|
The Coherentism of Democracy and Distrust |
|
|
|
|
[View as PDF]
|
114 Yale L.J. 1237 (2005)
John Hart Ely's justly celebrated Democracy and Distrust aims to reconcile judicial review with the fundamentally democratic character of the American Constitution. Yet taken at face value, the book does not establish that the American Constitution is fundamentally democratic. While pointing to the large number of constitutional provisions that concern the mechanics of government, Ely offers no satisfactory account of why these provisions should be used to infer a master principle to guide interpretation of the document as a whole. Nor can Ely rely on a comprehensive normative account such as utilitarianism to establish his representation-reinforcing approach, because the book more generally argues that judges have no business importing such substantive values into the Constitution. In fact, the book succeeds to the extent that it does because Americans highly value democracy. But can American faith in democracy be made to serve as a basis for treating democratic representation as the key to constitutional interpretation in a noncircular fashion? Perhaps surprisingly, yes, if Democracy and Distrust is understood as presenting a coherentist account of constitutional interpretation--one that aims to make the best sense of the practice as a whole, given all of our considered convictions. Although this coherentist reading of Ely leaves him vulnerable to standard critiques of coherentism, it does not leave him any more vulnerable to such critiques than are other, rival accounts of constitutional interpretation.
|