The Coherentism of Democracy and Distrust

43 Pages Posted: 11 Feb 2013

Date Written: January 1, 2005

Abstract

A quarter of a century after its publication, Democracy and Distrust remains the single most perceptive justificatory account of the work of the Warren Court and arguably of modern constitutional law more broadly. Yet the continuing influence of John Hart Ely's process theory of American constitutional law may seem surprising, given that the account has been incisively criticized as both too limited and too sweeping. Beginning with Laurence Tribe's The Puzzling Persistence of Process-Based Constitutional Theories and culminating in the work of Ronald Dworkin and others, critics have argued that the representation-reinforcing approach to interpreting the Constitution is no less laden with controversial value judgments than other, more openly substantive methods and, therefore, that judicial review ought not be restricted in the way Ely thought it should be. From the other side, those whom Ely called "interpretivists" have invoked the same set of arguments as a basis for concluding that the Constitution's open-ended provisions should be given neither substantive nor procedural content apart from what is narrowly entailed by the original understanding of its Framers and ratifiers.

In light of these mirroring critiques, what accounts for the staying power of Democracy and Distrust? The answer, to which Ely himself points in the opening pages of the book, is the popularity of representative democracy. "We have as a society from the beginning," he writes, "and now almost instinctively, accepted the notion that a representative democracy must be our form of government." By making representative democracy the centerpiece of his account of judicial review, Ely trades on this deeply rooted instinct. Throughout Democracy and Distrust, he invokes "the basic democratic theory of our government" as the standard against which an approach to judicial review should be measured.

Keywords: Democracy and Distrust, Hart Ely, process theory, representative democracy, individial rights, statesi rights, Warren

Suggested Citation

Dorf, Michael C., The Coherentism of Democracy and Distrust (January 1, 2005). Yale Law Journal, Vol. 114, No. 1237, 2005, Cornell Legal Studies Research Paper No. 13-39, Columbia Public Law Research Paper No. 04-77, Available at SSRN: https://ssrn.com/abstract=2215030

Michael C. Dorf (Contact Author)

Cornell Law School ( email )

Myron Taylor Hall
Cornell University
Ithaca, NY 14853-4901
United States

HOME PAGE: http://www.lawschool.cornell.edu/faculty/bio.cfm?id=333

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