Fear of Judging: A Commentary on Ely's Theory of Judicial Review

Fear of Judging:A Commentary on Ely's Theory

of Judicial Review

Democracy and Distrust. By John Hart Ely. (Cambridge: HarvardUniversity Press, 1980). Pp. 268.

With the publication of Democracy and Distrust,' John Hart Elyhas heightened his reputation as one of the foremost constitu-

tional commentators of our time. Bringing together several path-breaking concepts and arguments he has developed over the lastdecade, 2 this book sets forth a theory of the role of the courts in con-stitutional adjudication that has been acclaimed by many leading com-mentators,3 and extolled by one as "the single most important contribu-tion to the American theory of judicial review written in this century."

What has earned such accolades for Ely's theory is its claim to abatethe tension between democracy and judicial review, between the

1. References to this work hereinafter will be cited in parentheses in the body of thetext and in footnotes.

2. The following seem to have been of special significance in laying the ground-work of Democracy and Distrust: "Legislative and Administrative Motivation in Con-stitutional Law, " Yale Law Journal 79 (1970), pp. 1205-1341 [hereinafter cited as"Motivation"]; "Wages of Crying Wolf: A Comment on Roe v. Wade, " Yale LawJournal 82 (1973), pp. 920-949; "The Constitutionality of Reverse Racial Discrimina-tion," University of Chicago Law Review 41 (1974), pp. 723-741; and "Flag Desecra-tion: A Case Study in the Roles of Categorization and Balancing in First AmendmentAnalysis," Harvard Law Review 88 (1975), pp. 1482-1508.

3. See, for example, the favorable reviews by Franklin Hunt, Commentary 69(June, 1980), pp. 80-82; M. deG. Ford, Commonweal 107 (April 25, 1980), p. 249;Telford Taylor, New York Times Book Review ( March 16, 1980), p. 11; Gerald E.Lynch, Columbia Law Review 80 (1980), pp. 857-866; James M. O'Fallon, CaliforniaLaw Review 68 (1980), pp. 1072-1092. For more critical analyses, see Archibald Cox,"Book Review," Harvard Law Review 94 (1981), pp. 700-716; Lawrence Tribe, "ThePuzzling Persistence of Process-Based Constitutional Theories, " Yale Law Journal 89(1980), pp. 1063-1080; Mark Tushnet "Darkness on the Edge of Town: The Contribu-tions of John Hart Ely to Constitutional Theory, " Yale Law Journal 89 (1980), pp.1037-1062.

4. Henry P. Monaghan, Professor of Law, University of Chicago, dustjacket of Ely,supra note 1.

208 THE POLITICAL SCIENCE REVIEWER

authority of the democratically elected, political branches to enactlegislation under their interpretation of the Constitution and theauthority of the non-elected courts to reject this interpretation anddeclare the act void. Where the Constitution speaks with Delphicgrandeur-as in the ninth amendment and the fourteenthamendment's privileges and immunities, due process, and equal protec-tion clauses-the courts' authority to void legislation appears weakestand its tension with the political branches greatest. Here Ely's theory ismost relevant. He eschews disingenuous "plain words" 5

"interpretivism" (1), where the meaning of a clause is anything butplain, as well as its counterpart, the more clearly undemocratic "fun-damental values" (43) or "value-imposing" (73) approach, whichamounts to little more, according to him, than a judge importing hisown notion of the good life into the Constitution and imposing it on therest of the polity (44). Rather, Ely attempts to reconcile his approachwith democracy by making it "process-oriented" and, to the extentpossible, "value-avoiding." This approach, what Ely calls"representation-reinforcing judicial review" (87), endeavors to open thepolitical processes and purify them of prejudice without blockingdemocratic outcomes.

There is much to commend in this work, especially its argument thatjudicial review in a democracy is problematic, that the imposition of ajudge's own values in the name of constitutional adjudication is un-justifiable, and that many approaches to judicial review that claim toenforce "fundamental" values come to little more than the impositionof the judge's own values. But Ely's very success in avoiding "value-imposing" in his theory of judicial review produces an approach that infact exacerbates the tension between the courts and the moredemocratic branches of government at the same time that it yieldsbizarre results. Further, his justification for his "value-avoiding"judicial review fails to overcome the very criticisms he lodges against"value-imposing" judicial review.

To show this I will proceed as follows: A brief exposition of Ely'stheory will point to the central role in it of the analysis of motives andthe identification of suspect categories of legislation. As the reader willsee, certain critical questions arise from this focus. From an analysis ofEly's answers to these and other implied questions, we will be in a bet-ter position to evaluate his justification for "representation-reinforcing"

5. Hugo Black, "The Bill of Rights," New York University Law Review 35 (1960), p.874.

ELY 'S THEORY OF JUDICIAL REVIEW 209

judicial review. Finally, I pick up the burden implied by my criticismof Ely and attempt to outline a "fundamental values" approach to theopen-ended provisions of the Constitution that is not vulnerable to thecriticisms to which he claims all such approaches are subject.

Ely's Theory

"Contemporary constitutional debate," Ely tells us in his preface toDemocracy and Distrust, "is dominated by a false dichotomy" (viv) . Inthe first three chapters, Ely portrays the choice that contemporary con-stitutional debate offers us and shows wherein both schools of thoughtare unsound and their dichotomy false. In chapter four, Ely thendevelops how this false dichotomy might be surmounted with his theoryof "representation-reinforcing" judicial review, and in chapters fiveand six, he elaborates the implication of this theory.

On the one hand, Ely writes of this dichotomous choice, we are of-fered "clause-bound interpretivism" (11) which attempts to overcomethe tension between judicial review and democracy by attributing tothe people themselves the limits applied by the courts. Since the peopleratified the Constitution and courts merely apply that document's"plain words,"° in the act of voiding legislation, "the people areultimately checking themselves" (8).' Though not without sympathyand respect for this approach, Ely finds it untenable. First, the argu-ment that a democratic will checks itself is a "fake" (11), since it invokesan ancient abstraction against a concrete and current majority. 8 Sec-ond, and more significantly for Ely's theory, the Constitution containsseveral important "open-ended" provisions-such as, the ninth amend-ment and the fourteenth amendment's privileges and immunities, dueprocess and equal protection clauses-which "invite" (14) the judges tolook beyond the document's four corners. Thus the clause-bound ap-

6. Ibid.7. Although Ely criticizes interpretivism, he reveals it to be a more sophisticated

and complex approach than it often appeared to be in the arguments of its foremostmodern advocate, Justice Hugo L. Black (3, 8, 12, and 13); see Black, supra note 5;and Hugo Black, A Constitutional Faith (New York: Alfred A. Knopf, 1989).

8. At times Ely seems to suggest that the ancient majority's will is so abstract andvague (14-41), and the current majority's will so "real" (7, 82, and 83), that "constitu-tionalism" itself becomes a suspect restriction on today's democratic will. On "constitu-tionalism" as adherence to the form of government created by the framers, see SartiriosBarber, The Constitution and the Delegation of Congressional Power (Chicago: Uni-versity of Chicago Press, 1975), pp. 38-50.


proach is defeated on its own terms, "hoist by its own petard" (43) : oneof the plainest intents behind these constitutional clauses is to invite thejudges to look beyond their words to determine their meaning (11-41).

On the other hand, we are offered a "fundamental values" (43) ap-proach to constitutional adjudication in which a judge is to accept thisinvitation, in effect, contends Ely, by plugging in "his own values"(44). If these values have no higher status than the fact that they werechosen by a judge, they should not, of course, replace the values chosenby the more democratic decision-makers. Although the "fundamentalvalues" theorists attempt to articulate a foundation above personalpreference, Ely argues that all of their approaches fail.

Each approach he dismisses in turn. "Natural law" (48) he rejects ascurrently "discredited" (50) and so vague that any application of it canamount only to the imposition of the judge's own values (48-54). 8

"Neutral principles" 10 he accurately describes as a characteristic of fun-damental values, not a source for them (54-55). "Reason," a code wordfor contemporary "moral philosophy," dissolves into numerousdisputing schools which make the judge's choice among them a merelypersonal one ( 56-60). "Tradition," like natural law, is vague to thepoint of proving anything, and even if it can be discovered, it isundemocratic because it allows yesterday's majority to control today's(60-63). "Consensus" likewise suffers the vice of vagueness and alsopresents two new problems: the legislatures' registering of consensus islikely to be much more reliable than the courts' and it makes no sense toargue that enforcing a consensus is a way of protecting minorities(63-69); again, the judge must be imposing his or her own values. Andthe "future majority" is something courts can only guess about (and inan undemocratic fashion); further, judges would be shaping that futurethey pretend to discover (69-70).

With the Constitution inviting us to look beyond its four corners todetermine the meaning of open-ended clauses, but with the variousmethodologies that respond to this invitation yielding values with nohigher status than the mere personal preferences of judges, we reach animpasse. Enter then in chapter four Ely ' s "representation-reinforcing"

9. About natural law and its relation to the Constitution, Ely seems to have learnedless from the Founding Fathers than from margarine commercials. He writes: "It's notnice to fool Mother Nature and even Congress and the President shouldn't be allowedto do so" (50).

10. He writes, of course, of the concept identified with Herbert Wechsler,"Toward Neutral Principles of Constitutional Law," Harvard Law Review 73 (1959),pp. 1-35.


(87) judicial review. Built upon paragraphs two and three of JusticeHarlan Fiske Stone's footnote four of the Carolene Products" case, thetheory rests on familiar ground; these two paragraphs-implying that anarrower presumption of constitutionality is appropriate when thelegislation in question either "restricts those political processes that canordinarily be expected to bring about repeal of undesirablelegislation "12 or disadvantages "discrete and insular "13

minorities-form the charter for the "modern era" 14 of the SupremeCourt. The novelty of Ely's theory derives from his argument that theseparagraphs have a common theme and a conceptual coherence thathitherto has not been noticed (76-77). The common theme is "par-ticipation"-"equal participation in the processes of government" (77)and "presumptively equal participation in the benefits and costs thatprocess generates" (77). And the coherence between these two types ofparticipation lies in the concept of "representation," especially a type of"virtual" (82) representation. Accordingly, Ely's theory purports tostructure the discretion of the legislator so "that he would not sever amajority coalition's interests from those of various minorities " (82). Tobe a true virtual representative, the legislator must accord both to ma-jority and minority groups "equal concern and respect " (82).

15

Having shown the "common theme" and "conceptual coherence" offootnote four and thus setting forth the fundamental premise of histheory of judicial review, Ely proceeds, in the last two chapters of hisbook, to develop the import of this idea for the two sub-themes of foot-note four: paragraph two's concern with the "channels of politicalchange" and paragraph three's concern for facilitating "the representa-tion of minorities." "Clearing the channels of political change," as hetitles chapter five, requires an expansive interpretation of freedom ofspeech and the press (105-16), generous protection of the right to vote(116-25), and re-establishment of legislative authority in the legislatureby a re-assertion of the non-delegation doctrine (116-34). Though hisarguments here are not without significance, the more revolutionaryand fundamental part of his theory of "virtual representation" is re-served for his final chapter.

11. United States v. Carolene Products, 304 U. S. 144 (1938).12. Ibid., p. 152 n. 4.13. Ibid., p. 153 n. 4.14. See Henry J. Abraham, Freedom and the Court (New York: Oxford University

Press, 3rd Ed., 1977), pp. 9-23.15. Ely takes this concept from R. Dworkin, Taking Rights Seriously (Cambridge:

Harvard University Press, 1977), p. 180.


Here Ely attempts to show how the courts should "facilitate therepresentation of minorities " (135). Wishing to avoid the evils heassociates with all fundamental values approaches to constitutional in-terpretation, Ely rejects the conventional approaches to the equal pro -

tection clause, which judge whether the distribution of a burden orbenefit is "appropriate" (135). In fact, he argues, we should turn awayaltogether from questions of substance and focus instead on the processthat generated the challenged distribution (136). The proper question isnot whether a distribution is fair, but whether in their decision-makingprocesses the representatives accorded to all parties significantly af-fected, equal concern and respect. Rather than the legislation itself, thekey in Ely's theory then becomes the state of mind of the legislators,their "motives" ( 137).

To square with this re-orientation of judicial focus, other aspects ofconventional equal protection analysis must also be restated. "Suspectcategories" of legislation-traditionally used to identify groups thedisadvantaging of whom is thought substantively wrong-in Ely'stheory is used to identify groups who suffer "prejudice" at the hands ofthe law-making majority regardless of whether that prejudice is right orwrong. And "strict scrutiny"-used to implement the traditional equalprotection requirement that a state may employ a "suspect category" oflegislation only when this is absolutely necessary for compelling statepurposes16-is used in Ely's theory to implement his requirement thatthe legislative process be purified of unconstitutional motives.

The concern for "democracy" in Democracy and Distrust is apparent:"rule in accord with the consent of a majority of those governed," heargues, " is the core of the American governmental system " (7) .But whatis it that Ely "distrusts"? A great deal, it seems. Following directly fromhis concern with democracy, he shares with the advocates of judicialrestraint what Alexander Bickel called the "premise of distrust" 17 re-garding the courts' role in the American polity. On the other hand, healso distrusts the capacity of a democracy of its own accord to maintainthe "processes" necessary for its own decent operation. Yet there is still athird element of distrust that I will argue is stronger than either of theabove: the distrust of human reason (including, of course, the reason ofjudges) to articulate principles that are of higher status that personalpreferences (see, e.g., 53-54) . The thought that the Constitution's open-

16. See, e.g., McLaughlin v. Fla., 379 U. S. 184 (1964).17. Alexander M. Bickel, The Least Dangerous Branch (Indianapolis: Bobbs-

Merrill Company, 1962), pp. 34 and 34-72.

ELY ' S THEORY OF JUDICIAL REVIEW 213

ended clauses may oblige the Court to engage in "value-imposition" (73)fills Ely with fear; he repeatedly refers to this possibility as "pretty scary"(20 and 34) and "frightening" (21) . It is this fear of judging, I will argue,that causes his theory to heighten the tension between judicial reviewand democracy and to permit untenable results.

Informed by this fear of judging, Ely attempts to distinguish his ap-proach from those involving "value-imposition" by saying that his is"process-oriented " (6, 87, 103, 136). As his footnotes make clearer thanhis text (see, e.g., footnotes at 75 and 87), Ely realizes there are prob-lems with this characterization. When a court imposes a process itvalues over the one chosen by the legislature, it engages in a type of"value imposition."18 And when a court requires "presumptively equalparticipation in the benefits and costs"(77) of legislation, its concern ishard to describe as "process-oriented." How Ely would distinguish aninappropriate concern with fair "distribution" of benefits and costs(i.e., an admitted substantive concern [135-36]) from an appropriateconcern with fair "participation" in benefits and costs is less thanpellucid.

Nevertheless, his terms do indicate his aspirations: he wishes histheory of judicial review to be as "value-free" and as "process-like" aspossible. The focus on motives seems calculated to aid both endeavors.' 9

By focusing exclusively (136) on the motives of the legislators, Ely'stheory is freed from making value judgments about the product of theirmotives. And while his theory does impose the value of good motives, itmandates no substantive outcome; the approach only requires that thelegislature have good motives for reaching that substantive outcome.

The centrality of motive analysis to Ely's theory raises three ques-tions: According to his theory, to what extent should illicit motivesdetermine the constitutionality of legislation? How is the presence ofan illicit motive to be proved? How are "suspect categories"-where, as we shall see, his motive analysis plays a special role-to bedetermined? Our inquiry into these and other implied questions will il-luminate his key concepts of "virtual representation" and "equal con-

18. For a similar argument see Tribe, supra note 3. By criticizing Ely 's exclusiveconcern with process, however, Tribe implies that Ely has been successful in ar-ticulating an exclusively process-oriented judicial review. As I will develop, text infraat notes 58-66, his concern with "representation of minorities" is best understood assubstantive.

19. Ely does carefully limit his motive analysis to the distribution of goods that arenot constitutionally mandated.


cern and respect" and will reveal something about the paradoxicalmotivations behind Ely's enterprise. His theory, as Clifford Orwinwrote in a different context, "attests concern untainted by cen-soriousness. It implies caring without judging, and acting morallywhile refraining from enacting one's own morals. "20 It bespeaks both apassion for justice and a fear of judging.

Illicit Motives and Constitutionality

Partly because of the volatile character of court doctrine on the ques-tion, 21 the extent to which illicit motives should determine the constitu-tionality of legislation is a subject of great controversy. 22 This is not theplace to analyze the complex dimensions of the debate, but it will proveuseful to place Ely's approach among the three major models: what hasbeen called a "but for"23 model and what I shall call here the

20. Clifford Orwin, " Compassion, " American Scholar 49 (1980), p. 316.21. In discussing this change in the Court's approach to motives, Ely exaggerates its

dimensions. He writes:

As recently as 1971 [the Court] indicated that "no case in this Court"-surelythat historical claim was wrong- "has held that a legislative act may violateequal protection solely because of the motivations of the men who voted forit.... " In two cases decided in 1976 and 1977, however, the Court has gone justthe other way indicating that "[p]roof of racially discriminatory intent or pur-pose is required to show a violation of the Equal Protection Clause " (136-37,footnotes omitted).

Actually, the two statements are perfectly compatible if we understand strictscrutiny to be triggered when two conditions are met: a) there is prima facie evidenceof a desire to discriminate and b) there is no legitimate and sufficient reason for thelegislation. The first statement suggests that a) alone is insufficient, the second that a) isnecessary.

22. In addition to Ely's articles, supra note 2, leading articles on the subject includePaul Brest, "Palmer v. Thomson: An Approach to the Problem of UnconstitutionalMotive," Supreme Court Review (1971), pp. 95-146; George C. Christie, "A Model ofJudicial Review of Legislation," Southern California Law Review 48 (1975), pp.1306-1356); J. Morris Clark, "Legislative Motivation and Fundamental Rights in Con-stitutional Law," San Diego Law Review 15 (1978), pp. 953-1039; TheodoreEisenberg, "Disproportionate Impact and Illicit Motive: Theories of ConstitutionalAdjudication," New York University Law Review 52 (1977), pp. 36-171; and Larry G.Simon, "Racially Prejudiced Governmental Actions: A Motivation Theory of the Con-stitutional Ban Against Racial Discrimination, " San Diego Law Review 15 (1978), pp.1041-1130.

23. Brest, supra note 22, p. 116.

ELY'S THEORY OF JUDICIAL REVIEW 215

"democratic authority" and "individual rights" models.Though the Justices do split regarding its specific elements, the

Supreme Court now backs a "but for" approach; 24 that is, the legisla-tion is declared void if it would not have passed "but for" thediscriminatory motive. Under this approach the challenger must firstprove that discrimination in some significant degree did motivate thedecision-makers; then the burden of proof shifts to the latter to showthat they would have passed the legislation even without the support ofillicit motives. This approach does have virtues: a political body shouldnot be blocked from carrying out a decision if it has constitutionallysound and adequate support to reach it; an individual should not suffera hardship that would not have occurred but for the unconstitutionallymotivated support. On the other hand, problems of proof riddle the ap-proach. What evidence should be held to indicate a discriminatorymotive? What evidence should be held to prove that the legislationwould have passed even without the support of discriminatory motives?Do we weigh the discriminatory impulse of each legislator to seewhether he or she would still vote for the measure and then see if it hasmajority support? Or, on the other hand, do we aggregate the propor-tion of licit and illicit motives in each legislator? And we must keep inmind that at the federal level at least the legislators will be privilegedfrom taking the witness stand.

25

Regardless of how one answers these questions, errors in applicationare inevitable; some people will bear hardships that would not havebeen inflicted but for illicit motives, and some legislation with adequateand constitutionally sound support will be declared void. Dependingon which of these two evils is considered greater, one might find otheralternatives attractive. Showing more concern for maintaining"democratic authority," one could argue that wherever a rational,legitimate explanation exists, perhaps even one hypothesized by thecourt, no showing of discriminatory motives can void the legislation.

2e

Or, showing more concern for "individual rights," one could say that ifthe challenger can show the legislation was motivated in some signifi-

24.Arlington Heights v. Metropolitan Housing Corp, 429 U. S. 25 (1977), especial-ly n. 21.

25. United States Constitution, Article I, Section 6, Clause 1.26. Although he calls it an "effects " rather than a " motivation " approach, and the

context of its application is limited, Justice Stevens puts forward a test much like this inhis concurring opinion in Mobile v. Bolden, 446 U. S. 55, 83-94 (1980).


cant way by an illicit motive it is void; the defendant should have noopportunity to show that it would have passed anyway.

Determining which of these approaches Ely favors, and why, canshed some light on the rank order of the elements of his distrust. If hefavors the "democratic authority" model of motive analysis, his distrustof courts in a democratic polity would appear greater than his distrustof democracy; if he favors the "individual rights" model, his distrust ofthe democracy's capacity to maintain its "processes" would appeargreater than his distrust of the courts. Though not without ambiguities,Ely's preference seems to have shifted from a democratic authoritymodel in his influential 1970 article, "Legislative and AdministrativeMotivation in Constitutional Law,"27 to an individual rights model inDemocracy and Distrust. Starting with the more recent statement, wewill analyze both.

Compared to his expansive treatment of motives in his 1970 article,Ely's analysis in Democracy and Distrust is laconic, in spite of the factthat his thoughts on the subject have clearly undergone revision (see,e.g., 243, notes 15 and 16). His central question for the courts is nowthis: "whether an unconstitutional motivation appears materially tohave influenced the choice; if one did, the procedure was il-legitimate-'due process of law making' was denied-and its productshould be invalidated" (138, footnotes omitted). To be sure, "materialinfluence" is subject to a variety of interpretations, but the generalthrust of Ely's argument squares with the most obvious interpretation, 28

that is, an "appreciable role. "28

The latter phrase comes from the dissenting opinion of JusticeThurgood Marshall in Personnel Administrator of Massachusetts v.Feeney. 30 Here he implemented what I call the "individual rights" ap-proach to motive analysis in a fashion that appears to comport perfectlywith Ely's goal, assuming he is serious about it, of purifying thepolitical processes of illicit motives. The act in question31 granted an ab-solute preference for qualified veterans in civil service positions and

27. "Motivation, " supra note 2.28. This interpretation is backed by a more explicit footnote statement: "Proof of

an unconstitutional motivation should always suffice to invalidate a governmental ac-tion: due process of lawmaking has been denied in all cases" (45 n. 36, emphasisadded).

29. Personnel Adm'r of Mass. v. Feeney, 442 U. S. 256, 282 (1979) (Marshall, J.,dissenting).

30. Ibid.31. Massachusetts General Laws Annotated, chapter 31, section 23.


thus worked to the clear disadvantage of women, who as a class aremuch less likely than men to be veterans. But to what extent, if any,was the disadvantaging of women the motive of the Massachusettslegislature? The majority, using traditional motive analysis, upheld theact. Justice Marshall dissented, arguing that the wrong test had beenapplied, that the proper question was whether an illicit motivation hadplayed "an appreciable role in shaping a given legislative enactment.

"32

The method for establishing this is to require a plausible showing fromthe challenger that there was a discriminatory motivation (which Mar-shall, contrary to the majority, found present) and then to put theburden on the state to establish that illicit considerations "played nopart in the choice of the particular legislative scheme.

"33

Several troubling consequences attend this "individual rights" ap-proach to motive analysis. 34 First, inconsistent law would result. Thiscriticism, of course, applies to all motive analysis-the same law wouldbe declared constitutional or not depending on the motives behindit-but it applies to Ely's and Marshall's "individual rights" approachwith special force. Not only the same law, but the same law with thesame impact and the same sufficient and dominant purpose will beconstitutional or not depending on whether a motive behind it was il-licit. Second, the demand for pure motives would inhibit the robust ex-change of ideas in the legislature as candor would be tempered withcaution. Beyond this is the question of deference. When a legislaturehas adequate and constitutionally sound support for a measure, voidingthe legislature for bad motives is demeaning and is likely, as ProfessorArchibald Cox has argued, to "maximize not merely institutional fric-tion, but personal animosity between members of the legislative andjudicial branches."

35

Since these consequences would heighten rather than lessen the ten-sion between judicial review and democracy, one might reasonablyconclude that Ely distrusts democracy more than the courts. On theother hand, in his 1970 article, Ely advocated the democratic authoritymodel, suggesting that he then at least distrusted the courts more than

32. 442 U. S. 256, 282 (1979).33. Ibid., p. 284 (emphasis added).34. For an analysis similar to what follows, see Bickel, supra note 17, pp. 208-221.35. Cox, supra note 3, p. 713. Cf. Kenneth Karst, "The Costs of Motive-Centered

Inquiry," San Diego Law Review 15 (1978), pp. 1165-1166 (contending that "[a]motive-centered theory forces the litigants in a race case into name-calling on the oneside and self-righteousness on the other").


democracy. For the central thrust of Ely's current theory, however,there is less in this shift than meets the eye; as will be developed below,Ely simply recognized an inconsistency in his first formulation. Whatlies deeper in his thought, and beneath both approaches, is a distrust ofvalue judgments.

This distrust of value judgments is most evident in Ely's 1970 arti-cle, though it continues unabated in this current work on judicialreview. In this article Ely attempted to overcome three commonlyvoiced objections to voiding legislation because of the motivesbehind it: ascertainability-when there is a licit, rational justifica-tion for the legislation, the courts cannot determine with certaintythat the legislation was passed because of the illicit motivation;

30

futility-a legislature can respond to the voiding of the act by pass-ing it again, this time constructing a legislative history that revealsonly good motives; 37 and disutility-legislation that is good and ra-tional may be knocked down. 38 These objections have force, heargued, only where the legislation is susceptible to a "rational basis"test, that is, a determination that there exists a "rational" relationbetween the legislation's means and end. 39 But some legislation, hecontended, is privileged from this test because the question of "ra-tionality" is simply not appropriate. His examples are acts involvingrandom choice (such as selecting members for a jury or determiningthe exact boundaries of a municipality or voting district) 40 anddiscretionary choice (such as the promotion of the general welfare or"good taste") . 41 Here, he argued, the courts should use the finding ofillicit motives to trigger the demand for a rational basis, 42 which ofcourse the legislation cannot meet.

This approach would allow the courts to handle "intuitively" un-constitutional acts (such as a redistricting that excluded most blacks)without resorting to what he regards as an untenable "differentialimpact" doctrine. 43 And limited to non-rational legislation, it would

36. "Motivation," supra note 2, pp. 1212-1214.37. Ibid., pp. 1214-1215.38. Ibid., pp. 1215-1216.39. Ibid., pp. 1228-1230.40. Ibid., pp. 1230-1235.41, Ibid., pp. 1235-1249.42. Ibid., p. 1269.43. Ibid., pp. 1249-1250, 1274. He rejects the differential impact test because of

the massive transformation it would require in virtually all distributive programs, thenear impossibility of achieving equal impact, and its tendency "to weaken the


overcome the three objections to motive analysis. The illicit motives,he argued, could be ascertained with greater confidence since therewould be no other rational explanation for the act; 44 the legislaturecould not repass the legislation easily since it would have difficultyarticulating a rational justification for it;

45and disutility would not

be great since the polity would "only" lose the benefit of legislationthat was not rational. 46

This is a clever argument and it looks like a good one-if one ac-cepts Ely's premises: that there is a difference of constitutionalsignificance between "rational" and "non-rational" decisions andthat the former are of higher status than the latter. 47 For Ely, "ra-tional" or "irrational" choices are those that can be empirically orlogically verified or refuted; "non-rational" choices, such as thoseregarding the Good, the Beautiful, the Virtuous, or the generalwelfare, are simply on a different plane of discourse. 4 8 Those, hetells us, are merely "judgments of taste.

"49They are like saying "that

spinach is tastier than broccoli." 50 Such distinctions are, of course,commonly made in contemporary philosophy 51 and it might beargued, somewhat tautologically, that rational decisions are of ahigher status than non-rational decisions in that only in the formersphere is "knowledge" possible. But should the Constitution bemindful of this distinction and this ranking of value judgmentsbeneath empirical ones?

To answer this we must first endeavor to understand what Elymeans. One might think he means that an attempt to promote goodtaste always involves a value choice and is therefore "rationally"unintelligible. But all legislation involves a "value" choice. Evenlegislation restricting the fitting of glasses to the practice of

educative force of its concurrent instructions that a man is to be judged as a man, thathis race has nothing to do with his merit. " Ibid., pp. 1256-1279.

44. Ibid., pp. 1275-1279.45. Ibid., pp. 1279-1280.46. Ibid., pp. 1280-1281.47. Ibid., pp. 1237-1241.48. Ibid.49. Ibid., p. 1239.50. Ibid.51. For a comprehensive history and analysis of this mode of philosophy, especially

political philosophy, see Arnold Brecht, Political Theory (Princeton: Princeton Univer-sity Press, 1959)


ophthalmologists and optometrists62 involves a value choice thatgood eyesight (slight though the benefit to it might be) is more im-portant than the economic well-being of opticians. Perhaps whatEly really means is that the means/goal relation must be rational; 55

for instance, drawing upon the example above, there must be someascertainable relationship between the favoring of ophthalmologistsand optometrists and the promotion of good eyesight.

But one must wonder even so if the distinction between rationaland nonrational legislation so understood is a distinction with a dif-ference. One example he gives of non-rational legislation is the ban-ning of sneakers to promote good taste. 54 The notion that wearingsneakers is in bad taste does involve a value judgment (as does favor-ing good eyesight over the economic well-being of opticians). But isthe relation between the clearly implicit goal (causing people toregard the wearing of sneakers as in bad taste) and the means (ban-ning the wearing of sneakers) not susceptible to empirical investiga-tion? It is hard to believe, given the science of polling, that this rela-tion would be more difficult to verify than that concerning opticiansand good eyesight.

For the sake of argument, however, I will assume that Ely isright-that there is a difference between the sort of justificationswhich can be given for legislation promoting good health and thosewhich can be given for legislation promoting "good taste," that onlythe former can be "rationally" justified, and that motive analysis isappropriate only for the latter. Are the consequences acceptable?Say that a Mississippi school board votes for two measures: one, onthe surface designed to promote good health, requires that allchildren wear heavy coats to school during the winter;

55the other,

on the surface designed to promote good taste, requires that allsophomores take a music appreciation course concentrating on " theclassics." Beneath the surface we find mixed motives. One strongmotivation behind the heavy coat act turns out to be an attempt toprevent large numbers of blacks from attending the school; the

52. Williamson v. Lee Optical Co., 348 U. S. 483 (1935), the classic example oflegislation surviving the "rational basis" test.

53. Note, "Motivation, " supra note 2, p. 1241.54. Ibid., p. 1239.55. The "heavy coat" example is drawn from Ely, ibid., p. 1279. I have followed

Paul Brest's suggestion, supra note 22, p. 138, in setting the example in Mississippi, ap-parently the only state in the Union without a school attendance requirement.


school board knew that many blacks are too poor to afford what inMississippi is something of a luxury. For the most part, the motivesfor the music appreciation course are those appearing on the sur-face, but one member of the board, annoyed by contemporary soulmusic, was partly motivated by the thought that blacks might behurt by a course that did not number their current idols among thegreats of Western music.

Both acts are challenged in court. The first is attacked by a largenumber of blacks who can afford heavy coats only with great hard-ship. The second is attacked by a couple of students who argue thatthe failure to include contemporary soul music affronts black pride.Under Ely's original formulation, the heavy coat requirement wouldstand and the music appreciation course would fall. The former haswhat the latter lacks, a "rational" justification (it does, minimally atleast, promote good health) . Perhaps to one steeped in the niceties ofmodern positivism, this outcome may make sense. To most citizens,however, to void on the one hand a regulation that (by hypothesis)does promote good taste and incidentally works a negligible harm,while to validate on the other hand a regulation that barely pro-motes health and that purposefully decimates the school's blackpopulation-to most citizens, such an outcome must seem bizarre.

At the outset of this inquiry into Ely's earlier approach to motives,I said that his argument "looks" good if one accepts his premise thatthere is a constitutionally significant distinction between rationaland non-rational relationships. If the above analyses are correct,however, the distinction is meaningless in the equal protection con-text, and even if we grant it the meaning that Ely wishes, thepremise brings untenable results. But even if we assume both thatthe premise has meaning and that it does not bring unacceptableresults, the argument is flawed on yet another and distinct basis. It isimportant to note that this flaw is distinct, for it was this flaw, andnot the value avoidance problem developed above, that promptedEly's switch from a "democratic authority" to an "individual rights"mode of motive analysis. His distrust of value judgments continuesunabated into his current theory.

The flaw is easily seen. As the examples of the Mississippi schoolboard imply, where acts are neutral on their face, even though cleardesigns to discriminate lie beneath them, Ely would have subjectedthem to the "rational basis" test, which few acts fail. 5e On the other

56. Ely' s reason for deference was that, in the face of a plausible rational explana-


hand, where the design to discriminate appears on the face ofstatutes, Ely would have subjected them to the "strict scrutiny" test,which few acts pass. Why covert discrimination should be treatedmore kindly than overt discrimination is far from clear.

Responding to a criticism by Professor Paul Brest57 of this curiousdistinction, Ely in Democracy and Distrust came to agree (138, 139,145-48, and 243, notes 15 and 16) that the strict scrutiny whichcourts apply to overt discrimination should apply to covertdiscrimination as well. This change, rather than further reflectionon the nature of democracy and liberty, is apparently what pushesEly's approach to motives from a democratic authority towards anindividual rights model. Whereas before, upon a finding of adiscriminatory motive, only the non-rational acts would fall, nowvirtually all acts so affected (and thus now subject to strict scrutiny)would fall. The more pervasive use of strict scrutiny has the furthersignificance of preventing the bizarre outcome notedabove-voiding "non-rational" legislation while validating "ra-tional" legislation when both are tainted with an unconstitutionalmotive-an outcome resulting directly from Ely's attempt to confinevalue judgments to a restricted and inferior cell in constitutional ad-judication.

We should not suppose, however, that Ely gave up his constitu-tional epistemology: still distinct from logical reasoning and em-pirical judgments, value judgments are to be shunned. In fact, it isthis very fear of value-laden judging that completes Ely's movementto an individual rights approach to motive analysis. His journey isworth reconstructing, even if we can only speculate about the se-quence of his steps.

Discovering that by logical necessity strict scrutiny lay at theheart of his approach to motives, and mindful that motives lay at theheart of his theory of judicial review, Ely was brought face to facewith his bete noire, value judgments, for traditionally understoodstrict scrutiny is essentially a means of weighing values. 58 It askswhether the state's purpose is of sufficient moment and whether thestate's chosen means are really necessary to achieve that purpose in

tion, one could never "know" that the discriminatory motive was the real one.Notably, he did not brood about such epistemological niceties when the surface ex-planation was "non-rational."

57. Brest, supra note 22, p. 136.58. See, e.g., McLaughlin v. Florida, 379 U. S. 184 (1964).


order to justify the hardship that is imposed on an individual orgroup. Such explicit weighing of values, of course, would not do fora jurisprudence of value avoidance, so Ely found it necessary torestate the function of strict scrutiny. Properly understood, heargues, it is not an evaluative but an empirical tool that operates as atwo-step means of "flushing out" (146) illicit motivations.

In its first step, the test demands the best possible fit between thelegislative classification and its goal. Often, only the goal that thelegislature actually had in mind will fit the legislative classificationthat well (147). If this proves to involve an illicit purpose, then thelegislation must fall. But sometimes both a licit and an illicit goalwill match the legislative classification perfectly. Ely's example,drawn from Paul Brest, 59 is "the school principal who seats theblacks on one side of the stage at the graduation ceremony and thewhites on the other, and defends it in aesthetic terms" ( 148). Theclassification matches the goal perfectly, but one "suspects" that theprincipal had something else in mind.

As a proxy for sincerity, the second step is then taken: the defen-dant state agent must show that the ostensible purpose was not justlegitimate but compelling. "Aesthetic segregation" at the graduationceremony of course falls short and Ely observes that this goal is "sotrivial in context that you have to believe it's a rationalization for aracially motivated choice" (148).

Ely seems to have thought that this transformation of strictscrutiny from an evaluative to an empirical tool saved him from thetask of value judging. But, of course, the transformation does noteliminate the task; it merely displaces it. Once one ferrets out an un-constitutional motive, one must still decide what to do with it. Ap-parently made aware of the need to respond to this question, Elythen placed his answer in a footnote: "proof of an unconstitutionalmotivation should always suffice to invalidate a governmental ac-tion" (254, note 36). This answer brings him to the individual rightsschool of motive analysis.

The attraction of this school is not hard to see; it appears morevalue-free. The automatic invalidation of legislation that is in someway illicitly motivated seems even mechanical. But of course weshould not be deceived, for behind the machinery is a significantvalue judgment: necessity and importance of legislation in any wayshort of compelling can never counterbalance the presence of an un-

59. Brest, supra note 22, p. 143.


constitutional motive. Ely cannot avoid the question in each case ofweight and balance; he would simply prepackage his answer.

Proving Illicit Motives

From one angle this approach does seem very solicitous of in-dividual rights: the intentional infliction of small harm by a smallpercentage of legislators will invalidate a law passed with constitu-tionally sound and overwhelming support. But from anotherperspective, his restatement of strict scrutiny, if it would achieve hisobjective, seems to come at some expense to an individual's securityagainst what under conventional theory would be regarded asdiscrimination. For instance, in the above example, if the principalturned out to be truly sincere regarding his aesthetic preferences andmerely insensitive regarding race relations, the courts might appearto be powerless under Ely's model to block such a seating arrange-ment. B ° And this danger is not limited to fantastic hypotheticals. Infact, in a passage from the second chapter of Democracy andDistrust, Ely clearly implies that segregation and discrimination(conventionally understood) can take place without bad motives.

As Prof. Cox has observed, "Honest men not only could, but many do, concludeafter serious study that the academic progress of children is greater when theraces are segregated." Indeed, apartheid generally is a rational, if misguided,means of avoiding racial strife, and one might rationally distribute jobs on thebasis of color-giving what we generally think of as the better ones towhites-in light of the statistical reality, however invidious its historical roots,that blacks by and large are not as well educated in our society as whites. " (31,footnotes omitted) 01

60. As will be developed shortly, it is only because Ely uses the "compelling state in-terest" requirement as an imperfect proxy test for sincerity that he gets the results thathe wishes.

81. Here it is the manifest injustice of these practices to which Ely points in order tomake his case that something more stringent than the traditional rational basis testmust be used when racial discrimination is involved (31). His later justification forstricter scrutiny, however, rests not on the premise that segregated schools, apartheid,and job discrimination are manifestly unjust, but that "due process of lawmaking hasbeen denied" (138, footnote omitted), in that behind the legislation lie bad motives. Allwould be well between these two justifications if what prompted the first justificationdid not deny the second-not all instances of racial discrimination are backed by badmotives.


If Ely's theory is saved from validating discrimination in suchcases, it is only because he is not entirely serious about achieving itsgoals. And he may not be. His theory's goal is the cleansing of thepolitical process of illicit motivation, and accordingly, as we notedabove, he says that "[p]roof of an unconstitutional motivationshould always suffice to invalidate a governmental action" ( 245,

note 36). But there is a fudge in the proof. Ely considers an un-constitutional motive to be "proved" when it is "revealed" throughthe methodology of strict scrutiny. Since strict scrutiny was designedfor another end, preventing substantive injustice, one must questionits effectiveness in serving Ely's ends. This possibility of a mismatchbetween Ely's ends and means and our natural suspicion of hismotives make irresistible a "strict scrutiny" 82 of his strict scrutinymethodology to see if we can discover motives other than thosestated on the surface.

Again, his articulated goal is to void legislation challenged underthe equal protection clause when it is backed by an unconstitutionalmotive and to validate such legislation when the motives are pure.His means, however-requiring that there be a "perfect fit" be-tween the means and the end of the legislation and that the end be"compelling"-provide a far from perfect fit with his goal. Hismeans are "overinclusive" since (in addition to most legislation thatwas illicitly motivated) they would also void legislation backed bypurely non-discriminatory motives as long as those motives were notweighty enough to meet the compelling state interest requirement(for example, the eccentric aesthetic desires of the principal, the ad-

Improbable though it may seem, there is a reconciliation of sorts. Ely makes hisdetermination of bad motives at the wholesale level. As will be explored in more detailbelow, he would have the courts determine that illicit motives generally underlie cer-tain categories of legislation and then assume that a particular act was so motivatedunless the defendant state agent could pass the strict scrutiny test of purity. By placinga heavy burden of proof and justification on the state, his theory would thus reduce theinstances where manifestly unjust legislation would have to be upheld because badmotives were not present, But something is lost in this reconciliation, namely Ely ' sclaim to articulate a process-oriented judicial review that is value-avoiding; awholesale concern with whether a group is ill-treated bespeaks a substantive concernwith fairness.

62. In so using strict scrutiny, I am of course frankly acknowledging that it can beused to ferret out motivations. I am arguing here only that its usefulness in such anendeavor is far from perfect and less than that of other approaches.


ministrative convenience of using race as a proxy test for job skills83 )

And his means are "underinclusive" since (in addition to mostlegislation that was purely motivated) they would validate legisla-tion that was illicitly motivated as long as there was a compellingpurpose accompanying the discriminatory one (as, for example,might occur in time of war or race riots when compelling necessitymay join forces with base animosities84 )

Since Ely's means only partially fit his articulated goal, we mustthen ask, first, if there are alternative means that better serve thisgoal and second, if there is a goal that is better served by his chosenmeans. Alternative means, more directly serving his articulatedgoal, are not hard to imagine. In fact, on the supposition that Elywas really serious about his goal, we observed above how JusticeThurgood Marshall outlined an approach in Personnel Ad-ministrator v. Feeney that served this goal quite well. In such an ap-proach the presence of a compelling state purpose is a relevant butnot exclusive concern in showing that illicit motives played no part.Similar tests have been articulatedB5 and Ely must have beenfamiliar with them (146). 08

63. Ely might object that these examples of segregation and job discriminationwould be handled by the first step of the strict scrutiny test, the demand for a perfectfit; the classifications do not seem to fit perfectly the goals of better learning and moreskilled workers. That is true, however, only if one states the goal as unitary and simplerather than multiple and complex. See, for example, this description of a possiblejustification for segregated schools:

to assure a historically disadvantaged racial minority an equal opportunity todevelop educational curricula and programs more responsive to their needs,free from domination in schools in which their children might otherwise beoverwhelmed by a racial majority. William Van Alstyne, "Rites of Passage:Race, the Supreme Court, and the Constitution," University of Chicago LawReview 46 (1979), p. 796.

See also Note, "Legislative Purpose, Rationality and Equal Protection," Yale LawJournal 82 (1972), p. 123.

64. Cf. Korematsu v. United States, 323 U. S. 214 (1944).65. See, e.g., Brest, supra note 22, pp. 117-118.86. Ely does offer a clause to suggest why he might not use "a more direct inquiry":

Thus, functionally, special scrutiny, in particular its demand for an essentiallyperfect fit, turns out to be a way of "flushing out" unconstitutional motivation,one that lacks the proof problems of a more direct inquiry and into the bargainpermits courts (and complainants) to be more politic, to invalidate (or attack)


Since alternative and more effective means exist to achieve his ar-ticulated goal, and since Ely must be aware of them, our suspicionmust grow that what he articulates is only part of the story. Oursuspicion is confirmed when we note that his means match perfectlythe conventional equal protection goal of substantive justice. Hisstrict scrutiny would prohibit segregation generally even if in par-ticular instances there were pure motives behind the practice. Con-versely, his approach would permit segregation if it were trulynecessary for a compelling state interest, even if some discriminatoryhostility accompanied the legislation. In spite of this evident concernwith substantive justice, his fear of judging causes him to dress hisapproach in the guise of process orientation and value-neutralism.And it is not simply dressing; for in the final aspect of his equal pro-tection analysis to be examined-the determination of whatcategories of legislation merit this more exacting scrutiny-we seethat he does in fact approximate his aspirations to define a value-free, process-oriented jurisprudence. But to the extent that he suc-ceeds, his theory heightens the tension of judicial review withdemocracy and brings results that are bizarrely inequitable.

something for illicit motivation without having to come right out and say that'swhat they're doing.

By "proof problems " Ely must mean either accuracy or manageability. If he means ac-curacy, it is hard to see how the problem is solved by substituting an admittedly less ac-curate method. If he means manageability, he has a point, but not a strong one. Strictscrutiny itself is not easily managed and manageable methods are available for thecourts to use in more directly ascertaining motives, see Brest, supra note 22, pp.120-125 and Arlington Heights v. Metropolitan Housing Corp., 429 U. S. 252, 266-68(1977). Also, if Ely is serious in his argument that motives are the key to equal protec-tion analysis, the additional difficulties for the courts would clearly be worth the ef-fort.

Ely's second point-that it is more "politic" for the courts to invalidate on the basisof motives without admitting what they are doing-is hard to square with the rest ofhis analysis. If a court does not admit that it is invalidating on the basis of illicitmotives, then it must admit that it is invalidating on the basis of unfairness; that is, thecourt would admit that it is invalidating on the basis of old-fashioned value imposition,which Ely says is incompatible with the regime's basic premises. Also, if Ely is con-cerned with the courts' maintaining "politic" relations with the more democraticbranches of government, disingenuous rulings can hardly aid the cause, see text infra,at notes 69-70.

In sum, Ely does not alleviate our suspicion that he really wants to do a little value-i mposing of his own.


Determining Suspect Categories

Initially cautious, Ely grounds his analysis in the intention of theframers of the fourteenth amendment by extending "suspect" status on-ly to legislation harming groups that are "racelike" (149). In measuredsteps, he then argues that the defining character of this condition in-heres not in immutability, stigma, or even discreteness and insularityper se, but rather in the suffering of a prejudice present in the lawmak-ing majority (150-53). It is this prejudice against a group that puts it ata disadvantage in the legislative process, even though it may be ac-corded every formal element of access and participatory rights. Thetroubling aspect of this analysis follows. How do we determine that agroup generally suffers prejudice? And for Ely, this is the question, nothow do we determine whether the prejudice is "unjustified" (153). Thatwould involve a value judgment.

According to Ely, there are two types of prejudice. First is the ob-vious case of known hostility (153), what he calls "first degree" (157)prejudice, as at least more commonly in earlier times existed againstblacks and (since we need not worry about justification) does nowexist against robbers and rapists. Then there is second degree prej-udice, which results from an "inaccurate" (again, not necessarilyunjustified) stereotype that works to a group 's disadvantage (157),as exists, for example, against homosexuals and aliens. Both types ofprejudice indicate that the legislators failed to accord a group equalconcern and respect. In first degree prejudice the welfare of thegroup is valued "negatively" (157), in second degree prejudice thewelfare of the group is simply ignored or valued "at zero" (157).

There is something ludicrous about making criminal penalties,imposing as they do a burden on a group against which there ishostility, subject to strict scrutiny. But disarmingly honest, Ely ad-mits that this is exactly what his theory requires. For him, however,this is no problem because these classification schemes would passconstitutional muster without difficulty. The goal is substantial,"and the fit between that goal and the classification is so close, thatwhatever suspicion such a classification might under other cir-cumstances engender is allayed so immediately it doesn't even havetime to register " (154).

But let's think slowly. In equal protection analysis there are twoaspects to the question of "fit." One is the "spatial" question of over-


inclusiveness and underinclusiveness. B7 But the analysis cannot stopthere. Requiring robbers to carry water pistols and rapists to wearpolka-dotted underwear, for example, "fits" the goal of protectingperson and property in the sense that this distinctive requirement isreserved for those who commit these crimes, but the means woulddo little to promote any reasonable goal. Thus it is necessary to ask asecond question, that of causation: do the means substantially fur-ther8 8 the legislative end?

Ely seems to have the "spatial question" in mind in asserting thatthe fit is "so close" that suspicion "doesn't even have time toregister." But when we look at what causal relation lies between thepunishment of criminals and substantial social goals, rememberingthat hostility is an illegitimate motivation for punishment, we mustconclude that the fit between the classification and the goal is farfrom perfect. Since retribution imports hostility, we cannot considerit a legitimate reason, under Ely's theory, for punishing criminals.But we still have several dimensions of causation that would seem tojustify punishment. First, by imprisoning an individual for a timewe incapacitate him from committing future crimes. Second, bymaking clearer to him the consequences of crime we "modify" hisbehavior, either by changing his attitude or by causing him torecalculate the costs and benefits of criminal behavior. And third,by punishing this individual, we make known to others the conse-quences of crime and similarly modify their behavior, that is, weachieve general deterrence. If we think this causal connection istight enough to pass strict scrutiny and justify punishing criminals,we should also note that the same reasoning would justify punishinginnocents.

To develop this point we should cast outselves into a future ofscientific wonder in which psychology has developed a machine

67. This seems to have been the dimension emphasized by Joseph Tussman andJacobus tenBroek, "The Equal Protection of the Laws, " California Law Review 37(1949), pp. 341-381, and criticized in Note, supra note 63.

68. This aspect of the inquiry might be considered in reality a due process con-sideration, see, e.g., Weaver v. Palmer Bros. Co., 270 U. S. 402 (1926); if so we cansimply say that equal protection has a due process component to it. Professor GeraldGunther has gone further in suggesting that the requirement "that legislative meansmust substantially further legislative ends" can be considered by itself a requirement ofthe equal protection clause, Gerald Gunther, "The Supreme Court, 1971Term-Foreword: In Search of Evolving Doctrine on a Changing Court: A Model fora Newer Equal Protection, " Harvard Law Review 86 (1972), pp. 20 and 42.


capable of measuring with pinpoint accuracy a person's propensityto commit crime (PCC). Two individuals giving identical readingson the PCC meter are brought before us for sentencing; one hascommitted a crime, the other has not. The causal relations would bejust as tight for punishing the innocent as the guilty. First, in-capacitation of the innocent would be as likely to reduce crime aswould incapacitation of the guilty. Second, behavior modificationof the innocent would function in the same way, either changing hisattitude or causing him to recalculate the costs and benefits ofcrime, as would behavior modification of the guilty. Regardinggeneral deterrence, some applied research may be necessary. It mayturn out that one could cause a significant number of people toreduce their PCC below the punishment threshold merely bythreatening all who yield a certain PCC reading with the techniquesof behavior modification. (This would most likely be the case ifmodification were pursued through imprisonment or the impositionof some other severe hardship rather than more tender-heartedmeans.) If general deterrence does work this way, then again we arefully justified under this causal model in treating the innocent as wewould the guilty. We may find, however, that people are principal-ly deterred by seeing someone punished who they believe actuallycommitted a crime. But this finding would not change the justifica-tion for punishing the innocent. All that is important is that the peo-ple generally believe that the person punished is guilty of the crime;he need not actually have committed it.

In spite of the nearly identical causal connection, most of uswould recoil from imposing punishment of the innocent, and for onevery good reason: innocent people should not be punished. But whatfor most citizens constitutes the decisive question-whether thehostility, first degree prejudice, is justified-Ely categorically ex-cludes. And the theory implies an even greater perversity. Thepunishment of the innocent might not even have to pass strictscrutiny since it could well be free from hostility; it might be movedby a cool calculus and therefore would only have to survive a ra-tional basis test.

The point of this analysis, of course, is not that in a future stateEly's theory could be used to punish the innocent. Rather it is that inour present state it could be used to prevent punishment of the guil-ty; the criminal sanction limited to criminals, is rendered vulnerableto constitutional challenge because it only loosely fits goals that he


regards as legitimate. Only retribution will allow the punishment tofit the crime.

Ely's analysis of "second degree" prejudice is also unsound. It tooattempts to avoid value questions such as what is "unfair"discrimination: "The cases where we ought to be suspicious are notthose involving a generalization whose incidence of counter-examples is `too high,' but rather those involving a generalizationwhose incidence of counterexamples is significantly higher than thelegislature appears to have thought it was" (157). Taken seriouslythis is a questionable policy since it would permit any valuejudgments and therefore any amount of discrimination againstwomen, aliens, homosexuals, and others as long as the empiricaljudgments were accurate.

But, if his true intention is indicated by his attempt to implementthis policy, we find once again that Ely does not take his policy at allseriously. The policy is to uphold accurate generalizations. But inimplementing it he would make "suspect," and therefore subject tostrict scrutiny, all legislation that is based on a generalization thatadvantages (tangibly or psychically) the class to which mostlegislators belong (158) ("whites in general are smarter or more in-dustrious than blacks" [159]) or a generalization that disadvantagesa group with which most legislators have inadequate "social inter-course" (161) (aliens, the poor, and homosexuals-but not women[161-70]). Under these standards, his criteria for implementationachieve the opposite effect of his policy; no matter how accurate arethe empirical generalizations behind the legislation, the law wouldbe subjected to strict scrutiny and almost surely would be declaredvoid.

Since his policy would permit the validation of manifestly unjustlegislation, perhaps one should welcome his contrary method of im-plementation. But if this method avoids injustice it runs into theother evil of his theory, tension with the democratic branches ofgovernment. No matter how carefully the legislature might docu-ment the case that, for example, aliens know less about Americantraditions and mores than citizens and are thus less able to makesound on-the-spot judgments necessary for police work,

99no matter

how sincerely the legislators develop the evidence bearing on this,the court according to Ely's theory should void the legislation. In do-ing this, the court should say that the legislation violates the Con-

69. Cf. Foley v. Connelie, 435 U. S. 291 (1978).


stitution, not because many aliens can do this work well and thus thelegislation is unfair to them ("the incidence of counterexamples is`too high' " [157])-but because the court somehow "knows" thatthe "truth" is that more aliens can do this work than the legislaturehas determined to be the case ("the incidence of counterexamples issignificantly higher than the legislature appears to have thought itwas" [157]). And if the exasperated legislator should ask how doesthe court "know" this, Ely would have the judge reply, "Becauseyou have not had adequate social intercourse with aliens" or "We'veheard you using self-serving stereotypes in speaking about aliens." Aresponse so lacking in candor is bound to aggravate the tension withthe democratic branches of government more than a forthright,reasoned elaboration of why the court finds the legislation to violatea substantive principle of justice rooted in the fourteenth amend-ment.

As seems evident from the above, Ely in reality often deals withquestions of substantive fairness. He retains the label of processorientation only by assuming that for certain categories of legislationthe outcome is almost always accompanied by certain psychologicalprocesses and by then directing his theory to those processes. Thisfocus also enables him to speak in terms that seem less "value-imposing." It is possible, though still disingenuous, to speak of ahealthy attitude without saying that it is "right" to have that at-titude. 70 In short, Ely accomplishes his goals of value avoidance andprocess orientation only through reductionism.

This reductionism is most egregious where he shrinks to attitudesnot simply legislative results but ideas of justice, as in his discussionsof capital punishment and legislation disadvantaging aliens. It ispossible, and seemingly most sensible, to understand both capitalpunishment and legislation favoring citizens in terms of ideas of thegood or of justice. Laws disadvantaging aliens can be understood toderive from the idea that the primary purpose of a state is to benefitits citizens. 71 And capital punishment can be defended by aretributive 72 or utilitarian" theory of justice. This is not to say that

70. Basil Mitchell, Morality: Religious and Secular (New York: Clarendon Press,1980), p. 5.

71. Aristotle, Ethics 1099b30.72. See, e.g., Walter Berns, For Capital Punishment (New York: Basic Books,

1979) .73. See, e.g., Isaac Ehrlich, " The Deterrent Effect of Capital Punishment: A Ques-


these arguments are necessarily correct, only that they arearguments. They cannot be fully understood or fully refuted byreference to the motives one may have in putting them forth.

It is possible that on occasions, arguments such as the above areinappropriate and only serve as masks for results desired for otherreasons, but Ely's theory assumes that no one can ever advocatecapital punishment or urge legislation exclusively benefittingcitizens without having bad motives, motives which make inap-propriate any inquiry into the justness of the argument. Regardinglegislation disadvantaging aliens, Ely would assume, because ofwhat he considers inadequate social intercourse between aliens andlegislators, that all such laws must be illicitly motivated (161-2).

Regarding capital punishment, the development of his argument ismore complex, but the conclusion is the same: because legislators donot associate with people prone to commit capital offenses andbecause legislators assume that if people "like themselves" do com-mit a capital offense they will be protected from the full force of thelaw by "buffers" (173), Ely argues that the legislators must fail toshow the requisite equal concern and respect in enacting laws call-ing for capital punishment.

In both cases his empirical assumptions are at best subject todispute and the inference of bad motives a non sequitur. Under-standing these arguments in terms of some assumed motive behindthem does save Ely the chore of arguing that capital punishment iscruel and that reserving some benefits for citizens violates some prin-ciple of justice lodged in the fourteenth amendment. That would, ofcourse, involve exactly the sort of value judgment that Ely wishes toavoid-or at least to appear to avoid.

Justifying Value-Avoiding Judicial Review

Even if we could call "procedural" the substantive limits that Elycircuitously would impose, it is clear that they thwart thedemocratic will. Like any other "fundamental values" that onewishes to place in the Constitution, his stand in need of justification.While still refusing to admit that the limits he would impose presup-pose certain value judgments, Ely replied to this need for justifica-tion as follows:

tion of Life and Death," American Economic Review 65 (1974), pp. 397-417 and E.Van den Haag, Punishing Criminals (New York: Basic Books, 1975), p. 216.


[T]he "values" the Court should pursue are "participational values" of the sort Ihave mentioned, since those are the "values" (1) with which our Constitutionhas preeminently and most successfully concerned itself, (2) whose "imposition"is not incompatible with, but on the contrary supports, the American system ofrepresentative democracy, and (3) that courts set apart from the political process areuniquely situated to "impose". (75, footnote)

Each of these props should be inspected closely to see if in-dividually or collectively they can support the elaborate edifice Elyhas erected. To begin, we should note that the third one, which issound in itself, depends on the adequacy of at least one other. Givenits distance from popular control, there is a great deal of action thatonly a court could take, but the action is not for that reasonnecessarily compatible with a democratic polity.

The first prop is not simply the intentions of the framers butrather their "preeminent" intentions and those that have been most"successful." Now, in a quantitative sense, it is true that the Con-stitution is "mostly" concerned with structure and process as Elycontends. But the preeminent concerns must surely have beensubstantive since the framers, like most people," regarded process assubordinate to product and valuable only as the latter is served. Thewhole of the Constitution was established "in Order to form a moreperfect Union, establish Justice, insure domestic Tranquility, pro-vide for the common defense, promote the general Welfare, andsecure the Blessings of Liberty.. . ." 75 To the framers, process is not itsown reward.

"Success" also raises more problems than Ely appears willing toadmit. Although he does not define success, his examples of unsuc-cessful provisions of the Constitution-for example, the right to keepand bear firearms, the right not to quarter troops, the prohibition ofalcoholic beverages-suggest that he means longevity of utility andsupport. But by this criterion, many substantive provisions of theConstitution-protection of religious liberty, compensation for prop-erty taken by the state, prohibition of involuntary servitude-must beregarded as highly successful, while certain procedural provisions can-not be: accession and succession of the Presidency has changed inseveral respects and there is hardly ardent enthusiasm for aspects of

74. Pragmatists perhaps excepted. See, e.g., John Dewey, Reconstruction inPhilosophy (Boston: Beacon Press, 1948).

75. United States Constitution, Preamble (emphasis added).


the present system. In other words, this prop of his argument sup-ports more and less than he wants.

Notably, what provisions this prop does support are the same asthose supported by three "fundamental values" methodologies thathe rejected: tradition, consensus, and the future. He asks what hasenjoyed support in the past, maintains it still, and is likely to enjoy itin the future. In the opening chapters of Democracy and Distrust,Ely argued that in looking for fundamental values in such groundone would uncover only mirrors of one's own preferences (44). If thethought is valid, it must apply to Ely's theory with equal force.

That leaves the second prop, which is probably the most in-teresting, that these values are supportive of "the American systemof representative democracy. Ely does make a good case

76 thatsomething like77 what he calls

78 "virtual representation" does form apart of the American constitutional tradition. He points to thegeneral "strategy of pluralism" (80) outlined by Madison inFederalist 10 and 51, the privileges and immunities clause of article

76. This is not to say that he does not err. With complacent confidence he contendsthat the Declaration of Independence is more egalitarian than the Constitution (79),without even nodding to the powerful arguments to the contrary. See, e.g., MartinDiamond, "The Declaration and the Constitution: Liberty, Democracy, and theFounders", Public Interest 41 (1975), pp. 39-55. He also indicates that "wealthredistribution" was a high priority of America 's republican theorists; to the contrary,Madison seems accurately to have caught their wisdom: "The diversity in the facultiesof men from which the rights of property originate, is not less an insuperable obstacleto a uniformity of interests. The protection of these faculties is the first object ofgovernment. From the protection of different and unequal faculties of acquiringproperty, the possession of different degrees and kinds of property immediately results;and from the influence of these on the sentiments and views of the respective pro-prietors ensues a division of the society into different interests and parties," JamesMadison, "Federalist No. 10," The Federalist Papers, ed. Clinton Rossiter (New York:New American Library, 1961), p. 78.

77. I say "something like" his idea of virtual representation, since his is derivedfrom Ronald Dworkin's relatively novel suggestion that each of the represented is to beaccorded "equal concern and respect," see text supra, at note 15. While the framers ex-pected society 's various interests to be refined and enlarged and then accommodated inlegislation, the suggestion that all interests must be accorded "equal concern andrespect" must have seemed utopian. See Federalist Papers Nos. 10, 47-51, supra note 76.

78. I say "what he calls" virtual representation in order to indicate that his under-standing of the term, derived from Dworkin's concept of "equal concern and respect,"is distinct from the more common understanding of virtual representation articulatedby Edmund Burke. On Burke's understanding of virtual representation, see HannaPitkin, The Concept of Representation (Berkeley: University of California Press,1972), pp. 171-189.


four (83), and court interpretations of the commerce clause (83) tobolster his point that the Constitution seeks to encourage represen-tatives to act upon interests enlarged beyond the narrow concerns oftheir electoral constituencies' dominant factions.

But this is not the whole story of the American system of represen-tation. The framers were not simply concerned with "enlarging" theinterests that representatives represented but also in "refining"them. 79 This was true even for the branch of government closest tothe people, 80 the House of Representatives, and Madison's alembicprinciple ("refining the popular appointments by successive filtra-tions" ) 81 was clearly embodied in the original Senate, President, andSupreme Court. "Refinement" is part and parcel of the Americansystem of representative democracy, but implying as it does a hierar-chy of interests and values, it contradicts Ely's constitutionalepistemology. Given this difficulty one can hardly be surprised thatEly avoided a serious analysis of the Federalist Papers or other earlycommentaries on the Constitution in deriving his idea of representa-tion. Instead his understanding of a representative's duty, to accordthe citizens "equal concern and respect," is derived from the con-temporary legal and political thinker, Ronald Dworkin, whodeveloped it through yet another of the methodologies that Ely con-demns, moral philosophy. 82 Again, if his earlier criticisms are valid,we must see in his embrace of Dworkin's thought merely a reflectionof his own personal preferences, his "tastes."

Toward Ordered Liberty

To say that Ely's theory of judicial review effects bizarre resultsand aggravates the tension between the judiciary and the politicalbranches implies a standard of reference: compared to what? Theimplicit standard of reference has been the general endeavor to state

79. James Madison, supra note 76, p. 82.80. Jean Yarbrough, "Thoughts on the Federalist's View of Representation," Polity

12 (1979), pp. 65-82.81. Max Farrand, ed., Records of the Federal Convention of 1787, vol. I (New

Haven: Yale University Press, 1911), p. 50.82. See Dworkin, supra, note 15, especially chapter 6. Yet another of the condemn-

ed methodologies is involved since Dworkin calls this right to equal concern andrespect "natural," ibid., p. 176. I have not developed this point because Dworkin's at-tempt to ground his argument in the tradition of natural rights is far-fetched. SeeThomas Pangle, "Rediscovering Rights", Public Interest 50 (1978), p. 157.


fundamental values, or what Ely refers to as "value-imposing"judicial review. Of course, if this method is used without restraint, 83

the judge may end up simply imposing what amounts to his or hertastes on the polity. But with even a modicum of restraint, it has twoinherent superiorities over Ely 's approach. First, it recognizes thatvalue judgments are an essential part of judging. Thus it would noteffect the bizarre and inequitable outcomes noted above 84 that resultfrom Ely's refusal to make value judgments; it would not reduce thejudge to fictitious explanations for his or her decision because ofdoubts about human capacity to state values of higher status thanmere tastes; and it would not have to shrink ideas of justice topsychological processes in order to address them. Second, themethod replies to the Constitution's "invitation" on the same groundof discourse as the invitation that was issued, that is, upon theassumption that there is a difference between right and wrong andthat the difference is more than a matter of taste.

On the other hand, part of Ely's criticism of "value-imposing"judicial review is on target. Just because a judge or commentator at-tempts to articulate values rooted in something higher than his owntastes, does not mean that he or she will succeed or do so in a mannercompatible with democratic republicanism. Thus it is necessary tomove beyond an endorsement of restrained "value-imposing" andidentify what mode of it will best comport with democraticrepublicanism. This, of course, is the subject of another article orbook and here at best I can indicate only a few bare outlines.

Ely probably does state the correct starting point for filling in theConstitutions' open-ended clauses, the methodology of ejusdemgeneris (87). But since the Constitution is written on a ground ofdiscourse that assumes there are principles of right and wrong,discernible through human reason, and that these concern substan-tive as well as procedural matters, his process-oriented valueavoidance is discredited, "hoist by its own petard" (43), we mightsay.

A more comprehensive and appropriate response to the Constitu-tions' "invitation" would seem to lie in the revitalization of the greattradition of Justices Cardozo, Frankfurter, and Harlan the Younger,

83. Oddly, Ely does not discuss the question of activism and restraint even thoughhe recognizes (1) that this is half the controversy in any general theory of judicialreview.

84. Text, supra at notes 55, 67-69.


using an approach that searches, as Cardozo stated, for principles"so rooted in the traditions and conscience of our people as to beranked fundamental," 85 or principles "of men and women of thecommunity whom the social mind would rank as intelligent and vir-tuous."8 8 For lack of a better term I will call this the approach of"ordered liberty. 787 Does this approach stand up to Ely's criticismsof value-imposing judicial review? Four "fundamental values" ap-proaches seem to be implicated: natural law, reason, and moredirectly, tradition and consensus.

While the "ordered liberty'' approach may bear a "taint" ofnatural law methodology in suggesting that there is such a thing asvirtue and that perhaps traditions and consciences are formed on thebases of judgments thought right by nature, it does not seem ex-cessively vulnerable to Ely's charges that natural law is discreditedand uselessly vague. This approach credits natural law only as thatconcept is credited by the traditions and conscience of the people;the approach is somewhat vague, but not as vague as themethodology that Ely criticizes, for it regards as natural not everyprinciple that has been called "natural," but only those principlesidentified as such by the traditions and conscience of the people.While it may employ the method of "reason," this approach does notendorse a particular school of thought and thus cannot be chargedwith merely keeping the Constitution in tune with the Times or theNew York Review of Books (58); rather it looks to the reason of peo-ple "whom the social mind would rank as intelligent and virtuous."

Most closely the "ordered liberty" approach resembles themethods of tradition and consensus. One criticism that Ely makes oftradition is that the United States has what most readers (althoughEly himself is reluctant to acknowledge a judgment in these terms)would regard as both good and bad traditions. Regardingdiscrimination against minorities for instance, he contends:

"our country has two conflicting traditions: the egalitarian one to which mostofficial documents have paid lip service over the past century, and the quite dif-

85. Snyder v. Mass., 291 U. S. 97, 105 (1934); quoted more famously in Palko v.Conn., 302 U. S. 319, 325 (1937).

86. Benjamin Cardozo, Paradoxes of the Legal Science (New York: ColumbiaUniversity Press, 1928), p. 37.

87. The name suggested for the approach in Cardozo's development of it in Palkov. Conn., 302 U. S. 319, 325 (1937).


ferent and malevolent one that in fact has characterized much official and unof-ficial practice over the same period (and certainly before). Presumably noreader would wish to endorse the latter tradition, but I'd be interested to hearthe argument that can make it go away. " (61)

It is not terribly difficult to make it "go away" if we understandby tradition cherished principles and ideas rather than practices thatare backsliding, deviant, expedient, or simply necessary.

88This is

certainly Cardozo's understanding, and as if to guard against amisconstruction of the term, he added the words "and conscience ofthe people." 89 The force of Ely's reasoning here seems to derivewholly from his refusal to make this commonplace distinction. Hisopening epigraph for the section on tradition is from Garry Wills,"Running men out of town on a rail is at least as much an Americantradition as declaring unalienable rights" (60). Few, however, havesuch deviance and backsliding in mind when they speak of tradi-tions; clearly it is not part of the methodology of "ordered liberty."

A second criticism of tradition, however, still remains even if welimit tradition to ideals and principles. It is best developed byquoting Ely at length:

Its overtly backward-looking character highlights its undemocratic nature: it ishard to square with the theory of our government the proposition that yester-day's majority, assuming it was a majority, should control today 's. Of coursepart of the point of the Constitution is to check today's majority. This observa-tion simply compounds the problems with making tradition a source of con-stitutional values, since the provisions for which we are seeking a source ofvalues were phrased in open-ended terms to admit the possibility of growth. (Ifone wanted to freeze a tradition, the sensible course would be to write it down.)(62)

As he is forced to admit, the very principle of constitutionalismrests on the practice he finds so repulsive in the methodology oftradition, a past majority checks the present. He attempts to elidethis difficulty by contending that the open-ended provisions, withwhich he is concerned, were designed "to admit the possibility ofgrowth," otherwise the framers would have been specific. In part,this observation appears as a red herring designed to divert our at-tention from the fact that we cannot join his repulsion at the idea ofthe past guiding the present without rejecting constitutionalism. But

88. Cf. Bickel, supra note 57, pp. 65-72.89. Palko v. Conn., 302 U. S. 319, 325 (1937).


there is also a legitimate point here. Before we let the past rule thepresent, we should be clear about what the past intended. Ely im-plies that if traditions were intended to be protected by the open-ended clauses, the framers would have frozen their meaning bywriting them down. That they did not, suggests for him that they in-stead wished the clauses to grow.

There are several problems with Ely's analysis. First, if the clausesare to have any meaning, this "growth" he speaks of must be chan-neled; thus the past would still control the present in some degree,that is, growth might be, perhaps must be, channeled by tradition.Second, there are motives other than mere growth, perfectly com-patible with the method of tradition that might have motivated theframers to speak in general rather than specific terms. To spell out indetail and with specificity what traditions one wants to protectwould transform the Constitution into a code. Further, the code ap-proach would serve poorly the end of preserving a tradition; fun-damental principles of a tradition can require changing "mediatingprinciples" 90 or "conceptions "91 as the empirical world, to whichthey are to relate, changes. Of course it would take much more toprove this point, but it seems plausible that these open-ended clausesissue an invitation for which "ordered liberty" is the appropriateresponse. Ely's argument against tradition, at least, does notdisprove this.

When we speak of evolving traditions, as in the approach ofordered liberty, we move towards the methodology of consensus, ofwhich Ely is especially critical. If the end of this method is to pro-mote rule by consensus, 92 he says, courts would be unlikely to im-prove upon legislatures in registering that consensus (68). If, on theother hand, its end is to protect minorities, it is self-contradictory:"It makes no sense to employ the value judgments of the majority as

90. Owen Fiss, "Groups and the Equal Protection Clause" in Equality andPreferential Treatment ed. Marshall Cohen (Princeton: Princeton University Press,1977), p. 84.

91. Dworkin, supra note 15, p. 134.92. Ely is so eager to criticize the methodology of consensus that he endorses the

view that "there is no consensus to be discovered" and that "to the extent that one mayseem to exist, that is likely to reflect only the domination of some groups by others"(63). If he sincerely believes this, then he must regard the Constitution itself as a tool ofelite domination. Why, then, we must ask, should he be so enthusiastic about enforc-ing its provisions?


the vehicle for protecting minorities from the value judgments of themajority" (69).

Ely scores in this criticism only by being deliberately obtuse to theambiguities, especially in a federal system, of the term "majority."It is possible for the court to speak on behalf of a national majority(consensus) against a state majority in the process of protecting astate minority. Especially considering that the clauses which con-cern him most appear in the fourteenth amendment, thismethodology is far from self-contradictory, but rather makes perfectsense.

And it is sensible even if we might grant that Congress is poten-tially a better register than the federal courts of a national consensusregarding questions of individual rights; only rarely has Congressconsidered as its province the definition of fourteenth amendmentrights. But it is also possible to speak sensibly even of the Courtchecking Congress in the name of a consensus by noting a distinctionsimilar to the one noted in regard to tradition: settled opinion versusshort-term interests and momentary passions. The legislature ismore responsive to the people than the courts. But that is exactly theproblem; it is responsive to their short term interests and momentarypassions as well as their settled opinions of what is right, oftenpreferring the former over the latter. The problem was hardlyunknown to the framers. B3 And it is what Cardozo seemed to have inmind when he wrote his celebrated words in praise of judicialreview:

The restraining power of the judiciary does not manifest its chief worth in thefew cases in which the legislature has gone beyond the lines that mark the limits

93. " As the cool and deliberate sense of the community ought, in all governments,and actually will, in all free governments, ultimately prevail over the views of itsrulers; so there are particular moments in public affairs when the people, stimulatedby some irregular passion, or some illicit advantage, or misled by the artfulmisrepresentations of interested men, may call for measures which they themselveswill afterwards be the most ready to lament and condemn. In these critical moments,how salutary will be the interference of some temperate and respectable body ofcitizens, in order to check the misguided career and to suspend the blow mediated bythe people against themselves, until reason, justice, and truth can regain their authori-ty over the public mind? What bitter anguish would not the people of Athens haveoften escaped if their government had contained so provident a safeguard against thetyranny of their passions? Popular liberty might then have escaped the indeliblereproach of decreeing to the same citizens the hemlock on one day and statues on thenext." Hamilton, Federalist No. 63 in The Federalist Papers, supra note 76, p. 384.


of discretion. Rather shall we find its chief worth in making vocal and audiblethe ideals that might otherwise be silenced, in giving them continuity of life andof expression, in guiding and directing choice within the limits where choiceranges. "

One major criticism made by Ely of several of the fundamentalvalues approaches remains, however, and has force against theordered liberty approach, that of vagueness. How are we to deter-mine what principles are "so rooted in the traditions and conscienceof our people as to be ranked fundamental." What is the "socialmind" and how are we to determine its reflections or the opinions ofthose whom it would rank "intelligent and virtuous"? Although Ibelieve adequately clear answers can be given to these questions, 95

developing them would be beyond the scope of this article. Here Ican only point to the judicial careers of Cardozo, Frankfurter, andHarlan to suggest that sound answers are possible and ask rhetorical-ly if "ordered liberty" is any more inscrutable than "equal concernand respect."

Colgate University STANLEY C. BRUBAKER

94. Benjamin Cardozo, The Nature of the Judicial Process (New Haven: YaleUniversity Press, 1921), p. 94.

95.Cf. Sanford Kadish, "Methodology and Criteria in Due Process Adjudication,"Yale Law Journal 66 (1958), p. 319.

Fear of Judging: A Commentary on Ely's Theory of Judicial Review

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