Three Contemporary Theories of
Judicial Review: A Critical Review
By Ronald Dworkin. (Cambridge:
Harvard University Press, 1977).
Taking Rights Seriously.
Judicial Review in the National Political Process: A Functional
Reconsideration of the Role of the Supreme Court. By Jesse
Choper. (Chicago: University of Chicago Press, 1980).
Democracy and Distrust: A Theory of Judicial Review. By John
Hart Ely. (Cambridge: Harvard University Press, 1980).
luralism" can be a devastating weapon. While on the surface
P it 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 "interpretive " and " non-interpretive " judicial review. From one perspective, this characterization of the different approaches is very
desirable and long overdue. It makes explicit what has heretofore
too often been misunderstood, downplayed, or ignored: namely,
that many approaches to judicial review have little or nothing to do
with the Constitution.
On the other hand, the casual acceptance of this terminology,
without protest, tends in a certain sense to concede the legitimacy of
both approaches. We may prefer one approach or another, it seems
to imply, but we are all operating within the framework of a commonly accepted principle, i.e. judicial review. In effect, accepting
the very notion of "non-interpretive" judicial review gives away the
whole game to the advocates of that approach.
Those who defend "interpretive" judicial review argue that the
very foundation of judicial review in our regime was-and in the
public mind generally continues to be-constitutional interpretation. Judicial review could be described as a byproduct of the judge's
duty to interpret the Constitution. No Constitution, no power to
strike 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.
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review is redundant-all judicial review is rooted in constitutional
interpretation. "Non-interpretive" judicial review is an oxymoron-like talking about a "boneless vertebrae" or "cowardly
heroism." To treat "non-interpretive" judicial review as a category
of or form of judicial review-to accept a "pluralism" of judicial
reviews-would be to concede the essential question between interpretive and non-interpretive judicial review.
What this means is that the term "judicial review" is becoming
equivocal today. It no longer refers to something definite, but rather
applies to two essentially different things.
The form of judicial review described and defended in early
American history is, by and large, irrelevant to modern constitutional law, except as an alternative to contemporary practice. Alexander Bickel was one of the first to point this out clearly, devoting
the first chapters of The Least Dangerous Branch l to an attempted
refutation of Marbury v. Madison and the rest of the book to an effort 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 most
modern constitutional law cannot be defended as "interpretation" of
the Constitution, but only as the result of "non-interpretivist"
judicial review.'
Recent years have seen an increasing number of attempts to provide 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 judicial
review has always existed in American politics and that its credentials are at least as
good as those of interpretive judicial review. While I would concede that there were
early isolated instances of non-interpretive judicial review, I would argue that "traditional" (Marbury v. Madison) judicial review was the preeminent or mainstream form
until the end of the nineteenth century, and that its preeminence in the Supreme
Court's self-understanding of its role lasted until 1937. See "A Theory of U.S. Constitutional History" 43 Journal of Politics 292 (1981). Gary Jacobsohn also has a thoughtful
critique of Grey on this issue: "E.T.: The Extra-Textual in Constitutional Interpretation" 1 Constitutional Commentary 21 (1984).
3. Raoul Berger has been its most influential academic opponent: Government By
Judiciary: The Transformation of the Fourteenth Amendment (Cambridge: Harvard
University 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 Hastings
Constitutional Law Quarterly No. 2 (Winter, 1979). A broader range of that literature
is surveyed in William Gangi, "Judicial Expansionism: An Evaluation of the Ongoing
Debate" 8 Ohio Northern University Law Review 1 (1981).
THEORIES OF JUDICIAL REVIEW
217
theorists of judicial review offer a straightforward and unabashed
defense of thorough-going judicial activism. Others accept the implicit "activist" assumptions underlying non-interpretive judicial
review, but for a variety of reasons feel the need to elaborate a
theory with coherent and principled limits on judicial power.
In this article I would like to examine the attempts to provide a
new theoretical foundation for judicial review of three leading contemporary legal commentators: Ronald Dworkin, Jesse Choper, and
John Hart Ely. The authors all, in my opinion, are agreed in their
acceptance of modern judicial review, which assumes that judges exercise what is fundamentally a legislative power, but they represent
very different approaches. Dworkin is an unrepentant activist, explaining judicial review in terms which accord judges an extraordinary breadth of power, with little or no concern about its antimajoritarian character. Choper is probably the closest of the three
to the mainstream of contemporary legal commentary, absolutely
committed to a very broad judicial role in the area of "individual
rights," but with enough sensitivity to the anti-majoritarian implications of judicial review to establish strong, principled limits to
it in other areas. Ely is the one most disturbed about the potential
anti-democratic character of judicial review, and therefore he
elaborates a theoretical basis for its exercise which is the most
restrictive in theory if not in practice, even toying with the claim
that his approach is broadly "interpretivist."
The very fact that these books have been written and widely acclaimed gives testimony to the current "felt need" for a new theory
of judicial review. The Warren Court era approach to judicial
review (among lawyers and political scientists as well as justices)
often seemed to be "let's be pragmatic and simply do justice, instead
of worrying about theoretical niceties." That seems inadequate today, whether because of a deep-seated desire for coherent legal principles, or perhaps because of the potential political threats to a
judiciary which has alienated many groups, or perhaps the specter
(partly realized, in fact) of a judiciary controlled by different
political forces. At any rate, the theoretical grounds for judicial
review have been given renewed attention, and in most cases (e.g.
Choper and Ely, though not Dworkin) with explicit concern to limit
it in some way.
Whether the limits are very effective ones is another question. To
the extent that they are not, we might want to rethink judicial
review even more "radically." We might even consider returning to
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the traditional conception of judicial review articulated by the
founders of the American regime.
"
Taking Rights Seriously "
Ronald Dworkin ' s appointment as successor to H.L.A. Hart in
Oxford's Chair of Jurisprudence is an indication of his prestige in the
field of philosophy of law. Taking Rights Seriously is a collection of
his articles which is intended to "define and defend a liberal theory
of law." Much of the book is beyond the scope of our present concerns, but there are several sections which explicitly take up the activity of judges in the area of constitutional law, and others which
deal with it tangentially.
Chapter 5, "Constitutional Cases, " turns on a fundamental
distinction Dworkin makes between "concepts" and "conceptions."
The example he uses is the following: What is my meaning if I tell
my children not to treat others unfairly? I might have some examples in mind, but in addition: 1) I would expect them to apply my
instructions to situations I had not and could not have thought
about, and 2) I stand ready to admit, if they can persuade me, that a
particular 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 instructions, not changing them). I mean that my family should "be
guided by the concept of fairness, not by any specific conception of
fairness I might have had in mind."
Similarly, when a group believes that there are certain acts which
are unfair, its members may agree on a great number of standard
cases which are used as benchmarks against which to test other,
more controversial cases. They share a concept of unfairness, yet
they may differ on a large number of cases. This is possible because
they may differ on which more fundamental principles must be
relied on to show that a particular act is unfair, in which case they
have different conceptions of fairness.
If this group gives instructions in the name of fairness, then, it
may be doing one of two very different things. First, it may be appealing to the concept of fairness, charging those it instructs with
the responsibility of developing and applying their own conception
of fairness. (This is not, he says, giving them discretion to act as they
like, for the standard assumes that one conception is superior to
another.) Second, it may be laying down a particular conception of
fairness, e.g. by listing its wishes with respect to controversial cases
THEORIES OF JUDICIAL REVIEW
219
or by specifying some controversial and explicit theory of fairness
such as Bentham's utilitarian ethics.
Dworkin summarizes the difference in this way. When I appeal to
the concept of fairness, my views have no special standing, while my
views 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 laying
down my conception of fairness is answering it.
The applicaton of this distinction to constitutional law is fairly
obvious. The Constitution establishes concepts, not conceptions. So,
for example, if the framers' conception of cruel and unusual punishment did not include the death penalty, that does not determine the
constitutional question as to whether the concept of cruel and
unusual punishment is violated by the death penalty. The Court, if
it decides that the death penalty is unconstitutional, has not changed
the Constitution, because it "can enforce what the Constitution says
only by making up its own mind about what is cruel."
The broad clauses of the Constitution are not "vague"-they
would only be so if they were intended to be conceptions. The
framers did not choose the language conventionally used to offer
particular theories of the concepts in question, however. They intended to establish certain concepts, which "could not be made
more precise by being more detailed." It is less misleading, he footnotes, to say that the Constitution "delegates" power to the Court to
enforce its own conceptions of political morality, as long as one
qualifies this by recognizing that the Court must justify its conception by reference to "the standard cases" (e.g. show why the principles which make the rack and thumbscrew cruel also make the
death penalty so).
Dworkin poses the question of judicial activism vs. judicial
restraint, and devotes considerable time to refuting the latter.
Judicial restraint, he says, is based either on a theory of political
skepticism (which denies that there are any objective moral rights
and would protect against only plain and uncontroversial violations
of the political morality of the framers or established lines of precedent) or a theory of judicial deference (which holds that citizens
have moral rights, but that the character and strength of these are
debatable and should be decided by political institutions other than
the courts). Dworkin points out that few Americans would accept
the premises necessary to establish complete moral skepticism. The
arguments for deference, he says, are weaker than they appear. This
"democratic" argument assumes that all unsettled issues, including
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moral and political principles, should be resolved by institutions
which are politically responsible in ways the courts are not. It is not
clear that democracy has so precise a meaning (or would be
desirable if it did) or that such a theory is embraced by the Constitution (which provides no rule limiting judicial review to clear cases)
or our political tradition (our courts have by no means consistently
accepted that argument). Are democratic institutions like
legislatures in fact likely to make sounder decisions than courts on
underlying constitutional issues such as the individual's moral rights
against the state? Dworkin gives a lengthy analysis of Alexander
Bickel's work to conclude that such a view could rest only on the
moral skepticism rejected earlier.
Recent history does not show (as Bickel thinks) that policies such
as desegregation and reapportionment fail because they are based on
"principles," which necessarily fall short of the complexity of social
organization. Moreover, the idea that the organic political process
will 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 and
others may be right that society will produce institutions that best
suit it by evolution, but rights are claims that require society to settle
for institutions that do not suit it comfortably.
Is it for some reason fairer, Dworkin asks, that democratic institutions rather than courts should decide such issues (apart from the
likelihood of sounder decisions)? Issues of rights should not be left to
majorities, for constitutionalism is intended to restrain majorities,
and to make a majority, in effect, a judge in its own cause seems inconsistent and unjust. It is true that in many issues, political decisions in the U.S. are made not by one stable majority, but rather by
many different political institutions, each representing a different
constituency and reviewing decisions of other branches. But in
disputes respecting individual rights, Dworkin argues, the interests
of those in political control of the various institutions of government
are both homogenous and hostile. Thus, national decisions are subject to no effective review except in the courts.
The argument from democracy, then, seems to say that those in
political power are invited to be the sole judge of their own decisions, to see whether they have the right to do what they have decided they want to do. This argument is not a final proof that judicial
activism is superior to deference, because the risk of judicial tyranny
implicit in activism may outweigh the unfairness of asking a majori-
THEORIES OF JUDICIAL REVIEW
221
ty to be judge in its own cause. But it does undermine the argument
that the majority, in fairness, must be allowed to decide the limits of
its own power.
A second discussion of constitutional adjudication is contained in
the most important chapter of the book (Chapter 4 "Hard Cases")
which outlines a broad theory of adjudication. Dworkin
distinguishes between policies, which deal with collective goals of
the community, and principles, which deal with individual or group
rights. Judicial arguments are those generated by principle and
judicial decisions enforce existing political rights. These rights are
"institutional rights," which justify a decision by some particular
political institution, rather than general "background rights,"
which justify political decisions by society in the abstract.
Judicial decisions are characterized through an interesting
analogy. The game of chess has its general "institutional" rules,
which take precedence over more general or abstract rights. (A person is said to be the winner of a game in a tournament on the basis of
the 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 rules
of chess may require interpretation, for example, that one player
may not "unreasonably" annoy another, but the chess referee should
not be characterized as one "free to legislate in the open texture of
imprecise 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 what
everyone knows: the conventions exhibited in attitudes, manners,
and the history of the game. But this may be incomplete. If Bobby
Fischer complains that he is being unreasonably annoyed when the
Russian grandmaster Tal smiles at him during play, does he have a
right to forfeiture? The referee must "construct" the character of the
game to decide such a question. He might note that chess is an intellectual game, but this concept is still incomplete or "contested."
Do the features of the game support one view? If not, he might have
to look at the concept of intellect more closely to decide the case:
which conception offers a deeper or more successful account of what
intellect really is?
Ultimately, since chess is based on the tacit consent or
understanding of the parties, this hard case asks what it is fair to
suppose the players did when they consented to the forfeiture rule.
The decision will rest on the general character of the game, for the
players have consented not just to a set of rules but to the enterprise
as a whole.
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Legal arguments in hard cases are "contested concepts," similar to
the concept of the "character of the game" in the chess analogy. If
the judge accepts the settled practices of his legal system, then he
must accept some general theory that justifies these practices, and
decide cases in light of this theory.
Dworkin invents Hercules, an American judge who accepts the
main 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 rationales apply to a case. As one hard case, Dworkin chooses a constitutional question: does the prohibition of an establishment of
religion include a prohibition of a law providing free busing to
parochial school children?
Hercules need not be concerned with "background rights" excluded by the settled principles of the Constitution, e.g. "all citizens
have a right to salvation through an unestablished church." He does,
however, need a constitutional theory which explains the Constitution's settled principles. He may find, as in this case, that more than
one theory fits the provisions. The religion provisions could be based
on the theory that it is wrong for government to enact any legislation
that causes great social tension or disorder, or on the theory that
there is a "background" right to religious liberty. Hercules then
must see which theory fits the whole scheme most smoothly, as the
latter theory does in this case. Even that, however, may not be sufficiently concrete. Does the right to religious liberty mean that there
should be no taxes to help a religion survive or that no taxes are to
benefit one religion at the expense of another? At this point, the
judge must consider the question as an issue of political philosophy:
which conception is the more satisfactory elaboration of the general
idea of religious liberty?
The action of a judge may be summed up in this way then. He
must develop a theory of the Constitution, a complex set of principles and policies that justify the scheme of government. This
theory must be developed by referring alternately to political
philosophy and institutional detail. This requires the generation of
political theories which justify different aspects of the scheme and
the testing of these theories against the broader institution, and it requires the elaboration of the contested concepts the successful theory
employs.
This theory of adjudication, Dworkin argues, does not pit the
judge's political morality against that of the community. Rather, the
THEORIES OF JUDICIAL REVIEW
223
judge identifies a particular perception of community morality as
decisive, namely, the political morality presupposed by the laws and
institutions of the community. His decision may be controversial,
especially when he appeals to some contested concept such as
fairness, liberality, or equality, but it is still not the same as a decision based on a judge's belief in some "background" rights, but a
decision based on his own sense of what community morality provides. The example Dworkin uses in this regard is abortion. A judge
must elaborate the contested concept of "human dignity" implicit in
the due process clause. If his theory of dignity connects it with independence-not being forced to devote an important part of activity to the concerns of others-then he will say abortion is a constitutional right.
Should the judge defer to the judgment of most members of the
community about what community morality is (on grounds of
democratic principles)? No, says Dworkin. First, he cannot assume
that the man on the street who disapproves of abortion has considered whether the constitutional concept of dignity supports his
position (neither casual expression of preferences nor voting can be
assumed to involve the dialectical skill displayed when one selfconsciously defends his position). Second, why should the judge take
the ordinary man's opinion as decisive, if he thinks that the ordinary
man 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 not
decide according to those rights.
Of course, judges are fallible too. But they cannot simply forego
the effort to determine the institutional rights of parties before
them: the possibility of producing unjust decisions does not mean
they should make no effort to produce just ones. Besides, to whom
else should the hard cases be submitted? There is no reason to credit
any other particular group with better facilities of moral judgment;
and if there were, then the process of selecting judges-not the
techniques of judging-ought to be changed.
Gaps in the Activist Rationale
Dworkin begins his analysis of judicial review with the distinction
between "concept" and "conceptions." This distinction has the effect of elevating the meaning of the Constitution to a very high level
of generality, cutting it off from the substantive content the framers
understood it to have. The generality of the concepts they estab-
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lished is quite extreme, it seems, for besides "cruelty" it includes concepts such as "equality," "legality," and "dignity." With this
analysis the framers' views on the applicablity of the concepts to
particular cases "have no special standing," and in fact the framers
must 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 to
establish concepts, not their conceptions, is their words: "if those
who enacted the broad clauses had meant to lay down particular
conceptions, they would have found the sort of language conventionally used to do this, that is, they would have offered particular
theories of the concepts in question." (136) In effect, the framers
charged future interpreters "with the responsibility of developing
and applying their own conception[s]" as controversial cases arose.
It is reasonably clear that Dworkin is correct in saying that the
framers did not mean to limit the provisions of the Constitution to
the particulars with which they were familiar. (They would expect
the commerce power to be applied to planes and the war power to
modern weapons.) Is there any reason to assume that they anticipated future interpreters would have the authority to vary the
meaning of the Constitution with respect to what they did have in
mind? For example, did they "stand ready to admit" that future interpreters could demonstrate the inadequacy of the framers's conception that the death penalty was not "cruel and unusual"? Of
course, the framers would be open to a general discussion of the
issue, but would they have argued that, without amendment, a
future judge could apply their "concept" to override a clear "conception" of theirs? This question is especially sharp when the "conception" appears as an implication of a constitutional provision: the
due 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 have
legislated their conception regarding the death penalty would have
been to specify in clear language that the death penalty was not
cruel and unusual. But this goes quite contrary to the notion that a
Constitution cannot specify every possible case, because it would
become too prolix (and thus inaccessible to the people) and too easily
outdated. Are the framers "stuck" then, with the power to legislate
only vague concepts? An alternative suggestion is that the framers'
"concept" of cruel and unusual punishment, was a reference to a
THEORIES OF JUDICIAL REVIEW
225
well-developed body of law on the subject: the common law. This
body of benchmark cases included not only the proposition that the
"rack and screw" are cruel and unusual, but also the proposition
that the death penalty is not. Of course, the framers might add, the
legislature is free to expand the protection beyond the minimum of
the 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 may
allow for consideration of society's contemporary norms and
because "cruelty" has more content than some other "concepts." It is
more problematic with respect to other examples he uses. With
respect to such general concepts as "equality" and "dignity," is there
any historical evidence to support the argument that the framers intended to delegate to the Court the power to enforce its conceptions
of political morality, as long as these conceptions are adequately
justified by reference to "standard" cases of the concept? A survey of
judicial review in the founding era would show, I think, that there is
simply no evidence of any such intent.
Despite Dworkin's passing reference to the framers' intention, in
order to justify his distinction between concept and conception, it
seems ultimately that the framers' intention is secondary-decisively
subordinated to other factors. Dworkin explicitly calls into question
that "fidelity to the spirit of the text [is the] overriding principle of
constitutional adjudication." (136) Respect for decisions of other
governmental institutions or the desire to protect established legal
doctrines, for example, may take precedence. Whatever the alternatives, "it is crucial to recognize that these other policies compete
with the principle that the constitution is the fundamental and imperative source of constitutional law." (137)
This is implicit in his discussion of "Hard Cases" as well. The first
job of the judge is to find a theory which most smoothly explains the
Constitution's settled principles. There is no suggestion that it ought
to be the theory of the framers, which after all was the one which
actually produced the Constitution's principles. (Of course, some
parts of the Constitution may reflect not a single theory, but rather
compromises among different theories. If so, however, that compromise is in a sense the theory underlying those parts.) In fact,
Dworkin says that there may be more than one theory that fits
smoothly. If so, the judge "must turn to the remaining constitutional
rules and settled practices under these rules" to see which theory
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provides a smoother fit. (106) It would seem that if settled practice-especially judicial precedents-has departed from the framers'
intentions, then the judge is almost obligated not to adhere to those
intentions. Finally, the judge must consider the questions still
unresolved at that point as questions of political philosophy,
deciding which conception is a more satisfactory elaboration of the
given general idea.
Dworkin's approach to constitutional adjudication gives the judge
considerable power, to say the least. It is not unlimited, of course;
he cannot argue that the First Amendment requires an established
church. But given Dworkin's understanding of the generality of the
constitution's "concepts" and the minimization of the framers' intentions, an imaginative judge will have very broad leeway to read constitutional provisions to accord with his personal political
preferences. As Dworkin argues later in chapter 5, since the judge is
likely to value most of the concepts that figure in the justification of
his community's institutions (e.g. "religious liberty"), he would put
to himself (not some hypothetical self) the questions about "the deep
morality that gives the concept value." Thus,
the sharp distinction between background and institutional morality
will fade, not because institutional morality is displaced by institutional convictions, but because personal convictions have become the
most reliable guide he has to institutional morality. (128)
The surest guide to the Constitution for the judge will be his own
deep convictions about what its very general concepts demand. So
the judge's deep convictions about "equality," "dignity," etc. will
shape his constitutional decision-making.
Dworkin is certainly aware of the majoritarian democratic critique of such broad judicial power, and he responds to it. The
democratic argument says that all unsettled issues (including issues
of moral and political principle) should be resolved by institutions
more politically responsible than courts. Dworkin denies that this is
necessarily the precise meaning of democracy (without saying why),
and if it is, that only raises the question of why we should have
democracy (again, he does not say why we should not). He does give
a reason why we cannot argue that the Constitution establishes a
theory of democracy that excludes wider review, namely, that it
provides no rule limiting judicial review to clear cases. What
Dworkin does not point out is that the Constitution does not provide
a rule for judicial review in unclear cases because it does not explicit-
THEORIES OF JUDICIAL REVIEW
227
ly provide a rule for judicial review at all. Dworkin, like most
modern commentators, glides over the fact that the argument for
judicial review was originally based only on constitutional implications and that an examination of this argument suggests a narrower
scope for such an implied power. If the Constitution does not explicitly reject a notion of judicial power as broad as Dworkin's, it
seems likely that the reason was that no one in the founding era
would have made such claims for judicial review. And if later courts
have not been willing to accept such restrictions on their power, that
does not disprove the argument from democracy.
Dworkin then argues that there is no reason to believe that
democratic institutions such as legislatures make sounder decisions
or that it is fairer that they decide controversial issues. It is not fairer
because it, in effect, makes a majority a judge in its own case. When
it comes to individual rights issues, the controlling interests in our
governmental institutions have been both homogeneous and hostile,
and are subject to no review if not court review. But, as Dworkin
himself points out, this is no proof for the superiority of judicial activism, because of the risk of tyranny the latter involves, which may
override the "unfairness" of asking the majority to be judge in its
own case.
There is no way around the principle that ultimate social power
must reside somewhere,' and that ultimate social power must determine the limits of its own power. The framers of the U.S. Constitution tried to limit the power of the people by the principle of the rule
of law, one part of which was the rule of the fundamental law, the
Constitution, over the people in their ordinary governmental
capacity, acting through the political branches of government
(legislature and executive) . This law was to be enforced by impartial
judges. But what kept the judges impartial-and kept them from
becoming "judges in their own cases"-was that they too were
limited by the rule of that fundamental law. Once judicial review
becomes effectively detached from the Constitution, i.e. remains attached only by the vaguest of concepts, such as "equality,"
"dignity," etc., and allows great latitude to the judge's "deepest convictions" about those concepts, then judicial power has been "freed"
from the rule of law, and judges have become judges in their own
cause, i.e. the cause of their own power generally and the causes of
their own political preferences on particular issues.
4. Cf. Tocqueville, Democracy in America, chap. 15 (New York: Vintage, 1944), I,
270.
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The democratic argument is that if a final decision has to be made
on ordinary issues not settled previously by the rule of the fundamental law, then it ought to be made by no particular group, but
by the whole body of the poeple, acting in the only form it can, majority rule. If this can sometimes lead to injustice, on the whole it is
still fairer than giving such power to some particular group within
the nation.
Are legislatures more likely to reach sound decisions about individual moral rights? Dworkin argues that rights against the state
require society to settle for institutions which may not suit it so comfortably, i.e. that individual rights deserve protection even at the
cost of the general interest. Since society typically will choose what
suits it comfortably, society (the majority, the legislature) cannot be
trusted to protect rights. Rights must be protected by arguments
which appeal to principle, even when many people will be "worse
off" because of these rights, and judges-not legislatures-typically
decide on the basis of principles.
Dworkin seems to say that judicial decisions about rights are
superior to legislative decisions simply because they are more principled. This is not so obviously the case. First, if judges are typically
more concerned with principles and legislatures (and majorities)
with interests, that is, at best, only a generalization. No impartial
observer could deny that contemporary judges often wade into
policy (interest) considerations, even when they seem to be considering matters of principle. Nor can it fairly be said that principle plays
no significant part in the legislative process. (Has it been only "interest" considerations, for example, which have motivated Congress
not to overturn some of the Court's more unpopular decisions?)
Second, and more importantly, are "principled" decisions always
better than "interest-based" ones? If so, then would Dworkin accept
the propriety of Court laissez-faire economic decisions from
1890-1937? They were certainly "principled" decisions, based on
"liberty of contract" as a fundamental personal right, and not merely on a utilitarian calculus to maximize gross national product. Of
course, Dworkin might find the argument from principle spurious,
but it seems clear to me that the justices of 1890-1937 would have
sincerely said this was a matter of principle. (Perhaps that simply
demonstrates that judges prefer the form of an argument from principle, but not necessarily the substance. That, too, would undermine the argument Dworkin wants to make.)
Some arguments from principle are simply noxious. Religious
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persecution was not a utilitarian calculus-it was a principle.
Dworkin must show why it can be assumed that judges will not only
be more attentive to principle than legislatures, but also that those
principles will be good ones, which protect genuine rights, not
spurious ones. He is confident that lawyers can play an active role in
the development of an adequate theory of moral rights against the
state: he finds it "incredible" that a "fusion of constitutional law and
moral theory . . . has yet to take place." (149) If one reflects on
what has been done in the name of "moral theory" throughout
human history, reservations about such a fusion may seem sensible.
This is not to say that constitutional 1 w does not require moral
theory. The Constitution in fact embodies what moral theory
Americans could agree on-a moral theory with its limits perhaps,
but one which has served as the basis of a government which is
unusually free and prosperous and, on the whole, decent. If that
moral theory is to give way to another, such a profound change in
the nation would seem to call for a broad national debate, such as
that required by the amendment process. Dworkin prefers the internal workings of the legal profession, it would seem, presumably
because of the "difficulty" of the amendment process (getting so
many Americans to agree on any moral theory at all, much less one
which he would consider desirable).
This does not mean that judges and lawyers are free to legislate
any moral theory at all. They are constrained to some extent by the
materials with which they work: Constitution, statutes, common
law principles. The judge's power, according to Dworkin, is not one
of imposing his own morality, but rather acting on the basis of his
own sense of what community morality provides. Why his own,
rather than that of the ordinary "man in the street"? First, because
the ordinary man in the street cannot be assumed to have thought
out what the concepts presupposed by the Constitution, consistently
applied, require.
Of course, the "man in the street" may not have thought through
constitutional concepts. But the founders would have argued that
representatives likely would have. Judges are not the only ones who
can claim to have thought about whether "human dignity" as a
principle of "due process" requires abortion rights. Certainly
legislatures could be wrong, but that is no reason why judges-who
must apply laws they disagree with in many cases-cannot enforce
legislative decisions, especially if they have the humility to recognize
that their convictions about community morality are not more clear-
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ly grounded in the fundamental law than the convictions of many
others.
Second, the ordinary man in the street, Dworkin says, may simply
be wrong about what constitutional concepts require, and the judge
has a duty to give parties to a case their rights. Judicial fallibility
does not imply that because judges make bad decisions, they should
not try to make good ones. Besides, he says, finally, there is no
reason to credit any other particular group with better facilities of
moral argument (or if there is, the process of selecting judges-not
the techniques of judging-should be changed).
This final argument of Dworkin's is arresting in its stark simplicity. There is no reason to think anybody else has better facilities for
moral argument than judges, so they need not defer to anyone else.
It is dubious that one could argue for a clear general superiority of
plumbers, or journalists, or Harvard philosophy Ph.D.'s over judges
in such matters (although in some historical circumstances I can imagine plumbers being given the nod). The whole basis of American
government, as originally understood, was that no group of men
could consistently be trusted to make the right political decisions,
and therefore consent of the majority was essential to legitimate
political power. Dworkin's judge looks around and says "well
nobody can show me that he does a better job, so I can do it." But
doesn't logic suggest that if no one can prove superior facilities, then
no one has any special claim to rule? And if no one has a special
claim, and yet rule is necessary, then rule by the whole body of the
people-in practice, a majority-seems preferable to the alternatives.
Dworkin's attempts to provide theoretical justification for a very
broad judicial activism do not, in the final analysis, appear persuasive. But his unqualified judicial activism is not the only form of
contemporary judicial review. Other legal commentators agree that
such traditional statements as Marbury v. Madison provide an inadequate rationale for judicial review, and attempt to construct
new theories, which would explain and justify the broad power
asserted in the modern era. Some of these theories make an effort to
establish more definite limits on judicial power. Two of these commentators are Jesse Choper and John Hart Ely.
Judicial Review and "Functional" Analysis
Jesse Choper, dean of the Berkeley law school and co-author of a
widely used constitutional law casebook, is the author of Judicial
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Review in the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (a co-recipient of the
prestigious Order of the Coif Triennial Book Award for the most
significant contribution to legal scholarship). Almost scholastic in its
comprehensiveness and attention to analytical detail, this impressive
book is a curious combination of activism and restraint. The focus of
the book is not the substance of constitutional adjudication (how the
Court shall interpret the Constitution), but the jurisdictional or procedural role of the Supreme Court. Its thesis is that, despite the antimajoritarian character of judicial review, the Court must exercise
this power in order to protect individual rights, which are not adequately represented in the political process; but the Court should
also decline to exercise judicial review in other areas (relating to
federalism and separation of powers) in order to minimize the tension between judicial review and democracy and to husband its
resources of institutional prestige.
Chapters 1 and 3 provide essential background principles for
Choper's analysis. The first is a brilliant analysis of democratic
theory and practice relative to the political branches and the
judiciary. It has almost the form of a scholastic disputed question
(such as those of St. Thomas Aquinas' Summa Theologica), starting
with a section which argues in a sophisticated fashion that the
political branches (Congress, in particular) are thoroughly
undemocratic and then carefully dissecting that argument to reveal
its inadequacy. This is followed by a final section which notes the
arguments that the judicial branch is subject to effective popular
control and then ruthlessly dismantles them. The conclusion: the
political branches are decisively more democratic than the Supreme
Court.
The Court ' s exercise of its antimajoritarian power inevitably has
occasioned frequent and great controversy. This controversy creates
a continual threat that the public support necessary to secure compliance with Court decisions will be lacking. Chapter 3 argues that
the institutional "capital" of judicial prestige, the most effectual
basis for compliance by the political branches and the people, could
conceivably be exhausted, and so the Court must somehow take care
to prevent this. The book is an outline of a plan for judicial conservation of capital, by limiting the exercise of judicial review to only
two out of four broad kinds of constitutional questions.
The first area is covered by the Individual Rights Proposal, and
Choper argues that the protection of individual rights is the para-
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mount justification for judicial review. The judiciary has the
primary responsibility here not because of " deeper wisdom or
broader vision," but because it has the essential ingredient for this
task which is lacking to the political branches: it "is insulated from
political responsibility and unbeholden to self-absorbed and excited
majoritarianism." (68) Judicial review is especially necessary when
majority desires are intense and threaten the rights of an individual
or a politically isolated group.
Choper catalogues a variety of areas which have been held to require special judicial supervision: political rights; specifically
designated constitutional rights in general; rights involved in the administration of justice; and "unnamed rights," largely associated
with "fundamental rights" without a textual basis in the Constitution and "suspect classes" which enjoy a "special judicial immunity
from adverse political treatment." (73) He also mentions a variety of
alternative approaches to individual rights questions, some quite
modest (intervening only in the "political rights" area, for instance),
some extremely broad (e.g. expanding the list of fundamental rights
and suspect classes). But Choper himself begs off the question of
which approach to take-that is more a substantive concern, while
his focus is merely on the procedural question of which kinds of
issues the Court should consider.
The last part of the second chapter is a justification of the Individual Rights Proposal by a quasi-empirical argument, namely, a
review of the history of judicial review of individual rights and its effects. Choper admits that there are serious methodological problems
in attempting this, but nonetheless asserts his belief that "the
historical record discloses that the Court's accomplishments for individual rights have been substantial." (83) There follows what
Choper himself concedes to be not only a fragmented but "adversarial" review of Court history.
Besides accomplishing much "both for the substance of liberty
and . . , for the furtherance of the goals of democracy," (127) the
Court has also reassured minority groups and encouraged acquiescence in laws such groups deplore. The courts are an alternative to the streets. But in performing this essential task, the Court
may engender popular disapproval. How to maintain the public acceptance necessary to function effectively therefore becomes a
crucial question.
Choper's answer is to restrict Court involvement in other areas,
such as federalism and separation of powers, very sharply. These
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233
questions should be held, for the most part, to be "non-justiciable,"
their resolution to be left to the ordinary political process. The main
functional justification for this approach is that states and the two
political branches are all quite adequately represented in the
political process and can defend their interests there.
The Federalism Proposal states that the "issue of whether federal
action is beyond the authority of the central government and thus
violates `states rights' should be treated as non-justiciable." States
are well represented in the national political process, as history confirms, and are able to defend their interests. Moreover, federalism
implicates questions of practicality ("the relative competence of different levels of government to deal with societal problems") rather
than principle (protecting "constitutionally ordained personal liberties" out of "special regard for the dignity of the individual," and
"democratic processes may be generally trusted to produce a fair
constitutional judgment in such matters"). (203) Nor has judicial
review been particularly successful in this area-most decisions
limiting national power vis-a-vis the states have been overruled.
Even if federalism does protect liberty in some sense-and Choper
seems to doubt this seriously-the wiser course is to avoid such issues
in order to conserve the Court's capital of institutional prestige for
its permanent role of protecting individual liberties. (Choper rightly
notes that the practical import of the Proposal would be quite
limited, despite its radical tone: few results in concrete cases would
change.)
Choper does accept, however, the justiciability of claims arising
from "the other side" of federalism, i.e. state encroachment on national power. This is justified first, because national interests are insufficiently reflected in state legislatures, and second, because such
judicial review would not be final-it would be possible for the national political process to reverse such rulings that state power is
limited, by ordinary statutes. Moreover, Congress is ill-suited to perform the task of reviewing the myriad of arguably invalid state and
local rules (although Choper is open to the possibility of reducing
the Court's role here by establishment of a special federal agency to
deal with such questions).
The Separation Proposal states that the Court should treat as nonjusticiable questions of the relative powers of Congress and the President. The primary modern justification for judicial action in this
area has been the fear of arbitrary executive acts. Choper argues,
however, that this danger is adequately guarded against by checks
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and balances (both within the executive branch and vis-a-vis Congress) and by elections. If these work, judicial review is unnecessary.
If they do not work, then it is unlikely that a true constitutional
violation has occurred, or that the Court will succeed in checking
the executive where they have not.
The impact of this proposal is limited by the fact that most cases
in the area of separation of powers have not involved assertions of
completely independent executive constitutional power. Most executive claims have been based on statutory authority of some kind
(and those issues are justiciable-and effectively reversible through
the ordinary political process). Choper is optimistic that acceptance
of his proposal would not lead the executive to depend more on constitutional arguments, because the magnitude of those broad claims
has tended to encourage the political branches to resolve their differences through accommodation of some kind. By forcing the
political branches to defend their own interests through the normal
political process, the Court again conserves its prestige for its paramount role of protecting individual rights.
Choper's final proposal-the Judicial Proposal-provides that
questions of the scope of judicial power be resolved by the judiciary.
Unlike the political branches, the courts are not well represented in
the political process, and therefore they must protect their interest
through the judicial process. They also have a special knowledge of
judicial history, tradition, capacity, and mission, which supports
the argument that they have a distinctive ability to define the proper
boundaries of the judicial power. Thus, the Court will review both
attempts to restrict judicial power and attempts to expand (and
perhaps overload) it.
Whose "Good Results "?
Choper's book makes an effort to come to terms with original intent in some way, while at the same time rejecting it. He recognizes
the importance of the issue enough to raise it in the Preface.
Disavowing the attempt to manipulate history to justify his position
on the basis of the framers' intent, he does not try to show that his
proposals were "originally ordained," but merely that they "are not
at war with original intent." (xviii) His primary reliance is not on
original intent but on many empirical examples. Yet it is hard to see
how such a comprehensive set of proposals could be "not originally
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235
ordained" and yet "not at war" with original intent. While Choper
makes an extensive but sometimes strained effort to cite the framers
in support of each of his proposals, it is clear that the framers gave
no ground for distinguishing so sharply between judicial powers in
the various areas.
Indeed, it seems rather clear that the Court's chief role in the
original scheme of judicial review was that of an arbiter of
federalism.' Choper maintains the half of this role which supports
broad national power and cuts out the other half, whereby the
federal 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 with
it. In this section Choper plays the role of a defense lawyer with a
"bad" case: he tries to gather evidence which creates "a reasonable
doubt" in the jury's minds, so that he can dismiss original intent as
"inconclusive."
Much of the evidence Choper collects emphasizes that the framers
relied on means other than the judiciary to preserve federalism and
separation of powers. This evidence is interesting and useful for
understanding traditional judicial review, but does not give strong
support to Choper's overall position. Properly understood, that
evidence shows that the framers generally had limited expectations
as to judicial review in the individual rights area as well as the other
two. For example, if part of his reason for dismissing judicial review
of federalism issues is the inconclusive evidence that the framers intended any judicial review at all, then it would seem that there
would be equal doubt about Choper's Individual Rights Proposal.
In fact, though, Choper is more concerned with dismissing
original intent than following it. One wonders at times why he even
feels the need to go into the issue, instead of straightforwardly asserting its irrelevance. Perhaps the answer is that the legal profession
has traditions or norms which allow judges broad discretionary or
legislative power, but only in cases where the law is not clear.
Where the law does seem rather clear, a judge may still find a way
to legislate, by denying the clarity, but the need to muddy the issue
may reflect the influence of traditional legal norms which are difficult to ignore. Choper's position on judicial review is based explicitly on functional considerations, apart from the intent of the
framers, 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 (London: Oxford University Press, 1976), Chapter 1.
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minimize difficulties regarding its legitimacy (perhaps for others, if
not for himself).
Choper argues for a radical withdrawal of the Court from most
federalism and separation of powers questions, partly because the
political process is generally likely to produce adequate results. This
satisfaction with the results may reflect Choper's preferences for a
federalism which enhances federal power and a view of separation
of powers which enhances executive power, in both cases considerably beyond (contrary to) original intent. But even if judicial
intervention were beneficial in a few cases, he says, on the whole it
would be better for the Court to preserve its institutional prestige for
the 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 "paramount justification of judicial review" in protecting individual
rights.
Some of the arguments Choper uses to limit judicial review in
regard to federalism and separation of powers would also seem to
apply to the individual rights area. Just as the normal politcal process can preserve federalism and separation of powers in many cases,
so-as Choper honestly points out-can it contribute to protecting
individual rights in many cases. If diminution (or elimination) of
judicial review in the former areas is likely to lead to an enhanced
legislative-executive consideration of questions of constitutionality,
perhaps diminution of review in individual rights cases would lead
to their enhanced consideration of those issues (though Choper
denies this).
In the area of individual rights (as in the other areas-to what
comparative extent, it seems rather speculative to say), there will be
cases of the "failure" of the political process: injustices will occur.
But these failures must be weighed against the "failures" of the
judicial process. Choper raises the theoretical problem in discussing
the antimajoritarian character of judicial review, but then sidesteps
it in his more particular discussion of the Individual Rights proposal.
He begs off what he (citing Ely) calls "the critical question facing
constitutional scholarship," namely "development of ` a principled
approach to judicial enforcement of the Constitution's open-ended
provisions. ' " (79) This is a " substantive " question beyond the scope
of his book. But, of course, this "substantive" question may be absolutely crucial to resolve in order to decide his "procedural" one. If
THEORIES OF JUDICIAL REVIEW
237
contemporary constitutional scholarship has failed to produce such
a principled approach, or if the principled approach excessively
magnifies judicial power (with the attendant increased likelihood of
judicial "failures"), or (perhaps more important) if that principled
approach discovered by legal scholarship seems to have little influence in the actual practice of the Supreme Court (except in the
form of selective citation for ad hoc decisions), then there are serious
grounds to doubt the appropriateness of the broad judicial role
Choper envisions in cases involving individual rights.
Choper can avoid facing the question of the scope and character
of individual rights in this book for two reasons, I think. First, in
assigning the Court great power (at least potentially) in this area, he
follows the conventionally accepted wisdom of the contemporary
legal profession. To the extent that Choper is primarily concerned
with getting the legal profession to accept his proposals, he need not
put as much effort into the discussion of the Individual Rights proposal: "the essential rationale for . . . judicial protection [of individual liberties] is relatively uncomplicated." (64) (His Federalism
and 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 individual liberties on the historical record provide a demonstration of
its desirability. Whatever its blemishes, on the whole, the Court's
record is very good. Even the Court's bad decisions have "yielded
.. to the slow pressures of unfolding history" (citing Archibald
Cox). Moreover, it has reassured minorities, giving them an alternative 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 decisions in defense of property rights is short and surprisingly noncommital. While there may have been some bad effects, he says, there
may have been some good ones too, and the decisions attest to Court
concern for personal rights. Other commentators (most others) have
been 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, in
regard to the Individual Rights proposal, should distinguish between the good results
which flow from a fair reading of the Constitution and those which are a result of
judicial initiative apart from a clear constitutional command. Good results that flow
from the original intent should not be employed to justify judicial review apart from
that intent.
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that generally liberal decisions are good and conservative ones are
bad. There is no extended discussion of the unpopular busing decisions, 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 wedge
between education and religion) . There is the five page discussion of
the abortion decision which represents it as a clear, unalloyed blessing-an astonishing fact, given the controversy about the decision-not just its doctrinal basis, which was questioned by most
legal commentators, but its substantive policy, which was questioned by many Americans, though few legal commentators.'
If recourse to the Court has provided minorities with an alternative to violence or discontented acceptance of unjust laws, one
wonders what alternative Choper offers to minorities (or majorities)
confronted with Court decisions they consider unjust and
deplorable. Recourse to the political process to overturn the Court
action-which Choper has so admirably demonstrated to be ineffectual in his first chapter? Violence (as in the reaction of South Boston
to a federal judge's busing plan) he would surely deplore.
Discontented acceptance? Is that any better an alternative for the
losers 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 reverse
itself than to go back and fight it out again in the legislative halls?
Choper's argument ultimately derives its strength from the fact
that almost everyone agrees that the Court has made some very good
decisions, which in some cases perhaps only it could have done (at
least within immediately foreseeable circumstances). The questions
are whether a principled approach can be devised which justifies the
good decisions and "de-legitimates" the bad ones, and whether the
limits on the courts of such an approach could be effectually en sured.
Whether the answers to these questions can be found seems questionable. There are widely divergent views of what the Court's "obviously good" and "obviously bad" decisions are. Given this fact,
there is a substantial danger that "principled approaches" will continually be devised (and revised) to rationalize a simple underlying
result-orientation. And even if a consensus on some principled ap7. Law school professors are typical of intellectual elites who strongly support abortion. Perhaps this is so because it takes considerable intellectual skill to "show" that a
fetus conceived by a man and woman is not a separate "human" being but only "part
of a woman's body."
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proach could be obtained, how long would the limits it imposed on
judicial power be effective? Success tends to breed expanded power.
If the Court does well in some area or areas, there will obviously be
pressure-and a temptation-to use power more broadly in other
areas. Does history suggest that such pressure and such temptations
are typically resisted?
Democracy and Distrust
John Hart Ely's Democracy and Distrust: A Theory of Judicial
Review begins with a description-and rejection-of the "false
dichotomy" between relying on original intent and second-guessing
legislative value choices. Both are ultimately incompatible "with the
underlying democratic assumptions of our system." (vii)
"Interpretivism," as the original intent position has increasingly
come to be called, is the attempt to interpret constitutional provisions as self-contained units "on the basis of their language, with
whatever 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 conceptions of law and it seems more democratic than its opposing positions. It attempts to come to grips with the perennial democratic
problem, how to protect minorities without contradicting majority
rule, by having judges exert merely "judgment," not "will," in enforcing limits established by the people themselves in a written constitution.
But this argument, says Ely, is "largely a fake," since "the voice of
the people" invoked by the judges is a voice of people now dead for a
century or two. (11) Constitutionalism is incompatible with
democratic principles, it seems-it still may be a good thing, but
that is a different argument.
More importantly, this narrow "clause-bound" interpretivism is
not defensible on its own terms, for the Constitution itself-"the interpretivist's Bible"-contains "open-textured" provisions which are
"quite broad invitations to import into the constitutional decision
process considerations that will not be found in the language of the
[constitution] or the debates that led up to it." (14) Ely devotes most
of his second chapter to an argument that the Fourteenth Amendment's privileges and immunities clause and its equal protection
clause and the Ninth Amendment are all open-ended provisions,
which essentially delegate "to future constitutional
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decision-makers" the power "to protect certain rights that the document neither lists, at least not exhaustively, nor even in any specific
way gives directions for finding." (28) What is needed, therefore, is
"a principled approach to judicial enforcement of the Constitution's
open-ended provisions . . . one that is not hopelessly inconsistent
with our nation 's commitment to representative democracy." (41)
But Ely rejects the "prevailing academic line" that the Court
should be responsible for identifying and enforcing the nation's fundamental (substantive) values. Judges cannot, consistent with the
democratic principles of our system, simply impose their own
values, and so generally there is an attempt to specify some definite
source of the values to be recognized and protected. Ely's third
chapter is a survey of some of these different sources: "natural law,"
"neutral principles," "reason," "tradition," the "consensus" of contemporary norms, and prediction of the principles toward which
society is progressing. All of these are rejected, on grounds which
vary somewhat, but usually involve one or both of these reasons:
first, these sources are usually a combination of the "uselessly
general and controversially specific" (that is, agreement on their
principles is usually confined only to the broadest statements that
give no real concrete guidance to judges in regard to the more
specific decisions they are called upon to make); and second, they
are usually in practice highly undemocratic and elitist, allowing the
interpreters to read their own (typically upper-middle, professional
class) values into the law. (64) This kind of "non-interpretivism" is
thus, like the narrow "clause-bound" interpretivism, inadequate.
But Ely sees a better route in between these methods, one that he
is sometimes tempted to call the "ultimate" (i.e. a broad and adequate) interpretivism, whereby the content injected into the openended provisions of the Constitution is "derived from the general
themes of the entire constitutional document and not from some
source entirely beyond its four corners." (12) This approach,
foreshadowed in the Warren Court's pattern of decisions (though
not legal commentators' analyses of these) and earlier in the
Carolene Products footnote, is outlined and justified in Ely's fourth
chapter.
Representation is the basic concept upon which Ely ' s theory rests.
The community of interests between ruled and rulers which is an
essential condition of good government is normally guaranteed by
elections. Even with elections, however, minorities may be subject
to oppressive majority action. The framers recognized this problem,
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241
and tried-unsuccessfully-to deal with it through the Bill of Rights
and the "pluralism" of the extended republic described by Federalist
No. 10. The Bill of Rights is inadequate, however, because "no finite
list of entitlements can possibly cover all the ways majorities can
tyrannize minorities." (81) Pluralism is inadequate because even
heterogeneous "clusters of cooperating minorities" may have "sufficient power and perceived community of interest to advantage itself
at the expense of a minority." (Ibid.) (The inadequacy of these
means is shown most strikingly by the problem of slavery.) Thus
"the existing theory of representation had to be extended" so that a
representative would maintain a community of interests with
minorities as well as majorities. This did not mean that minorities
had a right never to be treated less favorably, but it did "preclude a
refusal to represent them," that is, to deny them "equal concern and
respect in the design and administration of the political institutions
that govern them." (82)
The old concept of "virtual representation" could be adapted to
accomplish this function "by tying the interests of those without
political power to the interests of those with it." (83) Early examples
of this approach were the non-discrimination requirements of the
Article IV privileges and immunities clause (requiring equal treatment by states of their citizens and citizens from other states) and
the commerce clause (prohibiting discriminatory taxation on out-ofstate goods.) Moreover, McCulloch v. Md. incidentally accepted a
property tax on the national Bank, as it struck down a tax on its
operations, on the grounds that the application of the property tax
to other property in the state ensured that the Bank would not be
disabled by it. While these themes were not often explicit before the
Civil War, the "Fourteenth Amendment quite plainly imposes a
judicially enforceable duty of virtual representation of [this] sort."
(86) Ely's theory argues that the two desiderata of American
politics-majority rule and protection of minority rights-do not
conflict with one another, but rather are both rooted in "a common
duty of representation. " (87)
Ely then gives three arguments for "a participation-oriented,
representation-reinforcing approach to judicial review." (87) The
first is a broad interpretivist argument: an examination of the nature
of the U.S. Constitution finds it to be primarily the guarantee of a
process, not the specification of substantive values. Most of the few
substantive values of the original Constitution are either obscure
(e.g. no quartering of troops in the Third Amendment), or have not
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survived much (slavery, prohibition, contractual rights). The
"general strategy" of the document has been to guarantee that
everyone's interests will be represented in substantive decisionmaking processes and that the processes of individual application
will not be manipulated to allow the impermissable discrimination.
Judicial review, then, should emulate this process orientation of the
general themes of the document.
The other two arguments are not "interpretivist" ones. First, this
theory of judicial review is supportive of, rather than inconsistent
with, the American system of representative democracy, for it
recognizes that judges are not better reflectors of conventional
(substantive) values than elected representatives, and should confine
themselves "to policing the mechanisms by which the system seeks to
ensure that our elected representatives will actually represent."
(102) Second, it "assigns judges a role they are conspicuously well
situated to fill." (102) As "comparative outsiders in our governmental system" they are "in a position objectively to assess claims" that
our system is malfunctioning, i.e. that the process is undeserving of
trust because "the ins are choking off channels of political change"
or because a majority is "systematically disadvantaging some
minority out of simple hostility or prejudiced refusal to recognize
commonalities of interest." (103)
The last two chapters of the book lay out in somewhat greater
detail the two functions of judicial review in Ely's approach. First,
the Court should keep the channels of political change cleared by
giving strong protection to free speech and the right to vote and by
resurrecting the non-delegation doctrine to prevent issue-ducking by
representatives. Speech should be protected by two complementary
methods. Where regulation of speech is based on its content, only a
narrowly defined class of "unprotected messages" should be open to
regulation. Where regulation of speech is independent of its content,
a rigorous clear and present danger test should be employed to
evaluate alleged "specific threats" of the speech. Strict review is
always appropriate, for "we' re certainly in no danger of too much
political freedom." (116)
Voting rights are essential to the democratic process, and their
protection cannot be left to elected representatives, who have a
vested interest in the status quo. Denial of the right to vote cannot be
upheld except for a very good reason, and the vote should be an
equal vote which meets the "most administrable standard," i.e. oneman, one-vote.
THEORIES OF JUDICIAL REVIEW
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Ely notes the good intentions, but doubts the efficacy, of an approach which demands articulated legislative purposes in order to
guarantee a "more visible" legislative process, where voters can see
and react better to those purposes. A better "way to get our
representatives to be clearer about what they are up to in their
legislation is to get them to legislate." (131) Too often legislators pass
on difficult problems to "faceless bureaucrats." The court's earlier
non-delegation doctrine, which met a "death by association" (with
economic due process) in the New Deal, should be revived, Ely
argues. By requiring legislatures to give genuine policy direction to
administrators, democratic accountability will be ensured better.
The second function of Ely's judicial review is facilitating the
representation of minorities. Even where minorities have the vote,
courts should prevent the travesty of the equality principle when
majorities "vote themselves advantages at the expense of others, or
otherwise refuse to take their interests into account." (135) (Again,
treatment of our society's black minority is a good example of this
problem.) The Courts should focus not on the pattern of distributions 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 it
has increasingly engaged) and tries to show that the Warren Court
developed a good test for this area-strict scrutiny of suspicious
classifications-though perhaps without an adequate articulation of
its grounds or application. This approach can "flush out" unconstitutional motivation in this way. If the class is suspect, the
judge should check the "fit" between the means employed and the
purported end. Disadvantaging a minority is itself an unconstitutional end-it cannot be avowed-and if it is the real motive, there
is likely to be an imperfect fit between the law and the constitutional
end which is offered as a justification. Even if there is a good enough
fit, however, there must still be an evaluation of the importance of
the justification offered: where the end is legitimate but not important, one can infer the likelihood of improper motivation.
What are the criteria for suspectness? Again, Ely urges an indirect
approach which focuses on the psychology of decision-making. A
class should be suspect in the first place if a group is subject to
widespread vilification. A substantial goal, of course, will still
justify such a classification (e.g. laws disadvantaging burglars).
Where there is not a substantial goal (or a proper fit), "first-degree
prejudice" of this kind will be rejected (e.g. explicitly racist laws).
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Second, a class should be suspect if it is based on a stereotype
where the incidence of counter-examples (i.e. members of the class
which don't fit the stereotype) is higher than the legislators appear
to have thought it was. This is not first-degree prejudice, but it implicates equal protection concerns by its denial of equal concern and
respect for those (counter-examples) whose existence-and thus
welfare-is not attended to.
The way to identify such classifications is to focus on factors likely
to produce such misapprehension. When legislators decide between
using a generalization or a more discriminating formula, they must
balance the increased costs of the latter against its increased fairness.
Focusing on this process, however, Ely argues, one can see that some
generalizations tend to benefit legislators or those on whom they can
depend (majorities), either in tangible ways or in psychical terms
(self-flattering generalizations), at the expense of minorities.
Classifications based on these generalizations or stereotypes should
be suspect. If the stereotype-disadvantaged group has been and still
is barred from access to the political process (the classic "discrete
and insular minority")-and thus has fewer opportunities to oppose
the stereotype-the classification should simply be struck down. If
access was once blocked but no longer is (as in the case of gender
discrimination), then older laws will be voided, but should be
upheld if re-passed. (On this kind of analysis, Ely would uphold affirmative action. Action by a majority which disadvantages itself is
not suspect.)
Ely also defends a "prophylactic" equal protection concern with
processes which accord decision-makers uncontrolled discretion,
which can serve as an outlet for prejudice or an opportunity to erect
buffers which protect some people (generally "like us"), but not
others. The classic example here is the death penalty. The fact that
one searches in vain for examples of executions of members of the affluent strata of society shows that "there is a very effective series of
buffers at work here, protecting those who make the laws and others
like them from the harshness of their application." (176)
A final minority "process" right is the right to travel, used for example 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 or
dissenting residents in a society can escape from oppressive environments and move to communities whose values are more compatible with theirs.
THEORIES OF JUDICIAL REVIEW
245
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 the
general themes of the Constitution (by which he means especially
the principle of representation, as he elaborates that concept). He
indicates his own uncertainty, however, as to whether his broad interpretivism is really interpretivist (it is not "in the usual sense," he
concedes), and doesn't really seem to think it matters. (87-88)
The keystone of the "interpretivist" approach-that is, the approach which argues that judicial review ought to be based on interpretation rather than judicial legislation-is the attempt to ascertain
and give effect to original intent-what the document means
because those who wrote it chose to give it that meaning. From that
standpoint, Ely's claim to have produced a broad interpretivism
rests on two arguments: first, the "negative" argument showing the
inadequacy of "narrow" interpretivism on its own principles, and
second the positive argument demonstrating that his approach gives
effect to the document's meaning rather than to judicial will.
The attempt to discredit narrow "clause-bound" interpretivism
relies primarily on the language of the Constitution, with some
reliance on an historical argument to introduce uncertainty as to
whether there was any clear original content to certain key phrases.
His treatment of language and history, however, is incomplete. For
example, with respect to the Ninth Amendment he ignores the
distinction of meaning between the actual words ("The enumeration
in the Constitution, of certain rights, shall not be construed to deny
or disparage others retained by the people") and words which would
more accurately state what he assumes the words to mean, e.g.
"Congress shall not abridge the other fundamental rights of the people not enumerated in this Constitution." The key words in the actual phraseology which he effectively ignores are "shall not be construed to"-words which suggest that the amendment is merely providing a rule of construction (like the Tenth Amendment) rather
than adding some new substantive protections of (unstated) rights.
This reading is confirmed by history-Madison explicitly noted in
his introduction of the Bill of Rights in Congress that the Ninth
Amendment was intended to deal with a narrow problem (the one
described in Federalist No. 84) of preventing an inadvertent
misconstruction of Congress ' powers. Ely can cite history to support
his position only on the assumption that Madison fell into some
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"confusion" about the whole issue. (35-36) The confusion is more
likely to be Ely's, I think.
Even more importantly, Ely assumes that if constitutional
language is open-ended-that is, if it seems to be "a delegation to
future constitutional decision-makers" to protect unstated
rights-then it is subject to the authoritative decision of judges. But
that is to assume what he is trying to prove (i.e. it appeals to an expansive notion of judicial power in order to prove that judges are to
have such an expansive power). It begs the question of whether
judges, employing "judgment" in their task of interpreting, are
authorized to strike down a law based on one reasonable interpretation of the Constitution on the grounds of their preference ("will"?)
for another reasonable interpretation of it. (Aren't different
legislative and judicial applications of "open-ended" provisions
equally reasonable as "interpretations"-the whole point of "openendedness" being that there is very little definable content to the
provision?)
Ely can make his assumption because he takes judicial review for
granted without an "interpretivist's" concern for establishing the
basis of judicial review in the Constitution-a basis which, I would
argue, suggests a very limited scope for the power. By this I mean
that Marbury v. Madison and other defenses of early judicial review
(e.g. Federalist No. 78) base their justification for unelected, virtually life-tenured judges striking down acts of the democratic
political process on the ground that the judge is enforcing the Constitution (itself an embodiment of popular will). It is hard to see how
such a rationale could justify judicial review on the basis of constitutional provisions which are held to be "open-ended," i.e. where, in
effect, the Constitution has no concrete content until the "interpreter" gives (or chooses) it. If the Constitution contains open-ended
provisions, the "interpretivist" would ask whether there is anything
in the Constitution which suggests, even by implication, that genuinely ambiguous provisions be given authoritative content by judges
rather than legislatures and executives. Finding nothing in the Constitution which supports that notion, he would say that the essential
condition for the exercise of judicial review is absent. Ely is free to
adopt a broader notion of judicial power, as many other modern
commentators have, but if he does, he is no longer free to claim that
he 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-
THEORIES OF JUDICIAL REVIEW
247
tionable. His approach is said to be rooted in the "general themes" of
the document, but it is hard to see how it is more so rooted than the
"fundamental rights" approach he rejects. His own analysis of the
Ninth Amendment, for example, suggests that it is intended to protect unenumerated substantive rights. To support his reading of the
Ninth Amendment, he quotes a letter of Madison to Jefferson which
mentions his concern that a bill of rights would not define the rights
broadly enough (especially the rights of conscience). Since Ely portrays the Ninth Amendment (incorrectly) as the answer to this
"
problem," apparently apparently the unenumerated rights protected by it include substantive rights (such as these rights of conscience). And if it protects some such rights, why not all? And if all,
doesn't this establish protection of fundamental rights as at least one
of the general themes of the document-especially taken in conjunction with substantive rights which are mentioned-enforceable as a
kind of "broad interpretivism" a la Ely's own?
Moreover, Ely scrupulously points out a number of times that not
only was the Constitution as a whole concerned with the substantive
value of liberty, but it also did include provisions which reflected
substantive values. He does try to minimize these as outside the
"mainstream" and as "an odd assortment, the understandable products of particular historical circumstances-guns, religion, contract, and so on . . . ." (101) This raises the question, however, of
how seriously Ely's "broad interpretivism" tries to "interpret." If interpretation involves an attempt to ascertain faithfully the meaning
of the document, how faithful to the meaning of the Constitution is
it to reduce religion and contract to some historical flotsam, irrelevant 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 hung
up . . . on the specific intentions of the framers" we are asked, in
regard to Harlan's argument that section one of the Fourteenth
Amendment was not meant to be applied to voting rights. (118-19)
The only things that seem to count in specific "open-ended" provisions are the "general ideals" (e.g. "equality") whose specific
applications are left to posterity. 8 But apparently posterity is not
8. Ely several times makes statements such as "the lack of any specific expectation that
the Fourteenth Amendment would be applied to voting ...." If this were an accurate
statement of the issue, then interpretivists would be on weak grounds, and scholars
such 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
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completely free to make those specific applications of "open-ended"
provisions: it is to confine itself to procedural or "participationoriented, representation-reinforcing" content. This confinement of
discretion is based on the "nature of the Constitution" (insofar as Ely
claims to be a broad interpretivist) but is it thereby Ely's claim that
the framers intended such a confinement? It seems unlikely that Ely
intends this-it seems implausible. For example if the "nature" of
the Constitution is generally "procedural," but with numerous "exceptions" of provisions involving substantive values, wouldn't a
judicial review that reflected the nature of the document be one
which generally protected procedural rights but also contained some
exceptions in favor of protecting substantive rights? But for Ely the
framers' "exceptions" are basically to be treated as anomalies and set
aside (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 any
concern for original intent, since it singles out only one part of even
the framers' "broad" intent (the procedural orientation).
What Ely really seems to be doing is to separate "the meaning of
the Constitution " from " original intent. " Somehow the meaning
that the framers "put into" the Constitution can be removed-at
least to some extent-and a more abstract, less substantive Constitution can be interpreted with more freedom. "Interpreted" in this
not refer to a simple absence of expectation, but rather to a clear and specific intention
that the Amendment not apply to voting-an intention confirmed by the language of
the second section of the Fourteenth Amendment (which provided a different way of
dealing with the issue of black suffrage) and by the Fifteenth Amendment. Ely argues
that if there was any "reservation" regarding application of the Fourteenth Amendment to voting, it was due to the issue of black suffrage, which was resolved by the Fifteenth Amendment (backed by essentially the same people as the Fourteenth). Besides,
he says, the reservation was not expressed in the Amendment and "is unusually inconsistent with the ideal it expresses." (120n) But, of course, the question being debated is
precisely whether the reservation was expressed (by implication at least, in section
two, and by an understanding of "equal protection" a g referring to civil, but not
political rights) and that debate extends to exactly what the "ideal" is: Ely assumes that
it 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 reasonably
make an argument for adopting his broader view, but in so doing he would have to
drop the claim to "interpretivism" even of a broad kind-unless broad interpretivism is
compatible with interpretation contrary to the known specific intentions (not just expectations) of the framers. If it is compatible with that, it's hard to know what meaning "interpretivism " has any more.
THEORIES OF JUDICIAL REVIEW
249
context would mean not "ascertaining the author's meaning," but
perhaps "attributing some meaning to the document consistent with
its words and general structure." Moreover the general structure
might not reflect a coherent "original intent." Two examples: first,
Ely says that the Fourteenth Amendment should be understood to
protect the right to vote partly on the grounds that later amendments have extended the franchise "thereby reflecting a strengthening constitutional commitment to the proposition that all qualified
citizens are to play a role in the making of public decisions." (123)
Thus, in effect he argues that later additions to the Constitution can
justify an expansion of earlier parts (i.e. a modification or transformation of those parts, departing from original intent in light of a
new intent attributed to the whole).°
Second, it is unclear whether even the original general structure
of the document was a conscious and deliberate one. Ely notes the
procedural orientation of many of the provisions of the Constitution
and sees in them a pattern which reflects a certain approach to or
theory of representation, but that theory is not said to be part of the
original intention in an explicit way. In fact, Ely points out that
some of his themes were not "very often made explicit before the
Civil War." (86) What seems to be the case is that Ely is the
"author" of the "general structure of the Constitution" insofar as he
consciously formulates a theory of representation which gives the
whole a coherence which none of its earlier authors articulated,
although they (more or less consciously) contributed to the developing pattern which Ely was to discover in their work.
Thus, Ely can claim to be a broad interpretivist while not feeling
bound strictly to the meanings which earlier framers consciously
gave to particular provisions. His interpretivism is a "creative" act of
discovering in the original and developing Constitution a thread
which gives it a unity and coherence perhaps unsuspected by many
of its framers. From that standpoint, Ely might very well make the
paradoxical claim that he knows the intentions of the framers better
than they knew them themselves.
Of course, that raises the question of whether this is all "interpretation" 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's
description of the judge creating the seamless web, integrating new decisions with past
ones in a coherent theory, which may legitimately involve the dismissal of the theory
behind the earlier decisions (and perhaps some decisions themselves, if they are
"mistakes"). See Taking Rights Seriously, chapter 4.
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surprising to discover that Ely in the final analysis regards it as
unimportant whether he is an interpretivist or not. And the fact that
he doesn't consider it important itself suggests that his position is not
fundamentally interpretivist. In the final analysis what he really is
concerned about is that the substance
of his position is good, not
"io
whether it is "good interpretation.
Ely rejects "fundamental values" approaches in Democracy and
Distrust, but one can raise questions about whether he may not go
too far and also not go far enough. The different sources of fundamental values-natural law, reason, tradition, consensus, and so
on-do seem to be generally a combination of general principles
which all agree upon but which do not provide much specific
guidance for deciding cases. Their more specific applications are
controversial and therefore are not a clear enough guide for judges
to decide cases (because they lack the qualities of "known, standing
law"). Ely is also right to point out that the use of such sources
typically would provide an opportunity for the judge to read his
own personal predilections into the law (and not necessarily consciously-it could be the result of perfectly good faith attempts at
"objective" analysis).
But perhaps Ely goes too far in simply dismissing natural law. Insofar as one wishes to interpret the Constitution and insofar as the
Constitution was written in light of a certain understanding of this
law (modern natural rights theory, for the most part), an interpreter
might find in the framers' discussion of natural rights a guide or an
aid to interpretation, especially in shedding light on the objects or
purposes of constitutional provisions. More importantly (though of
limited relevance to the question of judicial power), the rooting or
grounding of the Constitution in natural law helps to provide
answers to the perennial question of the source of the obligatory
character of law-answers which may be much more satisfactory
(and ultimately more effective) than simply relying on utilitarian
justifications.
But if Ely is right at least in rejecting "fundamental values" approaches as a source for judicial review, one wonders whether his
10. Of course a real "interpretivist" might very well be most concerned about that in
the 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. But
such an interpretivist believes that the substance of the Constitution is good because it
was consciously constructed by its framers in light of generally sound political
philosophy, not because it can be "creatively interpreted" to "come out right."
THEORIES OF JUDICIAL REVIEW
251
own theory-detached from a strained "interpretivist" justification-can be sustained. Isn't Ely's own theory of representation a
kind of "fundamental value"? Of course, Ely would point out that it
is not a set of substantive values, but the question is whether Ely's
choice of "procedural values" is itself a substantive choice of sorts.
And then one could go on further to ask whether the content of Ely's
procedural approach represents a further substantive decision
among possible procedural approaches.
This is not to say that Ely is contradicting himself-he knows that
procedure is ultimately in the service of substantive values and does
not claim to be able to avoid some initial substantive values. The
question raised here is whether perhaps the same questions that he
raises about fundamental values approaches might not be raised
about his own. Fundamental values approaches are combinations of
the uselessly general on which there is agreement-what about
"representation"?-and of the controversially specific-is Ely's
elaboration of representation-reinforcing judicial review uncontroversial? Judges can read their own values or predilections into the
typical allegedly objective sources of fundamental value-but are
Ely's procedural norms so objective as to escape this?
Ely supplements his argument from the nature of the Constitution
with two other arguments: a participation-oriented, representationreinforcing approach to judicial review is consistent with the
democratic assumptions of our system and it gives the judges a task
they are particularly well-situated to perform. In a way, Ely argues
that his position is more democratic than both "narrow" interpretivism and fundamental values judicial review. It does not give
an elite (the judges) the opportunity to define fundamental values
for the rest of society (as the latter does) and it does not give so much
power to the dead to rule the living (as the former does). But Ely's
approach does give the judges the power to define procedural limitations (which extend quite far) on the rest of society. If there were a
single unarguably "correct" set of democratic procedures, that
might limit objections to such a power from the viewpoint of
democracy, but it is doubtful that things are so clear. Those who
take "the democratic assumptions of our system" as a reference point
may not, then, be as willing as Ely to assume blithely that the
judicial power he describes is so democratic.
An even deeper objection is that the assumptions of our system are
not-certainly never were intended to be-purely democratic. It is
true that the U.S. was never conceived to be a "mixed regime" in the
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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) it
is not clear that even yet the assumptions of our system can be simply
and adequately described as simply "democratic." From that point
of 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 to
carry out tasks that require freedom from immediate political
pressure. (That was, after all, the reason they were deliberately
given a great degree of independence: so that they could judge
without being subject to such pressure.) If being "political outsiders"
has its strengths, however, it is not so clear that Ely recognizes its
weaknesses. Even if judges do not directly make decisions about
substantive 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 be
elaborated, there is still the danger that judges attempting to protect
only procedural values will in fact erroneously go beyond the Elydefined limits of their power and impose substantive values. These
dangers must be weighed against the advantages of the justices'
political insulation. Ely does not seem to feel the need to weigh such
dangers, perhaps because he believes the "procedural" character of
judicially protected rights is a sufficient limitation, perhaps because
he is speaking largely to a legal profession dominated by more expansive views of judicial power (and need not defend a narrower
judicial power to people of that view).
In my analysis of Ely so far I have generally conceded the "procedural," "participation-oriented, representation-reinforcing"
character of his judicial review. The elaboration of his position in
the 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 have
received democratic consent, while judicial attempts to democratize have lacked that
consent. For example, the Warren Court struck down apportionment schemes not consistent with its one-man, one-vote principle-even when state majorities had ratified
such schemes. Ironically, critics would charge Ely with using undemocratic means,
judges, to pursue undemocratic ends, i.e. allegedly more democratic procedures to
which the people have not consented.
"
12. For more extensive discussion of these issues, see Stanley Brubaker, Fear of Judging: Ely's Theory of Judicial Review" Political Science Reviewer 12 (Fall 1982).
THEORIES OF JUDICIAL REVIEW
253
change, " Ely asserts that " ` strict review' is always appropriate
where free expression is in issue," largely on the basis of his belief
that "we're certainly in no danger of too much political freedom."
(116) But strict review of speech is likely to have substantive consequences that are at least as important as the procedural values pro tected according to Ely's rationale. For example, Ely is heartened by
the Court's extension of First Amendment protection to a young man
who walked into a California courthouse in a jacket emblazoned
with the words "Fuck the Draft." Harlan's opinion, he says, was
wise enough to recognize that "what seems offensive to me may not
seem offensive to you, and indeed that much valuable free speech,
free speech that has awakened the public to outrages it had
previously taken for granted, very likely was of a sort that many
would have found offensive." (114) But those who would not protect
such behavior might be annoyed at being characterized as people
who were "blocking the channels of political change." There is a
substantive issue there-whether there are any standards of civility
or decorum in public expression. I'm as well aware as Ely (or as John
Stuart Mill") that majorities can manipulate such standards to use
them unevenhandedly against unpopular minorities. But no emphasis on that real danger is going to make the substantive result of
that Court action-lowering the tone of public discourse-go away.
Similar considerations are true a fortiori of regulation of obscenity. If majorities are prevented from proscribing "what seems offensive to them," then the tone of society-a substantive matter-is
likely to be profoundly affected by the protected minority "expression. "
Ely correctly recognizes that a "fundamental values" approach to
judicial review provides an opportunity for judges to impose their
own values on society. How difficult would it be for a judge to use
the rationale of "keeping the channels of political change open" in
order to protect speech that he really wants to protect as a matter of
his substantive beliefs in personal autonomy? How easy will judges
acting even in good faith find it to distinguish between the procedural rationale for a decision and the substantive results that flow
from it? (And from the standpoint of the "losers," will it matter?)
Ely's protection of speech would employ two tests in a complementary fashion: a "specific threat" approach (employing a strict
clear and present danger test) and an "unprotected messages" ap13. On Liberty (Baltimore: Penguin, 1974), chapter 2, 116-18.
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proach (giving absolute protection to speech from regulation on
grounds of content, except for narrowly defined classes) . Wouldn't
both of these tests require the judges to make substantive decisions of
public policy? How serious and how likely does the threat have to
be? Clearly: very serious and very likely. But the application of
those criteria to a concrete situation involves more than merely "procedural" concerns. Was the Communist party a "clear and present
danger" in the early 1950s (or might some party be such in a given
set of circumstances)? Simply asserting that this area of judicial
review is merely concerned with "protecting representation" does
not hide the possibility of judges making substantive decisions contrary to the judgment of the political branches, and for which insulation from the political process is hardly a sufficient qualification
to ensure good judgment.
Finally, how open do the channels of political change have to be?
Could a democratic society legitimately close some channels? Would
it be per se undemocratic for the U.S. to forbid advocacy of violent
change, for instance? Or must democratic societies put weapons into
the hands of those who would destroy democracy if they had the
chance? Again, I realize that there is a danger that the "ins" could
misuse such power (to proscribe advocacy of violent change) against
"outs," and that a prudent democratic society will try to devise
means to prevent this. But that does not seem to me to prove that
democratic societies are required by their own principles to tolerate
all 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 to
broad judicial power which does not rest so easily on "the
democratic assumptions of our system."
Ely's argument for judicial protection of voting rights-as he
recognizes-is stronger than the arguments for protection of expression, since voting is per se a question of "the channels of political
change." But here too Ely's judicial review is subject to democratic
objections. If malapportionment in some forms (e.g. "crazy-quilt
apportionment" that lacks any rational basis, being a result only of
static apportionment after massive demographic changes) is contrary to democratic principles, still "one-man, one-vote" is not so
14. On this issue see Walter Berns, Freedom, Virtue, and the First Amendment (Baton
Rouge: LSU Press, 1957) and The First Amendment and the Future of American
Government (New York: Basic Books, 1976).
THEORIES OF JUDICIAL REVIEW
255
obviously a requirement of a healthy democratic society. Ely points
out that the Court adopted that standard because it is easiest for
judges to administer-that is true, but it is not so clear that it is relevant. It is so only if you assume that the benefits of judicial supervision of apportionment outweighs its limitations. Perhaps some
democrats would argue that a more limited judicial power in this
area would be compensated for by the greater breadth of democratic
choice 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 the
electoral college, not to mention the Senate, unconstitutional. Our
"strengthened commitment" to equality of voting rights over time
certainly makes those provisions "out-dated," on the analysis of
"
democracy" contained in the Court's reapportionment cases. While
none of us should hold our breath waiting for this ultimate act of
judicial hegemony, the point is not that judges are so unlimited
politically that one would get away with this; it is simply to point
out the breadth of what is15theoretically arguable if one adopts Ely's
general line of reasoning.
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 accomplish this by supervising the process to see that majorities do not
systematically disadvantage some minority "out of simple hostility
or a prejudiced refusal to recognize commonalities of interest, and
thereby denying that minority the protection afforded other groups
by a representative system." (103)
It is hard to resist the conclusion that at this point Ely is letting
himself manipulate the meaning of words too freely. Whatever the
"
"
play" in the word " representation, it does not seem to go as far as
to include guarantees against being unfairly ignored. People who
are represented in the political process sometimes lose political battles and their interests can suffer most unjustly. This does not mean
they are not "represented," but only that they are being treated unjustly. 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 heightened
judicial protection of those rights-that is, that our elected representatives are the last
ones with whom we should entrust the task of keeping political channels of change
open-would be a strong argument for asserting that the political process would be opposed to expanding the franchise (for fear of upsetting the status quo to which the interests of the "ins" are tied). Needless to say, this argument is hardly borne out
historically.
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language, no matter how good the intention. Better to say: "mere
representation is an insufficient guarantee that one will be treated
justly-other principles are necessary to supplement that of
representation. Let us try to discover and implement those principles."
What Ely is concerned with here is the right to "equal concern
and respect" of minorities, which in practice is desired on the
assumption that it will provide the protection of at least a minimal
level of substantive well-being, by somehow requiring majorities to
treat minorities the same way they treat themselves (not exactly the
same way, of course, but with the same readiness to consider their
well-being, i.e. "represent" their interests).
Ely's use of suspect classifications to "flush out unconstitutional
motivation" (i.e. the refusal to "represent" or consider the wellbeing of a minority) is ingenious, a real tour de force. In some cases
at least, the evaluations of "fit" between means and end and of the
substantiality of state interests involved are able to establish the incredibility of a proferred state interest for a law plainly motivated
by hostility to a minority (perhaps especially in cases involving racial
discrimination). In other cases, however, Ely's analysis seems
forced. Denial of welfare benefits to aliens, for example, did not involve flushing out a desire to disadvantage aliens. The denial
reflected a belief that scarce resources ought to be used carefully and
that a society ' s welfare benefits might reasonably be confined to its
own citizens. This may or may not have been a good law, but if it
was bad, it seems more straightforward to say simply that the law is
unjust, on grounds that aliens have a substantive right to welfare
equally with citizens.
Ely's analysis of "second-degree" prejudice-which is not a conscious desire to disadvantage a minority so much as a failure to
attend to its interests due to the distorting effects of self-interest (including both the tangible and psychic gratifications implicit in invidious and/or weakly founded stereotypes)-also seems to permit
judicial smuggling in of substantive values. Virtually any
minority-any losers in the political process-can argue that the
majority was not sufficiently sensitive to its interests, and one
suspects that with a bit of ingenuity it could also point to distorting
factors 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 be
fundamentally "procedural" or "substantive." His theory would not justify judicial
THEORIES OF JUDICIAL REVIEW
257
One example of this is the abortion decision, the rejection of
which (together with his argument for the validity of anti-sodomy
laws) is Ely's most striking proof of the limitations which his theory
imposes on judges. In a Harvard Law Review review of Ely's book,"
Archibald Cox shows how Ely's theory can be used to strike down
abortion laws. Now Ely would undoubtedly argue that Cox has not
applied his theory properly, and perhaps he might be able to show
this abstractly. But this raises a more fundamental question, I think.
Whatever the abstract limits on judges imposed by Ely's theory, how
successful are they likely to be as practical limits, even if Ely's theory
were to become widely accepted? Even judges who attempt to apply
the theory in good faith, it seems to me, would be likely to find some
ground of distorted "representation" (insensitivity to a minority interest) in the processes which have produced laws they consider very
unjust, on substantive grounds.
Of course, it is true that a person cannot be held accountable for
all the misapplications of his theory-there is no theory, I suppose,
which is incapable of being abused. Certainly there is no question
that the "traditional" approach to judicial review is also capable of
being employed improperly (as historical examples show-certainly
Chief Justice Taney did not consider himself to be applying a theory
of judicial activism in the Dred Scott Case). The question is whether
Ely' s conception of "representation," especially in the form which
requires "equal concern and respect" for all, does not lend itself to
justifying virtually any decision that a judge would feel strongly
about on substantive grounds. One suspects that if Ely's theory of
judicial 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 suffer
from most (from egalitarian perspectives) is not discriminatory action, but rather inaction in matters which would specifically assist them as opposed to others. Whenever
the majority itself acts affirmatively, however, judicially-mandated egalitarianism is
likely to follow. For example, Ely argues that-given Roe v. Wade-once government
gives medical aid in support of childbirth it must also do so in support of abortion. (It
seems that-given the welfare state-once citizens have rights in the sense that government cannot prohibit something, then it is likely that government will frequently have
to 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 reading
of the free exercise clause.)
17. 94 Harvard Law Review 700 (Jan. 1981).
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frequently be used to strike
18 down cases over his objections that it was
not being used properly.
In the final analysis, then, it seems that the attempt of Democracy
and Distrust to elaborate a genuine via media between "narrow
clause-bound interpretivism" on one hand and the unchecked
judicial activism of "fundamental values" judicial review on the
other is not successful. However different the rationales employed
by judges pursuant to Ely's theory might be, the substantive results
would not appear likely to vary that much. Even to the extent that it
did succeed in imposing some limits on judges, the scope of judicial
review would still be so broad as to raise the democratic objections
that he himself elaborates against fundamental values judicial
review. Despite his intriguing and ingenious line of argument, the
dichotomy which he rejects survives. Theories of judicial review
either confine judges to exercising judgment, or they encourage
them to exercise will. The choice between those positions is fundamental and unavoidable.
Conclusion
The failure of the contemporary theories of judicial review
necessarily raises the question of what alternative is adequate. Legal
realists would deny that a truly different approach is possible-all
judges legislate, and only the content of their legislation differs. I
cannot fully elaborate here the founders' approach to constitutional
interpretation and judicial review, but I believe that it does offer a
real alternative." Constitutional interpretation means interpretation of the Constitution, the effort to discover and articulate some
intelligible meaning of the document. That meaning is there because
it was "put there" by its authors. Serious interpretation, then, is fundamentally a question of original intent.
This is not to say that reliance on original intent makes the whole
process simple and uncomplicated. First, the meaning of the docu18. I should qualify this statement, however, on the basis of my uncertainty as to
whether Ely himself wouldn't find grounds in his theory to support most of the controversial decisions, generally libertarian and egalitarian ones, which would be at
issue. Ely's broad support of the Warren Court and frequent criticisms of the Burger
Court for not making such decisions suggest that even his own conceptions of the practical limits on judges is not all that broad. Perhaps he would be more likely to be a frequent critic of opinions or rationales than actual decisions.
19. See The Rise of Modern Judicial Review: From Constitutional Interpretation to
Judge-Made Law (New York: Basic Books, 1985), especially Part I.
THEORIES OF JUDICIAL REVIEW
259
ment is contained in the principles which it embodies. It is not some
historical search into the opinions of the framers on each of the
multitude of issues that might arise under the Constitution. Most
current issues simply were not in their minds specifically because
they involve new particulars (things, events, institutions, problems)
that did not exist at the time of the framing. Even the particulars
with which they were familiar would not necessarily have been
viewed in the same way by all of them. But there were certain
general principles on which they were agreed, and these constitute
the meaning of the document's provisions. (Of course, the framers'
various opinions on specific issues and their general political
philosophy may be very useful evidence in ascertaining the general
principles embodied in constitutional provisions.)
Second, even after the sometimes difficult task of establishing
clearly the principle of a provision at issue, it is necessary to apply
the principle to new circumstances, which can require considerable
prudence.
Even assuming that we are able to agree on how to interpret the
Constitution, there are still questions about the exercise of judicial
review. Constitutional interpretation is at the heart of judicial
review, a necessary condition for it-but is it sufficient? There is still
a twofold problem. First, some constitutional provisions may be ambiguous-genuinely capable of being interpreted in several different
ways. Second, some constitutional provisions may not themselves be
ambiguous, but they may be so general that application of their
principles to concrete situations is not clear. In such cases, there is no
reason the preferred judicial interpretation should take precedence
over that of political branches.
All of this means that rejecting modern approaches to judicial
review poses no danger of leaving us with a merely mechanical
jurisprudence. The rhetoric of the legal realists who led the charge
in discrediting the traditional form of judicial review-arguing that
it was naive and simplistic in its belief that judges could act on the
basis of the Constitution rather than their own preferences-is no
longer very persuasive. (It was more persuasive in the early part of
this century when traditional judicial review was erroneously identified with the more conservative judicial activism of the laissezfaire Court.)
As judicial activism has been more and more extreme, it has inadvertently stimulated renewed study of the founders' understanding of judicial review. From that study there emerges a realization
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that there is a real alternative to modern judicial review. The
framers knew what they were doing when they established a
political system with a judiciary that was very limited in its powers,
by today ' s standards. They were not unaware that " a power independent of the majority" could accomplish much good-indeed
Madison suggested that this was one way to deal with the perennial
democratic problem of majority tyranny, in Federalist No. 51. 20 But
they regarded such a security for rights as "too precarious," that is,
as itself too great a danger to individual and majority rights, too
great a danger of tyranny. While the modern Court has accomplished some good in particular cases by detaching itself from the
limited idea of judicial review as enforcing the clear commands of
the Constitution, it has also done many very unfortunate things as
well-enough to make even many judicial activists increasingly sensitive to the need for some principled limits on judicial power. The
failure to provide sufficient and effective limits of this sort in the
theories of intelligent commentators such as Choper and Ely itself
suggests that the founders' fears were reasonable ones. It is time to
recognize that the only principled form of judicial review compatible with our democratic constitution is precisely the judicial review
bequeathed to us by the founders.
Marquette University
CHRISTOPHER WOLFE
20. Madison had in mind a constitutional monarch. While an independent judiciary is
not as independent of majority will as a monarch, it is substantially so for considerable
periods of time, and I think there is no question that Madison would have rejected the
broad modern form of judicial power, had anyone at that time even dared to propose
it.