The Elysian Fields of the Law

In Democracy and Distrust and War and Responsibility, John Hart Ely advanced a participation-oriented, representation-reinforcing approach to judicial review that addressed problems of entrenchment, discrimination, and legislative delegation. This essay, which was written as the foreword to a symposium honoring Ely held at Stanford Law School in April 2004, discusses four recent Supreme Court decisions that map onto the central preoccupations in Ely's work: McConnell v. Federal Election Commission; Lawrence v. Texas; Vieth v. Jubelirer; and Hamdi v. Rumsfeld. McConnell raises important questions about how the Court ought to approach campaign finance legislation, given cross-cutting concerns with problems of entrenchment. While there are anti-entrenchment arguments on both sides of the debate over campaign finance reform, we suggest that, given the way in which Ely's anti-entrenchment theory focused on incumbent holders of government power, courts should be especially wary of restrictions that limit the speech of challengers. Lawrence offers an intriguing variation on judicial protection of discrete and insular minorities. Ely was a harsh critic of substantive due process. While the Court's opinion rests as a formal matter on substantive due process, rather than equal protection, a close reading suggests that Lawrence gives perhaps the first known Elysian reason for a substantive due process ruling: that it was necessary to invalidate a discriminatory law as if it applied to all persons in order to prevent the aftereffects of discrimination that would linger if it were not. Vieth shows how questions of political gerrymandering lie at the intersection of Ely's concerns with entrenchment and discrimination. While the Supreme Court has seen political gerrymandering as a species of discrimination, the larger problem is one of entrenchment, rather than the mistreatment of discrete and insular groups. The problem with the contemporary approach is not just that it is factually ill grounded: whatever else may be the case, it is hard to view the adherents of the two major political parties as discrete and insular minorities incapable of protecting themselves and victimized by prejudice. Rather, the problem is that the failure to recognize the issue as one of entrenchment can actually exacerbate political channel clogging and undercut effective and accountable representation. Finally, Hamdi confronts the question of how judicial review can reinforce congressional responsibility with respect to the use of military force and the protection of civil liberties given a world in which our most threatening enemies are no longer other nations. We show how War and Responsibility fleshes out one of the often-overlooked sections of Democracy and Distrust - its proposal to revive some version of the nondelegation doctrine - as a tool for ensuring accountability in decisions regarding the decision to go to war and identify echoes of Ely's theory in the three opinions in Hamdi that reject the government's sweeping assertion of executive power.