John Hart Ely

John Hart Ely (December 3, 1938 – October 25, 2003) was an American legal scholar known for his studies of constitutional law. He was a professor of law at Yale University from 1968 to 1973, at Harvard University from 1973 to 1982, then at Stanford University from 1982 to 1996, where he served as dean of the Stanford Law School from 1982 to 1987.

John Hart Ely
Born(1938-12-03)December 3, 1938
New York City, United States
DiedOctober 25, 2003(2003-10-25) (aged 64)
Academic background
Alma materPrinceton University (A.B.)
Yale University (J.D.)
Academic work
Main interestsAmerican constitutional law

Ely was 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.[1]

Ely was best known for his book Democracy and Distrust (1980), which was widely regarded as the most important academic work in two generations on American constitutional law, and was the most cited legal scholarship from 1978 to 2000.[2][1] In the book, Ely expounds a theory of constitutional interpretation known as political process theory. The theory suggests that judges ought to focus on maintaining a well-functioning democratic process and guard against systematic biases in the legislative process.[3]


Born in New York City, John Hart Ely graduated from Westhampton Beach High School in 1956 and Princeton University in 1960 with an A.B. summa cum laude and Phi Beta Kappa and from Yale Law School with a LL.B. magna cum laude in 1963, where he was elected to the Order of the Coif and was the Notes and Comments Editor of the Yale Law Journal.[4] 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.[5]

In the fall of 1963, Ely trained with Company A of the United States 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 U.S. Supreme Court Chief Justice Earl Warren, whom he considered a hero, and to whom he dedicated his landmark book, Democracy and Distrust (1980).[2] As a clerk for Warren during the 1964 Term, 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."[6]

Ely went on to serve as dean of Stanford Law School from 1982 to 1987, and remained on the faculty until 1996.[7][8] 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.


In his 1973 article titled "The Wages of Crying Wolf," Ely criticized the Supreme Court's decision in Roe v. Wade.[9] While Ely personally supported the availability of abortions, he argued that Roe v. Wade was not a jurisprudentially sound decision, because it was untethered from the constitution's text, understanding and structure, and was not protecting a politically vulnerable group.[9] Ely agrees that a right of privacy can be inferred from various provisions in the Constitution, but saw no reason why it would include a right to abortion, why that right would be fundamental, and why the countervailing interests of protecting the fetus (which is a much less politically-connected group than women) is not a sufficiently compelling interest that justifies government regulation.[9]

Political process theoryEdit

Ely's most notable work was his 1980 book titled Democracy and Distrust: A Theory of Judicial Review, which was one of the most influential works about American constitutional law.[2] In the book, Ely 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, 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 favors a mode of constitutional interpretation known as "political process theory."[3] 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 Ninth Amendment and the Privileges or Immunities Clause of the Fourteenth Amendment) are procedural in nature, rather than substantive, 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.

In her recent book on Hans Kelsen, Sandrine Baume identified Ely as a significant defender of the "compatibility of judicial review with the very principles of democracy."[10] Ely was listed alongside Dworkin as one of the foremost defenders of this principle in recent years.

Personal lifeEdit

He was married to Gisela Cardonne Ely.[11]

Ely was formerly married to Nancy Halliday Ely-Raphel, a United States Ambassador to Slovenia.[12]

See alsoEdit


  1. ^ a b Fred R. Shapiro. The Most-Cited Legal Scholars. The Journal of Legal Studies, vol. 29 (January 2000), No. S1, pp. 409–426.
  2. ^ a b c Liptak, Adam (2003-10-27). "John Hart Ely, a Constitutional Scholar, Is Dead at 64". The New York Times. ISSN 0362-4331. Retrieved 2020-05-26.
  3. ^ a b 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.
  4. ^ "Archived copy". Archived from the original on 2010-07-13. Retrieved 2010-01-29.CS1 maint: archived copy as title (link)
  5. ^ "Memorial: John Hart Ely '60". Princeton University. Princeton Alumni Weekly. Retrieved November 28, 2019.
  6. ^ Monaghan, Henry Paul (2004). "John Ely: The Harvard Years". Harvard Law Review. 117: 1748. Retrieved November 28, 2019.
  7. ^ "Remembering Dean John Hart Ely" (PDF). Stanford Lawyer (68). Stanford Law School. Spring 2004. p. 12. Retrieved November 27, 2019.
  8. ^ 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.
  9. ^ a b c Ely, John Hart. "The wages of crying wolf: A comment on Roe v. Wade." The Yale Law Journal 82.5 (1973): 920-949.
  10. ^ Baume, Sandrine (2011). Hans Kelsen and the Case for Democracy, ECPR Press, pp53-54.
  11. ^ Marcus, Noreen (October 28, 2003). "Obituary: John Hart Ely, UM Law Professor, Author". South Florida Sun-Sentinel. Retrieved November 27, 2019.
  12. ^ "Weddings; Mary Jean Bonadonna, Robert Ely". The New York Times. New York. August 9, 1998. Retrieved December 31, 2014.


External linksEdit