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John Hart Ely
Born	(1938-12-03)December 3, 1938 New York City, U.S.
Died	October 25, 2003(2003-10-25) (aged 64) Coconut Grove, Florida, U.S.
Awards	American Academy of Arts and Sciences (1981) Triennial Award of the Order of the Coif (1982)
Academic background
Education	Princeton University (BA) Yale University (LLB) London School of Economics
Influences	Fortas Warren Stone
Academic work
Discipline	Constitutional law
Institutions	Yale University Harvard University Stanford University University of Miami
Notable works	The Wages of Crying Wolf (1973) Democracy and Distrust (1980)
Notable ideas	Political process theory
Influenced	Chertoff Fleming Mallat Sullivan Tribe
9th Dean of Stanford Law School
In office 1982–1987
President	Donald Kennedy
Preceded by	Charles J. Meyers
Succeeded by	Paul A. Brest

John Hart Ely (/ˈiːliː/ EE-lee; December 3, 1938 – October 25, 2003) was an American legal scholar. He was a professor of law at Yale Law School from 1968 to 1973, Harvard Law School from 1973 to 1982, Stanford Law School from 1982 to 1996, and at the University of Miami Law School from 1996 until his death. From 1982 until 1987, he was the 9th dean of Stanford Law School.

As a third-year student at Yale Law School, Ely became a member of the legal team of Abe Fortas; he and the team contributed to the landmark ruling in Gideon v. Wainwright which required states to provide legal representation to those who could not afford their own defense.

He continued his legal career as the youngest staff member of the scrutinized Warren Commission tasked with investigating the assassination of John F. Kennedy. After clerking for Justice Earl Warren, he studied abroad and returned to take a position as a public defender before beginning a distinguished career in academia as a professor at Yale, Harvard, and Stanford.

Ely became known during his scholarly career for his witty legal writing, devotion to the separation of powers, and championship of the political process theory. An outspoken critic of judicial activism, he penned an article in the pages of the Yale Law Journal criticizing the Supreme Court's decision in Roe v. Wade in spite of his own agreements with the ruling on policy grounds. His 1980 work, Democracy and Distrust, became the most-cited legal text written in the 20th century.

In 1996, Ely had three publications which were among the most-cited law review articles of all time. According to a 2000 study in the University of Chicago's Journal of Legal Studies, he was ranked fourth among the most widely cited legal scholars in American history after Richard Posner, Ronald Dworkin, and Oliver Wendell Holmes Jr.

Early life and education

Ely was born and raised in New York City. After graduating from Westhampton Beach High School in 1956, he enrolled at Princeton University, majoring in philosophy and earning a Bachelor of Arts, summa cum laude; he was a member of Phi Beta Kappa in 1960. He then attended Yale Law School, where he was the notes and comments editor of the Yale Law Journal, graduating in 1963 with an LL.B., magna cum laude. He held membership in the Order of the Coif.

While still a third-year student at Yale, Ely became a summer clerk at Arnold, Fortas, & Porter—a Washington, D.C. law firm. While at the firm he assisted Abe Fortas in the landmark case of Gideon v. Wainwright, writing a first draft of a brief on behalf of the plaintiff, Clarence Earl Gideon. Ely was tasked with doing the basic research for the case, writing under pressure to produce a set of legal memoranda including a 25-page paper titled "Application, Ambiguities, and Weaknesses of the Special Counsel Rule" that examined the application of Betts v. Brady in state courts.

After law school, Ely served as the youngest staff member of the Warren Commission, aiding its investigation into the assassination of President John F. Kennedy in 1963. From 1964 to 1965, Ely clerked for Chief Justice Earl Warren of the U.S. Supreme Court. As a law clerk, Ely drafted the majority opinion in the landmark decision Hanna v. Plumer; he considered Warren his hero, later dedicating his landmark book, Democracy and Distrust, to him. Ely studied at the London School of Economics as a Fulbright scholar following his clerkship. After returning to the United States, he was part of the Military Police Corps and despite being overqualified for the job, took a modest position as a public defender in San Diego.

Academic career

In 1968, Ely joined the faculty of Yale Law School. For five years, he served as a professor at Yale before moving to teach at Harvard Law School in 1973—holding the school's first chair in constitutional law. During this period, he wrote several influential law review articles, including his 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. He took a year's leave to serve as general counsel to the U.S. Department of Transportation and spent a year at the Woodrow Wilson International Center for Scholars of the Smithsonian Institution.

In 1982, Ely left his position at Harvard to join Stanford Law School as its dean; he was a member of the faculty until 1996. At Stanford, his tenure as dean was marked by a program to implement a loan forgiveness program for public interest lawyers and to revitalize the law school's curriculum—something he described as "a boring wasteland". A liberal Democrat, he also worked to advance the university's social justice and diversity. At the end of his deanship in 1987, Ely continued teaching at Stanford as the university's Robert E. Paradise Professor of Law and developed an interest in subjects concerning congressional war powers.

Prompted by his love of scuba diving, Ely visited the University of Miami School of Law in 1996. Upon discovering he liked the city and the faculty, he chose to stay and became the university's Richard A. Hausler Professor of Law—the law school's most distinguished chair.

Scholarship

The Wages of Crying Wolf

In 1973, Ely's article entitled "The Wages of Crying Wolf: A Comment on Roe v. Wade" was published in the Yale Law Journal. The article was a vociferous criticism of the Supreme Court's decision in Roe v. Wade which had given a constitutional basis for a right to abortion. Despite his own personal views in support of the availability of abortions, Ely was critical of the Court's decision to utilize the doctrine of substantive due process, arguing that since the Court's ruling was untethered from the constitution's text, it had "no business imposing it." He further contended that justices of the Supreme Court had an obligation to establish constitutional rights "in some identifiable constitutional value" before barring states from imposing their own regulations on abortion:

What is frightening about Roe is that this super-protected right 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. Nor is it explainable in terms of the unusual political impotence of the group judicially protected vis-à-vis the interest that legislatively prevailed over it.

Ely agreed that a right of privacy can be inferred from various provisions in the Constitution and that the right was grounded in its history, text, and theory. However, he saw no reason why it would have included a right to abortion, why that right would be fundamental, and why the countervailing interests of protecting the fetus did not count as part of a disenfranchised minority. Towards the end of his article, he wrote:

It is, nevertheless, a very bad decision. Not because it will perceptibly weaken the Court—it won't; and not because it conflicts with either my idea of progress or what the evidence suggests is society's—it doesn't. It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.

The Wages of Crying Wolf projected a profound influence over legal opinions concerning Roe, with the article eventually becoming the third most-cited work in the history of The Yale Law Journal according to a 1991 study by Fred R. Shapiro. A similar ranking by Shapiro in 2012 placed it as the 20th most-cited law review article of all time. In a 2022 piece for The New York Times, Emily Bazelon described it as having "eviscerated Blackmun's opinion," with Linda Greenhouse stating that Ely "sent Roe into the world disabled...It really was very damaging. Not because the American public cared about doctrine—they cared about results—but because it left Roe without friends in high places." When the Supreme Court overruled Roe in Dobbs v. Jackson Women's Health Organization, Justice Samuel Alito cited Wages as an example of the academic criticism it faced.

Democracy and Distrust

While a professor at Harvard, Ely produced his most notable work: the book Democracy and Distrust: A Theory of Judicial Review, published in 1980. It would become one of the most influential works about American constitutional law and among the most praised for deconstructing—and defending—the doctrine of judicial review on procedural grounds. Democracy and Distrust rejected theories which had no basis in the constitutional "text, history, or structure", using political theory as opposed to originalism to serve as argumentative foundations.

The book may be viewed as two separate books: one criticizing constitutionally ungrounded legal theories and the other providing a theory for judicial interventions. Ely expounds a theory of constitutional interpretation known as political process theory, suggesting that judges ought to focus on maintaining a well-functioning democratic process and guard against systematic biases in the legislative process.

Ely asserts 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 that the Constitution's unenumerated rights (such as the Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment) are procedural rather than substantive in nature and thus protect rights to democratic processes but are 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.

The initial release of Democracy and Distrust was controversial; it received a large amount of criticism from academics, including a dismissive piece from Laurence Tribe published in the Yale Law Journal. However, a 1991 appraisal of the work by Michael J. Klarman concludes that "political process theory emerges relatively unscathed from attacks leveled by Ely's critics against its more global aspects." In a New York Times piece after Ely's death, Mark Tushnet called it ''the most important work of constitutional scholarship in the two generations from the time it was published to now.''

War and Responsibility

In 1993, Ely published his second book titled War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath, which criticized the Vietnam War and re-assessed the discussion of the War Powers Act. The book is presented in six chapters and the initial chapters put into question the constitutionality of the Vietnam War. Chapters four and five bring into question belligerent acts conducted by the United States against the states of Laos and Cambodia. Chapter six discusses the future of covert warfare as part of the government's diligence or lack of diligence in conducting its foreign affairs. The closing appendix is about the paramenters of the War Powers Act.

Personal life and death

In 1971, Ely married Nancy Halliday Ely-Raphel, who would later become the United States Ambassador to Slovenia, with whom he had two sons: John and Robert. However, the two divorced and Ely married Gisela Cardonne Ely, a Miami-Dade Circuit Court judge.

On October 25, 2003, Ely died in his Miami home at Coconut Grove after a long battle with cancer. His funeral was held at Coral Gables Congregational Church and was attended by Dennis O. Lynch, then the dean of the University of Miami School of Law.

Awards and honors

In 1981, Ely was elected a member of the American Academy of Arts and Sciences. The next year, he received the 1982 Triennial Award of the Order of the Coif for Democracy and Distrust. As the primary subject of the Virginia Law Review, the journal dedicated its May 1991 issue to examining Ely's book in the decade since it had been published.

Ely was the recipient of multiple honorary degrees including those from the University of San Diego and the Chicago-Kent College of Law. In 2003, Ely was awarded an honorary doctorate from Yale Law School; the award's citation read: "Your work set the standard for constitutional scholarship for our generation." After his death in October of the same year, the school held a November symposium in his honor titled "On Democratic Ground: New Perspectives on John Hart Ely."

In her 2011 book on Hans Kelsen, Sandrine Baume identified Ely as being a significant defender of the "compatibility of judicial review with the very principles of democracy". He was listed alongside Dworkin as one of the foremost defenders of principles of democracy in recent years.

See also

• Doctrine of Absurdity
• List of law clerks of the Supreme Court of the United States (Chief Justice)

Footnotes

1. In the final, published brief which encompassed Ely's research that had been signed by Abe Fortas, Abe Krash, and Ralph Temple; the group acknowledged Ely's "valuable assistance" in a footnote since Ely could not sign the document seeing as he had not yet passed the bar.
2. In one example of such criticism, an early review of the novel by Indiana University professor Stanley Conrad Fickle states that despite Ely's popularity, the book came across as "one of progressive disappointment".

Selected publications

Books

• Ely, John (1980). Democracy and Distrust. Harvard University Press. ISBN 978-0674196377.
• Ely, John (1995). War and Responsibility. Princeton University Press. ISBN 978-0691025520.
• Ely, John (1996). On Constitutional Ground. Princeton University Press. ISBN 978-0691025537.

Articles

• ——— Ely, John Hart (April 1973). "The Wages of Crying Wolf: A Comment on Roe v. Wade" (PDF). The Yale Law Journal. 82 (5): 920–949. doi:10.2307/795536. JSTOR 795536. PMID 11663374.
• ——— Ely, John Hart (February 1974). "The Irrepressible Myth of Erie". Harvard Law Review. 87 (4): 693–740. doi:10.2307/1339870. JSTOR 1339870.
• ——— Ely, John Hart (Summer 1974). "The Constitutionality of Reverse Racial Discrimination". University of Chicago Law Review. 41 (4): 723–741. doi:10.2307/1599097. JSTOR 1599097.
• ——— Ely, John Hart (November 1988). "Suppose Congress Wanted a War Powers Act That Worked". Columbia Law Review. 88 (7): 1379–1431. doi:10.2307/1122735. JSTOR 1122735.
• ——— Ely, John Hart (May 1991). "Another Such Victory: Constitutional Theory and Practice in a World Where Courts Are No Different from Legislatures". Virginia Law Review. 77 (4): 833–879. doi:10.2307/1073298. JSTOR 1073298.
• ——— Ely, John Hart (December 1997). "Standing to Challenge Pro-Minority Gerrymanders". Harvard Law Review. 111 (2): 576–595. doi:10.2307/1342059. JSTOR 1342059.
• ——— Ely, John Hart (February 1998). "Gerrymanders: The Good, the Bad, and the Ugly". Stanford Law Review. 50 (3): 607–641. doi:10.2307/1229319. JSTOR 1229319.

References

1. Harvard Law Review 2004, p. 1758.
2. Harvard Law Review 2004, pp. 1761–1762.
3. Harvard Law Review 2004, p. 1743.
4. Harvard Law Review 2004, p. 1749.
5. ^ Shapiro 2000, p. 424.
6. ^ Marcus 2003.
7. Shapiro 1996, p. 760.
8. Regnier 2004, p. 981.
9. ^ Trei 2003.
10. ^ Bernstein 2003.
11. "Westhampton Beach UFSD Community | Wall of Fame". whbschools.org. Retrieved November 24, 2022.
12. ^ Princeton Alumni Weekly.
13. Warren Commission 1964, p. 479.
14. ^ Yale News 2003.
15. Lewis 1989, p. 127.
16. Lewis 1989, pp. 127–128.
17. Lewis 1989, p. 144.
18. ^ Liptak 2003.
19. Harvard Law Review 2004, p. 1757.
20. ^ Harvard Law Review 2004, p. 1754.
21. Harvard Law Review 2004, p. 1764.
22. ^ The Harvard Crimson 2003.
23. ^ Harvard Law Review 2004, p. 1750.
24. Ely 1980, p. vii.
25. Harvard Law Review 2004, p. 1761.
26. ^ Stanford Lawyer 2004, p. 12.
27. Oliver 2003.
28. Stanford Lawyer 2004, p. 12, 79.
29. ^ Stanford News 1991.
30. Lynch 2004, p. 976.
31. Harvard Law Review 2004, p. 1745.
32. Lynch 2004, p. 975.
33. Ely 1973, p. 923.
34. Baude 2021.
35. Kalman 1994, p. 728.
36. Balkin 2007, p. 291.
37. Ely 1973, p. 949.
38. Krotoszynski Jr. 2002, p. 133.
39. Ely 1973, pp. 935–936.
40. Richards 1989, p. 219.
41. Ely 1973, pp. 933–935.
42. Ely 1973, p. 947.
43. Shapiro 1991, pp. 1462, 1474.
44. Shapiro, Fred R.; Pearse, Michelle (2012). "The Most-Cited Law Review Articles of All". Michigan Law Review. 110 (8): 1483–1520. ISSN 0026-2234. JSTOR 23217010.
45. Bazelon 2022.
46. Dobbs, 597 U.S. at 53–54.
47. ^ Harvard Law Review 2004, p. 1748.
48. Harvard Law Review 2004, pp. 1749, 1763.
49. ^ Klarman 1991, p. 747.
50. Doerfler & Moyn 2022, pp. 1–2.
51. Yoo 2005, p. 793.
52. Doerfler & Moyn 2022, p. 3.
53. Klarman 1991, pp. 748, 781–782.
54. Koffler 1981, pp. 405–406.
55. Klarman 1991, pp. 781–782, 784.
56. Fickle 1981, p. 637.
57. Klarman 1991, p. 782.
58. John Hart Ely. War and Responsibility. Princeton University Press. 1993.
59. John Hart Ely. War and Responsibility. Princeton University Press. 1993.
60. New York Times 1998.
61. "Member Directory". American Academy of Arts and Sciences. Retrieved November 25, 2022.
62. "Symposium to Honor John Hart Ely '63, Nov. 12-13". law.yale.edu. Retrieved November 25, 2022.
63. Baum 2012, pp. 53–54.

Sources

Books

• Report of The President's Commission On the Assassination of John F. Kennedy. Washington D.C.: United States Government Printing Office. 1964. ISBN 9781599869254.
• Richards, David A. J. (1989). Foundations of American Constitutionalism (1st ed.). Oxford University Press. ISBN 978-0195059397.
• Lewis, Anthony (1989). Gideon's Trumpet: How One Man, a Poor Prisoner, Took His Case to the Supreme Court and Changed the Law of the United States. New York: Vintage Books. ISBN 978-0679723127.
• Baum, Sandrine (2012). Hans Kelsen and the Case for Democracy. ECPR Press. ISBN 978-1-907301-24-7.

Journals

• Koffler, Judith S. (January 1981). "Constitutional Catarrh: Democracy and Distrust, by John Hart Ely". Pace Law Review. 1 (2): 403. doi:10.58948/2331-3528.1692. S2CID 56248380.
• Cox, Paul N. (Spring 1981). "John Hart Ely, Democracy and Distrust: A Theory of Judicial Review". Valparaiso University Law Review. 15 (3): 637–665.
• Fickle, Stanley Conrad (Summer 1981). "The Dawn's Early Light: The Contributions of John Hart Ely to Constitutional Theory". Indiana Law Journal. 56 (4).{{cite journal}}: CS1 maint: date and year (link)
• Coleman, Jr., William T.; Dershowitz, Alan M.; Friedenthal, Jack H.; Walsh, Michael (January 1988). "In Honor of John Hart Ely". Stanford Law Review. 40 (2): 357–377. doi:10.2307/1228819. JSTOR 1228819.{{cite journal}}: CS1 maint: date and year (link)
• Shapiro, Fred R. (March 1991). "The Most-Cited Articles from The Yale Law Journal". The Yale Law Journal. 100 (5): 1449–1514. doi:10.2307/796696. JSTOR 796696.
• Klarman, Michael J. (May 1991). "The Puzzling Resistance to Political Process Theory". Virginia Law Review. 77 (4): 747–832. doi:10.2307/1073297. JSTOR 1073297.
• Kalman, Laura (December 1994). "Review: The Promise and Peril of Privacy". Reviews in American History. 22 (4). Johns Hopkins University Press: 725–731. doi:10.2307/2702826. JSTOR 2702826.
• Shapiro, Fred R. (April 1996). "The Most-Cited Law Review Articles Revisited". Chicago-Kent Law Review. 71 (3).
• Krotoszynski Jr., Ronald J. (2002). "The Wages of Crying Wolf Revisited". The Georgetown Journal of Law & Public Policy. 1 (133).
• Shapiro, Fred R. (January 2000). "The Most-Cited Legal Scholars". The Journal of Legal Studies. 29 (1): 409–426. doi:10.1086/468080. S2CID 143676627.
• "Remembering Dean John Hart Ely" (PDF). Stanford Lawyer (68). Stanford Law School: 12–13. Spring 2004. Retrieved November 27, 2019.
• Dershowitz, Alan M.; Gudridge, Patrick O.; Monaghan, Henry Paul; Parker, Richard D.; Soifer, Aviam; Sullivan, Kathleen M.; Tribe, Laurence H. (April 2004). "In Memoriam: John Hart Ely". Harvard Law Review. 117 (6): 1743–1764.{{cite journal}}: CS1 maint: date and year (link)
• Lynch, Dennis O. (September 2004). "Remembering John Hart Ely". University of Miami Law Review. 58 (4): 975–977.
• Regnier, Thomas (September 2004). "The Legacy of John Hart Ely". University of Miami Law Review. 58 (4): 981–983.
• Schacter, Jane S. (December 2004). "Ely and the Idea of Democracy". Stanford Law Review. 57 (3): 737–760. JSTOR 40040185.
• Yoo, John C. (January 2005). "War, Responsibility, and the Age of Terrorism". Stanford Law Review. 57 (3): 793–823. JSTOR 40040189. SSRN 616062.
• Balkin, Jack M. (2007). "Abortion and Original Meaning". Constitutional Commentary. 24 (101). Yale Law School.{{cite journal}}: CS1 maint: date and year (link)
• Saif-Alden Wattad, Mohammed (Spring 2012). "John Hart Ely: An Influential Constitutional Scholar—Protecting "Flag Desecration" under the First Amendment". Barry Law Review. 17 (2): 163–177.{{cite journal}}: CS1 maint: date and year (link)
• Doerfler, Ryan; Moyn, Samuel (2022). "The Ghost of John Hart Ely". Vanderbilt Law Review. 75 (769). SSRN 3970932.

Newspapers

• "Ely book focus of symposium 10 years later". Stanford News. Stanford University. May 1991. Archived from the original on November 27, 2022. Retrieved November 24, 2022.
• Bernstein, Adam (October 28, 2003). "Constitutional Scholar, Educator, Author John Hart Ely Dies at 64". The Washington Post. Retrieved November 20, 2022.
• Liptak, Adam (October 27, 2003). "John Hart Ely, a Constitutional Scholar, Is Dead at 64". The New York Times.
• Marcus, Noreen (October 28, 2003). "Obituary: John Hart Ely, UM Law Professor, Author". South Florida Sun-Sentinel. Retrieved November 27, 2019.
• C. Esensten, Andrew (October 29, 2003). "Constitutional Scholar, Former Law School Professor Dies at 64". The Harvard Crimson. Retrieved November 25, 2022.
• Trei, Lisa (October 29, 2003). "Influential law scholar dies at 64". Stanford Report. Retrieved November 24, 2022.
• Oliver, Myrna (November 2, 2003). "John Hart Ely, 64; Constitutional Law Scholar and Author Was Often Cited by Legal Experts". Los Angeles Times. Retrieved July 19, 2019.
• "Weddings; Mary Jean Bonadonna, Robert Ely". The New York Times. New York. August 9, 1998. Retrieved December 31, 2014.
• "Memorial: John Hart Ely '60". Princeton University. Princeton Alumni Weekly. Retrieved November 28, 2019.
• "Yale Bestows Eleven Honorary Degrees During Its 302nd Commencement". May 29, 2003. Archived from the original on July 13, 2010. Retrieved January 29, 2010.
• Baude, Will (October 15, 2021). "Who is Today's John Hart Ely?". Reason. Retrieved November 25, 2022.
• Bazelon, Emily (May 20, 2022). "America Almost Took a Different Path Toward Abortion Rights". The New York Times. Retrieved November 26, 2022.

Cases

• Dobbs v. Jackson Women's Health Organization, 597 U.S. __ (2022)

External links

• Federalist Society 1986 National Student Symposium: Address by Milton Friedman (Ely speaks beginning at 9:12 until 12:15)
• John Hart Ely Papers (MS 1976). Manuscripts and Archives, Yale University Library.
• Page at Federalist Society
• Page at Princeton University Press

• 1938 births
• 2003 deaths
• American legal scholars
• American legal writers
• Deans of Stanford Law School
• Deaths from cancer in Florida
• Harvard Law School faculty
• Law clerks of the Supreme Court of the United States
• Philosophers of law
• Princeton University alumni
• Stanford Law School faculty
• American scholars of constitutional law
• University of Miami faculty
• Warren Commission counsel and staff
• Military personnel from New York City
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