Democracy and Distrust: Toward a Representation-Reinforcing Theory of Judicial Review
John Hart Ely · Harvard Law School (later Stanford Law School) · 1980
Abstract
In this landmark work, Ely proposes a theory of judicial review that navigates between strict interpretivism and unbounded judicial activism. Ely argues that the proper role of judicial review is not to enforce substantive values but to police the democratic process itself—ensuring that political channels remain open and that discrete and insular minorities are not systematically disadvantaged. The 'representation-reinforcing' theory holds that courts should intervene when the political process malfunctions, either because incumbents have entrenched themselves against challenge or because the majority has systematically disadvantaged a minority group incapable of protecting itself through normal political channels.
Key Findings
- Judicial review is most legitimate when it reinforces rather than supplants democratic decision-making
- Courts should intervene to clear channels of political change and protect discrete and insular minorities
- Neither strict originalism nor unbounded substantive due process provides a satisfactory theory of review
- The Carolene Products footnote provides the most promising framework for legitimate judicial review
Related Statutes
- U.S. Constitution, Fourteenth Amendment
Related Cases
- United States v. Carolene Products Co. (1938)
- Reynolds v. Sims (1964)
- Frontiero v. Richardson (1973)