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Democracy and Distrust: A Theory of Judicial…

Democracy and Distrust: A Theory of Judicial Review (1980)

by John Ely

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Democracy and Distrust has a very, very strong claim to be the most important book on legal theory to be published in the second half of the 20th century. It serves as the encapsulation of the entire liberal jurisprudential project dating from the Warren court era -- why and when can judges overturn popularly enacted legislation? The answer is when those laws are the products of (or seek to create) a democratic process failure -- the systematic exclusion of certain members of the polity (typically minorities) from the normal democratic game. It is exceptionally well-argued and deservedly influential. If one is a liberal, this book will quickly become your go-to source. If one is a conservative, this is the target you've got to take down. ( )
  schraubd | Apr 13, 2013 |
Lawyer Chibli Mallat has chosen to discuss John Hart Ely's Democracy and Distrust, on FiveBooks as one of the top five on his subject - Maverick Political Thought, saying that:

“Of the immense legal literature on US democracy and the role of the American Supreme Court this is the one book that has most profoundly affected my understanding of the rule of law, and of the role of the judges in compensating for the failures of democracy. Democracy is defined by majoritarianism – you win the majority of the vote and you rule. But there are minorities who don’t have the means to counter the rule of the majority by definition, because they are a minority and don’t have enough votes. This judicial counter-majoritarianism started under Chief Justice Earl Warren, for whom Ely clerked, when the Supreme Court ruled to end bus and school segregation in 1954, sparking the Civil Rights movement which eventually led to Barack Obama becoming president.”

The full interview is available here: http://five-books.com/interviews/chibli-mallat ( )
  FiveBooks | Mar 26, 2010 |
A brilliant analysis of the central question in American Constitutional Law -- when can the unelected judiciary, in the guise of interpreting the Constitution, identify new constitutional rights that override the decisions of the people's elected representatives.
  DanelMaddison | Mar 6, 2010 |
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Amazon.com Product Description (ISBN 0674196376, Paperback)

This powerfully argued appraisal of judicial review may change the face of American law. Written for layman and scholar alike, the book addresses one of the most important issues facing Americans today: within what guidelines shall the Supreme Court apply the strictures of the Constitution to the complexities of modern life?

Until now legal experts have proposed two basic approaches to the Constitution. The first, "interpretivism," maintains that we should stick as closely as possible to what is explicit in the document itself. The second, predominant in recent academic theorizing, argues that the courts should be guided by what they see as the fundamental values of American society. Mr. Ely demonstrates that both of these approaches are inherently incomplete and inadequate. Democracy and Distrust sets forth a new and persuasive basis for determining the role of the Supreme Court today.

Ely's proposal is centered on the view that the Court should devote itself to assuring majority governance while protecting minority rights. "The Constitution," he writes, "has proceeded from the sensible assumption that an effective majority will not unreasonably threaten its own rights, and has sought to assure that such a majority not systematically treat others less well than it treats itself. It has done so by structuring decision processes at all levels in an attempt to ensure, first, that everyone's interests will be represented when decisions are made, and second, that the application of those decisions will not be manipulated so as to reintroduce in practice the sort of discrimination that is impermissible in theory.

Thus, Ely's emphasis is on the procedural side of due process, on the preservation of governmental structure rather than on the recognition of elusive social values. At the same time, his approach is free of interpretivism's rigidity because it is fully responsive to the changing wishes of a popular majority. Consequently, his book will have a profound impact on legal opinion at all levels-from experts in constitutional law, to lawyers with general practices, to concerned citizens watching the bewildering changes in American law.

(retrieved from Amazon Thu, 12 Mar 2015 18:13:40 -0400)

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