Democracy and Distrust

...I I I I I I I I I I THE AMERICAN SPECTATOR, P.O...

...Another question pertinent to Ely's theory of constitutional adjudication concerns the sources of judicial legitimacy...

...As against the seekers of fundamental values, Ely wins our approval by urging a return to the written Constitution for guidance in interpreting its open-ended provisions...

...Those for whom the highest virtue is survival at any price, who proclaim that there is nothing in the world worth dying for, have already written for themselves an epitaph of infamy...

...One can as well point to stability, order, civility, or qualifications attached to popular power, for that matter, as general themes that animate the Constitution...

...First Red and then dead" may be another...

...Ely contends that this kind of"clause-bound" interpretivism is inadequate because there are some constitutional provisions which have no clear content or definitive legislative history as selfcontained units...

...John Hart Ely's Democracy and Distrust is a powerful critique of the "imperialistic" tendencies of the federal judiciary in the past decade, and it provokes us to reconsider the hoary problem of the role of the Supreme Court in.American government and politics...

...The people may not, he seems to say--at least not with democratic legitimacy--impose limits on themselves by placing certain matters beyond the vicissitudes of political expediency...

...Daniel Patrick Moynihan, Senator Jake Garn, George W. Ball, J. Peter Grace, and many others...

...Although the Constitution is largely procedural, Ely correctly observes that of course it is substantially concerned With preserving liberty...

...It is a fact worthy of note that Ely, a former law clerk to Chief Justice Warren and fi well-known defender of constitutional liberalism, appears to have more in common with the restraint rather than the activist poin.t of view...

...It is that readiness and willingness to resist Communist aggression that Kennan, the pacifists, and the deluded members of the so-called New Left now seek to undermine...

...In a world in which Communist Russia has already threatened Communist China with nuclear weapons, such people ought to understand that "Rather Red than dead" may not be the only alternative...

...In most cases, moreover, the aggrandizing decisions of the courts have at best a far-fetched if not a wholly imaginary relationship with the written Constitution...

...Kolyma came to be so murderous a place not because the winter temperature usually hovered around 50 degrees below zero but because in 1937 the Soviet government deliberWho reads The American Spectator...

...These provisions, most notably in the Fourteenth Amendment, are "broad invitations to import into the constitutional decision process considerations that will not be found in the language of the amendment" or the provision in question...

...This he defines as the belief that constitutional adjudicationcan and should be based on express constitutional provisions, norms stated or clearly implicit in the written Constitution, or the legislative history of the constitutional provision in question without any outside content...

...on the contrary, the power and prestige of the Court increased in the Warren period...

...Undoubtedly Ely will be criticized by both sides in the activistrestraint controversy: by the activists for allowing legislatures too much latitude in the authoritative allocation of values, by the restraint advocates for allowing the representation of minorities to be carried to such an extreme as to politicize and fragmentize the constitutional community...

...Bloomington, Indiana a l THE AMERICAN SPECTATOR SEPTEMBER 1980 33 generations in an undemocratic manner...

...This may be defensible as political theory, but it is manifestly at odds with the idea of a fixed constitution that is the foundation of American constitutionalism...

...Ely's insistence on staying within what he calls "the four corners of the document" in a search for...

...Alexander Haig, Randolph Richardson, George Will, Sidney Hook...

...Ely's cavalier discounting of the continuing democratic legitimacy of constitution writing seems to challenge the very idea of a fixed and permanent constitution...

...Writing about his trip in the December, 1944, issue of National Geographic, Lattimore praised the Soviet development effort there as roughly comparable to "a combination of the Hudson Bay Co...

...they are not constitutional law at all because they lack any rational relationship to the text of the Constitution, or to any value, principle, or structure marked out by it as special...

...E] Sarkes Tarzian Inc...

...Yet it is questionable whether political dem...

...These reservations notwithstanding, at a time when the judiciary seems to act as though there were nothing it couldn't do, it is encouraging to see a scholar of Ely's liberal credentials criticize judicial taw and policy making as undemocratic, and appeal for a return to the Constitution...

...Where, then, does one turn in trying to make sense of and apply the open-ended provisions of the Constitution...

...Yet, as he must if he is to transcend the terms of the longstanding dispute over judicial review, Ely also finds fault with the restraint position, which he characterizes as "interpretivism...

...What is disturbing, rather, is Ely's dismissing as "fake" the argument that when the judiciary applies the Constitution it is applying the people's'will...

...George S. Patton II1, Elliott Abrams, Patrick Buchanan, Patrick Cosgrave, John Lofton, Larry Flynt, M. Stanton Evans, Huntington Cairns, Eric Hoffer, Herb-Stein, William Baroody, Tom Wolfe, William Randolph Hearst, Jr., Michael Kinsley, Tom Winter, Gerald R. Ford, Henry Regnery, Roger Rosenblatt, Richard Lugar, Anthony Harrigan, Robert L. Bartley, S.I...

...The former hold that it is the content of decisions in a policymaking sense that forms the basis of the authority and respect the courts enjoy...

...One of them is its disregard of history...

...His sharpest criticism is directed at those--judges and scholars alike--who in the name of social progress would have the courts assume a legislative role and in their decisions formulate public policies based on the discovery of "fundamental values...

...James Jackson Kilpatrick ALSO: Paul McCracken, Brock Yates, Albert Shanker, Ray Price, James Wechsler, John Roche, Lewis Lapham, Norman Podhoretz, Jack Kemp, John Chamberlain, Edith Efron, Henry Salvatori, David Meiselman, Martin Peretz, Jeff MacNelly, John.Lukacs, William Rusher, Antonio Martino, Malcolm Muggeridge, Doris Grumbach, Colin Welch, Robert Bleiberg, William F. Buckley, Jr., Jude Wanniski, Gen...

...But even accepting Ely's ordering of priorities among the general themes of the Constitution, there are difficulties...

...It is certain too that the strictly historical school of restraint theorists, led by Raoul Berger, will sink their teeth into Ely's vulnerable democratic "presentism...

...This has been a major point of controversy in the debate between judicial activists and judicial restraint theorists...

...In Ely's view the dominant themes are identified easily enough: an open political process and equal representation of all groups, especially discrete and insular minorities...

...Perhaps Ely would resolve the contradiction by saying that whereas the political process is an objective reality, there are no objective fundamental values...

...KOLYMA TALES Vartam Shalamov / W.W...

...This is the import, I believe, of his all too summary dismissal of anti-Communist legislation and judicial rule-making concerning the First Amendment, both of which he calls a mockery of the commitment to an open political process...

...Hayakawa, Luigi Barzini, Nelson Polsby, Joseph Coors, Peregrine Worsthorne, Tom Charles Huston, Gertrude Himmelfarb, Clare Boothe Luce, Clay La Force, Roger Milliken, Edward Banfield, Victor Lasky, Raymond Aron, Roy Cohn, Joseph Hazan, Eugene V. Rostow, Michael Novak, Thomas Sowell, Gen...

...straint over the nature of constitutional adjudication...

...Yet the process or method that he sees as the central concern of judicial review has a substantive 34 THE AMERICAN SPECTATOR SEPTEMBER 1980 political content that on balance moves the analysis closer to the activist position...

...At its worst, as in the abortion law case of 1973, the activist approach produces decisions that are not simply ,bad constitutional law...

...Although the general outlines of Ely's theory of judicial review will appeal to conservatives in its attempt to restate the theory of judicial review along more responsibly democratic and less politically subjective lines, it does present certain problems...

...In a typical expression of this view, Abram Chayes says that judicial action only achieves legitimacy by responding to the demand for justice in the society...

...Box 1969, Bloomington, Indiana 47402 Please enter a [] new Name [] renewal subscription to The American Spectator for one Address year (12 issues) for only $12...

...ocracy, the sum and substance of Ely's open political process and equal representation of minorities, is so self-evidently the general theme that distinguishes the Constitution and defines its promise as he assumes it to be...

...impressed by the Soviet commandant...

...That would be a mistake, however," for the recent interventions of the federal courts--and the jurisprudential underpinnings of those interventions--represent not simply a continuation of earlier trends, but marked innovation...

...and ~ T.V.A...

...That is true enough...

...Ely ambitiously offers a conception of judicial review that is intended to transcend the debate that has-been carried on for a generation between the advocates of judicial activism and judicial reHerman Be/z teaches constitutional /oistory at the University o f Maryland...

...Yet he appears to regard an open political process and representation of minorities not merely as means for maintaining a free society, but as ends in themselves...

...While he recognizes that participation and representation can be described as "fundamental valu e s , " he sees these things as objective processes embedded in the very structure of the Constitution...

...Yet it is not clear to me that claims about the political system, especially assertions about the denial of political rights and representation, are any less chimerical than discoveries of fundamental values...

...Payment enclosed City [], Bill me later PLEASE PRINT State Zip | x9Y I THE AMERICAN SPECTATOR SEPTEMBER 1980 35...

...Ely does not formally try to explain why this was so, but the clear inference is that the Warren Court's authority was enhanced by the substantive liberalism of its decisions in opening up the political process and promoting the representation of minorities...

...Indeed, the distinctive purpose of the revolutionary generation as they formed republican governments was to limit legislative power by founding fixed constitutions of liberty that would exist outside of and provide the source of governmental authority...

...Both he and his wife have a trained and sensitive interest in art and music," Lattimore said, "and also a deep sense of civic responsibility...

...know better than Kennan that surrender (the end term of the process of Finlandization) and war are not the only alternatives, that the Communists will never undertake a war unless they are certain to win it, and that only the readiness and the willingness to resist the Communists have prevented the outbreak of the Third World War...

...DEMOCRACY AND DISTRUST Richard Hart Ely / Harvard University Press / $15.00 Herman Belz Controversy over the role of the Supreme Court in the constitutional system has been a staple of American politics for so long that one is inclined to dismiss yet another discussion of the problem with the thought that the more things change, the more they remain the same...

...fundamental values causes his theory to appear satisfactorily text-focused and thus closer to the restraint point of view...

...When the courts intervene on these grounds, or impose these participational values, they are acting in a legitimately democratic way...

...Almost entirely absent from Ely's analysis is any concern for the traditional juridical values of objectivity and impartiality as a "source of judicial legitimacy...

...I say almost absent because the ideal of judicial neutrality does enter in at one crucial point...

...On behalf of these Cold War internal security techniques, it may be said that there are times when limits must be imposed on the ability of so.me groups to participate in politics, when freedom of speech as a means of arriving at democratically determined policies must be restricted in the interest of preserving the substance of freedom...

...Wedemeyer, James L. Buckley, Ben Wattenberg, Neal Kozodoy, Alan Reynolds, Walter Goodman, Harry Jaffa, William Satire, Charles Peters, Jeffrey Hart, Irving Kristol, David Packard, Henry Fairlie, Jean-Frangois Revel, Richard M. Nixon, Robert Nisbet, Leonard Garment, Norman Mailer, Frank Shakespeare, Malcolm S. Forbes, Jr., Melvin Lasky, Ronald Reagan, Anne Armstrong, James R. Schlesinger, Richard Whalen, Dana Andrews, Midge Decter, William E. Simon, Ernest van den Haag, James Q. Wilson, Lewis Lehrman, Woody Allen, Nathan Glazer, Fred Silverman, Thomas Murphy, William Proxmire, Suzanne Garment, Maj...

...This wonderfully aesthetic and deeply civic couple, in fact, ruled over Kolyma, a vast Gulag that claimed the lives of more than 3 million people...

...It is not clear, however, why or how judges can attain objectivity in assessing claims about the political system when in their quest for fundamental values in other kinds of cases, as Ely argues elsewhere, they invariably tend to rely on their own values and policy preferences...

...Richard Perle, James Hitchcock, Philip Crane, Shmuel Moyal, Hugh Kenner, Fred Ikl~, Tom Stoppard, Charlton Heston, Jim Fallows, Alan Abelson, Milton Friedman...

...At several points he notes the apprehension often expressed during the Warren era that too much political intervention by the courts would provoke popular retaliation damaging to the authority and prestige of the judiciary...

...Ely answers that one must stay within the confines of the Constitution and supply the needed content by consulting "the general themes of the entire constitutional document...

...Democratic participation and representation, Ely concludes, constitute the "promise" that the Constitution makes to future generations, to which fidelity is due...

...The restraint school argues in contrast that the method of judicial decision making-objective and impartial rule application that declares the law rather than makes it--has been the principal source of judicial legitimacy...

...I refer not to' Ely's contention that legislative history is often incomplete and thus not a dependable guide to the meaning of certain constitutional provisions...

...Yet this retaliation never occurred, says Ely...

...The trouble with this method of constitutional adjudication, Ely argues, is that it is essentially undemocratic: Supposedly objective social values that ostensibly form the basis ot ~ decisions are really the judges' own values and preferences...

...From this perspective Ely argues that the procedural essentials of republican government--equal representation and an open political order--provide guidance for filling in the content of open-ended constitutional provisions...

...He was also favorably Stephen Miller is a Resident Fellow at the American Enterprise Institute...

...A representation-reinforcing method will work, Ely insists, because judges as non-elective officers are beyond the reach of political pressures and influence, and hence will be able objectively to dispose of claims about denial of political rights and equal representation...

...In Ely's most unBurkean view, the people are not a community bound together by the past, pt~esent, and future, but rather a congeries of interests committed to the eternal present...

...Norton / $9.95 Stephen Miller I n the fall of 1944 a group of Americans, among them, Vice President Henry Wallace and Owen Lattimore of the Office of War Information, paid a visit to the Soviet Far East...

...Quoting Noah Webster (an unlikely authority), he takes the position that writing a permanent constitution binds future There Opportunity America...

...Nevertheless, it is my hope--and cautiously optimistic expectation--that Ely's theory of judicial review will help set limits to judicial aggrandizement and thus restore a degree of vitality to o u r democratic political institutions...

...Podhoretz's book is a plea for the recognition that these alternatives are not exhaustive, that there is still a fighting chance to save both peace and the free world...

...Ely is not so much concerned with the manner in which courts review legislation as he is with the subject matter and results of judicial review...

...At the urging of liberal interest groups dissatisfied with conventional, middle class-minded legislatures, courts have assumed law- and policy-making functions that would make early 20th-century critics of "government by judiciary" blink in amazement...

...In support of this view he points out that the Constitution is almost exclusively concerned with prescribing procedures of government rather than identifying substantive values...