© Crown copyright 2021.

Comparative political process

theory

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Aileen Kavanagh*

1. Introduction: Ely’s allure

Forty years after the publication of John Hart Ely’s original work, Democracy and
Distrust, Stephen Gardbaum stands on Ely’s shoulders to deliver an argument in
favor of “participation-oriented, representation-reinforcing”1 judicial review which is
broader, deeper, and more ambitious than Ely ever imagined. When Ely wrote his fa-
mous book in 1980, he seemed to have found the Holy Grail of squaring the circle of
American-style judicial review and democratic government. In response to Dworkin’s
idea of judges as Herculean philosopher-kings imposing their views on a democratic
majority, Ely argued that judges were democratic referees whose central role was to
“police the process of representation.”2 In Ely’s view, the courts should be viewed as
‘representation-reinforcing’ in two key ways. First, courts should uphold democratic
rights such as freedom of expression, association, and assembly and voting rights,
thus “broadening access to the processes and bounty of representative government.”3
Second, they should correct for serious democratic malfunctions which result in in-
vidious discrimination towards “discrete and insular minorities.”4 In these ways, Ely
showed that the courts were not the enemies of democracy or philosopher-kings with
a pipeline to the truth. Instead, they were patient mechanics clearing blockages in the
system and keeping “the machinery of democratic government running as it should.”5
But while this modest image of judges had unmistakably mechanical and proce-
dural overtones, Ely did not succeed in proving that judges could do their job in a val-
ue-free zone. As his many critics observed, the claim that “representation-reinforcing”
judges could avoid relying on fundamental values and matters of substance was
clearly untenable.6 There is no such thing as value-free constitutional adjudication. So

* Professor of Constitutional Governance, Trinity College Dublin, Ireland. Email: aileen.kavanagh@tcd.ie.

1
John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980).
2
Id. ch. 4 (Policing the Process of Representation: The Court as Referee).
3
Id. at 75.
4
Id.
5
Id. at 76.
6
Mark Tushnet, Darkness on the Edge of Town: The Contributions of John Hart Ely to Constitutional Theory,
89 Yale L.J. 1037 (1979–80); Laurence H. Tribe, The Puzzling Persistence of Process-Based Constitutional
Theories, 89 Yale L.J. 1063 (1979–80); Ronald Dworkin, A Matter of Principle ch. 2(1985).

I•CON (2020), Vol. 18 No. 4, 1483–1489 doi:10.1093/icon/moaa098

1484 I•CON 18 (2020), 1483–1489

how could a theory which looked so wrong, feel so right? Ely’s book survived this dev-
astating critique, in part, because the distinction between process and substance was
not fatal to his central claim that courts should play a “representation-reinforcing”
role when upholding rights.7 Moreover, despite the fact that the distinction between
process and substance was roundly discredited, the process-orientation of Ely’s theory
nonetheless lent it an aura of democratic legitimacy which still hangs over it today.
Even accepting that there was a lot of substance in Ely’s account, it still seemed like “a

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lot less substance than Dworkin.”8 More importantly, it was the right substance. It was
substance oriented towards, and emanating from, the American system of represen-
tative democracy. The promise of a process-based theory which could attenuate the
counter-majoritarian difficulty, combined with a resolutely democratic orientation,
were the reasons for Ely’s allure. This explains why Democracy and Distrust is still an ev-
ergreen classic and a fertile source of inspiration for insightful work in constitutional
theory right up to the present day.9

2. Gardbaum’s grand plan

Four decades on, Stephen Gardbaum broadens and deepens Ely’s account, dusting
off its American roots, filling in some of the glaring omissions, and redeploying it
for global export in an interconnected world. While Gardbaum inherits some of Ely’s
democratic DNA, there are nonetheless some marked differences of approach. As
Gardbaum astutely observes, although Ely is often credited with developing a “pro-
cess theory,” he was actually concerned with judicial review of the substance of laws,
rather than with the democratic process.10 Gardbaum explores this underdeveloped
aspect of Ely’s theory, deepening the rather shallow majoritarian account of democ-
racy which Ely employed, and refining the judicial options on the table. In embarking
on this ambitious task, Gardbaum goes global, curating a collection of democratic
flaws and failures which, alas, are all too familiar to constitutional comparativists in
the twenty-first century. They include legislative failures to hold the executive to ac-
count; government capture of independent institutions (including the courts); capture
of the political process by special interests and “a failure to represent, or aggregate the
interests of the general citizenry”;11 “non-deliberativeness of the legislature;” evasion
of political accountability; violation of rules of parliamentary procedure; and last but
not least, “outright dysfunction of the political process,”12 as might occur under a mil-
itary or presidential coup.13 In surveying this vast and varied terrain, Gardbaum relies

7
Jeff King, Judging Social Rights 180 (2012).
8
Id. at 180.
9
One of the most notable examples is Rosalind Dixon’s insightful work on legislative “blind spots” and
“burdens of inertia” which takes Elyean insights in new directions, see Rosalind Dixon, Creating Dialogue
about Socio-Economic Rights: Strong-Form and Weak-Form Review Revisited, 5 Int’l J. Const. L. 391 (2007).
10
Stephen Gardbaum, Comparative Political Process Theory, 18 Int’l J. Const. L. 1410 (2020).
11
Id., at 1424.
12
Id. at 1425 ff.
13
Id., at 1426.
 Comparative political process theory: A reply    1485

heavily on egregious examples of democratic dysfunction in Poland, Hungary, Turkey,

Columbia, Israel, and South Africa, alongside a smattering of less drastic, though
nonetheless significant, democratic shortcomings in the United States, the United
Kingdom, and Germany. In mapping this fascinating field of study and drawing to-
gether erstwhile disparate phenomena, Stephen Gardbaum makes a significant con-
tribution to scholarship on judicial review of the democratic process.
In this article, I will make five brief comments. First, the list of political malfunctions

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Gardbaum outlines is breathtaking in scope. If judges are expected to solve—or at
least contribute to solving—such problems, this entails an ambitious role for the
courts which would take them well out of their constitutional comfort zone. Apex
courts around the world may be skilled in tasks such as statutory interpretation, con-
stitutional interpretation, or the development of judge-made doctrine. They may have
high levels of expertise in the detailed, doctrinal workings of the legal system. But
they have a shallower history and more dubious skillset when it comes to evaluating,
diagnosing, and then fixing flaws in the democratic process. This raises the question
of judicial capacity and competence. Interestingly, Ely himself ignored this issue in
Democracy and Distrust. Despite arguing trenchantly that courts clearly lacked the
ability and capacity to discern “fundamental values,”14 Ely was remarkably reticent
about capacity considerations when it came to developing his own theory.15 From the
plausible premise that judges have some expertise on issues of “due process writ small”
(i.e. the rules of due process, fair procedure, and natural justice in court proceedings),
Ely made a giant—largely unsubstantiated—leap to the suggestion that they might
also be competent to assess issues of “process writ large” (by which he meant the dem-
ocratic process as a whole).16 Familiarity with the rules of fair procedure within the
narrow confines of court proceedings in no way prepares judges to evaluate—still less
fix—faults in the democratic process.
Now, if tackling issues of judicial competence and capacity was a gap in Ely’s orig-
inal study, it is an even more urgent concern for Gardbaum who argues that courts
should go further and deeper into democratic processes than Ely ever imagined. True,
Gardbaum provides some examples of judicial decisions from around the world where
judges have developed innovative techniques to counter democratic malfunctions of
various sorts.17 But if courts from North to Global South and from East to West are
being asked to undertake the daunting job of policing democracy and fixing its many
flaws, then we need to tackle the question of capacity in more detail. Are courts well
placed to assess and review issues like executive dominance of the legislature, or to
monitor and review the standards of legislative deliberation and inclusion? Do judges
even understand the legislative process and political procedures sufficiently to be able
to identify the problems correctly, never mind fix them? Will judicial intervention do

14
Ely, supra note 1, at 59ff.
15
Neil Komesar, Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy 199, 250
(1994); King, supra note 7, at 181.
16
Ely, supra note 1, at 87.
17
Gardbaum, supra note 10, at 1429 ff.
1486 I•CON 18 (2020), 1483–1489

more harm than good for democracy in the long run? Or even the short run? Like Ely,
Gardbaum is more acutely focused on the legitimacy question, rather than the ca-
pacity question. But no matter how well-meaning judicial intervention may be, there
are limits to what courts can do in the face of a dysfunctional democracy, or even
when facing a political issue in a system which is relatively well-functioning. As Neil
Komesar put it: “to justify intervention, courts must be able to do a better job than the
malfunctioning political process, and at least on a wholesale basis, they cannot. They

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must be cognisant of their limits.”18 In order to realize Gardbaum’s grand plan, we
need to work out what those limits are.
Second, while Gardbaum’s article provides a broad-ranging examination of demo-
cratic problems, he has less detail on judicial solutions. What, exactly, should courts
do when facing such a wide variety of democratic flaws? Should courts strike down
statutes which are the product of a defective democratic process? What standard of
review should they employ? What remedies are appropriate or even possible? Who
will have standing to bring challenges to the political process? Should judges get in-
volved in structural reform litigation or is this beyond their ken? Should judges exer-
cise some restraint in handling these questions, or are all bets off as long as courts are
not disabling legislatures from arriving at a particular substantive result? Within the
confines of one single article mapping an entire field in global terms, it is perhaps un-
fair to expect Gardbaum to supply answers to these complex questions here and now.
Interestingly, there are no answers to these questions in Ely’s book either.19 However,
if Gardbaum’s grand plan is to be realized, this sort of detail is unavoidable and critical
to the plausibility of the project. If the overarching normative argument is that judges
should rectify—or at least help to rectify—the biggest problems facing democracies
today, we are entitled to ask: how?
Third, Gardbaum argues that judicial review of the legislative process is justified
because it does not “disable the elected institutions from acting within the existing con-
stitutional order.”20 Instead, it simply requires that “the particular process failure be
fixed,”21 so that democratic institutions can operate as they should. Without more de-
tail on what courts should do in response to the democratic flaws Gardbaum outlines,
it is hard to be confident that if judges are given the job of fixing democratic failures,
they will not thereby constrain and interfere with political action in significant ways.
If we have worries about the threat of judicial “policy distortion and debilitation”22 on
matters of constitutional substance, then there is every reason to worry about a sim-
ilar—if not more pervasive—distortive and disruptive effect occurring if courts are
given the power to review the legislative and democratic process.
In tackling this justificatory question, we should beware letting Ely’s allure mask the
scale of the problem. Simply because the judicial decisions Gardbaum describes relate

18
Komesar, supra note 15, at 250.
19
King, supra note 7, at 181.
20
Gardbaum, supra note 10, at 1413 (emphasis added).
21
Id. at 1436.
22
Mark Tushnet, Policy Distortion and Debilitation: Comparative Illumination of the Counter-Majoritarian
Difficulty, 94 Michigan L. Rev. 245 (1995).
 Comparative political process theory: A reply    1487

to the decision-making process rather than going directly to substance, this should not
lead us to be sanguine about the potential intrusiveness of judicial action in this area.
Reinforcing democracy is one thing, but replacing it is another. As Gardbaum tellingly
puts it towards the end of his article, the goal of political process review is “to replace a
deeply flawed or corrupted process with the constitutionally designated and intended
one.”23 The worry, here, is that judicial supervision of the process will become judicial
substitution. Even if such substitution may be justified at a particular time or with re-

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spect to a particular decision, we may have deeper worries about the long-term health
and resilience of a democratic system where the political actors get accustomed to
judges taking over the reins of the democratic process when times get tough.24
Fourth, in his article, Gardbaum suggests that Ely’s “central insight” was the claim
that “obviously, our elected representatives are the last persons we should trust”25 to
correct biases in the democratic system or counteract egregious discrimination against
minorities. The fox cannot be trusted to guard the chicken coop. But this argument
overlooks one obvious possibility. Legislatures and executives are typically large, com-
plex institutions comprising an array of actors with multiple motives, thus creating
the possibility of checking dysfunctional tendencies from within.26 Ely completely
overlooks the potential for self-policing within the democratic system. This over-
sight reflects Ely’s deep distrust of the democratic system and of the people (elected
politicians) who work that system. At times, Ely writes about elected politicians with
complete disdain, presenting them as narrowly self-interested, power-grabbing actors
whose main concern is to get re-elected in order to discriminate against minorities
and shirk the job of actually legislating.27 There is an acute irony here, which perhaps
reveals a strand of schizophrenia in Ely’s democratic DNA. After all, with such a dysto-
pian vision of democracy, we may wonder why courts should treat it as their lodestar
and guiding light. If democracy has friends like this, who needs enemies? Gardbaum
has a much richer conception of democracy than Ely employed, emphasizing that we
cannot trust in courts alone to perform this task of correcting biases in the demo-
cratic system. Gardbaum envisages a supplementary and supportive “oversight role”
for institutions other than courts, though interestingly, he seems to focus mostly on
institutions which are—like courts—independent from, not internal to, democratic
government.28 However, in his closing comments, Gardbaum gestures towards the

23
Gardbaum, supra note 10, at 1436.
24
This worry may arise in relation to the UK Miller case (R (Miller) v. The Prime Minister and Cherry
v. Advocate General for Scotland [2019] UKSC 41) which Gardbaum mentions supra note 10, at notes
50 and 120. Although there was widespread support for this decision in the unusual and time-pressured
circumstances surrounding the Brexit negotiations, we might worry about its long-term effects on the
political culture. The worry is that the precedent of Miller means that political actors will run to the
courts in high-stakes political controversies, rather than attempting to solve the political issues them-
selves, thus leading to a corrosive legalization of the political process.
25
Ely, supra note 1, at 104–6.
26
Komesar, supra note 15, at 204.
27
Ely, supra note 1, ch. 5.
28
He instances Independent Election Commissions, anti-corruption officials, the media, etc.
1488 I•CON 18 (2020), 1483–1489

idea that democratic norms should be strengthened from within.29 This suggests that
he may be more open to the potential for democratic self-correction—a potential
which does not undermine his overall argument, but rather complements it.
Finally, I mentioned that both Ely and Gardbaum seem more concerned with the le-
gitimacy question than the capacity question. But it is also important to note that they
both frame the legitimacy question in a similar way. When Ely and Gardbaum talk
about legitimacy, they mean democratic legitimacy. Forty years on, Gardbaum is just as

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preoccupied as Ely was with the counter-majoritarian problem—that is, finding ways
of justifying judicial review in democratic terms.30 On this reading, if courts act to
improve or even fix the democratic process, this seems democratically legitimate. But
I suggest that the legitimacy register is much broader than the counter-majoritarian
difficulty would lead us to believe. It should also include legitimacy concerns grounded
in the constitutional separation of powers.31 After all, it is the principle of the separa-
tion of powers which engages issues about the inter-institutional comity and respect,
as well as a concern to allow each branch sufficient leeway to do their own job in the
constitutional system. And it is the separation of powers, not just democracy, which
underpins concerns about judicial capacity and the appropriate extent of judicial in-
tervention into the decision-making processes of a coordinate branch. In the course
of his article, Gardbaum quotes the South African Constitutional Court expressing its
reluctance to “make a radical and separation-of-powers-insensitive move.”32 This is
the key locus of legitimacy underpinning the issues which Gardbaum surveys.

3. Conclusion: The parochial and global in comparative

constitutional law
Stephen Gardbaum opens his article with the observation that Ely’s book was “self-con-
sciously parochial.”33 It was an interpretation and justification of the American
system of judicial review. In order to be “more relevant and useful for comparative
constitutional law,”34 Gardbaum argues that we need to go global, drawing together
a wide range of interlinked phenomena. In doing so, Gardbaum has made a hugely
valuable contribution to our understanding of both local exigencies and global trends,
which will undoubtedly benefit from cross-cultural comparison and engagement. But
the sheer range of phenomena Gardbaum presents, and the vast variability of the
contexts in which they arise, remind us of the complementary value to the discipline

29
Gardbaum, supra note 10, at 1437.
30
For analysis of this theme in Gardbaum’s work, see Aileen Kavanagh, A Hard Look at the Last Word, 35
Oxford J. Legal Stud. 1 (2015).
31
See Aileen Kavanagh, The Constitutional Separation of Powers, in Philosophical Foundations of Constitutional
Law 221 (David Dyzenhaus & Malcolm Thorburn eds., 2015); Dimitrios Kyritsis, Where Our Protection
Lies: Separation of Powers and Constitutional Review (2017); Dimitrios Kyritsis, Justifying Constitutional
Review in the Legitimacy Register, Revus: Journal for Constitutional theory and Philosophy of Law (2020), 1.
32
United Democratic Movement v. Speaker of the National Assembly 2017 ZACC 47, ¶ 92.
33
Gardbaum, supra note 10, at 1411.
34
Id. at 1413.
 Comparative political process theory: A reply    1489

of comparative constitutional law of fine-grained, contextual narratives from partic-

ular countries.35 The typological trend in recent comparative scholarship gives us a
bird’s eye view across varied terrain. But eventually we need to come back down to
earth and get our hands dirty in the details, attentive to variation in soil composition
and climate. Most likely, the locals who have been working that soil for generations
will have something relevant and useful to say to the global comparative scholar.
In response to Hayek’s observation that “[o]nly a demagogue can represent as ‘anti-

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democratic’ the limitations which long-term decisions and the general principles held
by the people impose upon the power of temporary majorities,”36 Ely retorted: “I guess
that makes me a demagogue.”37 No contemporary scholar of democracy would get
away with such a statement today. The key lesson from the varied stories of demo-
cratic decay across the world is that it is precisely the long-term values and norms
of democratic engagement—including the principles of comity and self-restraint
grounded in the separation of powers—which are the vitally important sustaining
features of a well-functioning democratic system.38 Looking around the world today,
no one could deny the problem of democratic dysfunction. The big question is which
institutions are best placed to fix it, and how they can legitimately and effectively do
so. No doubt, courts have a role in reinforcing the values of representative democracy.
But we should be wary of presenting judges as the saviours of democracy, lest they re-
place rather than reinforce democratic government. The appropriate judicial role may
be styled as one of “protecting—not perfecting—democracy.”39

35
Claudia Geiringer, When Constitutional Theories Migrate: A Case Study, 67 Am. J. Comp. L. 281, 286 (2019).
36
Friedrich Hayek, The Constitution of Liberty 106–7 (1960).
37
Ely, supra note 1, at 63.
38
Stephen Levitsky & Daniel Ziblatt, How Democracies Die: What History Reveals about our Future (2018);
Aileen Kavanagh, The Collaborative Constitution (forthcoming 2021).
39
David Prendergast, The Judicial Role in Protecting Democracy from Populism, 20 German Law Journal 245,
246 (2019).