Between Facts and Norms - Contributions to a ... - Blogs Unpad

265Judiciary and Legislatureagainst, for example, ethnic or religious minontles, marginalgroups, the handicapped, homosexuals, the elderly, youth, and soon. Rather, Ely takes a procedural view of the implicitly unequalclassifications of groups that should be treated equally: such inequalitiesresult from a political process whose democratic proceduralconditions have been violated. Hence abstract judicial review shouldrefer primarily to the conditions for the democratic genesis oflaws.More specifically, it must start by examining the communicationstructures of a public sphere subverted by the power of the massmedia; go on to consider the actual chances that divergent andmarginal voices will be heard and that formally equal rights ofparticipation will be effectively exercised; and conclude with theequal parliamentary representation of all the currently relevantgroups, interest positions, and value orientations. Here it must also .refer to the range of issues, arguments and problems, values andinterests that find their way into parliamentary deliberation and areconsidered in the justification of approved norms. Ely gives theliberal mistrust of tyrannical majorities a surprising proceduraltwist. He is concerned with the de facto limits on a formallyrecognized pluralism and uses the classical notion of virtual representationto plead for an equal chance at participation on the partof technically represented but actually excluded or marginalizedminorities. The examination of the genesis of a norm should also extendto the separation between the executive and legislative branches ofgovernment. Specifically, it should cover not just the administrativeimplementation of legal programs but also the improperpassivity of a legislature that fails to make full use of its authorizedpowers and too easily delegates tasks to the administration: "Courtsthus should ensure not only that administrators follow thoselegislative policy directions that do exist . . . but also that suchdirections are given."44Ely uses this proceduralist understanding of the Constitution tojustifY 'judicial self-restraint. " In his view, the Supreme Court canretain its impartiality only if it resists the temptation to fill out itsinterpretive latitude with moral value judgments. Ely's skepticismis directed as much against value jurisprudence as against aninterpretation oriented by principles, in the sense of Dworkin'sconstructive interpretation. Ely is inconsistent insofar as he must