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

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.

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Recent Reviews

5/5: From: Amazon; Posted: Aug-27-2009; brilliant masterpiece; john ely's democracy and distrust is a masterfully written book, not terribly thick, destined to be one of the finest discussions / reviews on constitutional law written in the 20th century. i can envision how his thinking took shape...; read full review | report as inappropriate

3/5: From: Amazon; Posted: Dec-13-2006; Tough Book-Interesting Idea; This is simply to say that if you are a student, and you are assigned this book, give yourself enough time to read it. It is thick, and Ely does things like stop in the middle of sentences and begin to talk to himself. It makes his...; read full review | report as inappropriate

5/5: From: Amazon; Posted: Nov-04-2003; Seminal work from late scholar; One of the most cited Constitutional law scholars in legal history, John Hart Ely's book was published in 1980. The book, which earned the Order of the Coif award as the best book about law published from 1980 to 1982, focused on the...; read full review | report as inappropriate

4/5: From: Amazon; Posted: Jul-12-2001; Juridprudence: Is there a middle ground?; 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...; read full review | report as inappropriate

Selected Reviews

5/5: From: Amazon; Posted: Aug-27-2009; brilliant masterpiece; john ely's democracy and distrust is a masterfully written book, not terribly thick, destined to be one of the finest discussions / reviews on constitutional law written in the 20th century. i can envision how his thinking took shape...; read full review | report as inappropriate

3/5: From: Amazon; Posted: Dec-13-2006; Tough Book-Interesting Idea; This is simply to say that if you are a student, and you are assigned this book, give yourself enough time to read it. It is thick, and Ely does things like stop in the middle of sentences and begin to talk to himself. It makes his...; read full review | report as inappropriate