John Hart Ely in the Mexican Supreme Court

Abstract

In this article, I reflect upon the influence that John Hart Ely's book Democracy and Distrust can have on our discussions about the Mexican Supreme Court. For that purpose, I distinguish the Mexican Court's role under authoritarian rule and in democracy. In the former era, Ely's theory would not have even been considered. In the latter, the Court has adopted a substantive conception of democracy and judicial review based on authors such as Ronald Dworkin, Robert Alexy, and Luigi Ferrajoli. Moreover, in the last twelve years, the Court has developed a human rights agenda. During this time, it has interpreted human rights and economic liberties, issuing rulings that are similar to those that preoccupied Ely forty years ago (Lochner v. New York or Roe v. Wade). In this regard, Ely's theory is useful to think about the current situation of constitutional justice in Mexico, even if we do not embrace his proposal that limits the role of the Court to procedural issues. In a country such as Mexico, where the reality of our democracy is much feebler and deep economic and social inequalities predominate, the Court is compelled to play a transformative role.