John Hart Ely, a Constitutional Scholar, Is Dead at 64
By ADAM LIPTAK
27 October 2003
The New York Times
John
Hart Ely, a constitutional scholar of dazzling originality and wide
influence, died on Saturday in Miami. He was 64.
The cause
was cancer, his wife, Gisela Cardonne Ely, said.
Professor
Ely, who had taught law at Harvard and Yale and had been dean of the
Stanford Law School, was best known for ''Democracy and Distrust: A
Theory of Judicial Review'' (Harvard, 1980).
''It is
the most important work of constitutional scholarship in the two
generations from the time it was published to now,'' said Mark Tushnet, a
law professor at Georgetown University, echoing a widely held view.
The book
proposed a distinctive middle ground between the conventional positions
on the proper role of judges in interpreting the Constitution.
Professor
Ely rejected the view that the Constitution could be interpreted based
solely on its text and history, saying that scholars who focused only on
the original intent of its drafters were insensitive to the document's
structure and the open-textured nature of some of its language. But he
was equally impatient with those who maintained that judges might infer
moral rights and values from it.
Instead,
he proposed that courts should infer only one sort of value from the
Constitution, a procedural one. The Constitution, Professor Ely wrote,
requires judges to protect and enhance the democratic process itself,
ensuring that it remains open and fair.
Judges
interpreting the Constitution should be, he wrote, in an
uncharacteristically ungainly phrase, ''participation-oriented,
representation-reinforcing.''
Professor
Ely stressed the importance of giving disfavored minorities access to the
political process, particularly in the face of unfair or artificial
obstacles erected by the majority. He wrote with special concern about
voting rights, free speech and racial discrimination.
''The
approach to constitutional adjudication recommended here is akin to what
might be called an 'antitrust' as opposed to a 'regulatory'
orientation,'' he wrote in the book. ''Rather than dictate the
substantive result, it intervenes only when the 'market,' in our case the
political market, is systematically malfunctioning.''
According
to a study published in The Journal of Legal Studies in 2000, ''Democracy
and Distrust'' was, by a considerable margin, the single book on the law
published since 1978 most often cited by other legal scholars in their
own work.
A broader
companion study found Professor Ely to be the fourth most frequently
cited legal scholar of all time, as judged by references in legal
scholarship since 1956. He trailed Richard A. Posner, Ronald Dworkin and
Oliver Wendell Holmes Jr., in that order. Both lists excluded textbooks
and treatises.
Professor
Ely's theory was both provocative and attractive because it proposed a
solution to a vexing constitutional problem, that of how to reconcile an
unelected judiciary with a democracy. It did so, moreover, without
obviously taking sides in political and social debates.
His work
nonetheless displeased partisans on both ends of the political spectrum.
Critics on
the right said Professor Ely's approach was just a fancy way for judges
to impose their wishes over the objections of democratic majorities.
''What is
reinforced,'' Robert H. Bork wrote in 1990, ''is not democratic
representation so much as it is judicial power to redistribute the
polity's goods.''
Critics on
the left found the theory wanting because it did not protect rights they
viewed as fundamental, notably the right of privacy.
Born in
New York City in 1938, Professor Ely was a graduate of Princeton and of
Yale Law School. In 1962, after his second year at the law school, he
worked as a summer clerk at Arnold, Fortas & Porter, a Washington law
firm, assisting Abe Fortas, the future Supreme Court justice, in a
landmark case. Professor Ely wrote a first draft of a brief on behalf of
Clarence Gideon, a Florida drifter who had been tried and convicted
without a lawyer.
The next
year, the United States Supreme Court ruled in Mr. Gideon's favor,
holding that poor people accused of serious crimes are entitled to legal
representation paid for by the government.
After
graduating, Professor Ely served as the youngest staff member of the
Warren Commission, which investigated the assassination of President John
F. Kennedy.
He went on
to work as a clerk to Chief Justice Earl Warren, whom he considered a
hero.
Professor
Ely worked as a criminal defense lawyer in San Diego before joining the
law faculty at Yale in 1968. He moved to Harvard in 1973 and then to
Stanford, as the dean of its law school, in 1982. He continued to teach
at Stanford for almost a decade after he stepped down as dean in 1987. He
moved to the University of Miami School of Law in 1996 and was on its
faculty when he died. The move to Florida was, friends said, prompted in
part by a love of scuba diving.
In 1975,
he left academia briefly to be general counsel of the Department of
Transportation.
In
addition to ''Democracy and Distrust,'' Professor Ely wrote two other
books, ''War and Responsibility'' (Princeton, 1993) and ''On
Constitutional Ground'' (Princeton, 1996).
In
addition to his wife, who is a state judge in Miami, he is survived by
two sons, Robert, of New York City, and John, of Washington; and two
grandchildren.
''Democracy
and Distrust'' is dedicated to Chief Justice Warren, and the book is in
one sense an effort to describe and explain the Supreme Court's
jurisprudence during the Warren years, 1953 to 1969.
Liberals
welcomed this aspect of Professor Ely's work.
''It made
the Warren Court intellectually respectable in circles that, while they
may have had sympathy with its results, persisted in uneasiness about
their legitimacy,'' said Eric M. Freedman, a law professor at Hofstra
University.
But
Professor Ely's admiration for the Warren Court was not unbounded.
''The main
strand of Warren Court liberalism was small-d democracy,'' Professor
Tushnet said. ''There was another strand, of personal autonomy, which was
1960's stuff. Ely didn't agree with it.''
Professor
Ely expressed that disagreement most memorably in a caustic critique of
the reasoning in Roe v. Wade, the 1973 decision finding a right to
abortion in the Constitution. Earl Warren was no longer chief justice by
then, but the Roe decision was rooted in a 1965 decision of the court.
''What is
frightening about Roe is that this super-protected right,'' Professor Ely
wrote in the Yale Law Journal in 1973, ''is not inferable from the
language of the Constitution, the framers' thinking respecting the
specific problem in issue, any general value derivable from the
provisions they included, or the nation's governmental structure.''
Professor
Ely had said he supported the availability of abortion as a matter of
policy. But he wrote that the Roe decision was untenable as a matter of
intellectually honest jurisprudence.
''It is
not constitutional law,'' he said of the decision, ''and gives almost no
sense of an obligation to try to be.''
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Matthew J. Franck
Professor and Chairman
Department of Political Science
Radford University
P.O. Box 6945
Radford, VA 24142-6945
phone 540-831-5854
fax 540-831-6075
e-mail [EMAIL PROTECTED]
www.radford.edu/~mfranck
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