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).