Democracy and Distrust, an often funny book on a serious subject by a careful, witty and inventive scholar, seeks a single unifying answer to the hard questions faced by federal courts from the beginning when they review the constitutionality of legislative and executive actions: What is the justification for judicial review by life-tenured magistrates in a system of government where the people elect their representatives and executives? When state or federal action penalizes particular groups-aliens, racial groups, pregnant women, homosexuals, the poor-what sources of enlightenment should we look to for guidance as we interpret the “open ended” provisions of the Constitution like the Equal Protection, Due Process, Privilege and Immunities and Republican Form of Government clauses and the Ninth Amendment? Where should we look for the guiding principles of judicial review in hard cases not answered by the constitutional text or the body of precedent? How are we to avoid ad hoc, purely intuitive decisions?
Merritt, Gilbert S.
"Democracy and Distrust (By John Hart Ely),"
University of Dayton Law Review: Vol. 6:
2, Article 12.
Available at: https://ecommons.udayton.edu/udlr/vol6/iss2/12