The Attractive Non-Sequitur of Democracy and Distrust

by JC Martinez

When it comes to interpreting the Constitution, there is a critical and possibly irresolvable dilemma which lies at the crux of countless arguments: should justices remain rigidly faithful to the original intent of the document’s writers at the risk of being anachronistic, or should they make substantive value choices at the risk of encroaching upon the legislature’s right and duty to represent the will of the people? John Hart Ely, the late, pathbreaking scholar of constitutional law, famously rejected this stubborn question as a false dichotomy. In his pivotal work Democracy and Distrust: A Theory of Judicial Review, Ely posits a third, middle approach to judicial review oriented toward reinforcing representative democracy, advancing a thesis so original that when the sentient student of constitutional law first grasps its thrust, their heart skips a beat in response to what seems like the light of an escape route from the foregoing dichotomy between two undesirable jurisprudences: first, what Ely calls clause-bound interpretivism, the strict strand of originalism woefully unable to make neither heads nor tails of the document’s open-ended provisions, and, second, what Ely calls non-interpretivism (and what might crudely be termed ‘living constitutionalism’), unsatisfactory in its rank inability to explain why one collection of substantive values should be given preference over any other. (These terms will be further clarified shortly.)

Although Ely’s theory is initially attractive, once the impression of the ‘golden mean’ fallacy fades, reservations about his argument arise, and along multiple fronts. These include the legitimacy of his conception of the Constitution, whether his theory of judicial review validly or necessarily follows from his conception of the Constitution as he establishes, and whether the theory ultimately escapes the substantive value judgments he seeks to avoid. With respect to the power it affords justices, Ely’s approach has simultaneously been criticized as too broad and too narrow. I will end by evaluating these arguments and making a closing note on the nature of Ely’s theory. 

First, an explanation of Ely’s argument and terms is needed. The most natural way to start such an account, in accordance with the ordering of the chapters in Democracy and Distrust, is to begin with Ely’s critical analysis of the two alternatives to his middle approach and the reasons for which he argues they ultimately fail. The more general dichotomy is that of interpretivism versus non-interpretivism. The former espouses the credo that “judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution,” while the latter holds “the contrary view that courts should go beyond that set of references and enforce norms that cannot be discovered within the four corners of the document” (1). The appeal of interpretivism is that it simultaneously supports judicial review but is not vulnerable to the criticism of being undemocratic. Clause-bound interpretivism, a more restrictive subset of interpretivism, contends that “the various provisions of the Constitution be approached essentially as self-contained units and interpreted on the basis of their language,” and by an unwillingness to insert significant “content from outside the provision,” only allowing for “whatever interpretive help the legislative history can provide” (12-13).

Things get trickier, however, when one considers that provisions in the Constitution run the gamut from precise to incredibly open-ended. Ely compares, for instance, the specific requirement that the President be at least thirty-five years old with the Eighth Amendment’s prohibition of cruel and unusual punishments, whose imprecise language (consider that it did not specifically ban, say, flogging) seems written with the intention of providing at least some degree of interpretive breathing room. Even more jarring would be to consider the utter generalities of the Ninth Amendment. 

The problem, therefore, is that the clause-bound interpretivist is caught in a stalemate. They are unable to refer exclusively to the text, for the text’s open-ended provisions point to objects external to the document itself, and yet are unwilling, by definition, to grapple with what those objects may be. The mildly clever clause-bound interpretivist, if unsatisfied with this internal tension, might submit in defense that the tension evaporates if the open-ended text of, say, the Ninth Amendment is simply assumed to protect rights without which the enumerated Bill of Rights’ guarantees cannot accurately be said to exist. But what in the text justifies that interpretive move, which is arguably as arbitrary and substantive as any, and could not, again, find clear justification in the text (outside of question-begging arguments)?

The incompleteness of the clause-bound interpretivist’s account then provides the motivation to consider extratextual sources from which a prudent judge might draw appropriately fundamental values, consistent with the non-interpretivist’s approach. In Ely’s third chapter, he analyzes leading contenders, including the judge’s own values, Natural Law, neutral principles, reason, tradition, consensus, and predicting progress. His analysis levels a brutal attack on their legitimacy, showing all seemingly plausible sources to be so grossly insufficient that the reader feels like a sailor whose ship has been smashed on the rocks and is grasping for the wooden plank of Ely’s novel theory as a final saving grace.  

Having shown both clause-bound interpretivism and non-interpretivism to be both severely lacking, Ely advances his middle theory of judicial review, which importantly, is necessarily contingent upon a conceptualization of the Constitution as a fundamentally procedural document, and not as meant to protect particular substantive values. Ely writes “that the original Constitution was principally, indeed [he] would say overwhelmingly, dedicated to concerns of process and structure and not to the identification and preservation of specific substantive values” (92). Ely encourages the skeptical reader to read a few pages of the Constitution, as it would become clear that it was fundamentally procedural. 

Accordingly, Ely suggests that the judiciary adopt a role akin to that of a referee. Such a judge would leave substantive value judgments to the legislative branch and merely attend to the proper functioning of the process of representative democracy, guarding against two key threats: one, those in power blocking the channels of political change, and two, representatives denying protection to politically weak minorities that groups have it, especially for reasons of hostility. Ely thus bypasses the problem of non-interpretivism by leaving substantive value choices to the legislature, and he plausibly but perhaps not conclusively ties the open-ended clauses to the theme of reinforcing democracy, getting around the problem of the clause-bound interpretivist. 

To the extent that the measure of what a document primarily concerns is to be graded by the number of words or clauses written in the document about that object, so far so good. To debate that point would simply be a linguistic distraction that focuses on what it means for a document to be “primarily concerned” with one thing. However, Ely’s argument is precisely that because the Constitution is a fundamentally procedural document, judges should, when deciding how to interpret the Constitution’s open-ended provisions, be led predominantly by procedural considerations—namely, participation-oriented, representation-reinforcing tenets core to representative democracy.  

So, there is an immediate soft spot here. Though I conceded that the Constitution can be said to be primarily concerned with procedure, depending upon how one wishes to define what it means for a document to be ‘primarily concerned’ with something, an unjustified leap appears to have been made; why should judges interpret open-ended provisions predominantly looking to the procedures of representative democracy? This conclusion relies on a conception of the Constitution as primarily concerned with procedure not just in the conceded sense that more clauses were written about procedure, but in the more expansive sense that the document’s interpreters should look first and foremost to procedure. But this second, larger sense of what it means to be ‘primarily concerned’ with something has not been demonstrated or conceded, and so should be read as asserted. 

To illustrate what I mean, consider a brief counterfactual. Imagine that, growing up, my brother and I sketched a paper outlining who does which chores around the house. Is the document primarily concerned with chores—about which more words are written—or with the unmentioned fairness as a substantive value which the document’s procedures seek to protect? (Or, if I had more chores around the house, the substantive value may not be fairness but the responsibility that should—‘should’ implies a value choice—come along with growing older.) That’s a semantic point, as I have said. If my brother and I had a dispute, however, and my mother stepped in, would her mediation be primarily concerned with the underlying substantive value or with chores? Clearly, it is not chores simply because more words were written about them. 

Moreover, it hardly seems as though Ely’s approach eliminates substantive value judgments by counseling a judge to only concern themself with reinforcing representative democracy. How might a judge decide on voter identification laws without making substantive value choices? Why, without appealing to substantive value, is it not the case, as John Stuart Mill notoriously advocated, that highly-educated individuals receive disproportionately weighted votes? It hardly seems plausible that such a question could be answered without appealing to substantive values like fairness. 

Such considerations give credence to the concern that, under Ely’s theory, judges are given too much power. The way in which justices are empowered involves giving them a mandate to strike down the products of an electorally accountable legislature, ironically, in the name of representing democracy. Also, considering that these decisions, as I have submitted, are often difficult to disentangle from substantive value judgments, the result of adopting Ely’s approach may simply be to produce a further emboldened judiciary who, under the guise of advancing democracy, would then be freed from having to justify—by way of appealing to an (at least semi-legitimate) extra-Constitutional source—the substantive value judgments they inevitably must make but have claimed to forego. It is not hard to see how this could serve as a Trojan horse for judges’ personal predilections.  

Those who criticize Ely’s theory as one that renders justices unable to check the tyranny of the majority, on the other hand, miss something key to the theory, the discussion of which leads to the appropriately final remarks of an article of this scope. Tyranny of the majority occurs when the majority exclusively pursues its own goals at the expense of politically weak minority groups. Ely’s theory expressly prohibits tyranny of the majority by assigning to the judiciary the role of guarding against acts of law which make it clear that the minority’s interests are not being taken seriously, in large part by prohibiting laws motivated by prejudice, which fall disproportionately heavily on minorities or decrease their prospects for meaningful political participation. An invidious law can be passed, but it will be an invidious law passed of, for, and by the people as a whole, and not apply disproportionately to minorities. And it is telling that, for Ely, the judiciary carries out this role in the name of representative democracy. This can only be implied to mean that Ely’s conception of representative democracy, as an ideal worth striving for, is not one of rank majoritarianism or of one faction oppressing another, but of a system in which equality of political opportunity and the dignity of its citizens are endogenous to the theory.

And this is revealing. It is generally thought that the American political system is a confluence of two great forms of government: representative democracy, which prioritizes the self-rule of the people via elected representatives, and constitutionalism, which emphasizes the necessity of protecting fundamental substantive rights (even if an electoral majority votes the other way). I suspect that Ely is not, as it might ostensibly seem, rejecting this characterizing framework, but rather precisely applying it insofar as the constitutional principles are internal to his conception of representative democracy to begin with. Ely’s theory, then, is not just that of a pure representative democrat, but also that of a constitutional democrat. The presence of this duality reinforces the inevitability of substantive value choices justices must make, again demonstrating that Ely’s argument, while intuitively attractive and useful to understand, is ultimately ineffective in its main aim of resolving the crucial dilemma initially posed.

Tyranny of the Minority: The Unconstitutionality of the Filibuster

by Madeleine Polubinski

In recent years, congressional gridlock has focused national attention on the Senate’s filibuster. The filibuster is the process by which a minority of senators delay or prevent a vote on legislation by speaking as long as possible on the Senate floor, until three-fifths of the Senate invoke cloture, which moves the chamber to a vote. While the debate over the filibuster typically centers on its impact on governance, a different debate has been simmering among legal scholars for years: is the filibuster even constitutional? After all, the filibuster is not authorized in the Constitution, nor is it expressly prohibited. I argue that the filibuster in its original, purest sense is constitutional, but that is not the filibuster we have today. In its current form, the filibuster is unconstitutional because it disrupts the Senate’s legislative process as outlined in the Constitution and has feeble historical support.

The text of the Constitution and the history of Congress suggest that the filibuster as a debate-enhancing mechanism is constitutional. As legal scholar Michael Gerhardt argues, “the filibuster derives its principle authority from the Senate’s express power to design its own procedural rules to govern its internal affairs.” At its core, the filibuster regulates internal procedure, and thus the supermajority requirement for cloture is well within the Senate’s power. 

Many scholars argue that cloture requirements reflect many of the principles underlying the Senate. Despite its potential for abuse, the filibuster, fundamentally a mechanism to continue debate, embodies the Senate’s deliberative nature. Although the Constitution makes no mention of a filibuster, the process has a long history dating back to 1806, which some argue proves its legitimacy. Furthermore, the filibuster may enhance protections of minority interests and promote consensus, producing more agreeable and thorough legislation.

However, the filibusters’ debate-promoting potential is inextricable from, and ultimately overshadowed by, its obstructionist implementation. For more than a century, senators have exploited cloture rules to stall Congress or block legislation altogether. Filibusters have become less about debate and more about grandstanding for media attention or simply killing time to stall a bill. After exhausting relevant topics, which are rarely genuine efforts for further deliberation, speeches often devolve into unrelated topics that range from discussions of salad dressing recipes to recitations of each states’ voting laws. 

At best, today’s filibuster sees senators belaboring well-known objections to bills. At worst, it shuts down debate and stalls the Senate, delaying or blocking legislation. In an even more flagrant deviation from the filibusters’ supposed deliberative function, filibustering today usually does not even require debate. “Silent filibusters” allow senators to block legislation without debate by merely voicing their intent to filibuster. Silent filibusters are a complete perversion of the filibusters’ deliberative potential and prove that the process functions as nothing more than a three-fifths majority requirement for regular legislation.

When considering the filibuster as a supermajority requirement for regular legislation, it is clearly unconstitutional.2 As a textual matter, the Constitution appoints the Vice President as the tie-breaking vote in the Senate, providing that they “shall have no Vote unless [the Senators] be equally divided.” This provision implies that the Senate must pass regular legislation by a majority vote. The Framers of the Constitution, while concerned with tyranny of the majority, generally favored majority rule except for certain cases. In fact, the specification of supermajority requirements in the Senate elsewhere in the Constitution, like for the ratification of treaties, indicates that the Framers never envisioned a supermajority rule for regular legislation.1

The Framers, famously wary of tyranny of the majority, devised a system of governance to protect minority rights and promote deliberation without a filibuster. The Federalist Papers outline how checks and balances, federalism, and other structural mechanisms prevent abuses of power, suppression of minority interests, and rash government action. The Framers clearly feared tyrannical majorities and an overly powerful legislature. However, even they deemed a supermajority cloture requirement unnecessary, undermining the argument that the filibuster enhances the Senate’s intended function.

Furthermore, the filibuster lacks a firm historical foundation to support its constitutionality.3 A high-minded commitment to debate did not motivate the filibuster. Rather, the Senate accidentally opened the door for it in 1806 because they deemed the original debate-ending mechanism unnecessary. Even then, no Senator exploited this mistake until 1837, when rising partisanship fostered more obstructionist tactics. 

Proponents of the filibuster claim that the Senate effectively affirmed the constitutionality of its cloture rules during every filibuster or cloture motion since the 1800s. However, the persistence of a practice does not legitimize it. This is especially true for a practice like the filibuster, which inherently impedes revision, violating “anti-entrenchment,” a principle that forbids a past legislature from binding a current legislature to a rule or practice it would otherwise reject.4 Because a supermajority is necessary to eliminate the supermajority requirement for cloture, a formal change to Senate rules is virtually impossible because minority senators have no incentive to cede their power.

While the filibuster is theoretically constitutional, its current usage violates the Constitution because its obstructionist function has overtaken its debate-enhancing potential. Rather than promoting debate, it effectively imposes an unconstitutional supermajority requirement on the Senate to pass virtually any piece of legislation. Ultimately, the filibuster’s problems have arisen out of its implementation. As political parties solidified and polarization increased, so did the incentives for politically motivated obstruction. If senators genuinely used the filibuster to continue productive debate and moved to a vote after sufficient discussion, it may pass constitutional muster. However, today’s divisive political climate and the long-standing violation of those standards make it impossible to return to old norms. Unless the Senate reforms the filibuster to curb its obstructionist implementation and restore its deliberative function, it must be abandoned on constitutional grounds.


1 The three-fifths majority requirement only applies to regular legislation. The Senate can pass bills related to government spending and fiscal policy through the budget reconciliation process, which allows bills to pass with a simple majority. However, all legislation unrelated to the budget requires a supermajority because of the threat of a filibuster.

2 More issues of constitutionality arise when the filibuster is used to prevent presidents from appointing officials and judges to certain positions. Because the Constitution grants this power of appointment to the President with “the Advice and Consent of the Senate” without specifying a supermajority requirement (as it does in other provisions), a filibuster that effectively imposes a supermajority requirement and hinders the President’s constitutionally defined power is likely unconstitutional. However, the filibuster for presidential nominees has already been eliminated, so this issue is moot.

3 While not central to the question of constitutionality, the filibuster’s history is ugly. Southern Senators repeatedly exploited the filibuster to preserve Jim Crow laws and block civil rights legislation. Far from protecting minority rights, the filibuster enabled a congressional minority to preserve a brutally racist system and prevent the mitigation of racial minorities’ oppression.

4 While the anti-entrenchment principle is not explicit in America’s founding documents, it impedes governance and is commonly invoked when discussing legislative procedure.

Making the Case for Trump’s January 6th Speech as Incitement

by Beck Reiferson

On January 12th, Alan Dershowitz, Professor Emeritus at Harvard Law School and one of the nation’s most prominent attorneys, published an op-ed in the publication Newsweek in which he argued against the second impeachment of President Donald Trump on constitutional grounds. He reasoned that Trump’s false statements about the legitimacy of the 2020 election, though “deeply upsetting,” did not meet the standard the Supreme Court set for “incitement” in Brandenburg v. Ohio (1969). He wrote that instead of constituting incitement, Trump’s “volatile words fell plainly on the side of political ‘advocacy,’ which is protected speech.” Dershowitz then claimed that since Trump’s statements were constitutionally protected, they could not be sufficient grounds for impeachment, since First Amendment-protected speech does not constitute “Treason, Bribery, or other high Crimes and Misdemeanors”—the grounds for impeachment enumerated in Article II, Section IV of the Constitution. I will argue that, though Dershowitz is right about constitutionally permissible speech being insufficient grounds for impeachment, Trump’s statements on the morning of January 6th do meet the standard for incitement as laid out in Brandenburg.

In Brandenburg, the Supreme Court held that “freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” As the word “imminent” indicates, the only statements Trump made that could potentially constitute incitement of the insurrection at the Capitol are those he made in a speech on January 6th, just before some of his followers stormed the building. The claims he repeated for months about widespread election fraud are irrelevant to the current discussion. Reformulating the Court’s words in Brandenburg makes clear what criteria Trump’s statements in this speech must meet in order to rise to incitement: they must have advocated for people to break the law, they must have been likely to cause illegal action, and Trump’s goal in uttering them must have been to provoke this illegal action. Let us examine each of these criteria in turn. 

Though it is true that Trump did not explicitly ask his followers to raid the Capitol in his January 6th speech, that does not preclude the possibility that he still advocated for the use of force; indeed, a close examination of his speech reveals several instances in which he employed coded, implicit appeals for those in the audience to take matters into their own hands to reverse the results of the election. He asserted, for example, that “We will never give up, we will never concede… You don’t concede when there’s theft involved,” implying that taking “no” for an answer was out of the question. He also thanked the audience after they broke out into the chant, “Fight for Trump!” and then immediately brought up the military and the Secret Service—two organizations closely connected with the use of force. Taken in conjunction with one another, these statements, along with many other similar ones that pervade the rest of the speech, express the sentiment that the ends of delivering the election victory to its ‘rightful’ winner justify whatever means are necessary to secure that end.

Next we turn to whether or not Trump’s rhetoric was “likely to incite or produce such [illegal] action.” A consideration of the makeup of the crowd in attendance and the contents of Trump’s speech points to a clear affirmative response to this question. Those in attendance in Washington D.C. on January 6th had traveled from all across the country in order to protest the certification of the Electoral College; just by virtue of having arrived in the capital, they had already demonstrated a profound willingness to—and even a commitment to—engage in extreme action in order to keep Trump in office for another four years. Their presence in Washington D.C. indicates that they felt deeply aggrieved by false claims of election fraud and that they strongly believed in the righteousness of their cause. They were, put simply, the individuals most likely to resort to violence to achieve their desired ends. So when Trump set out to “lay out just some of the evidence proving that we won this election,” he lit a rhetorical match before the most flammable of audiences. And when he urged those in attendance to “fight like hell, [since if you don’t] you’re not going to have a country anymore,” framing the consequences of inaction as destroying “the integrity of our glorious republic,” he further convinced an already aggrieved crowd of the necessity of taking up extreme measures in order to prevent the certification of the Electoral College. He gave those listening an ultimatum: do whatever you can to keep me in power or live in an undemocratic country with an illegitimate leader who will do profound damage to many things you hold dear. By emphasizing to those most inclined to violence the importance of fighting the certification, Trump increased the likelihood of violence occurring.

Lastly, we must determine if Trump’s words were “directed to inciting or producing imminent lawless action”—that is, if incitement to violence was his goal. Questions of intent are always difficult to answer, and that is especially the case here given the absence of explicit calls to violence. There still, however, exists evidence that Trump wanted January 6th to unfold along the lines that it did. First, in an interview with radio host Hugh Hewitt, Republican Senator Ben Sasse said multiple White House officials had told him that “as this [the storming of the Capitol] was unfolding on television, Donald Trump was walking around the White House confused about why other people on his team weren’t as excited as he was… He was delighted.” If it is true that Trump was happy with the insurrection, this suggests that that was his desired outcome from the outset; it seems unlikely that he went from being opposed to violent insurrection in the morning then delighted by violent insurrection later in the afternoon. Trump hoping for violence all along would also explain his initial inaction when his followers broke into the Capitol: hours after the protests had devolved into violence, Trump still had not condemned his followers, instead doubling down and further encouraging the mob by tweeting that Mike Pence had “failed to protect our Country and our Constitution.” Such language demonstrates a lack of displeasure with the events that were transpiring.

It may thus plausibly be argued that Trump’s speech on the morning of January 6th meets the high standard for incitement that the Supreme Court set in Brandenburg. This renders moot Dershowitz’s point about constitutionally permissible speech being insufficient grounds for impeachment.