Everything about John Hart Ely totally explained
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.
Biography
He was born in
New York City, and graduated from
Princeton University and
Yale Law School. 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 (1961), 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. As recounted in the famous book
Gideon's Trumpet by
Anthony Lewis, Gideon had scrawled his petition for
certiorari from a prison cell in his own handwriting. The Supreme Court ruled in Gideon's favor. In the fall of 1963, he trained with Company A of the U.S. Army's Military Police School at
Fort Gordon, GA. 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 Chief Justice
Earl Warren on the Supreme Court, whom he considered a hero, and to whom he dedicated his landmark book,
Democracy and Distrust (1980).
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 isn't constitutional law and gives almost no sense of an obligation to try to be."
Ely's most notable work, however, 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 [1961]). He argues
ejusdem generis that the Constitution's unenumerated rights (such as the
9th Amendment or the Privileges and 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.
He 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 moved to the
University of Miami School of Law in
1996 and was on its faculty when he died of
cancer, aged 64.
He was married to Gisela Cardonne Ely, who is a state judge in
Miami, Florida.
Further Information
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