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.

The Role of Environmental Personhood in Corporate Practices

by Anna Shin

Climate change has been at the forefront of environmental issues in both local communities and the global stage. The United Nations now labels climate change as a crisis that affects every country on every continent, and the problem only seems to be worsening by the year. While ordinary individuals can make small, everyday contributions in an effort to lower carbon emissions, much of the attention has been spotlighted on businesses and corporations, calling for them to adopt a “net zero emission” policy by either 2030 or 2050. While many large corporations such as Google and Microsoft have proclaimed their commitment to slashing carbon emissions, both environmental activist groups and the companies themselves have found that the actions to these large claims tend to fall short. Much of this inadequacy has been due to the lack of implementing rigorous, comprehensive standards for companies to reveal their true net emissions data. 

There is a question as to whether corporations are lawfully bound to adopt sustainable practices at the expense of their own resources. Currently, the corporations, excluding their stockholders, are entitled to “corporate personhood” under the law, which defines corporations as able to enjoy and exercise some of the rights and privileges granted to individual people. Corporate personhood also suggests that corporations are defined as “persons” in the Fourteenth Amendment. This is what allows corporations to enter contracts, and also sue others or get sued themselves. The Supreme Court case Citizens United v. Federal Election Committee (2010), which established that corporations were entitled to their First Amendment right of free speech in donating to political campaigns, has not been challenged to this day and therefore the statement that corporations are considered persons continues to stand. 

Considering that corporations are considered as persons, the question of whether the environment, or Earth, is held to the same standard, persists. The concept of “earth jurisprudence,” or the belief that the Earth itself and all of its inhabitants have legal rights, has been used to argue that corporations that follow unsustainable or polluting practices are taking advantage of the Earth’s legal status. While earth jurisprudence has not officially been adopted into U.S. law, there has been much legal discourse on the issue of large corporations exploiting natural resources for profitability. Because the only witness to the Earth’s deterioration is the Earth itself, companies utilize this to silently engage in mass pollution and avoid many of the economic and societal ramifications. 

The fact that U.S. courts view corporations as individuals comes at a cost. Unlike most individuals, large corporations enjoy the influence of money, power, and privilege. Corporations and businesses are built to work solely in favor of themselves and their profitability — establishing constitutionality to protect their interest-driven actions bears significant consequences for the protection of individual rights, and opens doors to corruption and special interests. The environment is one of the greatest victims of these influences, yet its very essence disallows it from seeking rightful protection. In addition to this, every business relies on the use of natural resources to advance its economic and industrial profits, either directly or indirectly. If the government and its laws fail to protect the Earth from misuse and destruction, it renders serious and irreversible damage for all its inhabitants. If the government recognizes nature as an individual and regulates eco-friendly business practices, it will not only benefit the environment, but also the corporation itself. Furthermore, the corporation will be setting itself up for long-term sustainability and profitability. 

The country of Ecuador has already made progress in this issue. In 2008, Ecuador rewrote a portion of its Constitution by including a section called “Rights of Nature.” This acknowledges Earth as an individual and allows other people to bring lawsuits on behalf of it. If the United States were to adopt a similar legal doctrine, it would provide greater authority for the government to pursue environmental issues in higher rigor and reach. 

Earth jurisprudence, although currently far from attaining the status it needs, must be carefully considered within the conversation of climate change as a whole. Without both the physical presence and well-being of the ecosystems we live in, other societal issues are essentially meaningless. It is by the efforts within the legal sphere to acknowledge Earth as an individual that humans will be able to protect the places we live in for the sake of future endeavors.

Affirmative Action Admissions Regimes are Unconstitutional: Strict Scrutiny Should Mean Something

by Myles McKnight and Benjamin Edelson

Harvard’s affirmative action saga continues, or so we hope. After losses in the Federal District Court and the First Circuit Court of Appeals, the non-profit group seeking to do away with Harvard’s race-obsessed admissions regime has filed a Petition for Writ of Certiorari in our Nation’s highest tribunal. Students for Fair Admissions petitions the Court to consider overruling Grutter v. Bollinger, the narrow 2003 decision which held that the University of Michigan Law School’s race-conscious admissions program was constitutional because it satisfied strict scrutiny. Grutter’s loose reasoning leads us to think that the Court should overrule, so we’ll canvass just one reason for believing so here.

Whatever you make of the merits of Harvard’s affirmative action program, there are constitutional questions that lurk beneath the operation of any state-sponsored policy which prescribes differential treatment on the basis of race. No one denies this. Policy is one thing, constitutionality another. And when government policy (or the policy of institutions that receive government funding, like Harvard) makes racial classifications, reviewing courts must apply the test of strict scrutiny to determine whether or not those policies meet constitutional muster.1 For the unfamiliar: A race-conscious policy satisfies strict scrutiny if it 1) furthers a compelling (i.e. necessary) state interest, and 2) is “narrowly tailored” such that the policy minimizes, to the extent possible, differential treatment on the basis of race. If a policy discriminates on the basis of race only to the degree necessary to meet a compelling interest, it stands the test of strict scrutiny. 

Harvard argues that its policy meets this standard. We think that’s wrong. In fact, we don’t think an affirmative action regime like Harvard’s can ever satisfy strict scrutiny for reasons we’ll present below. But first, some preliminaries. 

The compelling interest claimed by the law school in Grutter was the procurement of the educational benefits that stem from having adequately diverse classrooms (what Justice Thomas calls “classroom aesthetics”).2 In fact, of the interests historically offered as justifications for affirmative action admissions practices, the Court has held that this is the only one that can be compelling.3 Before turning to whether or not this interest actually is compelling, we should point out that there is serious reason to doubt that this interest is truly the one that animates affirmative action policies like Harvard’s. 

Let’s grant, for a moment, that the end to which the policy is tailored is the procurement of the educational benefits that stem from classroom diversity. (The alleged compelling interest is not racial diversity qua racial diversity, but rather the educational benefits that stem from that diversity). 

Why limit the diversity to racial diversity? If the interest in the educational benefits that stem from racial diversity is indeed compelling, presumably there are other forms of diversity that would produce similarly significant, and similarly valuable, educational benefits. And those would be compelling too, right?4 

We can, in fact, think of other diversity domains wherein composition shifts would shock the academic status quo at elite universities just as much as or even more than adjustments in racial composition, thereby providing educational benefits at least as tangible and significant. Here are a few: political, ideological, and religious diversity among professors and students. Nevertheless, it is no secret that evangelical Christians and conservatives go dramatically underrepresented at institutions like Harvard or, say, Princeton. Can it really be that the educational benefits that stem from racial diversity are compelling interests while the educational benefits that stem from political, ideological, and religious diversity are not? Indeed, in the context of academe, where the cause of truth-seeking through academic discourse is advanced, one would think that the most prized form of diversity would be ideological. There can be little doubt that healthy ideological diversity would have at least as tangible an impact on the ability of students to navigate an ideologically, racially, and religiously diverse world as racial diversity would.

All of this should give us real pause before buying into the notion that the educational benefits that stem from racial diversity are the real interests at play. To us, it seems more plausible that the interest is something akin to the following: the rectification of societal ills and tragedies of minority underrepresentation. We think that this is a laudable interest, but it is not the one once alleged by the University of Michigan Law School or the one alleged by Harvard today. Moreover, the fulfillment of this specific interest by affirmative action was explicitly thrown away by Justice Powell in Bakke.

If you disagree with us so far, you might be tempted to respond: “Ah, well, conservatives and evangelicals are not historically marginalized groups. It’s wrong to analogize intellectual and religious diversity to racial diversity in this way!” Well, you’ve proved our point: Your interest lies in the rectification of historic societal ills.  

Let’s leave this aside. As a matter of fact, we do have reason to conclude that the asserted interest of procuring educational benefits is not the one that the Court should evaluate here. This is because the phrase “educational benefits that flow from racial diversity” is actually a gross misstatement of the more precise interest motivating Harvard’s scheme. We construe it as follows: the procurement of the educational benefits that stem from racial diversity, consistent with the maintenance of prestige and the general standards of the institution.

In our view, that second clause (“…prestige and general standards of the institution”) is a necessary component of the true interest to be weighed. Before explaining why this is the case, we should first take care to note that the maintenance of institutional prestige couldn’t possibly be a compelling interest. The compelling interest doctrine, as applied to race-conscious policies, provides the courts with a mechanism to smoke out illegitimate racial differentiation in all but situations of total necessity; “compelling” does not mean “preferable” or “laudable.” As historically applied to race-conscious policies, strict scrutiny has rejected interests even as important as the “best interests” of children. Race-conscious policies have otherwise typically stood only when they serve interests of such immense necessity as national security, the functionality of government, and safety from violence.5 In any case, should you prefer a looser conception of “compelling interest” than we do, it’s still immensely difficult to see how the maintenance of institutional prestige could ever rise to the qualification of compulsory. To quote Justice Scalia: “If that is a compelling state interest, everything is.”

So, if we’re correct in construing the relevant interest as we do, an affirmative action scheme like Harvard’s cannot pass the test of strict scrutiny. And if that is the case, it is unconstitutional. So, why are we correct?

Suppose you were devising an admissions scheme designed to secure the educational benefits that stem from classroom diversity. You’re not interested in prestige or maintaining the “high standards” for admission that make your university so elite – you know that those interests couldn’t be compelling. So, how do you do it? Your policy will need to be narrowly tailored, meaning it will have to be as race-neutral as possible while still increasing the diversity of your classrooms. If your interest lies only in the educational benefits that flow from increased racial diversity, perhaps you’ll come up with a lottery system so that your admitted class will be more reflective of a diverse applicant pool. Or, maybe you’ll adopt an approach to evaluating applications that gives less weight across the board to factors that, on average, tend to cut against the admissions chances of disadvantaged minority students (e.g. SAT scores). This would substantially reduce the disadvantage faced by applicants from historically marginalized communities. Because reduced consideration of such factors would apply to all applicants, you might not have to consider racial background at all.

But instead, you opt for a scheme that deliberately favors applicants from some minority groups by applying different standards of admission to students on the basis of their racial identities.6 Anyone can see that that scheme is not narrowly tailored to the interest in the way that the aforementioned alternatives might be; there are more race-neutral ways to attain sufficient classroom diversity than this scheme. Indeed, such a race-conscious admissions scheme can only be narrowly tailored if the interest itself is adjusted to accommodate the claim of narrow tailoring. Thus, an affirmative action admissions regime like Harvard’s, which applies different standards to different races in order to produce classroom diversity without sacrificing any degree of prestige, is only narrowly tailored in the context of an interest which includes the maintenance of the prestige secured by exclusive admission standards. And the interest in prestige and exclusivity, as we have suggested, cannot be compelling.

Importantly, we haven’t passed judgment on the policy merits of affirmative action. We believe that the rectification of societal ills and tragedies of minority underrepresentation are important and laudable interests. They are, moreover, perfectly constitutional interests. However, this does not mean that the Constitution gives wide latitude to policymakers who wish to realize these aspirations by devising policies that prescribe differential treatment between races. Rather, our Nation’s reckoning with its painful history of racial discrimination has led to the application of a rigorous legal safeguard designed to smoke out all but the most indispensable considerations of race. That safeguard is strict scrutiny. For a policy that discriminates between individuals on the basis of race to survive a constitutional challenge, it must do battle with strict scrutiny. The sort of policy we address here loses that battle.


1 Adarand v. Peña, 515 U.S. 200 (1995)

2 Grutter v. Bollinger, 539 U.S. 306, 123 S. Ct. 2325 (2003)

3 See Justice Powell’s opinion in Bakke. Bakke, 438 U.S. 265 (1978)

4 It’s true that many schools, including Harvard, consider certain other forms of diversity during the admissions process (Harvard also considers geographic diversity, for example). 

5 From Justice Thomas in Grutter: “Where the Court has accepted only national security, and rejected even the best interests of a child, as a justification for racial discrimination, I conclude that only those measures the State must take to provide a bulwark against anarchy, or to prevent violence, will constitute a ‘pressing public necessity.’ Cf. Lee v. Washington, 390 U. S. 333, 334 (1968) (per curiam) (Black, J., concurring) (indicating that protecting prisoners from violence might justify narrowly tailored racial discrimination); Croson, supra, at 521 (Scalia, J., concurring in judgment).”

6 That this is the mechanism by which affirmative action policies achieve their ends is not a subject of debate.

This article was edited on April 27, 2021.