Ely in the world: The global legacy of Democracy and Distrust forty years on

Abstract

Abstract John Hart Ely’s Democracy and Distrust is a classic among US theories of judicial review. But how far does Ely’s global influence reach? And how useful is Ely’s process-based theory for judges operating in systems with a thicker, more substantive understanding of rights and constitutionalism, as prevails in many countries of the Global South, or in a system like Germany? In this introduction to a Symposium on Ely’s broader global influence, we sketch out some first answers to these questions, based on the contributions, which cover Mexico, Chile and Bolivia, South Africa, and Germany, as well as Australia, Canada, and New Zealand. If Ely’s influence is considerable in some states, most notably New Zealand, it is marginal in others. Even where Ely arguably has been influential, however, his theory has usually been subject to a process of comparative adaptation, to increase its fit with the local legal and political context. Tweaked and adapted, Ely’s work can also inspire the construction of new comparative “political process” theories, including in systems where we encounter a thicker, or even transformative, understanding of constitutionalism.