argument is that if a final decision has to be madeon ordinary issues not settled previously by the rule of the fun-damental law, then it ought to be made by no particular group, butby the whole body of the poeple, acting in the only form it can, ma-jority rule. If this can sometimes lead to injustice, on the whole it isstill fairer than giving such power to some particular group withinthe nation.

Are legislatures more likely to reach sound decisions about in-dividual moral rights? Dworkin argues that rights against the staterequire society to settle for institutions which may not suit it so com-fortably, i.e. that individual rights deserve protection even at thecost of the general interest. Since society typically will choose whatsuits it comfortably, society (the majority, the legislature) cannot betrusted to protect rights. Rights must be protected by argumentswhich appeal to principle, even when many people will be "worseoff" because of these rights, and judges-not legislatures-typicallydecide on the basis of principles.

Dworkin seems to say that judicial decisions about rights aresuperior to legislative decisions simply because they are more prin-cipled. This is not so obviously the case. First, if judges are typicallymore concerned with principles and legislatures (and majorities)with interests, that is, at best, only a generalization. No impartialobserver could deny that contemporary judges often wade intopolicy (interest) considerations, even when they seem to be consider-ing matters of principle. Nor can it fairly be said that principle playsno significant part in the legislative process. (Has it been only "in-terest" considerations, for example, which have motivated Congressnot to overturn some of the Court's more unpopular decisions?)

Second, and more importantly, are "principled" decisions alwaysbetter than "interest-based" ones? If so, then would Dworkin acceptthe propriety of Court laissez-faire economic decisions from1890-1937? They were certainly "principled" decisions, based on"liberty of contract" as a fundamental personal right, and not mere-ly on a utilitarian calculus to maximize gross national product. Ofcourse, Dworkin might find the argument from principle spurious,but it seems clear to me that the justices of 1890-1937 would havesincerely said this was a matter of principle. (Perhaps that simplydemonstrates that judges prefer the form of an argument from prin-ciple, but not necessarily the substance. That, too, would under-mine the argument Dworkin wants to make.)

Some arguments from principle are simply noxious. Religious

THEORIES OF JUDIIAL REVIEW 229

persecution was not a utilitarian calculus-it was a principle.Dworkin must show why it can be assumed that judges will not onlybe more attentive to principle than legislatures, but also that thoseprinciples will be good ones, which protect genuine rights, notspurious ones. He is confident that lawyers can play an active role inthe development of an adequate theory of moral rights against thestate: he finds it "incredible" that a "fusion of constitutional law andmoral theory . . . has yet to take place." (149) If one reflects onwhat has been done in the name of "moral theory" throughouthuman history, reservations about such a fusion may seem sensible.

This is not to say that constitutional 1 w does not require moraltheory. The Constitution in fact embodies what moral theoryAmericans could agree on-a moral theory with its limits perhaps,but one which has served as the basis of a government which isunusually free and prosperous and, on the whole, decent. If thatmoral theory is to give way to another, such a profound change inthe nation would seem to call for a broad national debate, such asthat required by the amendment process. Dworkin prefers the inter-nal workings of the legal profession, it would seem, presumablybecause of the "difficulty" of the amendment process (getting somany Americans to agree on any moral theory at all, much less onewhich he would consider desirable).

This does not mean that judges and lawyers are free to legislateany moral theory at all. They are constrained to some extent by thematerials with which they work: Constitution, statutes, commonlaw principles. The judge's power, according to Dworkin, is not oneof imposing his own morality, but rather acting on the basis of hisown sense of what community morality provides. Why his own,rather than that of the ordinary "man in the street"? First, becausethe ordinary man in the street cannot be assumed to have thoughtout what the concepts presupposed by the Constitution, consistentlyapplied, require.

Of course, the "man in the street" may not have thought throughconstitutional concepts. But the founders would have argued thatrepresentatives likely would have. Judges are not the only ones whocan claim to have thought about whether "human dignity" as aprinciple of "due process" requires abortion rights. Certainlylegislatures could be wrong, but that is no reason why judges-whomust apply laws they disagree with in many cases-cannot enforcelegislative decisions, especially if they have the humility to recognizethat their convictions about community morality are not more clear-


ly grounded in the fundamental law than the convictions of manyothers.

Second, the ordinary man in the street, Dworkin says, may simplybe wrong about what constitutional concepts require, and the judgehas a duty to give parties to a case their rights. Judicial fallibilitydoes not imply that because judges make bad decisions, they shouldnot try to make good ones. Besides, he says, finally, there is noreason to credit any other particular group with better facilities ofmoral argument (or if there is, the process of selecting judges-notthe techniques of judging-should be changed).

This final argument of Dworkin's is arresting in its stark simplici-ty. There is no reason to think anybody else has better facilities formoral argument than judges, so they need not defer to anyone else.It is dubious that one could argue for a clear general superiority ofplumbers, or journalists, or Harvard philosophy Ph.D.'s over judgesin such matters (although in some historical circumstances I can im-agine plumbers being given the nod). The whole basis of Americangovernment, as originally understood, was that no group of mencould consistently be trusted to make the right political decisions,and therefore consent of the majority was essential to legitimatepolitical power. Dworkin's judge looks around and says "wellnobody can show me that he does a better job, so I can do it." Butdoesn't logic suggest that if no one can prove superior facilities, thenno one has any special claim to rule? And if no one has a specialclaim, and yet rule is necessary, then rule by the whole body of thepeople-in practice, a majority-seems preferable to the alter-natives.

Dworkin's attempts to provide theoretical justification for a verybroad judicial activism do not, in the final analysis, appear per-suasive. But his unqualified judicial activism is not the only form ofcontemporary judicial review. Other legal commentators agree thatsuch traditional statements as Marbury v. Madison provide an in-adequate rationale for judicial review, and attempt to constructnew theories, which would explain and justify the broad powerasserted in the modern era. Some of these theories make an effort toestablish more definite limits on judicial power. Two of these com-mentators are Jesse Choper and John Hart Ely.

Judicial Review and "Functional" Analysis

Jesse Choper, dean of the Berkeley law school and co-author of awidely used constitutional law casebook, is the author of Judicial


Review in the National Political Process: A Functional Reconsidera-tion of the Role of the Supreme Court (a co-recipient of theprestigious Order of the Coif Triennial Book Award for the mostsignificant contribution to legal scholarship). Almost scholastic in itscomprehensiveness and attention to analytical detail, this impressivebook is a curious combination of activism and restraint. The focus ofthe book is not the substance of constitutional adjudication (how theCourt shall interpret the Constitution), but the jurisdictional or pro-cedural role of the Supreme Court. Its thesis is that, despite the anti-majoritarian character of judicial review, the Court must exercisethis power in order to protect individual rights, which are not ade-quately represented in the political process; but the Court shouldalso decline to exercise judicial review in other areas (relating tofederalism and separation of powers) in order to minimize the ten-sion between judicial review and democracy and to husband itsresources of institutional prestige.

Chapters 1 and 3 provide essential background principles forChoper's analysis. The first is a brilliant analysis of democratictheory and practice relative to the political branches and thejudiciary. It has almost the form of a scholastic disputed question(such as those of St. Thomas Aquinas' Summa Theologica), startingwith a section which argues in a sophisticated fashion that thepolitical branches (Congress, in particular) are thoroughlyundemocratic and then carefully dissecting that argument to revealits inadequacy. This is followed by a final section which notes thearguments that the judicial branch is subject to effective popularcontrol and then ruthlessly dismantles them. The conclusion: thepolitical branches are decisively more democratic than the SupremeCourt.

The Court 's exercise of its antimajoritarian power inevitably hasoccasioned frequent and great controversy. This controversy createsa continual threat that the public support necessary to secure com-pliance with Court decisions will be lacking. Chapter 3 argues thatthe institutional "capital" of judicial prestige, the most effectualbasis for compliance by the political branches and the people, couldconceivably be exhausted, and so the Court must somehow take careto prevent this. The book is an outline of a plan for judicial conser-vation of capital, by limiting the exercise of judicial review to onlytwo out of four broad kinds of constitutional questions.

The first area is covered by the Individual Rights Proposal, andChoper argues that the protection of individual rights is the para-


mount justification for judicial review. The judiciary has theprimary responsibility here not because of "deeper wisdom orbroader vision," but because it has the essential ingredient for thistask which is lacking to the political branches: it "is insulated frompolitical responsibility and unbeholden to self-absorbed and excitedmajoritarianism." (68) Judicial review is especially necessary whenmajority desires are intense and threaten the rights of an individualor a politically isolated group.

Choper catalogues a variety of areas which have been held to re-quire special judicial supervision: political rights; specificallydesignated constitutional rights in general; rights involved in the ad-ministration of justice; and "unnamed rights," largely associatedwith "fundamental rights" without a textual basis in the Constitu-tion and "suspect classes" which enjoy a "special judicial immunityfrom adverse political treatment." (73) He also mentions a variety ofalternative approaches to individual rights questions, some quitemodest (intervening only in the "political rights" area, for instance),some extremely broad (e.g. expanding the list of fundamental rightsand suspect classes). But Choper himself begs off the question ofwhich approach to take-that is more a substantive concern, whilehis focus is merely on the procedural question of which kinds ofissues the Court should consider.

The last part of the second chapter is a justification of the In-dividual Rights Proposal by a quasi-empirical argument, namely, areview of the history of judicial review of individual rights and its ef-fects. Choper admits that there are serious methodological problemsin attempting this, but nonetheless asserts his belief that "thehistorical record discloses that the Court's accomplishments for in-dividual rights have been substantial." (83) There follows whatChoper himself concedes to be not only a fragmented but "adver-sarial" review of Court history.

Besides accomplishing much "both for the substance of libertyand . . , for the furtherance of the goals of democracy," (127) theCourt has also reassured minority groups and encouraged ac-quiescence in laws such groups deplore. The courts are an alter-native to the streets. But in performing this essential task, the Courtmay engender popular disapproval. How to maintain the public ac-ceptance necessary to function effectively therefore becomes acrucial question.

Choper's answer is to restrict Court involvement in other areas,such as federalism and separation of powers, very sharply. These


questions should be held, for the most part, to be "non-justiciable,"their resolution to be left to the ordinary political process. The mainfunctional justification for this approach is that states and the twopolitical branches are all quite adequately represented in thepolitical process and can defend their interests there.

The Federalism Proposal states that the "issue of whether federalaction is beyond the authority of the central government and thusviolates `states rights' should be treated as non-justiciable." Statesare well represented in the national political process, as history con-firms, and are able to defend their interests. Moreover, federalismimplicates questions of practicality ("the relative competence of dif-ferent levels of government to deal with societal problems") ratherthan principle (protecting "constitutionally ordained personal liber-ties" out of "special regard for the dignity of the individual," and"democratic processes may be generally trusted to produce a fairconstitutional judgment in such matters"). (203) Nor has judicialreview been particularly successful in this area-most decisionslimiting national power vis-a-vis the states have been overruled.Even if federalism does protect liberty in some sense-and Choperseems to doubt this seriously-the wiser course is to avoid such issuesin order to conserve the Court's capital of institutional prestige forits permanent role of protecting individual liberties. (Choper rightlynotes that the practical import of the Proposal would be quitelimited, despite its radical tone: few results in concrete cases wouldchange.)

Choper does accept, however, the justiciability of claims arisingfrom "the other side" of federalism, i.e. state encroachment on na-tional power. This is justified first, because national interests are in-sufficiently reflected in state legislatures, and second, because suchjudicial review would not be final-it would be possible for the na-tional political process to reverse such rulings that state power islimited, by ordinary statutes. Moreover, Congress is ill-suited to per-form the task of reviewing the myriad of arguably invalid state andlocal rules (although Choper is open to the possibility of reducingthe Court's role here by establishment of a special federal agency todeal with such questions).

The Separation Proposal states that the Court should treat as non-justiciable questions of the relative powers of Congress and the Presi-dent. The primary modern justification for judicial action in thisarea has been the fear of arbitrary executive acts. Choper argues,however, that this danger is adequately guarded against by checks


and balances (both within the executive branch and vis-a-vis Con-gress) and by elections. If these work, judicial review is unnecessary.If they do not work, then it is unlikely that a true constitutionalviolation has occurred, or that the Court will succeed in checkingthe executive where they have not.

The impact of this proposal is limited by the fact that most casesin the area of separation of powers have not involved assertions ofcompletely independent executive constitutional power. Most ex-ecutive claims have been based on statutory authority of some kind(and those issues are justiciable-and effectively reversible throughthe ordinary political process). Choper is optimistic that acceptanceof his proposal would not lead the executive to depend more on con-stitutional arguments, because the magnitude of those broad claimshas tended to encourage the political branches to resolve their dif-ferences through accommodation of some kind. By forcing thepolitical branches to defend their own interests through the normalpolitical process, the Court again conserves its prestige for its para-mount role of protecting individual rights.

Choper's final proposal-the Judicial Proposal-provides thatquestions of the scope of judicial power be resolved by the judiciary.Unlike the political branches, the courts are not well represented inthe political process, and therefore they must protect their interestthrough the judicial process. They also have a special knowledge ofjudicial history, tradition, capacity, and mission, which supportsthe argument that they have a distinctive ability to define the properboundaries of the judicial power. Thus, the Court will review bothattempts to restrict judicial power and attempts to expand (andperhaps overload) it.

Whose "Good Results"?

Choper's book makes an effort to come to terms with original in-tent in some way, while at the same time rejecting it. He recognizesthe importance of the issue enough to raise it in the Preface.Disavowing the attempt to manipulate history to justify his positionon the basis of the framers' intent, he does not try to show that hisproposals were "originally ordained," but merely that they "are notat war with original intent." (xviii) His primary reliance is not onoriginal intent but on many empirical examples. Yet it is hard to seehow such a comprehensive set of proposals could be "not originally


ordained" and yet "not at war" with original intent. While Chopermakes an extensive but sometimes strained effort to cite the framersin support of each of his proposals, it is clear that the framers gaveno ground for distinguishing so sharply between judicial powers inthe various areas.

Indeed, it seems rather clear that the Court's chief role in theoriginal scheme of judicial review was that of an arbiter offederalism.' Choper maintains the half of this role which supportsbroad national power and cuts out the other half, whereby thefederal government would be limited out of a concern for states'rights. This may be preferable as a matter of policy, but it is not an"inconclusive" matter in regard to original intent-it is at war withit. In this section Choper plays the role of a defense lawyer with a"bad" case: he tries to gather evidence which creates "a reasonabledoubt" in the jury's minds, so that he can dismiss original intent as"inconclusive."

Much of the evidence Choper collects emphasizes that the framersrelied on means other than the judiciary to preserve federalism andseparation of powers. This evidence is interesting and useful forunderstanding traditional judicial review, but does not give strongsupport to Choper's overall position. Properly understood, thatevidence shows that the framers generally had limited expectationsas to judicial review in the individual rights area as well as the othertwo. For example, if part of his reason for dismissing judicial reviewof federalism issues is the inconclusive evidence that the framers in-tended any judicial review at all, then it would seem that therewould be equal doubt about Choper's Individual Rights Proposal.

In fact, though, Choper is more concerned with dismissingoriginal intent than following it. One wonders at times why he evenfeels the need to go into the issue, instead of straightforwardly asser-ting its irrelevance. Perhaps the answer is that the legal professionhas traditions or norms which allow judges broad discretionary orlegislative power, but only in cases where the law is not clear.Where the law does seem rather clear, a judge may still find a wayto legislate, by denying the clarity, but the need to muddy the issuemay reflect the influence of traditional legal norms which are dif-ficult to ignore. Choper's position on judicial review is based ex-plicitly on functional considerations, apart from the intent of theframers, but he tries to harmonize the two as best he can, to

5. See Archibald Cox, The Role of the Supreme Court in American Government (Lon-don: Oxford University Press, 1976), Chapter 1.


minimize difficulties regarding its legitimacy (perhaps for others, ifnot for himself).

Choper argues for a radical withdrawal of the Court from mostfederalism and separation of powers questions, partly because thepolitical process is generally likely to produce adequate results. Thissatisfaction with the results may reflect Choper's preferences for afederalism which enhances federal power and a view of separationof powers which enhances executive power, in both cases con-siderably beyond (contrary to) original intent. But even if judicialintervention were beneficial in a few cases, he says, on the whole itwould be better for the Court to preserve its institutional prestige forthe more important area of protecting individual rights. Of course,the institutional prestige could be husbanded in another way:moderate judicial review (limited to clear constitutional violations)in all three areas. Choper's argument, then, depends on his "para-mount justification of judicial review" in protecting individualrights.

Some of the arguments Choper uses to limit judicial review inregard to federalism and separation of powers would also seem toapply to the individual rights area. Just as the normal politcal pro-cess can preserve federalism and separation of powers in many cases,so-as Choper honestly points out-can it contribute to protectingindividual rights in many cases. If diminution (or elimination) ofjudicial review in the former areas is likely to lead to an enhancedlegislative-executive consideration of questions of constitutionality,perhaps diminution of review in individual rights cases would leadto their enhanced consideration of those issues (though Choperdenies this).

In the area of individual rights (as in the other areas-to whatcomparative extent, it seems rather speculative to say), there will becases of the "failure" of the political process: injustices will occur.But these failures must be weighed against the "failures" of thejudicial process. Choper raises the theoretical problem in discussingthe antimajoritarian character of judicial review, but then sidestepsit in his more particular discussion of the Individual Rights proposal.He begs off what he (citing Ely) calls "the critical question facingconstitutional scholarship," namely "development of ` a principledapproach to judicial enforcement of the Constitution's open-endedprovisions. ' " (79) This is a "substantive " question beyond the scopeof his book. But, of course, this "substantive" question may be ab-solutely crucial to resolve in order to decide his "procedural" one. If


contemporary constitutional scholarship has failed to produce sucha principled approach, or if the principled approach excessivelymagnifies judicial power (with the attendant increased likelihood ofjudicial "failures"), or (perhaps more important) if that principledapproach discovered by legal scholarship seems to have little in-fluence in the actual practice of the Supreme Court (except in theform of selective citation for ad hoc decisions), then there are seriousgrounds to doubt the appropriateness of the broad judicial roleChoper envisions in cases involving individual rights.

Choper can avoid facing the question of the scope and characterof individual rights in this book for two reasons, I think. First, inassigning the Court great power (at least potentially) in this area, hefollows the conventionally accepted wisdom of the contemporarylegal profession. To the extent that Choper is primarily concernedwith getting the legal profession to accept his proposals, he need notput as much effort into the discussion of the Individual Rights pro-posal: "the essential rationale for . . . judicial protection [of in-dividual liberties] is relatively uncomplicated." (64) (His Federalismand Separation Proposals, on the other hand, go against the grain,and therefore demand much fuller justification.)

Second, Choper thinks that the results of judicial review of in-dividual liberties on the historical record provide a demonstration ofits desirability. Whatever its blemishes, on the whole, the Court'srecord is very good. Even the Court's bad decisions have "yielded.. to the slow pressures of unfolding history" (citing ArchibaldCox). Moreover, it has reassured minorities, giving them an alter-native to violence or discontented acceptance of unjust laws.

The record of the Court, in Choper's thoroughly "adversarial"presentation, is seen rather too rosily. 6 His discussion of Court deci-sions in defense of property rights is short and surprisingly noncom-mital. While there may have been some bad effects, he says, theremay have been some good ones too, and the decisions attest to Courtconcern for personal rights. Other commentators (most others) havebeen considerably less charitable toward those decisions.

In evaluating Court decisions, Choper seems simply to assume

6. It is important to keep in mind that an evaluation of the results of judicial review, inregard to the Individual Rights proposal, should distinguish between the good resultswhich flow from a fair reading of the Constitution and those which are a result ofjudicial initiative apart from a clear constitutional command. Good results that flowfrom the original intent should not be employed to justify judicial review apart fromthat intent.


that generally liberal decisions are good and conservative ones arebad. There is no extended discussion of the unpopular busing deci-sions, the effect of Court decisions regarding pornography, the"costs" of decisions which have expanded the rights of the accused,and most Church-State issues (including the Court-driven wedgebetween education and religion) . There is the five page discussion ofthe abortion decision which represents it as a clear, unalloyed bless-ing-an astonishing fact, given the controversy about the deci-sion-not just its doctrinal basis, which was questioned by mostlegal commentators, but its substantive policy, which was ques-tioned by many Americans, though few legal commentators.'

If recourse to the Court has provided minorities with an alter-native to violence or discontented acceptance of unjust laws, onewonders what alternative Choper offers to minorities (or majorities)confronted with Court decisions they consider unjust anddeplorable. Recourse to the political process to overturn the Courtaction-which Choper has so admirably demonstrated to be ineffec-tual in his first chapter? Violence (as in the reaction of South Bostonto a federal judge's busing plan) he would surely deplore.Discontented acceptance? Is that any better an alternative for thelosers in the judicial process than for losers in the legislative process?Or is it worse, because it is even harder to get the Court to reverseitself than to go back and fight it out again in the legislative halls?

Choper's argument ultimately derives its strength from the factthat almost everyone agrees that the Court has made some very gooddecisions, which in some cases perhaps only it could have done (atleast within immediately foreseeable circumstances). The questionsare whether a principled approach can be devised which justifies thegood decisions and "de-legitimates" the bad ones, and whether thelimits on the courts of such an approach could be effectually en -

sured.Whether the answers to these questions can be found seems ques-

tionable. There are widely divergent views of what the Court's "ob-viously good" and "obviously bad" decisions are. Given this fact,there is a substantial danger that "principled approaches" will con-tinually be devised (and revised) to rationalize a simple underlyingresult-orientation. And even if a consensus on some principled ap-

7. Law school professors are typical of intellectual elites who strongly support abor-tion. Perhaps this is so because it takes considerable intellectual skill to "show" that afetus conceived by a man and woman is not a separate "human" being but only "partof a woman's body."


proach could be obtained, how long would the limits it imposed onjudicial power be effective? Success tends to breed expanded power.If the Court does well in some area or areas, there will obviously bepressure-and a temptation-to use power more broadly in otherareas. Does history suggest that such pressure and such temptationsare typically resisted?

Democracy and Distrust

John Hart Ely's Democracy and Distrust: A Theory of JudicialReview begins with a description-and rejection-of the "falsedichotomy" between relying on original intent and second-guessinglegislative value choices. Both are ultimately incompatible "with theunderlying democratic assumptions of our system." (vii)

"Interpretivism," as the original intent position has increasinglycome to be called, is the attempt to interpret constitutional provi-sions as self-contained units "on the basis of their language, withwhatever interpretive help the legislative history can provide,without significant injection of content from outside the provision."(12-13) This position has its attractions: it better fits our usual con-ceptions of law and it seems more democratic than its opposing posi-tions. It attempts to come to grips with the perennial democraticproblem, how to protect minorities without contradicting majorityrule, by having judges exert merely "judgment," not "will," in en-forcing limits established by the people themselves in a written con-stitution.

But this argument, says Ely, is "largely a fake," since "the voice ofthe people" invoked by the judges is a voice of people now dead for acentury or two. (11) Constitutionalism is incompatible withdemocratic principles, it seems-it still may be a good thing, butthat is a different argument.

More importantly, this narrow "clause-bound" interpretivism isnot defensible on its own terms, for the Constitution itself-"the in-terpretivist's Bible"-contains "open-textured" provisions which are"quite broad invitations to import into the constitutional decisionprocess considerations that will not be found in the language of the[constitution] or the debates that led up to it." (14) Ely devotes mostof his second chapter to an argument that the Fourteenth Amend-ment's privileges and immunities clause and its equal protectionclause and the Ninth Amendment are all open-ended provisions,which essentially delegate "to future constitutional


decision-makers" the power "to protect certain rights that the docu-ment neither lists, at least not exhaustively, nor even in any specificway gives directions for finding." (28) What is needed, therefore, is"a principled approach to judicial enforcement of the Constitution'sopen-ended provisions . . . one that is not hopelessly inconsistentwith our nation 's commitment to representative democracy." (41)

But Ely rejects the "prevailing academic line" that the Courtshould be responsible for identifying and enforcing the nation's fun-damental (substantive) values. Judges cannot, consistent with thedemocratic principles of our system, simply impose their ownvalues, and so generally there is an attempt to specify some definitesource of the values to be recognized and protected. Ely's thirdchapter is a survey of some of these different sources: "natural law,""neutral principles," "reason," "tradition," the "consensus" of con-temporary norms, and prediction of the principles toward whichsociety is progressing. All of these are rejected, on grounds whichvary somewhat, but usually involve one or both of these reasons:first, these sources are usually a combination of the "uselesslygeneral and controversially specific" (that is, agreement on theirprinciples is usually confined only to the broadest statements thatgive no real concrete guidance to judges in regard to the morespecific decisions they are called upon to make); and second, theyare usually in practice highly undemocratic and elitist, allowing theinterpreters to read their own (typically upper-middle, professionalclass) values into the law. (64) This kind of "non-interpretivism" isthus, like the narrow "clause-bound" interpretivism, inadequate.

But Ely sees a better route in between these methods, one that heis sometimes tempted to call the "ultimate" (i.e. a broad and ade-quate) interpretivism, whereby the content injected into the open-ended provisions of the Constitution is "derived from the generalthemes of the entire constitutional document and not from somesource entirely beyond its four corners." (12) This approach,foreshadowed in the Warren Court's pattern of decisions (thoughnot legal commentators' analyses of these) and earlier in theCarolene Products footnote, is outlined and justified in Ely's fourthchapter.

Representation is the basic concept upon which Ely ' s theory rests.The community of interests between ruled and rulers which is anessential condition of good government is normally guaranteed byelections. Even with elections, however, minorities may be subjectto oppressive majority action. The framers recognized this problem,


and tried-unsuccessfully-to deal with it through the Bill of Rightsand the "pluralism" of the extended republic described by FederalistNo. 10. The Bill of Rights is inadequate, however, because "no finitelist of entitlements can possibly cover all the ways majorities cantyrannize minorities." (81) Pluralism is inadequate because evenheterogeneous "clusters of cooperating minorities" may have "suffi-cient power and perceived community of interest to advantage itselfat the expense of a minority." (Ibid.) (The inadequacy of thesemeans is shown most strikingly by the problem of slavery.) Thus"the existing theory of representation had to be extended" so that arepresentative would maintain a community of interests withminorities as well as majorities. This did not mean that minoritieshad a right never to be treated less favorably, but it did "preclude arefusal to represent them," that is, to deny them "equal concern andrespect in the design and administration of the political institutionsthat govern them." (82)

The old concept of "virtual representation" could be adapted toaccomplish this function "by tying the interests of those withoutpolitical power to the interests of those with it." (83) Early examplesof this approach were the non-discrimination requirements of theArticle IV privileges and immunities clause (requiring equal treat-ment by states of their citizens and citizens from other states) andthe commerce clause (prohibiting discriminatory taxation on out-of-state goods.) Moreover, McCulloch v. Md. incidentally accepted aproperty tax on the national Bank, as it struck down a tax on itsoperations, on the grounds that the application of the property taxto other property in the state ensured that the Bank would not bedisabled by it. While these themes were not often explicit before theCivil War, the "Fourteenth Amendment quite plainly imposes ajudicially enforceable duty of virtual representation of [this] sort."(86) Ely's theory argues that the two desiderata of Americanpolitics-majority rule and protection of minority rights-do notconflict with one another, but rather are both rooted in "a commonduty of representation. " (87)

Ely then gives three arguments for "a participation-oriented,representation-reinforcing approach to judicial review." (87) Thefirst is a broad interpretivist argument: an examination of the natureof the U.S. Constitution finds it to be primarily the guarantee of aprocess, not the specification of substantive values. Most of the fewsubstantive values of the original Constitution are either obscure(e.g. no quartering of troops in the Third Amendment), or have not


survived much (slavery, prohibition, contractual rights). The"general strategy" of the document has been to guarantee thateveryone's interests will be represented in substantive decision-making processes and that the processes of individual applicationwill not be manipulated to allow the impermissable discrimination.Judicial review, then, should emulate this process orientation of thegeneral themes of the document.

The other two arguments are not "interpretivist" ones. First, thistheory of judicial review is supportive of, rather than inconsistentwith, the American system of representative democracy, for itrecognizes that judges are not better reflectors of conventional(substantive) values than elected representatives, and should confinethemselves "to policing the mechanisms by which the system seeks toensure that our elected representatives will actually represent."(102) Second, it "assigns judges a role they are conspicuously wellsituated to fill." (102) As "comparative outsiders in our governmen-tal system" they are "in a position objectively to assess claims" thatour system is malfunctioning, i.e. that the process is undeserving oftrust because "the ins are choking off channels of political change"or because a majority is "systematically disadvantaging someminority out of simple hostility or prejudiced refusal to recognizecommonalities of interest." (103)

The last two chapters of the book lay out in somewhat greaterdetail the two functions of judicial review in Ely's approach. First,the Court should keep the channels of political change cleared bygiving strong protection to free speech and the right to vote and byresurrecting the non-delegation doctrine to prevent issue-ducking byrepresentatives. Speech should be protected by two complementarymethods. Where regulation of speech is based on its content, only anarrowly defined class of "unprotected messages" should be open toregulation. Where regulation of speech is independent of its content,a rigorous clear and present danger test should be employed toevaluate alleged "specific threats" of the speech. Strict review isalways appropriate, for "we're certainly in no danger of too muchpolitical freedom." (116)

Voting rights are essential to the democratic process, and theirprotection cannot be left to elected representatives, who have avested interest in the status quo. Denial of the right to vote cannot beupheld except for a very good reason, and the vote should be anequal vote which meets the "most administrable standard," i.e. one-man, one-vote.


Ely notes the good intentions, but doubts the efficacy, of an ap-proach which demands articulated legislative purposes in order toguarantee a "more visible" legislative process, where voters can seeand react better to those purposes. A better "way to get ourrepresentatives to be clearer about what they are up to in theirlegislation is to get them to legislate." (131) Too often legislators passon difficult problems to "faceless bureaucrats." The court's earliernon-delegation doctrine, which met a "death by association" (witheconomic due process) in the New Deal, should be revived, Elyargues. By requiring legislatures to give genuine policy direction toadministrators, democratic accountability will be ensured better.

The second function of Ely's judicial review is facilitating therepresentation of minorities. Even where minorities have the vote,courts should prevent the travesty of the equality principle whenmajorities "vote themselves advantages at the expense of others, orotherwise refuse to take their interests into account." (135) (Again,treatment of our society's black minority is a good example of thisproblem.) The Courts should focus not on the pattern of distribu-tions in this regard, but on the process of distributing.

Ely's approach focuses especially on unconstitutional motivation(an approach the Court has been leery of in the past, but in which ithas increasingly engaged) and tries to show that the Warren Courtdeveloped a good test for this area-strict scrutiny of suspiciousclassifications-though perhaps without an adequate articulation ofits grounds or application. This approach can "flush out" un-constitutional motivation in this way. If the class is suspect, thejudge should check the "fit" between the means employed and thepurported end. Disadvantaging a minority is itself an unconstitu-tional end-it cannot be avowed-and if it is the real motive, thereis likely to be an imperfect fit between the law and the constitutionalend which is offered as a justification. Even if there is a good enoughfit, however, there must still be an evaluation of the importance ofthe justification offered: where the end is legitimate but not impor-tant, one can infer the likelihood of improper motivation.

What are the criteria for suspectness? Again, Ely urges an indirectapproach which focuses on the psychology of decision-making. Aclass should be suspect in the first place if a group is subject towidespread vilification. A substantial goal, of course, will stilljustify such a classification (e.g. laws disadvantaging burglars).Where there is not a substantial goal (or a proper fit), "first-degreeprejudice" of this kind will be rejected (e.g. explicitly racist laws).


Second, a class should be suspect if it is based on a stereotypewhere the incidence of counter-examples (i.e. members of the classwhich don't fit the stereotype) is higher than the legislators appearto have thought it was. This is not first-degree prejudice, but it im-plicates equal protection concerns by its denial of equal concern andrespect for those (counter-examples) whose existence-and thuswelfare-is not attended to.

The way to identify such classifications is to focus on factors likelyto produce such misapprehension. When legislators decide betweenusing a generalization or a more discriminating formula, they mustbalance the increased costs of the latter against its increased fairness.Focusing on this process, however, Ely argues, one can see that somegeneralizations tend to benefit legislators or those on whom they candepend (majorities), either in tangible ways or in psychical terms(self-flattering generalizations), at the expense of minorities.Classifications based on these generalizations or stereotypes shouldbe suspect. If the stereotype-disadvantaged group has been and stillis barred from access to the political process (the classic "discreteand insular minority")-and thus has fewer opportunities to opposethe stereotype-the classification should simply be struck down. Ifaccess was once blocked but no longer is (as in the case of genderdiscrimination), then older laws will be voided, but should beupheld if re-passed. (On this kind of analysis, Ely would uphold af-firmative action. Action by a majority which disadvantages itself isnot suspect.)

Ely also defends a "prophylactic" equal protection concern withprocesses which accord decision-makers uncontrolled discretion,which can serve as an outlet for prejudice or an opportunity to erectbuffers which protect some people (generally "like us"), but notothers. The classic example here is the death penalty. The fact thatone searches in vain for examples of executions of members of the af-fluent strata of society shows that "there is a very effective series ofbuffers at work here, protecting those who make the laws and otherslike them from the harshness of their application." (176)

A final minority "process" right is the right to travel, used for ex-ample by the Warren Court to void welfare residency requirements,but with almost a smug refusal to identify the source of the right.What it really is, says Ely, is a right to relocate, so that different ordissenting residents in a society can escape from oppressive en-vironments and move to communities whose values are more com-patible with theirs.


The Failure of the "Via Media"

Ely rejects what he calls a narrow "clause-bound" interpretivism,while at times defending a broader interpretivism based on thegeneral themes of the Constitution (by which he means especiallythe principle of representation, as he elaborates that concept). Heindicates his own uncertainty, however, as to whether his broad in-terpretivism is really interpretivist (it is not "in the usual sense," heconcedes), and doesn't really seem to think it matters. (87-88)

The keystone of the "interpretivist" approach-that is, the ap-proach which argues that judicial review ought to be based on inter-pretation rather than judicial legislation-is the attempt to ascertainand give effect to original intent-what the document meansbecause those who wrote it chose to give it that meaning. From thatstandpoint, Ely's claim to have produced a broad interpretivismrests on two arguments: first, the "negative" argument showing theinadequacy of "narrow" interpretivism on its own principles, andsecond the positive argument demonstrating that his approach giveseffect to the document's meaning rather than to judicial will.

The attempt to discredit narrow "clause-bound" interpretivismrelies primarily on the language of the Constitution, with somereliance on an historical argument to introduce uncertainty as towhether there was any clear original content to certain key phrases.His treatment of language and history, however, is incomplete. Forexample, with respect to the Ninth Amendment he ignores thedistinction of meaning between the actual words ("The enumerationin the Constitution, of certain rights, shall not be construed to denyor disparage others retained by the people") and words which wouldmore accurately state what he assumes the words to mean, e.g."Congress shall not abridge the other fundamental rights of the peo-ple not enumerated in this Constitution." The key words in the ac-tual phraseology which he effectively ignores are "shall not be con-strued to"-words which suggest that the amendment is merely pro-viding a rule of construction (like the Tenth Amendment) ratherthan adding some new substantive protections of (unstated) rights.This reading is confirmed by history-Madison explicitly noted inhis introduction of the Bill of Rights in Congress that the NinthAmendment was intended to deal with a narrow problem (the onedescribed in Federalist No. 84) of preventing an inadvertentmisconstruction of Congress ' powers. Ely can cite history to supporthis position only on the assumption that Madison fell into some


"confusion" about the whole issue. (35-36) The confusion is morelikely to be Ely's, I think.

Even more importantly, Ely assumes that if constitutionallanguage is open-ended-that is, if it seems to be "a delegation tofuture constitutional decision-makers" to protect unstatedrights-then it is subject to the authoritative decision of judges. Butthat is to assume what he is trying to prove (i.e. it appeals to an ex-pansive notion of judicial power in order to prove that judges are tohave such an expansive power). It begs the question of whetherjudges, employing "judgment" in their task of interpreting, areauthorized to strike down a law based on one reasonable interpreta-tion of the Constitution on the grounds of their preference ("will"?)for another reasonable interpretation of it. (Aren't differentlegislative and judicial applications of "open-ended" provisionsequally reasonable as "interpretations"-the whole point of "open-endedness" being that there is very little definable content to theprovision?)

Ely can make his assumption because he takes judicial review forgranted without an "interpretivist's" concern for establishing thebasis of judicial review in the Constitution-a basis which, I wouldargue, suggests a very limited scope for the power. By this I meanthat Marbury v. Madison and other defenses of early judicial review(e.g. Federalist No. 78) base their justification for unelected, vir-tually life-tenured judges striking down acts of the democraticpolitical process on the ground that the judge is enforcing the Con-stitution (itself an embodiment of popular will). It is hard to see howsuch a rationale could justify judicial review on the basis of constitu-tional provisions which are held to be "open-ended," i.e. where, ineffect, the Constitution has no concrete content until the "inter-preter" gives (or chooses) it. If the Constitution contains open-endedprovisions, the "interpretivist" would ask whether there is anythingin the Constitution which suggests, even by implication, that genu-inely ambiguous provisions be given authoritative content by judgesrather than legislatures and executives. Finding nothing in the Con-stitution which supports that notion, he would say that the essentialcondition for the exercise of judicial review is absent. Ely is free toadopt a broader notion of judicial power, as many other moderncommentators have, but if he does, he is no longer free to claim thathe has disproved "narrow" interpretivism on its own grounds.

Ely's attempt to establish (somewhat ambivalently, to be sure)"interpretivist" credentials for his broader approach is also ques-


tionable. His approach is said to be rooted in the "general themes" ofthe document, but it is hard to see how it is more so rooted than the"fundamental rights" approach he rejects. His own analysis of theNinth Amendment, for example, suggests that it is intended to pro-tect unenumerated substantive rights. To support his reading of theNinth Amendment, he quotes a letter of Madison to Jefferson whichmentions his concern that a bill of rights would not define the rightsbroadly enough (especially the rights of conscience). Since Ely por-trays the Ninth Amendment (incorrectly) as the answer to this"problem," apparently apparently the unenumerated rights pro-tected by it include substantive rights (such as these rights of cons-cience). And if it protects some such rights, why not all? And if all,doesn't this establish protection of fundamental rights as at least oneof the general themes of the document-especially taken in conjunc-tion with substantive rights which are mentioned-enforceable as akind of "broad interpretivism" a la Ely's own?

Moreover, Ely scrupulously points out a number of times that notonly was the Constitution as a whole concerned with the substantivevalue of liberty, but it also did include provisions which reflectedsubstantive values. He does try to minimize these as outside the"mainstream" and as "an odd assortment, the understandable pro-ducts of particular historical circumstances-guns, religion, con-tract, and so on . . . ." (101) This raises the question, however, ofhow seriously Ely's "broad interpretivism" tries to "interpret." If in-terpretation involves an attempt to ascertain faithfully the meaningof the document, how faithful to the meaning of the Constitution isit to reduce religion and contract to some historical flotsam, irrele-vant to the "mainstream" or "nature" of the Constitution?

The relationship of Ely's approach to original intent is not clear.At some points Ely seems to dismiss it: "why . . . should we get hungup . . . on the specific intentions of the framers" we are asked, inregard to Harlan's argument that section one of the FourteenthAmendment was not meant to be applied to voting rights. (118-19)The only things that seem to count in specific "open-ended" provi-sions are the "general ideals" (e.g. "equality") whose specificapplications are left to posterity. 8 But apparently posterity is not

8. Ely several times makes statements such as "the lack of any specific expectation thatthe Fourteenth Amendment would be applied to voting ...." If this were an accuratestatement of the issue, then interpretivists would be on weak grounds, and scholarssuch as Raoul Berger are sometimes accused of holding such positions. In fact,however, those who argue for a narrower reading of the Fourteenth Amendment do


completely free to make those specific applications of "open-ended"provisions: it is to confine itself to procedural or "participation-oriented, representation-reinforcing" content. This confinement ofdiscretion is based on the "nature of the Constitution" (insofar as Elyclaims to be a broad interpretivist) but is it thereby Ely's claim thatthe framers intended such a confinement? It seems unlikely that Elyintends this-it seems implausible. For example if the "nature" ofthe Constitution is generally "procedural," but with numerous "ex-ceptions" of provisions involving substantive values, wouldn't ajudicial review that reflected the nature of the document be onewhich generally protected procedural rights but also contained someexceptions in favor of protecting substantive rights? But for Ely theframers' "exceptions" are basically to be treated as anomalies and setaside (together with other substantive rights)-they are part of an"intention" to be downgraded or minimized rather than followed.At the very least, then, Ely's broad interpretivism is selective in anyconcern for original intent, since it singles out only one part of eventhe framers' "broad" intent (the procedural orientation).

What Ely really seems to be doing is to separate "the meaning ofthe Constitution " from "original intent." Somehow the meaningthat the framers "put into" the Constitution can be removed-atleast to some extent-and a more abstract, less substantive Constitu-tion can be interpreted with more freedom. "Interpreted" in this

not refer to a simple absence of expectation, but rather to a clear and specific intentionthat the Amendment not apply to voting-an intention confirmed by the language ofthe second section of the Fourteenth Amendment (which provided a different way ofdealing with the issue of black suffrage) and by the Fifteenth Amendment. Ely arguesthat if there was any "reservation" regarding application of the Fourteenth Amend-ment to voting, it was due to the issue of black suffrage, which was resolved by the Fif-teenth Amendment (backed by essentially the same people as the Fourteenth). Besides,he says, the reservation was not expressed in the Amendment and "is unusually incon-sistent with the ideal it expresses." (120n) But, of course, the question being debated isprecisely whether the reservation was expressed (by implication at least, in sectiontwo, and by an understanding of "equal protection" ag referring to civil, but notpolitical rights) and that debate extends to exactly what the "ideal" is: Ely assumes thatit is an ideal of general equality (an assumption flat wrong on the historical record)rather than an ideal of civil (but not political) equality. Again, Ely could reasonablymake an argument for adopting his broader view, but in so doing he would have todrop the claim to "interpretivism" even of a broad kind-unless broad interpretivism iscompatible with interpretation contrary to the known specific intentions (not just ex-pectations) of the framers. If it is compatible with that, it's hard to know what mean-ing "interpretivism " has any more.


context would mean not "ascertaining the author's meaning," butperhaps "attributing some meaning to the document consistent withits words and general structure." Moreover the general structuremight not reflect a coherent "original intent." Two examples: first,Ely says that the Fourteenth Amendment should be understood toprotect the right to vote partly on the grounds that later amend-ments have extended the franchise "thereby reflecting a strengthen-ing constitutional commitment to the proposition that all qualifiedcitizens are to play a role in the making of public decisions." (123)

Thus, in effect he argues that later additions to the Constitution canjustify an expansion of earlier parts (i.e. a modification or transfor-mation of those parts, departing from original intent in light of anew intent attributed to the whole).°

Second, it is unclear whether even the original general structureof the document was a conscious and deliberate one. Ely notes theprocedural orientation of many of the provisions of the Constitutionand sees in them a pattern which reflects a certain approach to ortheory of representation, but that theory is not said to be part of theoriginal intention in an explicit way. In fact, Ely points out thatsome of his themes were not "very often made explicit before theCivil War." (86) What seems to be the case is that Ely is the"author" of the "general structure of the Constitution" insofar as heconsciously formulates a theory of representation which gives thewhole a coherence which none of its earlier authors articulated,although they (more or less consciously) contributed to the develop-ing pattern which Ely was to discover in their work.

Thus, Ely can claim to be a broad interpretivist while not feelingbound strictly to the meanings which earlier framers consciouslygave to particular provisions. His interpretivism is a "creative" act ofdiscovering in the original and developing Constitution a threadwhich gives it a unity and coherence perhaps unsuspected by manyof its framers. From that standpoint, Ely might very well make theparadoxical claim that he knows the intentions of the framers betterthan they knew them themselves.

Of course, that raises the question of whether this is all "inter-pretation" in the usual sense of the term-it isn't-and so it is not

9. In light of the new, one can re-arrange the old. This calls to mind Dworkin'sdescription of the judge creating the seamless web, integrating new decisions with pastones in a coherent theory, which may legitimately involve the dismissal of the theorybehind the earlier decisions (and perhaps some decisions themselves, if they are"mistakes"). See Taking Rights Seriously, chapter 4.


surprising to discover that Ely in the final analysis regards it asunimportant whether he is an interpretivist or not. And the fact thathe doesn't consider it important itself suggests that his position is notfundamentally interpretivist. In the final analysis what he really isconcerned about is that the substance of his position is good, notwhether it is "good interpretation.

"io

Ely rejects "fundamental values" approaches in Democracy andDistrust, but one can raise questions about whether he may not gotoo far and also not go far enough. The different sources of fun-damental values-natural law, reason, tradition, consensus, and soon-do seem to be generally a combination of general principleswhich all agree upon but which do not provide much specificguidance for deciding cases. Their more specific applications arecontroversial and therefore are not a clear enough guide for judgesto decide cases (because they lack the qualities of "known, standinglaw"). Ely is also right to point out that the use of such sourcestypically would provide an opportunity for the judge to read hisown personal predilections into the law (and not necessarily con-sciously-it could be the result of perfectly good faith attempts at"objective" analysis).

But perhaps Ely goes too far in simply dismissing natural law. In-sofar as one wishes to interpret the Constitution and insofar as theConstitution was written in light of a certain understanding of thislaw (modern natural rights theory, for the most part), an interpretermight find in the framers' discussion of natural rights a guide or anaid to interpretation, especially in shedding light on the objects orpurposes of constitutional provisions. More importantly (though oflimited relevance to the question of judicial power), the rooting orgrounding of the Constitution in natural law helps to provideanswers to the perennial question of the source of the obligatorycharacter of law-answers which may be much more satisfactory(and ultimately more effective) than simply relying on utilitarianjustifications.

But if Ely is right at least in rejecting "fundamental values" ap-proaches as a source for judicial review, one wonders whether his

10. Of course a real "interpretivist" might very well be most concerned about that inthe final analysis: some people are interpretivists not simply because the Constitution is"the will of the people," but because the substance of the Constitution is good. Butsuch an interpretivist believes that the substance of the Constitution is good because itwas consciously constructed by its framers in light of generally sound politicalphilosophy, not because it can be "creatively interpreted" to "come out right."


own theory-detached from a strained "interpretivist" justifica-tion-can be sustained. Isn't Ely's own theory of representation akind of "fundamental value"? Of course, Ely would point out that itis not a set of substantive values, but the question is whether Ely'schoice of "procedural values" is itself a substantive choice of sorts.And then one could go on further to ask whether the content of Ely'sprocedural approach represents a further substantive decisionamong possible procedural approaches.

This is not to say that Ely is contradicting himself-he knows thatprocedure is ultimately in the service of substantive values and doesnot claim to be able to avoid some initial substantive values. Thequestion raised here is whether perhaps the same questions that heraises about fundamental values approaches might not be raisedabout his own. Fundamental values approaches are combinations ofthe uselessly general on which there is agreement-what about"representation"?-and of the controversially specific-is Ely'selaboration of representation-reinforcing judicial review uncon-troversial? Judges can read their own values or predilections into thetypical allegedly objective sources of fundamental value-but areEly's procedural norms so objective as to escape this?

Ely supplements his argument from the nature of the Constitutionwith two other arguments: a participation-oriented, representation-reinforcing approach to judicial review is consistent with thedemocratic assumptions of our system and it gives the judges a taskthey are particularly well-situated to perform. In a way, Ely arguesthat his position is more democratic than both "narrow" inter-pretivism and fundamental values judicial review. It does not givean elite (the judges) the opportunity to define fundamental valuesfor the rest of society (as the latter does) and it does not give so muchpower to the dead to rule the living (as the former does). But Ely'sapproach does give the judges the power to define procedural limita-tions (which extend quite far) on the rest of society. If there were asingle unarguably "correct" set of democratic procedures, thatmight limit objections to such a power from the viewpoint ofdemocracy, but it is doubtful that things are so clear. Those whotake "the democratic assumptions of our system" as a reference pointmay not, then, be as willing as Ely to assume blithely that thejudicial power he describes is so democratic.

An even deeper objection is that the assumptions of our system arenot-certainly never were intended to be-purely democratic. It istrue that the U.S. was never conceived to be a "mixed regime" in the


full classical sense, but it was intended to be a "balanced" republic,which drew on non-democratic principles to establish a less pure,but healthier democracy. If our system has become more democratic(e.g. through constitutional amendments extending the franchise) itis not clear that even yet the assumptions of our system can be simplyand adequately described as simply "democratic." From that pointof view, Ely's procedural norms may be at least partly "too"democratic vis-a-vis the "assumptions of our system." 11

There is no question that judges are particularly well-suited tocarry out tasks that require freedom from immediate politicalpressure. (That was, after all, the reason they were deliberatelygiven a great degree of independence: so that they could judgewithout being subject to such pressure.) If being "political outsiders"has its strengths, however, it is not so clear that Ely recognizes itsweaknesses. Even if judges do not directly make decisions aboutsubstantive values, their decisions about controverted "procedural"matters still involve a danger of judicial imposition of their own(procedural) values on the nation. Moreover, for reasons to beelaborated, there is still the danger that judges attempting to protectonly procedural values will in fact erroneously go beyond the Ely-defined limits of their power and impose substantive values. Thesedangers must be weighed against the advantages of the justices'political insulation. Ely does not seem to feel the need to weigh suchdangers, perhaps because he believes the "procedural" character ofjudicially protected rights is a sufficient limitation, perhaps becausehe is speaking largely to a legal profession dominated by more ex-pansive views of judicial power (and need not defend a narrowerjudicial power to people of that view).

In my analysis of Ely so far I have generally conceded the "pro-cedural," "participation-oriented, representation-reinforcing"character of his judicial review. The elaboration of his position inthe last two chapters raises some serious questions about that,however. 12 In his discussion of "clearing the channels of political

11. Of course, Ely's critics could note that less democratic aspects of our system havereceived democratic consent, while judicial attempts to democratize have lacked thatconsent. For example, the Warren Court struck down apportionment schemes not con-sistent with its one-man, one-vote principle-even when state majorities had ratifiedsuch schemes. Ironically, critics would charge Ely with using undemocratic means,judges, to pursue undemocratic ends, i.e. allegedly more democratic procedures towhich the people have not consented.12. For more extensive discussion of these issues, see Stanley Brubaker, "Fear of Judg-ing: Ely's Theory of Judicial Review" Political Science Reviewer 12 (Fall 1982).


change, " Ely asserts that " `strict review' is always appropriatewhere free expression is in issue," largely on the basis of his beliefthat "we're certainly in no danger of too much political freedom."(116) But strict review of speech is likely to have substantive conse-quences that are at least as important as the procedural values pro -

tected according to Ely's rationale. For example, Ely is heartened bythe Court's extension of First Amendment protection to a young manwho walked into a California courthouse in a jacket emblazonedwith the words "Fuck the Draft." Harlan's opinion, he says, waswise enough to recognize that "what seems offensive to me may notseem offensive to you, and indeed that much valuable free speech,free speech that has awakened the public to outrages it hadpreviously taken for granted, very likely was of a sort that manywould have found offensive." (114) But those who would not protectsuch behavior might be annoyed at being characterized as peoplewho were "blocking the channels of political change." There is asubstantive issue there-whether there are any standards of civilityor decorum in public expression. I'm as well aware as Ely (or as JohnStuart Mill") that majorities can manipulate such standards to usethem unevenhandedly against unpopular minorities. But no em-phasis on that real danger is going to make the substantive result ofthat Court action-lowering the tone of public discourse-go away.

Similar considerations are true a fortiori of regulation of obsceni-ty. If majorities are prevented from proscribing "what seems offen-sive to them," then the tone of society-a substantive matter-islikely to be profoundly affected by the protected minority "expres-sion. "

Ely correctly recognizes that a "fundamental values" approach tojudicial review provides an opportunity for judges to impose theirown values on society. How difficult would it be for a judge to usethe rationale of "keeping the channels of political change open" inorder to protect speech that he really wants to protect as a matter ofhis substantive beliefs in personal autonomy? How easy will judgesacting even in good faith find it to distinguish between the pro-cedural rationale for a decision and the substantive results that flowfrom it? (And from the standpoint of the "losers," will it matter?)

Ely's protection of speech would employ two tests in a com-plementary fashion: a "specific threat" approach (employing a strictclear and present danger test) and an "unprotected messages" ap-

13. On Liberty (Baltimore: Penguin, 1974), chapter 2, 116-18.


proach (giving absolute protection to speech from regulation ongrounds of content, except for narrowly defined classes) . Wouldn'tboth of these tests require the judges to make substantive decisions ofpublic policy? How serious and how likely does the threat have tobe? Clearly: very serious and very likely. But the application ofthose criteria to a concrete situation involves more than merely "pro-cedural" concerns. Was the Communist party a "clear and presentdanger" in the early 1950s (or might some party be such in a givenset of circumstances)? Simply asserting that this area of judicialreview is merely concerned with "protecting representation" doesnot hide the possibility of judges making substantive decisions con-trary to the judgment of the political branches, and for which in-sulation from the political process is hardly a sufficient qualificationto ensure good judgment.

Finally, how open do the channels of political change have to be?Could a democratic society legitimately close some channels? Wouldit be per se undemocratic for the U.S. to forbid advocacy of violentchange, for instance? Or must democratic societies put weapons intothe hands of those who would destroy democracy if they had thechance? Again, I realize that there is a danger that the "ins" couldmisuse such power (to proscribe advocacy of violent change) against"outs," and that a prudent democratic society will try to devisemeans to prevent this. But that does not seem to me to prove thatdemocratic societies are required by their own principles to tolerateall forms of even "abstract" speech, 14

Ely's advocacy of very broad judicial protection of speech, then,seems to provide a case study of how an allegedly limited"representation-reinforcing" approach to judicial review can lead tobroad judicial power which does not rest so easily on "thedemocratic assumptions of our system."

Ely's argument for judicial protection of voting rights-as herecognizes-is stronger than the arguments for protection of expres-sion, since voting is per se a question of "the channels of politicalchange." But here too Ely's judicial review is subject to democraticobjections. If malapportionment in some forms (e.g. "crazy-quiltapportionment" that lacks any rational basis, being a result only ofstatic apportionment after massive demographic changes) is con-trary to democratic principles, still "one-man, one-vote" is not so

14. On this issue see Walter Berns, Freedom, Virtue, and the First Amendment (BatonRouge: LSU Press, 1957) and The First Amendment and the Future of AmericanGovernment (New York: Basic Books, 1976).


obviously a requirement of a healthy democratic society. Ely pointsout that the Court adopted that standard because it is easiest forjudges to administer-that is true, but it is not so clear that it is rele-vant. It is so only if you assume that the benefits of judicial supervi-sion of apportionment outweighs its limitations. Perhaps somedemocrats would argue that a more limited judicial power in thisarea would be compensated for by the greater breadth of democraticchoice in the arrangement of political institutions.

It is intriguing to speculate about whether a judge under Ely's"open-ended" Constitution would have the authority to declare theelectoral college, not to mention the Senate, unconstitutional. Our"strengthened commitment" to equality of voting rights over timecertainly makes those provisions "out-dated," on the analysis of"democracy" contained in the Court's reapportionment cases. Whilenone of us should hold our breath waiting for this ultimate act ofjudicial hegemony, the point is not that judges are so unlimitedpolitically that one would get away with this; it is simply to pointout the breadth of what is theoretically arguable if one adopts Ely'sgeneral line of reasoning.

15

The second branch of Ely's participation-oriented,representation-reinforcing approach to judicial review is the task of"facilitating the representation of minorities." Judges are to ac-complish this by supervising the process to see that majorities do notsystematically disadvantage some minority "out of simple hostilityor a prejudiced refusal to recognize commonalities of interest, andthereby denying that minority the protection afforded other groupsby a representative system." (103)

It is hard to resist the conclusion that at this point Ely is lettinghimself manipulate the meaning of words too freely. Whatever the"play" in the word "representation, " it does not seem to go as far asto include guarantees against being unfairly ignored. People whoare represented in the political process sometimes lose political bat-tles and their interests can suffer most unjustly. This does not meanthey are not "represented," but only that they are being treated un-justly. In the long run it does not serve a useful purpose to mangle

15. Perhaps it is also worthwhile to point out that Ely's rationale for heightenedjudicial protection of those rights-that is, that our elected representatives are the lastones with whom we should entrust the task of keeping political channels of changeopen-would be a strong argument for asserting that the political process would be op-posed to expanding the franchise (for fear of upsetting the status quo to which the in-terests of the "ins" are tied). Needless to say, this argument is hardly borne outhistorically.


language, no matter how good the intention. Better to say: "mererepresentation is an insufficient guarantee that one will be treatedjustly-other principles are necessary to supplement that ofrepresentation. Let us try to discover and implement those prin-ciples."

What Ely is concerned with here is the right to "equal concernand respect" of minorities, which in practice is desired on theassumption that it will provide the protection of at least a minimallevel of substantive well-being, by somehow requiring majorities totreat minorities the same way they treat themselves (not exactly thesame way, of course, but with the same readiness to consider theirwell-being, i.e. "represent" their interests).

Ely's use of suspect classifications to "flush out unconstitutionalmotivation" (i.e. the refusal to "represent" or consider the well-being of a minority) is ingenious, a real tour de force. In some casesat least, the evaluations of "fit" between means and end and of thesubstantiality of state interests involved are able to establish the in-credibility of a proferred state interest for a law plainly motivatedby hostility to a minority (perhaps especially in cases involving racialdiscrimination). In other cases, however, Ely's analysis seemsforced. Denial of welfare benefits to aliens, for example, did not in-volve flushing out a desire to disadvantage aliens. The denialreflected a belief that scarce resources ought to be used carefully andthat a society' s welfare benefits might reasonably be confined to itsown citizens. This may or may not have been a good law, but if itwas bad, it seems more straightforward to say simply that the law isunjust, on grounds that aliens have a substantive right to welfareequally with citizens.

Ely's analysis of "second-degree" prejudice-which is not a con-scious desire to disadvantage a minority so much as a failure toattend to its interests due to the distorting effects of self-interest (in-cluding both the tangible and psychic gratifications implicit in in-vidious and/or weakly founded stereotypes)-also seems to permitjudicial smuggling in of substantive values. Virtually anyminority-any losers in the political process-can argue that themajority was not sufficiently sensitive to its interests, and onesuspects that with a bit of ingenuity it could also point to distortingfactors in the process which made it "likely" that this would occur. j8

16. One wonders in this regard whether Ely would consider "egalitarian" values to befundamentally "procedural" or "substantive." His theory would not justify judicial


One example of this is the abortion decision, the rejection ofwhich (together with his argument for the validity of anti-sodomylaws) is Ely's most striking proof of the limitations which his theoryimposes on judges. In a Harvard Law Review review of Ely's book,"Archibald Cox shows how Ely's theory can be used to strike downabortion laws. Now Ely would undoubtedly argue that Cox has notapplied his theory properly, and perhaps he might be able to showthis abstractly. But this raises a more fundamental question, I think.Whatever the abstract limits on judges imposed by Ely's theory, howsuccessful are they likely to be as practical limits, even if Ely's theorywere to become widely accepted? Even judges who attempt to applythe theory in good faith, it seems to me, would be likely to find someground of distorted "representation" (insensitivity to a minority in-terest) in the processes which have produced laws they consider veryunjust, on substantive grounds.

Of course, it is true that a person cannot be held accountable forall the misapplications of his theory-there is no theory, I suppose,which is incapable of being abused. Certainly there is no questionthat the "traditional" approach to judicial review is also capable ofbeing employed improperly (as historical examples show-certainlyChief Justice Taney did not consider himself to be applying a theoryof judicial activism in the Dred Scott Case). The question is whetherEly's conception of "representation," especially in the form whichrequires "equal concern and respect" for all, does not lend itself tojustifying virtually any decision that a judge would feel stronglyabout on substantive grounds. One suspects that if Ely's theory ofjudicial review became widely accepted by the judiciary, it would

commands to effect all egalitarian demands: he indicates that the suspiciousness of"wealth" classifications is unlikely to help the poor much because what the poor sufferfrom most (from egalitarian perspectives) is not discriminatory action, but rather inac-

tion in matters which would specifically assist them as opposed to others. Wheneverthe majority itself acts affirmatively, however, judicially-mandated egalitarianism islikely to follow. For example, Ely argues that-given Roe v. Wade-once governmentgives medical aid in support of childbirth it must also do so in support of abortion. (Itseems that-given the welfare state-once citizens have rights in the sense that govern-ment cannot prohibit something, then it is likely that government will frequently haveto assist the poor so that they may act on the right-except in the area of religion,where today's reading of the establishment clause stands as a barrier to such a readingof the free exercise clause.)17. 94 Harvard Law Review 700 (Jan. 1981).


frequently be used to strike down cases over his objections that it wasnot being used properly.

18

In the final analysis, then, it seems that the attempt of Democracyand Distrust to elaborate a genuine via media between "narrowclause-bound interpretivism" on one hand and the uncheckedjudicial activism of "fundamental values" judicial review on theother is not successful. However different the rationales employedby judges pursuant to Ely's theory might be, the substantive resultswould not appear likely to vary that much. Even to the extent that itdid succeed in imposing some limits on judges, the scope of judicialreview would still be so broad as to raise the democratic objectionsthat he himself elaborates against fundamental values judicialreview. Despite his intriguing and ingenious line of argument, thedichotomy which he rejects survives. Theories of judicial revieweither confine judges to exercising judgment, or they encouragethem to exercise will. The choice between those positions is fun-damental and unavoidable.

Conclusion

The failure of the contemporary theories of judicial reviewnecessarily raises the question of what alternative is adequate. Legalrealists would deny that a truly different approach is possible-alljudges legislate, and only the content of their legislation differs. Icannot fully elaborate here the founders' approach to constitutionalinterpretation and judicial review, but I believe that it does offer areal alternative." Constitutional interpretation means interpreta-tion of the Constitution, the effort to discover and articulate someintelligible meaning of the document. That meaning is there becauseit was "put there" by its authors. Serious interpretation, then, is fun-damentally a question of original intent.

This is not to say that reliance on original intent makes the wholeprocess simple and uncomplicated. First, the meaning of the docu-

18. I should qualify this statement, however, on the basis of my uncertainty as towhether Ely himself wouldn't find grounds in his theory to support most of the con-troversial decisions, generally libertarian and egalitarian ones, which would be atissue. Ely's broad support of the Warren Court and frequent criticisms of the BurgerCourt for not making such decisions suggest that even his own conceptions of the prac-tical limits on judges is not all that broad. Perhaps he would be more likely to be a fre-quent critic of opinions or rationales than actual decisions.19. See The Rise of Modern Judicial Review: From Constitutional Interpretation toJudge-Made Law (New York: Basic Books, 1985), especially Part I.


ment is contained in the principles which it embodies. It is not somehistorical search into the opinions of the framers on each of themultitude of issues that might arise under the Constitution. Mostcurrent issues simply were not in their minds specifically becausethey involve new particulars (things, events, institutions, problems)that did not exist at the time of the framing. Even the particularswith which they were familiar would not necessarily have beenviewed in the same way by all of them. But there were certaingeneral principles on which they were agreed, and these constitutethe meaning of the document's provisions. (Of course, the framers'various opinions on specific issues and their general politicalphilosophy may be very useful evidence in ascertaining the generalprinciples embodied in constitutional provisions.)

Second, even after the sometimes difficult task of establishingclearly the principle of a provision at issue, it is necessary to applythe principle to new circumstances, which can require considerableprudence.

Even assuming that we are able to agree on how to interpret theConstitution, there are still questions about the exercise of judicialreview. Constitutional interpretation is at the heart of judicialreview, a necessary condition for it-but is it sufficient? There is stilla twofold problem. First, some constitutional provisions may be am-biguous-genuinely capable of being interpreted in several differentways. Second, some constitutional provisions may not themselves beambiguous, but they may be so general that application of theirprinciples to concrete situations is not clear. In such cases, there is noreason the preferred judicial interpretation should take precedenceover that of political branches.

All of this means that rejecting modern approaches to judicialreview poses no danger of leaving us with a merely mechanicaljurisprudence. The rhetoric of the legal realists who led the chargein discrediting the traditional form of judicial review-arguing thatit was naive and simplistic in its belief that judges could act on thebasis of the Constitution rather than their own preferences-is nolonger very persuasive. (It was more persuasive in the early part ofthis century when traditional judicial review was erroneously iden-tified with the more conservative judicial activism of the laissez-faire Court.)

As judicial activism has been more and more extreme, it has in-advertently stimulated renewed study of the founders' understand-ing of judicial review. From that study there emerges a realization


that there is a real alternative to modern judicial review. Theframers knew what they were doing when they established apolitical system with a judiciary that was very limited in its powers,by today 's standards. They were not unaware that "a power in-dependent of the majority" could accomplish much good-indeedMadison suggested that this was one way to deal with the perennialdemocratic problem of majority tyranny, in Federalist No. 51. 20 Butthey regarded such a security for rights as "too precarious," that is,as itself too great a danger to individual and majority rights, toogreat a danger of tyranny. While the modern Court has accom-plished some good in particular cases by detaching itself from thelimited idea of judicial review as enforcing the clear commands ofthe Constitution, it has also done many very unfortunate things aswell-enough to make even many judicial activists increasingly sen-sitive to the need for some principled limits on judicial power. Thefailure to provide sufficient and effective limits of this sort in thetheories of intelligent commentators such as Choper and Ely itselfsuggests that the founders' fears were reasonable ones. It is time torecognize that the only principled form of judicial review compati-ble with our democratic constitution is precisely the judicial reviewbequeathed to us by the founders.

Marquette University CHRISTOPHER WOLFE

20. Madison had in mind a constitutional monarch. While an independent judiciary isnot as independent of majority will as a monarch, it is substantially so for considerableperiods of time, and I think there is no question that Madison would have rejected thebroad modern form of judicial power, had anyone at that time even dared to proposeit.

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