A broad read of Ely: Political process theory for fragile democracies

Abstract

Abstract This article, part of a symposium on the fortieth anniversary of John Hart Ely’s Democracy and Distrust, contrasts two reads of Ely’s political process theory. The narrow read, which focuses on keeping clear the channels of political change and protecting discrete and insular minorities, stems from Ely’s focus on the twentieth-century United States. However, when Ely’s work is transplanted into the context of fragile democracies in danger of lapsing into authoritarianism and with serial political dysfunction, a broader read emerges. This article develops a typology of functions that courts play under a broad read, in addition to the traditional focus on protecting discrete and insular minorities: guarding against democratic breakdown, improving the quality of democratic institutions, and responding to failures of political institutions impacting majoritarian groups. The article also shows that although the broad read of Ely raises new problems, it offers a useful guide to theorists and courts.