Jim Lindgren at the Volokh Conspiracy reacts to a WSJ piece about Justice Stephen Breyer's soon to be released new book: "Active Liberty: Interpreting Our Democratic Constitution." He notes that the Journal's review indicates that the Justice proposes a theory of judicial interpretation that sounds a lot like the main argument in Ely's Democracy & Distrust (1980). His analysis is interesting and you should go read it. The WSJ artcle is one of their freebees today.
While I thought the book was amazing,one that really changed my way of looking at the law, I’ve never been able to completely buy Ely’s process approach. I think the theory that justices should only insure the integrity of the democratic process is a good analysis for the structural part of the constitution, but is in conflict with the substance (and title) of the Bill of Rights and, to boot, is no less value laden than a fundamental rights approach. It may sound like a good working principle but I think it falls short in practice. One example outside the courthouse is defining what it means to bring democracy to Iraq. Is our goal freedom to vote (structural) or freedom of speech (substantive)? If Iraqis can vote to restrict women’s rights, for example, even if women agree, is this a democratic outcome? And if this would fall under ensuring democratic process, doesn’t this embue Ely’s theory with the same need for value judgments as any other approach? I would argue that empowering women to make choices about what they do with their bodies is just as important to democracy as empowering women to vote.
Anyway, I look forward to the book.
PS: I’ve got a theme running here… John Hart Ely was Stanford Law School's dean from 1982 to 1987. I’ve recently finished our new dean Larry Kramer’s book The People Themselves: Popular Constitutionalism and Judicial Review, where he argues that the United States has a deep tradition of popular constitutionalism that should be respected by judicial restraint. My former Professor Mark Tushnet wrote a piece recently proposing an End Judicial Review Amendment (EJRA), and I’m now reading his book A Court Divided: The Rehnquist Court and the Future of Constitutional Law. I’m going to post soon about liberals and progressives urging judicial restraint. It may make sense given the numbers, but, wow, it really goes against my gut.