Friday, March 06, 2020

John Hart Ely and Kids Today

Richard Primus

My students don’t like Democracy and Distrust.

That’s new.  Or more precisely, the consensus on the point is new.  Over the nineteen years that I’ve been teaching, I have assigned that book several times, in either introductory or advanced con law classes.  Until recently, it was always my experience that opinion among my students as to the merits of the book was pretty varied.  Some people largely bought Ely’s argument about representation-reinforcement as the key justification for judicial review.  Others didn’t.  But many, many of my students, year after year, thought that whatever the limits of Ely’s argument, the argument was pretty good and maybe even right, or at least more right than any of the theorized alternatives.

Between 2001 and 2013, I assigned Democracy and Distrust regularly.  For a variety of reasons, I then didn’t assign it again until the current academic year.  And this time, I noticed a major change.  Overwhelmingly—not without exception, but overwhelmingly—the forty students in my class, who had a range of opinions on most other issues the class confronted, were deeply unimpressed with Ely’s theory.  (I’m not generalizing from a small number of people who spoke in class.  We spent several class days on the topic, and the students also had a writing assignment that required them to assess the theory.  They really didn’t like it.)

More than that: there was a relatively consistent theme in what they didn’t like about it.  In the (modal, widely distributed) view of these students, Ely’s picture of the “normal” process of governmental decisionmaking is, more or less, a fantasy.  It just isn’t true, my students said—not even close to true—that the default decisionmaking process, in the absence of judicial interference, is one in which majoritarian preferences are permitted to control based on an electoral process in which everyone’s preferences are, as an initial matter, weighted equally.  In reality, elections are shaped by money and skewed toward the interests of the wealthy.  In reality, electoral districts are heavily gerrymandered, thus preventing democratic responsiveness.  In reality, the United States Senate makes a mockery of majoritarianism at the national level.  And so on.

Those criticisms of Ely have been available since the book was published.  The question has been of their apparent force.  Are they quibbles around the edges of an essentially sensible way of looking at things?  Or are they such a big part of the picture that it makes no sense to look at the way Ely does, even as a first approximation?

To a degree that I found striking, my students endorsed the latter view.  Much more forcefully than their predecessors ten or fifteen years ago ever did. 

I won’t make claims about the whole generation of Americans now in their 20s on the basis of my experience with these forty students.  But I can’t help generating hypotheses (and neither, perhaps, can you). 

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