On Democracy and Distrust

John Hart Ely set out to solve the deepest puzzle in American constitutional law, and Democracy and Distrust, published in 1980, offers the most influential answer of its era. The puzzle is this: in a democracy, where the people are supposed to govern themselves, how can it be legitimate for unelected judges to strike down laws passed by the people's elected representatives? Every time a court overturns a statute as unconstitutional, it overrides a democratic decision. What gives nine appointed justices that authority, and how can it be squared with self-government?

The standard answers had long seemed unsatisfying. If judges simply enforce the literal text of the Constitution, they cannot account for the broad rights the Court has recognized that the text does not spell out. But if judges enforce their own sense of fundamental values, they are just imposing their personal preferences in the guise of law, which is plainly illegitimate in a democracy. Ely's achievement was to chart a path between these unacceptable poles, a theory of when judicial intervention is consistent with democracy rather than a violation of it.

His answer is that courts should intervene not to impose substantive values but to protect the democratic process itself. Judges, he argued, should police the channels of political change and guard against the malfunctioning of democracy. They are justified in stepping in when the political process is not working fairly, when some group is being shut out of participation, when the right to vote or to speak or to organize is being denied, or when entrenched majorities are systematically disadvantaging minorities who cannot protect themselves through ordinary politics. In these cases, judicial intervention does not override democracy; it repairs it, clearing the channels so that self-government can function.

This process-based theory is elegant because it grounds judicial review in democracy rather than against it. Courts are not philosopher-kings imposing their idea of the good; they are referees ensuring the game is played fairly, intervening precisely where the democratic process cannot correct itself. It explains and justifies some of the Court's most important work, protecting voting rights, free speech, and the interests of excluded minorities, while cautioning judges against simply substituting their values for the legislature's on contested questions of policy.

The book belongs in this library because the legitimacy of judicial review is one of the permanent questions of the American republic, argued in every era and central to every fight over the courts. Ely's answer is not the only one, and the legal works elsewhere on these shelves offer others, but it is among the most powerful, and any serious thinking about the proper role of courts in a democracy has to reckon with it. Democracy and Distrust is in copyright and widely available in print and digital editions. Read it for the most compelling case that judicial review, properly confined, serves democracy rather than threatening it.