Get Free Ebook Democracy and Distrust: A Theory of Judicial Review (Harvard Paperbacks)

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Democracy and Distrust: A Theory of Judicial Review (Harvard Paperbacks)

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Review

“John Ely takes a fresh and bold look at one of our oldest national mysteries, the justification for judicial power in a democracy. He slices away at some of my favorite legal theories, and he is devastating. But he does it with such understanding and even humor that it seems not bloody but enlightening.”―Anthony Lewis, New York Times“We are dealing, ladies and gentlemen, with a truly stylish mind in Mr. Ely. Even if one rejects his argument…one cannot fail to enjoy the intellectual zest with which he tackles a host of issues, large and small, along the way… Ely’s mere presence on the scene is almost enough to guarantee a stimulating period in constitutional theory during the years to come.”―Joseph Sobran, National Review“Wry, witty, and endowed with both dignity and informality. Would that more lawyers (including judges) could write half so well.”―Telford Taylor, New York Times Book Review“Democracy and Distrust will have a wide influence for a long time… Ely writes simply and engagingly with a sense of humor. Yet the reader had better keep his wits about him lest he miss the subtleties. Much of the charm is in the author’s candor in facing hard questions. Much of it lies in his good common sense.”―Archibald Cox, Harvard Law Review“This is the most important book about law in at least fifteen years. It is a great book… In developing his new and exciting theory, Ely spins off important insights like sparks from a generator.”―Daniel J. Kornstein, New York Law Journal“This is the rare book that lives up to its dust-cover raves.”―Andrew L. Kaufman, Harvard Law School“The single most important contribution to the American theory of judicial review written in this century.”―Henry P. Monaghan, Columbia Law School

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From the Back Cover

This book elaborates a third theory of judicial review, one that the author argues is consistent with those underlying assumptions, in fact constructed so as to enlist the courts in helping to make them a reality.

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Product details

Series: Harvard Paperbacks

Paperback: 268 pages

Publisher: Harvard University Press; Revised ed. edition (August 10, 1980)

Language: English

ISBN-10: 0674196376

ISBN-13: 978-0674196377

Product Dimensions:

6 x 0.8 x 9.2 inches

Shipping Weight: 14.4 ounces (View shipping rates and policies)

Average Customer Review:

4.4 out of 5 stars

11 customer reviews

Amazon Best Sellers Rank:

#54,641 in Books (See Top 100 in Books)

This book is very interesting for those that wish to understand the American constitutional system a little better. The author is detailed in his argument about the fallacy of a clause-bound interpretivism. He then analyses the different values-based approaches to constitutional interpretation by delving into theories such as “Substantive Due Process”, “Natural Law”, and Tradition. In the end the author attempts to highlight the ethos of the constitution and its evolution from a structural document, which laid out how the government is to function, to one that empowered the Courts to play the role of an arbiter that serves a counter majoritarian function in the American representative democracy, insofar as it allows for equal participation and protection of minority rights. At the same time the author rejects the notion that within this function the constitution grants the Courts a role in the substantive questions of the day.This book is very detailed and well argued. The author was a well-respected legal theorist and took care to develop every point and counterpoint. I recommend this to all.

This excellent little book tries to find a middle ground between the judicial activism advocated by Ronald Dworkin, for example, and the strict original intent approach eloquently defended by Robert Bork. Philosophy of jurisprudence is not always a concept easily grasped, however. In the first chapter, Ely takes us through the discussion of where and how judges drive their activist approach through the door. Ely agrees that the due process clause of the constitution is not the place where an activist jurist should hang his hat. The due process clause, he argues, is concerned strictly with procedural matters, though it can be forcefully enforced within that context. Likewise, he argues, the 14th amendment, with its equality clause and privileges and immunities clause, also has been used to broadly expand judicial oversight on a number of issues. Again, Ely dissents by arguing that the 9th amendment is the more appropriate vehicle because of the procedure issue that constrains the due process clause as well in the 14th amendment.Judicial review must be rooted in some kind of context - but the noninterpretivist must choose, traditionally, from a long list of inadequate places: individual values of a jurist is inadequate; natural law is vague, as is moral philosophy generally; consensus is imprecise and debatable and neutral principle is damn near impossible to define. He roots his own support of Warren court in participation, which is rooted in our very notion of democracy. His phrase: "participatory responsiveness." We need not grasp at high moral claims to justify supporting civil rights, but in the simple idea that what is available to the majority, must be equally available to the minority. They must be allowed to participate equally, he seems to be arguing, a notion that is easily found in our own legal and constitutional history.Next Ely walks us through the ways we might address specific issues within his theoretical approach, such as free speech, which need not be defended always in the broadest terms, but might be better addressed as a procedural or participatory issue - that is to say, if the court acts to limit free speech, it is best to do so through categories of unprotected speech rather than appealing to abstract rights or dangers, such as Holmes did when he spoke of imminent danger. (I hope I am following him here). He also addresses the issue of apportionment, and again seeks to have the court avoid such political entanglements by searching for the best way to allow all citizens the right to participate in our democracy - and one person, one vote became the only tenable way to do so. Ely includes in chapter 4 a short but helpful review of the constitution in which he discusses the document for what it is - not an abstract or ideological document, but rather a governing tool that seeks to protect a system, not push an ideological agenda. I wish he had added specific cases and shown how he might have handled them through his approach, particularly tough cases like abortion, for example. THe last chapter rambles a bit and is hard to follow but this is an interesting book, given that the hotly debated issue about judicial activism continues.

Ely's Democracy and Distrust: A Theory of Judicial Review attempts to square the circle of the judicial review literature. Ely argues that an interpretivist approach to constitutional review doesn't encounter the same countermajoritarian difficulties of other approaches. Indeed, judicial review and the constitution focus on procedural rules that make democracy workable by protecting every individual's right to participate and vote in democracy. This is different from protecting substantive values, which Ely claims are more ephemeral and shouldn't be constitutionalized (see, 18th amendment). Sometimes Ely's writing is marred by long and confusing sentences. He seems to like sentences interrupted by dashes and completely new ideas. This shouldn't discourage people from reading the book, but might mean it'll take a bit more work to understand his arguments.

This book is a classic in its field, and for good reason. Although written in 1980, this book is timely.I recall reading the portion on the 9th back in the 80's when this section was reprinted in the first volume of a collection entitled, "The Rights Retained by the People". I was so impressed I noted his name, John Hart Ely. I'm surprised it took me this long to get around to reading this fine book. This book is subtitled, "A Theory of Judicial Review". It stresses the importance of the democratic process while it considers as political issues as well.Many people, scholars included, tend to enter arguments by defending their belief from an ideological standpoint. But then there are the few Like Ely who begin by examining difficult questions while researching and thinking their way toward well reasoned conclusions.There is nothing simple about this book. The arguments are difficult but enlightening and fun! It is always wonderful when someone knocks me out of my complacency by making me consider things I hadn't given fair consideration.For those who don't know me, I tend to read footnotes and often check them back through their sources. I seldom believe what I read even if I find myself agreeing with some aspects. And I have to say Ely's footnotes are some of the best around. He had me laughing my head off. As with contributors to the 9th amendment volumes I’ve read, and as with Micheal Kent Curtis’ book on the 14th amendment, Ely takes on Raoul Berger (no less than 4 pages of notes!) and points out his misquotes, or I’ll call them “disquotes” (I’ll even put this in quotes :); even going as far as to quote and challenge misquotes of Shakespeare's Hamlet. Fun stuff. If you are interested in the US Constitution and concepts such as judicial review, don't miss this book.

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