Completing Ely's Representation Reinforcing Theory of Judicial Review by Accounting for the Constitutional Values of State Citizenship

Shane Pennington, University of Texas School of Law

Abstract

John Hart Ely famously proposed a representation reinforcing theory of judicial review. Ely said that the Constitution embodies certain procedural principles that make the ideal of American representative democracy possible. Thus, where courts find that the political process has broken down, putting that republican goal out of reach, they must step in and exercise judicial review to correct for the procedural breakdown and to reinforce the representational principles the Constitution embodies.

Whether Ely’s theory is constructed on a foundation of sand or stone depends—to a large extent—on the rigor of his conception of “American representative democracy,” which he gleans largely from a footnote in an old Supreme Court opinion written by Justice Stone. Ely emphasizes political process breakdowns that burden discrete and insular minorities or impinge a fundamental right. To be sure these are important elements of the republican ideal, and our history certainly indicates a need to pay attention to the elements Ely highlights. But I argue that Ely’s vision of American representative democracy, by which his theory of judicial review stands or falls, is critically incomplete. Fundamental to the American system of representative government is its deep-seated federal character. Because Ely overlooks the role federalism plays in our representational scheme, his theory reflects only an anemic version of the robust notion of representative democracy the Framers’ Constitution embodies. I intend to make Ely’s theory whole by emphasizing the distinction between citizens of states and citizens of the United States—a distinction embodied in key provisions of the Constitution’s text. Just as judges should safeguard the American ideal by protecting fundamental rights and the federal political process, they should protect the participation of the citizens of the states at least insofar as the Constitution recognizes their unique value to its federal system.

Recognition of breakdowns in the political process that burden constitutional federalism values not only completes Ely’s theory, it significantly contributes to current federalism scholarship. Wechsler’s political safeguards of federalism theory has long been taken to mean that the process will secure the structural promises of federalism in the Constitution without any need for judicial review. Without a clear textual hook in the Constitution for the exercise of judicial review on federalism grounds, those who would argue for such review are fighting an uphill battle. But Ely’s theory powerfully answered a strikingly similar challenge. He gave compelling reasons for courts to exercise judicial review of substantive rights that weren’t clearly written into the Constitution’s text. Those same arguments can and should provide a similar, fundamentally American justification for the exercise of judicial review on behalf of federalism values.

This essay examines the Constitution’s text and highlights many key provisions that embody what I call “the values of state citizenship.” That term refers to the values embodied by a group of terms woven throughout the Constitution’s text that reflect the Framers’ intentional intertwining of state-based representation into their notion of American representative democracy. Terms like “citizens of the states,” “inhabitants of the states,” “the states in convention,” “legislators of the states,” and the like appear everywhere the Constitution deals with representation. Analysis of these terms reveals that healthy nation-level representation is impossible without healthy state-level representation. Hence, if we want to protect any legitimate notion of American representative democracy, we must reinforce not only the representation of citizens of the United States but also the representation of the citizens of the States.