Constitutional Commentary

Editor in Chief

Jill Elaine Hasday, Distinguished McKnight University Professor & Centennial Professor in Law, University of Minnesota

Editors

Dale Carpenter, Judge William Hawley Atwell Chair of Constitutional Law, Southern Methodist University, Heidi Kitrosser, Robins Kaplan Professor of Law, University of Minnesota, Brian Bix, Frederick W. Thomas Professor of Law & Philosophy, University of Minnesota (book reviews)

Student Managing Editors

Abigail Hanson, Ran Lu, Carly Michaud, Chuqiao Yu

Production Manager and Managing Editor

Tom Lewis

Democracy, Distrust, and Judicial Umpiring in G-20 Nations

Steven G. Calabresi

Democracy, Distrust, and Judicial Umpiring in the G-20 Nations Steven Gow Calabresi [1] John Hart Ely’s book Democracy and Distrust: A Theory of Judicial Review (1980) is one of the most important books on constitutional theory written in the last sixty years. A central claim to Ely’s book is that the courts ought to police…

Democracy, Distrust, and Presidential Immunities

Evan Caminker

Evan Caminker[1] Four decades ago in Democracy and Distrust,[2] John Hart Ely masterfully charted a middle path between the two then (and still) dominant methods of constitutional interpretation. The prevailing version of originalism (“interpretivism”), he eloquently expounded, was intrinsically unworkable and unattractive for why-be-bound-by-the-dead-hand-of-the-past reasons; the alternative of norm-based reasoning (“noninterpretivism”) was ungrounded and riven…

Political Trust, Social Trust, and Judicial Review

Jason Mazzone

Jason Mazzone[1] Introduction The fortieth anniversary of John Hart Ely’s influential book, Democracy and Distrust: A Theory of Judicial Review, is a good occasion to focus less on democracy and more on distrust. Ely famously sets forth a process-based approach to judicial review, one he describes as “participation-oriented, representation-reinforcing.”[2] Under Ely’s approach, majorities are generally…

Insights from Democracy and Distrust Bearing on Rucho and Partisan Gerrymandering

Vikram David Amar

Vikram David Amar[1] The courts, in interpreting the Constitution, should not override the will of the majority in the name of values that supposedly transcend majority rule. Instead, judges should try to make representative democracy more democratic. They should try to make democracy work according to its own underlying principles. That is the simple,…

Glimpses of Representation-Reinforcement in State Courts

Jane S. Schacter

Glimpses of Representation-Reinforcement in State Courts Jane S. Schacter[1] The fortieth anniversary of John Hart Ely’s singular book, Democracy and Distrust, offers an opportunity to appraise its legacy. There can be no question that Ely and the principles espoused in the book have had a landmark and lasting impact on constitutional scholarship. Ely’s work has…