Ely and the idea of democracy

Stanford Law Review

Volumn 57, Issue 3, 2004, Pages 737-760

  Schacter, Jane S ^a  

^a UNIVERSITY OF WISCONSIN LAW SCHOOL   (United States)

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EID: 33646047721     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (149)

1. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980) [hereinafter ELY, DEMOCRACY AND DISTRUST].
2. See, e.g., Symposium on Democracy and Distrust: Ten Years Later, 77 VA. L. REV. 631 (1991);
3. Symposium, Democracy and Distrust: Judicial Review Versus Democracy, 42 OHIO ST. L.J. 1 (1981).
4. ROBERT A. DAHL, DEMOCRACY AND ITS CRITICS 326 (1989). Put in a slightly different way, democracy equates to "some notion of consensual, collective self-determination about the rules and norms under which citizens live."
5. Jane S. Schacter, Romer v. Evans and Democracy's Domain, 50 VAND. L. REV. 361, 402 (1997) [hereinafter Schacter, Democracy's Domain].
6. For a useful overview of debates in democratic theory, see the materials collected in DEMOCRACY: A READER (Ricardo Blaug & John Schwarzmantel eds., 2000).
7. ELY, DEMOCRACY AND DISTRUST, supra note 1, at 1-72.
8. For the origins of this dichotomy, see Tom Grey, Do We Have an Unwritten Constitution?, 27 STAN. L. REV. 703 (1975).
9. ELY, DEMOCRACY AND DISTRUST, supra note 1, at 4-5.
10. Id. at 7.
11. See, e.g., Joshua Cohen, Procedure and Substance in Deliberative Democracy, in DEMOCRACY AND DIFFERENCE: CONTESTING THE BOUNDARIES OF THE POLITICAL 95 (Seyla Benhabib ed., 1996).
12. For example, in defending the Warren Court's decisions on voting and apportionment within the logic of his theory, Ely said: [T]he interventionism was fueled not by a desire on the part of the Court to vindicate particular substantive values it had determined were important or fundamental, but rather by a desire to ensure that the political process - which is where such values are properly identified, weighed and accommodated - was open to those of all viewpoints on something approaching an equal basis. ELY, DEMOCRACY AND DISTRUST, supra note 1, at 74.
13. The text of the three-paragraph footnote is as follows: There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth. . . . It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendments than are most other types of legislation . . . . Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious . . . or national . . . or racial minorities . . . [or] whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. United States v. Carolene Prods., 304 U.S. 144, 151 n.4 (1938) (citations omitted).
14. ELY, DEMOCRACY AND DISTRUST, supra note 1, at 103 (footnote omitted).
15. Id. at 77.
16. Id. at 105. This is a version of an "antientrenchment" norm. For an elaborated theory of judicial review as a tool against political entrenchment, see Michael J. Klarman, Majoritarian Judicial Review: The Entrenchment Problem, 85 GEO. L.J. 491 (1997).
17. Along thematically similar lines, see Samuel Issacharroff & Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 STAN. L. REV. 643 (1998).
18. ELY, DEMOCRACY AND DISTRUST, supra note 1, at 120.
19. Id. at 153.
20. Id. at 152.
21. Id. at 76 (citing WEBSTER'S NEW WORLD DICTIONARY OF THE AMERICAN LANGUAGE 375 (2d college ed. 1976)).
22. See supra note 7 and accompanying text.
23. See, e.g., ELY, DEMOCRACY AND DISTRUST, supra note 1, at 76 (explaining that courts should "keep the machinery of democratic government running as it should").
24. Ely emphasized the role of political equality in democratic theory. In one of his few mentions of democracy's definition, Ely evinced awareness that there are "some variations in understanding" about what democracy means, but asserted that political equality is "invariably" part of the equation. Id. at 122.
25. Id. at 77 (quoted fully supra p. 740) (emphasis added).
26. For a variety of perspectives on political accountability, see DEMOCRACY, ACCOUNTABILITY, AND REPRESENTATION (Adam Przeworski et al. eds., 1999) [hereinafter ACCOUNTABILITY].
27. For a historical view tracing the concept to Athenian democracy, see Jon Elster, Accountability in Athenian Politics, in ACCOUNTABILITY, supra, at 253.
28. For a parsing of historical, institutional, and sociological approaches to accountability, see Melvin J. Dubnick, Accountability and Ethics: Reconsidering the Relationship, 6 INT'L J. ORG. THEORY & BEHAV. 405 (2003).
29. 505 U.S. 144 (1992).
30. Id. at 169.
31. Printz v. United States, 521 U.S. 898 (1997).
32. See id. at 920 (noting that the Constitution "contemplates that a State's government will represent and remain accountable to its own citizens"). In a twist on this theme, Justice Scalia's opinion offered a separate rationale based on the separation of powers. On that point, Scalia argued that this sort of law damaged federal accountability by weakening the unitary executive. Id. at 922.
33. 514 U.S. 779 (1995).
34. 531 U.S. 510 (2001).
35. 514 U.S. at 838 (emphasis added).
36. Cook, 531 U.S. at 528.
37. ELY, DEMOCRACY AND DISTRUST, supra note 1, at 78.
38. See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (1962); infra notes 66-67 and accompanying text.
39. Adam Przeworski, Minimalist Conception of Democracy: A Defense, in DEMOCRACY'S VALUE 23, 43-44 (Ian Shapiro & Casiano Hacker-Cordon eds., 1999) [hereinafter Przeworski, Minimalist Conception];
40. see also KARL POPPER, THE OPEN SOCIETY AND ITS ENEMIES 124-25 (1963);
41. WILLIAM RIKER, LIBERALISM AGAINST POPULISM 8-11 (1982).
42. Przeworski, Minimalist Conception, supra note 33, at 24. Indeed, Przeworski includes "accountability" on this list, suggesting that in his reckoning, even it is too substantively charged to be automatically assumed to flow from democracy. Although I ultimately agree strongly with the general proposition that accountability should not be assumed simply to flow from the fact of elections, see infra text accompanying notes 85-104, I nevertheless think, for reasons spelled out in the text, that there are important conceptual links between democratic minimalism and approaches stressing accountability as a central aspect of democracy.
43. The label of "minimalism" is a potentially pejorative one, but it should not obscure two important points: first, that elections are central to any conception of democracy, even if they should not be the only focus; and second, that there are a wide range of complex normative disputes raised by elections and the issues and apparatuses that surround voting. For a good overview, see SAMUEL ISSACHAROFF ET AL., THE LAW OF DEMOCRACY (2d ed. 2001).
44. JOSEPH SCHUMPETER, CAPITALISM, SOCIALISM AND DEMOCRACY 269 (1942).
45. Id. at 273.
46. ELY, DEMOCRACY AND DISTRUST, supra note 1, at 240 n.76 (citing SCHUMPETER, supra note 36, at 269-83).
47. Jane S. Schacter, Lawrence v. Texas and the Fourteenth Amendment's Democratic Aspirations, 13 TEMP. POL. & CIV. RTS. L. REV. (forthcoming Spring 2004) [hereinafter Schacter, Democratic Aspirations];
48. see also Schacter, Democracy's Domain, supra note 3, at 399 (discussing democracy's "horizontal dimensions").
49. The argument is elaborated in Schacter, Democratic Aspirations, supra note 39.
50. Schacter, Democracy's Domain, supra note 3, at 399.
51. The idea of horizontal democracy has overlap with theories of deliberative democracy but has differences as well. See id. at 404-05.
52. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA (Harvey Clafin Mansfield & Debra Winthrop trans., Univ. of Chi. Press 2000) (1835, 1840).
53. Letter from Alexis de Tocqueville to Corcelle (Sept. 17, 1853), quoted in 1 ALEXIS DE TOCQUEVILLE, THE OLD REGIME AND THE REVOLUTION 10 (Alan S. Kahan trans., François Furet & Françoise Mélonio eds., 1998) (1856).
54. The phrase inspired the title of ROBERT N. BELLAH ET AL., HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN AMERICAN LIFE (1985).
55. See Rogers M. Smith, Beyond Tocqueville, Myrdal, and Hartz: The Multiple Traditions in America, 87 AM. POL. SCI. REV. 549, 549 (1993) (noting that Tocqueville addressed "white men, largely of Northern European ancestry").
56. Themes like these have been emphasized more recently by a range of writers, including, for example, BELLAH ET AL., supra note 44; JEAN L. COHEN & ANDREW ARATO, CIVIL SOCIETY AND POLITICAL THEORY (1992);
57. PAUL HIRST, ASSOCIATIVE DEMOCRACY: NEW FORMS OF ECONOMIC AND SOCIAL GOVERNANCE (1994);
58. ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND REVIVAL OF AMERICAN COMMUNITY (2000);
59. Joshua Cohen & Joel Rogers, Secondary Associations and Democratic Governance, 20 POL. & SOC'Y 393 (1992).
60. On the different aspects of citizenship, see T.H. Marshall, Citizenship and Social Class, in T.H. MARSHALL & TOM BOTTOMORE, CITIZENSHIP AND SOCIAL CLASS 3 (1992).
61. For a detailed historical picture of England after the French Revolution that argues for citizenship as a "matter of equality, dignity, [and] full membership in the polity," and explores the links between democracy, citizenship, and social contempt, see DON HERZOG, POISONING THE MINDS OF THE LOWER ORDERS 30 (1998).
62. 539 U.S. 558 (2003). A more extended analysis of Lawrence and the other cases discussed in the text within the framework of horizontal democracy appears in Schacter, Democratic Aspirations, supra note 39.
63. Lawrence, 539 U.S. at 575.
64. See Schacter, Democratic Aspirations, supra note 39.
65. 517 U.S. 620 (1996). For an extended analysis of Romer in these terms, see Schacter, Democracy's Domain, supra note 3.
66. Romer, 517 U.S. at 631.
67. Id. at 635.
68. 539 U.S. 306 (2003).
69. Id. at 332 (emphasis added).
70. Id. at 331 (quoting Plyler v. Doe, 457 U.S. 202, 221 (1982)).
71. Id.
72. 505 U.S. 833 (1992).
73. 410 U.S. 113 (1973).
74. Casey, at 852-56.
75. United States v. Virginia, 518 U.S. 515, 545-46 (1996).
76. See John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920 (1973).
77. However, Ely did not favor overruling Roe in Casey, citing largely prudential grounds. See JOHN HART ELY, ON CONSTITUTIONAL GROUND 304-06 (1996).
78. ELY, DEMOCRACY AND DISTRUST, supra note 1, at 15-21.
79. Id. at 164-70.
80. See Schacter, Democratic Aspirations, supra note 39.
81. BICKEL, supra note 32, at 17.
82. ELY, DEMOCRACY AND DISTRUST, supra note 1, at 78 (footnotes omitted).
83. See supra note 31 and accompanying text.
84. ELY, DEMOCRACY AND DISTRUST, supra note 1, at 132; see also id. at 133 ("There can be little point in worrying about the distribution of the franchise and other personal political rights unless the important policy choices are being made by elected officials.").
85. JOHN HART ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH 54 (1993) (footnote omitted).
86. John Hart Ely, Gerrymanders: The Good, the Bad, and the Ugly, 50 STAN. L. REV. 607, 621 (1998).
87. See supra text accompanying notes 37-38.
88. See ELY, DEMOCRACY AND DISTRUST, supra note 1, at 240 n.76.
89. See Schacter, Democracy's Domain, supra note 3, at 395-401.
90. Id.
91. See ELY, DEMOCRACY AND DISTRUST, supra note 1, at 77; supra notes 20-21 and accompanying text.
92. This point is developed at greater length in Schacter, Democracy's Domain, supra note 3, at 400-10;
93. Schacter, Democratic Aspirations, supra note 39.
94. I will not revisit here problems with the democracy-majoritarianism equation that have been discussed by others. See, e.g., CHRISTOPHER L. EISGRUBER, CONSTITUTIONAL SELF-GOVERNMENT 49-50 (2001);
95. DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION 1, 38-62 (1991);
96. JED RUBENFELD, FREEDOM AND TIME: A THEORY OF CONSTITUTIONAL SELF-GOVERNMENT (2001);
97. Erwin Chemerinsky, The Supreme Court, 1988 Term - Foreword: The Vanishing Constitution, 103 HARV. L. REV. 43, 80-81 (1989);
98. Barry Friedman, Dialogue and Judicial Review, 91 MICH. L. REV. 577, 630-42.
99. For a brief review of work in this area, see Schacter, Democratic Aspirations, supra note 39.
100. This was the central thrust of Laurence Tribe's critique of Ely's reliance on process-based ideas. Laurence H. Tribe, The Puzzling Persistence of Process-Based Constitutional Theories, 89 YALE L.J. 1063, 1075-76 (1980);
101. see also Daniel L. Ortiz, Pursuing a Perfect Politics: The Allure and Failure of Process Theory, 77 VA. L. REV. 721, 722 n.6 (1991). Though Tribe did not focus on democratic theory in particular, his basic point about the need for substantive criteria to guide Ely's principles applies with force here as well.
102. W.B. Gallie, Essentially Contested Concepts, 56 PROC. ARISTOTELIAN SOC'Y 167, 184-85 (1956);
103. see also Dan M. Kahan, Democracy Schmemocracy, 20 CARDOZO L. REV. 795, 796 (1999);
104. Edward L. Rubin, Getting Past Democracy, 149 U. PA. L. REV. 711, 714 (2001);
105. Schacter, Democratic Aspirations, supra note 39;
106. Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 HARV. L. REV. 593, 648 & nn.289-90 (1995).
107. ELY, DEMOCRACY AND DISTRUST, supra note 1, at 122.
108. Schacter, Democratic Aspirations, supra note 39.
109. Protections of this sort also appear in the Liberty Clause of the Fifth Amendment's Due Process Clause and in the Privileges and Immunities Clause in Article IV.
110. On constitutional interpretation outside the courts, see LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004);
111. MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS (1999).
112. On how statutes like the Civil Rights Act might be seen to establish enduring norms comparable to constitutional norms, see William N. Eskridge, Jr. & John Ferejohn, Super-Statutes: The New Constitutionalism (Mar. 2004) (draft, on file with author).
113. Some of the arguments that follow are discussed in the context of statutory interpretation in Jane S. Schacter, Accounting for Accountability in Dynamic Statutory Interpretation and Beyond, in ISSUES IN LEGAL SCHOLARSHIP: DYNAMIC STATUTORY INTERPRETATION (2002), available at http://www.bepress.com/ils/iss3/art5 [hereinafter Schacter, Accounting for Accountability].
114. On the relationship between transparency and political accountability, see Elizabeth Garrett, Accountability and Restraint: The Federal Budget Process and the Line Item Veto Act, 20 CARDOZO L. REV. 871, 924-25 (1999).
115. For an excellent overview of local press coverage of Congress that finds large variations in the quality and quantity of coverage, see R. DOUGLAS ARNOLD, CONGRESS, THE PRESS, AND POLITICAL ACCOUNTABILITY (2004).
116. On strategic communications, legislative policy, and democracy, see generally W. LANCE BENNETT, NEWS: THE POLITICS OF ILLUSION (3d ed. 1996);
117. MURRAY EDELMAN, THE SYMBOLIC USES OF POLITICS (1985).
118. In addition, the case may be somewhat stronger for presidential accountability because of the greater visibility of the President and presidential decisions, as well as the greater salience of presidential elections. Still, many of the problems described in the text apply to the executive.
119. See ARTHUR LUPIA & MATHEW MCCUBBINS, THE DEMOCRATIC DILEMMA: CAN CITIZENS LEARN WHAT THEY NEED TO KNOW? 1 (1998) (noting that "study after study documents the breadth and depth of citizen ignorance" about policy and politics); id. at 17-18 (discussing the literature).
120. For a sampling of other studies reaching the same conclusion, see GARY C. JACOBSON, THE POLITICS OF CONGRESSIONAL ELECTIONS (2d ed. 1987);
121. ERIC R.A.N. SMITH, THE UNCHANGING AMERICAN VOTER 1-6 (1989);
122. Michael X. Delli Carpini & Scott Keeter, Stability and Change in the U.S. Public's Knowledge of Politics, 55 PUB. OPINION Q. 583 (1991).
123. The leading account is R. DOUGLAS ARNOLD, THE LOGIC OF CONGRESSIONAL ACTION (1990). Arnold built on important earlier work.
124. See MORRIS P. FIORINA, REPRESENTATIVES, ROLL CALLS, AND CONSTITUENCIES (1974);
125. V.O. KEY, JR., PUBLIC OPINION AND AMERICAN DEMOCRACY (1961);
126. JOHN W. KINGDON, CONGRESSMEN'S VOTING DECISIONS (2d. ed. 1981);
127. DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION (1974). Arnold argued that rational legislators continually monitor public opinion and try to assess which votes might be used by a future opponent to awaken a slumbering electorate. Ely, in fact, embraced this general idea and summarily brushed off concerns about voters' lack of information: [I]t . . . seems pretty clear that our representatives act on the assumption that the stands they take will importantly affect their future success . . . . Neither is my point that most people don't very effectively keep abreast of how their representatives are voting on various bills . . . . In fact a good number do keep up - with intermittent help from the media - on those issues about which they care most intensely. But for the others, one important function of campaigns is to give an opponent a strong incentive to check up on his or her rival's record and bring it to the public's attention.
128. ELY, DEMOCRACY AND DISTRUST, supra note 1, at 129.
129. For example, Vincent Hutchings's recent work elaborates on Arnold's thesis by arguing that "issue publics" constitute well-informed voter subgroups who, by virtue of their expertise, mitigate the ignorance of the voters at large. He argues that these groups serve to activate the process of predictive accountability by communicating to elected officials that they will be vigilant on issues of special concern to them and by taking action to hold legislators accountable when warranted. VINCENT L. HUTCHINGS, PUBLIC OPINION AND DEMOCRATIC ACCOUNTABILITY: How CITIZENS LEARN ABOUT POLITICS (2004).
130. There is a large literature on the related question of how well-informed "issue publics" and processes of statistical aggregation can combine to compensate for the broader public's lack of knowledge. For a review and some critiques of this thesis, see Donald R. Kinder & Don Herzog, Democratic Discussion, in RECONSIDERING THE DEMOCRATIC PUBLIC 347 (George E. Marcus & Russell L. Hanson eds., 1993).
131. See LUPIA & MCCUBBINS, supra note 90 (arguing that informational shortcuts, cues, or heuristics might give voters sufficient knowledge to guide their voting decisions, even if they lack broad or deep information).
132. I explore these issues in greater detail in Jane S. Schacter, The Misunderstood Question of Legislative Accountability (work in progress, manuscript on file with author).
133. Questions abound. For example, as to predictive accountability, in what way, how often, and on what issues do legislators actually attempt to assess latent preferences? And how can it be demonstrated that it is, in fact, an assessment of such latent constituent preference and not, say, brute interest group bullying that generates a particular vote? Moreover, how accurately could a politician gauge latent public opinion when, in fact, the content of any such opinion that might emerge in the future is likely to depend heavily upon strategic attempts to shape public perceptions? On the role of issue publics, how representative and how well-distributed are the issue publics and/or interest groups who do the close monitoring? What about issues, such as poverty policy, that generate no issue publics and that are on the agenda of no well-organized, well-funded interest group? These questions suggest that, as to issue publics, there may well be a risk of the sort of asymmetrical accountability discussed infra at text accompanying note 104. A similar set of questions might be asked about the arguments stressing the role of informational shortcuts and cues. This process, too, might be undermined by collective action problems and issues of asymmetry because of the gap between those armed with detailed knowledge and those acting upon thin cues, particularly when the dynamics of strategic communication are brought into the equation. On this question, see Schacter, Accounting for Accountability, supra note 85, at 12-13.
134. See John Ferejohn, Accountability and Authority: Toward a Theory of Political Accountability, in ACCOUNTABILITY, supra note 22, at 131;
135. Schacter, Accounting for Accountability, supra note 85, at 5-7.
136. This discussion contemplates only appointed judges, not those elected judges who must face the voters and may therefore be subject to some version of electoral accountability.
137. For a suggestion that the Supreme Court does follow the proverbial election returns, see Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. PUB. L. 279 (1957).
138. For arguments that the Supreme Court's decisions command high rates of public acceptance, see Gregory A. Caldeira, Neither the Purse nor the Sword: Dynamics of Public Confidence in the Supreme Court, 80 AM. POL. SCI. REV. 1209 (1986);
139. Gregory A. Caldeira & James L. Gibson, The Etiology of Public Support for the Supreme Court, 36 AM. J. POL. SCI. 635, 635-36 (1992).
140. For example, in the 106th Congress (1999-2000), House members made 1209 recorded votes. During that same term, Senators made 672 votes. JOHN PONTIUS, CONGRESSIONAL ROLL CALL AND OTHER RECORDED VOTES: 1ST CONGRESS THROUGH 107TH CONGRESS (FIRST SESSION), 1789 THROUGH 2002, at CRS-9 (CRS Report for Congress, Order Code RL30562, 2002), available at http://www.house.gov/rules/rl30562.pdf.
141. See generally Samuel Issacharoff, Gerrymandering and Political Cartels, 116 HARV. L. REV. 593 (2002);
142. Jeffrey Toobin, The Great Election Grab, NEW YORKER, Dec. 8, 2003, at 65. Other incumbent advantages include the ability to dole out pork, the seniority system, and advantages raising money, to name just a few.
143. See, e.g., ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY (1957);
144. MORRIS FIORINA, RETROSPECTIVE VOTING IN AMERICAN NATIONAL ELECTIONS (1981);
145. V.O. KEY, JR., THE RESPONSIBLE ELECTORATE (1966).
146. See James D. Fearon, Electoral Accountability and the Control of Politicians: Selecting Good Types Versus Sanctioning Poor Performance, in ACCOUNTABILITY, supra note 22, at 55.
147. For an overview of the debate, see Bernard Manin et al., Elections and Representation, in ACCOUNTABILITY, supra note 22, at 29.
148. See Przeworski, Minimalist Conception, supra note 33, at 33-39.
149. NEIL K. KOMESAR, IMPERFECT ALTERNATIVES: CHOOSING INSTITUTIONS IN LAW, ECONOMICS AND PUBLIC POLICY 198-215 (1994).