John Hart Ely

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 is not 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.

External links

* [http://www.law.miami.edu/news/328.html University of Miami mourns passing of John Hart Ely]