John Hart Ely
Encyclopedia
John Hart Ely 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.
, 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 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, 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
[1961]). 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.
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 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
.
Richard Posner
Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...
, Ronald Dworkin
Ronald Dworkin
Ronald Myles Dworkin, QC, FBA is an American philosopher and scholar of constitutional law. He is Frank Henry Sommer Professor of Law and Philosophy at New York University and Emeritus Professor of Jurisprudence at University College London, and has taught previously at Yale Law School and the...
, and Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...
, according to a 2000 study in the University of Chicago
University of Chicago
The University of Chicago is a private research university in Chicago, Illinois, USA. It was founded by the American Baptist Education Society with a donation from oil magnate and philanthropist John D. Rockefeller and incorporated in 1890...
's Journal of Legal Studies.
Biography
Born in New York CityNew York City
New York is the most populous city in the United States and the center of the New York Metropolitan Area, one of the most populous metropolitan areas in the world. New York exerts a significant impact upon global commerce, finance, media, art, fashion, research, technology, education, and...
, John Hart Ely graduated from Princeton University
Princeton University
Princeton University is a private research university located in Princeton, New Jersey, United States. The school is one of the eight universities of the Ivy League, and is one of the nine Colonial Colleges founded before the American Revolution....
in 1960 and Yale Law School
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
in 1963. As a summer clerk at Arnold, Fortas, & Porter
Arnold & Porter
Arnold & Porter LLP is a nine-office international law firm based in Washington, D.C. Arnold & Porter is well known for its trial, corporate, and antitrust work, and for its pro bono commitments and support for liberal causes.-History:...
, a Washington, D.C.
Washington, D.C.
Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....
law firm, he assisted Abe Fortas
Abe Fortas
Abraham Fortas was a U.S. Supreme Court associate justice from 1965 to 1969. Originally from Tennessee, Fortas became a law professor at Yale, and subsequently advised the Securities and Exchange Commission. He then worked at the Interior Department under Franklin D...
in the landmark case of Gideon v. Wainwright
Gideon v. Wainwright
Gideon v. Wainwright, , is a landmark case in United States Supreme Court history. In the case, the Supreme Court unanimously ruled that state courts are required under the Sixth Amendment of the Constitution to provide counsel in criminal cases for defendants who are unable to afford their own...
, writing a first draft of a brief on behalf of Clarence Earl Gideon
Clarence Earl Gideon
Clarence Earl Gideon was a poor drifter accused in a Florida state court of felony theft. His case resulted in the landmark U.S. Supreme Court decision Gideon v...
, 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
Georgia (U.S. state)
Georgia is a state located in the southeastern United States. It was established in 1732, the last of the original Thirteen Colonies. The state is named after King George II of Great Britain. Georgia was the fourth state to ratify the United States Constitution, on January 2, 1788...
. Ely served as the youngest staff member of the Warren Commission
Warren Commission
The President's Commission on the Assassination of President Kennedy, known unofficially as the Warren Commission, was established on November 27, 1963, by Lyndon B. Johnson to investigate the assassination of United States President John F. Kennedy on November 22, 1963...
, which investigated the assassination of President John F. Kennedy
John F. Kennedy
John Fitzgerald "Jack" Kennedy , often referred to by his initials JFK, was the 35th President of the United States, serving from 1961 until his assassination in 1963....
. He went on to clerk for Chief Justice Earl Warren
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...
, whom he considered a hero, and to whom he dedicated his landmark book, Democracy and Distrust (1980). As a clerk for Warren, Ely authored the landmark decision Hanna v. Plumer
Hanna v. Plumer
Hanna v. Plumer, 380 U.S. 460 , was a decision by the Supreme Court of the United States, in which the Court further refined the Erie doctrine regarding when and by what means federal courts are obliged to apply state law in cases brought under diversity jurisdiction...
.
Joining the faculty of Yale Law School
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
in 1968, and moving to Harvard Law School
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...
in 1973, Ely wrote several influential law review articles, including a highly critical analysis of the Supreme Court's decision in Roe v. Wade
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
in an article entitled "The Wages of Crying Wolf," published in the Yale Law Journal
Yale Law Journal
The Yale Law Journal is a student-run law review affiliated with the Yale Law School. Published continuously since 1891, it is the most widely known of the eight law reviews published by students at Yale Law School...
, 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
Hugo Black
Hugo Lafayette Black was an American politician and jurist. A member of the Democratic Party, Black represented Alabama in the United States Senate from 1927 to 1937, and served as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. Black was nominated to the Supreme...
was an exponent, "originalism
Originalism
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
" advanced by Robert Bork
Robert Bork
Robert Heron Bork is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as Solicitor General, Acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit...
, and "textualism
Textualism
Textualism is a formalist theory of statutory interpretation, holding that a statute's ordinary meaning should govern its interpretation, as opposed to inquiries into non-textual sources such as the intention of the legislature in passing the law, the problem it was intended to remedy, or...
" advanced by Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
, 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
Ronald Dworkin
Ronald Myles Dworkin, QC, FBA is an American philosopher and scholar of constitutional law. He is Frank Henry Sommer Professor of Law and Philosophy at New York University and Emeritus Professor of Jurisprudence at University College London, and has taught previously at Yale Law School and the...
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
Baker v. Carr
Baker v. Carr, , was a landmark United States Supreme Court case that retreated from the Court's political question doctrine, deciding that redistricting issues present justiciable questions, thus enabling federal courts to intervene in and to decide reapportionment cases...
[1961]). He argues ejusdem generis that the Constitution's unenumerated rights (such as the 9th Amendment
Ninth Amendment to the United States Constitution
The Ninth Amendment to the United States Constitution, which is part of the Bill of Rights, addresses rights of the people that are not specifically enumerated in the Constitution.-Text:-Adoption:When the U.S...
or the Privileges or Immunities clause of the 14th Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
) 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
Stanford Law School
Stanford Law School is a graduate school at Stanford University located in the area known as the Silicon Valley, near Palo Alto, California in the United States. The Law School was established in 1893 when former President Benjamin Harrison joined the faculty as the first professor of law...
from 1982 to 1987, and remained on the faculty until 1996. Prompted by his love of scuba diving
Scuba diving
Scuba diving is a form of underwater diving in which a diver uses a scuba set to breathe underwater....
, he visited the University of Miami
University of Miami
The University of Miami is a private, non-sectarian university founded in 1925 with its main campus in Coral Gables, Florida, a medical campus in Miami city proper at Civic Center, and an oceanographic research facility on Virginia Key., the university currently enrolls 15,629 students in 12...
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
Cancer
Cancer , known medically as a malignant neoplasm, is a large group of different diseases, all involving unregulated cell growth. In cancer, cells divide and grow uncontrollably, forming malignant tumors, and invade nearby parts of the body. The cancer may also spread to more distant parts of the...
, aged 64.
He was married to Gisela Cardonne Ely, who is a state judge in Miami, Florida
Miami, Florida
Miami is a city located on the Atlantic coast in southeastern Florida and the county seat of Miami-Dade County, the most populous county in Florida and the eighth-most populous county in the United States with a population of 2,500,625...
.