Combatting malfunction or optimizing democracy? Lessons from Germany for a comparative political process theory

摘要

Ely's representation-reinforcing theory of judicial review is little known in German public law. Where it is mentioned, it is most often to contest its relevance to German debates. Yet both German jurisprudence and scholarship have a long tradition of taking process-related issues seriously independently of Ely. This makes Germany an interesting place not only to examine the reception of Ely's work but also to analyze how and where Elyian arguments surface and in what forms. In the context of the German Constitutional Court's robust understanding of its own role and the character of the Basic Law as a set of substantive values or principles, such arguments often do not appear as part of a broader theory of relative trust and distrust, but rather serve standardly to justify judicial intervention. The German experience also speaks to the problem noted by Ely's US critics of operationalizing the idea of malfunction, which lies at the heart of his argument and ensures not only its survival but its current popularity. It suggests that malfunction is often not something we can define in the abstract, but that Ely's theory is nevertheless important for confronting us with the question of not only when distrust warrants intervention but also when the evidence for trust does not.