DEMOCRACY and DISTRUST A Theory of Judicial Review John Hart Ely1 The Allure of Interpretivism different names at different times, helpful as any.* Today we are likely to cal the contending sides “in terpretivism” and “noninterpretivism"—the former indicating that judges deciding cor enforcing norm: ea mistake to suppose that there is any necessary cor relation between an interpretivist approach to constitutional adju: ‘ication and political conservatism or even what is commonly called mid ere, ce they 12 Democracy and Diserust , is fairly discoverable in inference will not be found there—because the iy to have been foreseen—is generally common Surely no one who watched the late Justice Hugo Black stand the variety of novel threats to freedom of ex: lators and executives of the 1940s and 1950s were able o devise could suppose that a historically stragjacketed literal: al philosophy. Yet Black is rec- to make the Fourteenth leges or Immunities Clauses ‘who wanted those clauses to incorpora law other (unlisted) forms of uncivilized behavior as well, but Black ‘made clear from the beginning that he was not among them: the clauses incorporated principles expressed elsewhere in the Constitu- sion and that was i.* Tt happened that in enforcing the principles the Constitution, Black was generally in the position of en- pretivism may be entering a period of ty.? Several reasons seem apparent. The firs i abortion decision of 1973, Roe v. Wade; ‘clearest example of noninterpretivis “reasoning” on the part of Court in four decades: it forced all of us who work in the area to ‘The Alluie of Interpretivism 3 of persons would today label themselves sly given the choice much notice. The second may be that," FRoe notwithstanding, the Burger Court i by and lage a least more conservative than its predeces .eans that observers who might earlier have been content 3 justices enforce their own values (or their rendition of soci ‘y's values) are now somewhat uneasy about doing so and are more Likely to pursue an interpretivis line, casting their lot with the values ‘ofthe framers. Still another reason is more ad hominem: that Justice Black, who di 71, is himself enjoying something of a renais sance. His softspoken charm was always apparent to those who were tory use of principle. The afterglow Frankfurter’s pyrotechnics having faded, people can see Black ‘natural ight and are discovering that he was only posing asa rustic. = Incerpretivism is no mere passing fad, however; infact the Court ‘And indeed ewo significant (and interrelated) comparative attrac: sions of an interpretivist approach can be identified.'® The first is that i better fits our usual conceptions of what law is and the way it order to decide whether certain whether (and this is eloser to the ‘conflicts with another statute, a court obviously self to a ion of the purposes and prohibitions expressed by or in its language. Were a those references and intended additional of the statute in question, those fundament ‘America had always stood for, we would c doing his job, and might even consider a cal