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.)