Democracy and distrust after twenty years: Fly's process theory and constitutional law from 1990 to 2000

In this note, Brian Boynton attempts to discern the influence of John Hart Ely's book Democracy and Distrust on the Supreme Court's approach to consti tutional law from 1990 to 2000. Boynton first explores fly's process-orient ed, representation-reinforcing theory of constitutional interpretation. He walks the reader through Democracy and Distrust in some detail, discusses t he academic response to the book, and summarizes the outcomes for specific areas of law that Ely, suggests. Boynton then compares the Court's substantive due process, First Amendment, legislative process, voting rights, and equal protection decisions of the last ten years to the outcomes Ely's theory suggests. He finds that fly and the Court agree in a number of areas. But he ultimately concludes that the Court has declined to focus on the process of legislation and has decided instead to enshrine in the Constitution a set of substantive values only pa rtially land not purposefully) related to participation.