I. Explain the distinction between substance and process and the importance of
the distinction for the issues discussed in this course. “Over the past few
years…the court…holding that henceforth, before it can be determined that
you Are entitled to “due process” at all, and thus necessarily before it can
be decided what process is “ due,” you must show that what you have been
deprived of amounts to a “liberty interest” or perhaps a “property
interest.” (Ely, p.19) Just as a skilled magician will deliberately show his
empty top hat to the audience right before he pulls a rabbit out by its ears, so
was judicial review pulled out of thin air. Judicial review has opened the
floodgates of substantive procedures in the courts, which refer to content based
decisions made by judges, as a tool employed in matters of judicial review and
has become the dominant means of legislating in areas which would not otherwise
be open to legal re-interpretation. In essence substance refers to the ability
and right of judges to employ their own values in rendering decisions concerning
a case at hand or in the past, reflecting a non-interpretivist approach to
legislating. Such decisions are grounded in the Substantive Due Process Clause
of the Fourteenth Amendment (a doctrine created by Justice Taney in the Dred
Scott case itself derived from the Fifth amendment), which ostensibly provides
citizens protection from the state governments. Substance also refers to
morality and decisions based on natural law as opposed to positivism. Process is
at the heart of democracy because it reflects the legitimate method by which a
community can enact laws in a system of representative democracy; to that end,
the principal virtue of a process oriented political system is its independence
of concurrent political, moral, or societal pressures. These issues are
obviously paramount in studying social reform and the role of the courts
(judges) as legislators or guardians of correct legislative practice. #2 Explain
Ely’s account of prejudice and the role it plays in his theory of judicial
review. “So stereotypes, at least in the ordinary sense of that term, are the
inevitable stuff of legislation.”(Ely, p.156) Ely describes prejudice as a
“lens distorting reality,” that “blinds us to overlapping interests which
in fact exist.” In reference to the treatment of minorities and blacks in
particular, prejudice in the legislative levels of government is the basis of
laws which put a minority group without adequate, if any representation or voice
at a disadvantage without reference to some worthy social goal and at the
judicial level implies a consensus of ‘solicitude’ among the judiciary
toward such “discrete” and “insular” groups within society. The other
type of prejudice involves ‘suspicious classifications,’ or stereotypes that
may disadvantage groups but still is within the boundaries of democracy; this
type of classification is considered harmful by Ely when we consider the
presence of undue stereotypes that are discovered in previous acts of
legislation. Ely asserts a more interperetivist approach although he concedes
the practical implausibility of such an approach because of the inability of the
constitution to forsee all possible situations. In the final analysis, Ely
thinks in a representative democracy laws should agree with those values which
are fundamental in the constitution (and surrounding historical documents) and
which obligates, without undue discrimination obligates all to obey, despite a
plurality of perspectives. Finally, Ely offers up that because matters of
racial, sexual, moral and other prejudices are essentially primae facia in terms
of what constitutes discrimination, a process-based model for the Supreme Court
would be optimal, the only difficult being hard cases. #3 Explain Dworkin’s
critique of Ely’s theory. “In qny case, judicial review of the political
processes only polices democracy; it does not seek to override it as judicial
review of substance does…My point in this essay is that both ways end in
failure, and in the same sort of failure.” (Dworkin, p.34) Dworkin called
Ely’s Democracy and Distrust “interesting” and he obviously saw some merit
in Ely’s claims; however, Dworkin analyzed Ely’s four main assertions and
accepted only the first (that judicial review should be concerned with process
legislation rather than the substantive decisions made by judges). Dworkin
disagreed with Ely on his second point, that processes should conform to a
specific model of democracy because, he argues, there is no universally accepted
conception (in the sense Rawls uses the word in A Theory of Justice, 1971).
Thirdly, Dworkin finds Ely’s contention untenable that process-based-review
agrees with democracy and is thus the judiciary’s proper function, namely
because it contradicts his arguments against the discovery of objective
fundamental values—necessary to a consistent code of process. Entailed in this
is the distinction Dworkin draws between input and outcome cases which aide in
rendering the best conception of democracyt. Lastly, Dworkin attacks Ely by
pointing to his claim that the courts err in making “putatively” substantive
judgements (i.e. Lochner, Roe v. Wade) yet, simply, for Ely’s theory to work
substance-based decisions are necessary in bringing about the equality Ely
regards so highly. con, and substantive judicial review is a necessity in the
battle of the liberal to equalize the opposing forces in society (insofar as
opportunity is concerned) Dworkin’s analysis of Ely rests on their differing
conceptions of equality and the rule of law as the bases of democracy. #4
Explain Rosenberg’s view of the relative validity of the dynamic and
constrained court models. “…an examination of the direct effects of courts
in producing significant social reform, in the case of civil rights, shows that
the theoretical framework of the constraints and conditions successfully
explains the varying patterns of judicial efficacy. In contrast, neither view of
the Court alone, nor the existing paradigm of Brown as the symbol of judicial
efficacy, works very well…Courts can matter, but only sometimes, and only
under limited conditions.” (Rosenberg, p. 106) The dynamic court view espouses
a vigorous, active, and decisive role of judges and does not scorn decisions
that run contrary to mainstream belief and practice and it opposes the
constrained view which posits that the court’s role should be minor, passive,
and weak. Although black and white, the views nonetheless are not mutually
exclusive and according to Rosenberg actually depend on one another for their
validity. The contradiction here is that if both models are present in a given
situation, which was apparently true in Brown v. Board of Education, the
distinction becomes meaningless. The point Rosenberg makes is that the courts
are more or less always acting under the constrained model except when it makes
a controversial decision which has certain and major social implications.
However, Rosenberg also makes clear that only when the court has the active
support of other areas of government can the dynamic role be realized. Finally,
the interplay between the two views of the Court has the effect of sharply
limiting the functionality of either in gauging or constructing a coherent
conception of the Court’s role.