Foreword: Comparative Political Process Theory in Japan

In Japan and elsewhere the political process theory John Hart Ely expounded in his 1980 classic, Democracy and Distrust (D&D), remains an influential theory of judicial review. Its main prescription is that of U.S. vs. Carolene Products’ famous footnote four: courts should strictly scrutinize a statute only when it (1) infringes a right that the written constitution either explicitly or intentionally guarantees; (2) closes off channels of political change to outsiders (e.g., by denying them a voice or the vote), or (3) is the product of such severe hostility or prejudice against some outsiders— viz., discrete and insular minorities—that insiders refuse to deal with them no matter what (e.g., racial segregation in schools). Save largely for these three exceptions the courts should give elected lawmakers a large leeway in deciding all public issues.

[Excerpt from the Preface]