A hole where Ely could be: Democracy and trust in South Africa

Abstract

Abstract At first glance, Ely’s theory of judicial review in Democracy and Distrust may seem an obviously poor fit for South Africa’s extensive and value-based constitutionalism. South African scholars have indeed mostly paid his theory little attention and, when they do, have mostly done so in support of arguments for judicial review, rather than to impose limits on it. On closer inspection, however, the way Ely has been used in South Africa has much to tell us about South African constitutionalism. The patterns of democratic deference of his theory can be a better fit for actual South African practice than it is for much of the scholarship interpreting that practice. Arguments for trust in democratic institutions, though suggested rather than developed in his book, have a powerful constitutional value in emerging systems like the South Africa one. Finally, though concerns for democracy that underpin Ely’s account have fallen somewhat between the lines of existing South African constitutional talk, the constitutional value of majoritarian democracy has a resonance in post-apartheid South Africa that should be felt more in its scholarship, and may yet be.