This powerfully argued appraisal of judicial review may change the face of American law. Written for layman and scholar alike, the book addresses one of the most important issues facing Americans today: within what guidelines shall the Supreme Court apply the strictures of the Constitution to the complexities of modern life?
Until now legal experts have proposed two basic approaches to the Constitution. The first, “interpretivism,” maintains that we should stick as closely as possible to what is explicit in the document itself. The second, predominant in recent academic theorizing, argues that the courts should be guided by what they see as the fundamental values of American society. Mr. Ely demonstrates that both of these approaches are inherently incomplete and inadequate. Democracy and Distrust sets forth a new and persuasive basis for determining the role of the Supreme Court today.
Ely’s proposal is centered on the view that the Court should devote itself to assuring majority governance while protecting minority rights. “The Constitution,” he writes, “has proceeded from the sensible assumption that an effective majority will not unreasonably threaten its own rights, and has sought to assure that such a majority not systematically treat others less well than it treats itself. It has done so by structuring decision processes at all levels in an attempt to ensure, first, that everyone’s interests will be represented when decisions are made, and second, that the application of those decisions will not be manipulated so as to reintroduce in practice the sort of discrimination that is impermissible in theory.”
Thus, Ely’s emphasis is on the procedural side of due process, on the preservation of governmental structure rather than on the recognition of elusive social values. At the same time, his approach is free of interpretivism’s rigidity because it is fully responsive to the changing wishes of a popular majority. Consequently, his book will have a profound impact on legal opinion at all levels-from experts in constitutional law, to lawyers with general practices, to concerned citizens watching the bewildering changes in American law.
John Hart Ely (December 3, 1938 – October 25, 2003) is one of the most widely cited legal scholars in United States history, ranking just after Richard Posner, Ronald Dworkin, and Oliver Wendell Holmes, Jr., according to a 2000 study in the University of Chicago's Journal of Legal Studies.
Born in New York City, John Hart Ely graduated from Princeton University in 1960 and Yale Law School in 1963. As a summer clerk at Arnold, Fortas, & Porter, a Washington, D.C. law firm, he assisted Abe Fortas in the landmark case of Gideon v. Wainwright, writing a first draft of a brief on behalf of Clarence Earl Gideon, a Florida drifter who had been tried and convicted without a lawyer.
In the fall of 1963, Ely trained with Company A of the U.S. Army's Military Police School at Fort Gordon, Georgia. Ely served as the youngest staff member of the Warren Commission, which investigated the assassination of President John F. Kennedy. He went on to clerk for U.S. Supreme Court Chief Justice Earl Warren, whom he considered a hero, and to whom he dedicated his landmark book, Democracy and Distrust (1980). As a clerk for Warren during the 1964 Term, Ely authored the landmark decision Hanna v. Plumer.
Joining the faculty of Yale Law School in 1968, and moving to Harvard Law School in 1973, Ely wrote several influential law review articles, including a highly critical analysis of the Supreme Court's decision in Roe v. Wade in an article entitled "The Wages of Crying Wolf," published in the Yale Law Journal, wherein he argued that the Court's decision protecting abortion rights was wrong "because it is not constitutional law and gives almost no sense of an obligation to try to be."
Ely's most notable work was his 1980 book Democracy and Distrust, which ranks as one of the most influential works about constitutional law ever written. In it, he argues against "interpretivism" of which Hugo Black was an exponent, "originalism" advanced by Robert Bork, and "textualism" advanced by Antonin Scalia, by contending that "strict construction" fails to do justice to the open texture of many of the Constitution's provisions; at the same time, though, he maintains that the notion that judges may infer broad moral rights and values from the Constitution is radically undemocratic, whether the "moralism" of Ronald Dworkin or the libertarian Richard Epstein. Instead, Ely argued that the Supreme Court should interpret the Constitution so as to reinforce democratic processes and popular self-government, by ensuring equal representation in the political process (as in the Court's decision in Baker v. Carr ). He argues ejusdem generis that the Constitution's unenumerated rights (such as the 9th Amendment or the Privileges or Immunities clause of the 14th Amendment) are procedural in nature rather than substantive, thus protecting rights to democratic processes but not rights of a substantive nature. Justice Stone's Footnote Four from United States v. Carolene Products Co. (1938) is a chief inspiration for Ely's theory of judicial review.
In her recent book on Hans Kelsen, Sandrine Baume identified Ely as a significant defender of the "compatibility of judicial review with the very principles of democracy." Ely was listed alongside Dworkin as one of the foremost defenders of this principle in recent years.
Ely went on to serve as dean of Stanford Law School from 1982 to 1987, and remained on the faculty until 1996. Prompted by his love of scuba diving, he visited the University of Miami School of Law in 1996. Discovering he liked the city and the faculty, he chose to stay and became the first holder of the law school's first endowed chair, named after Richard A. Hausler. Ely was there when he died of cancer, aged 64.
He was married to Gisela Cardonne Ely, who is a state judge in Miami, Florida.
Ely was formerly married to Nancy Halliday Ely-Raphel, a United States Ambassador to Slovenia.
- John Hart Ely, a Constitutional Scholar, Is Dead at 64.New York Times, October 27, 2003. Accessed October 12, 2008.
- John Hart Ely, 64; Constitutional Law Scholar and Author Was Often Cited by Legal Experts.Los Angeles Times, November 2, 2003. Accessed October 12, 2008.
- ^Fred R. Shapiro. The Most-Cited Legal Scholars.The Journal of Legal Studies, vol. 29 (January 2000), No. S1, pp. 409–426
- ^"Archived copy". Archived from the original on 2010-07-13. Retrieved 2010-01-29.
- ^Baume, Sandrine (2011). Hans Kelsen and the Case for Democracy, ECPR Press, pp53-54.
- ^"Weddings; Mary Jean Bonadonna, Robert Ely". The New York Times. New York. August 9, 1998. Retrieved December 31, 2014.