by Matt Barr

John Hart Ely

This blog was in existence prior to November, 2004, but I let it lapse before getting jazzed by the election to start writing again (other than for a living). I thought my previous stuff was all gone, but I found my post upon the death of John Hart Ely from October 2003 in a Yahoo! cache:

A great mind is dead

John Hart Ely has left us richer for his work.

I had the fortune -- literally, since my last name starts with B -- to take Constitutional Law from Professor Ely when he visited my law school in 1992.

His 1980 book Democracy and Distrust is hailed in his New York Times obituary as "the most important work of constitutional scholarship in the two generations from the time it was published to now." It establishes (with roots in a footnote to a 1938 Supreme Court opinion) the argument that our Constitution is meant to balance, equally, two things: the power of majority rule and distrust of what majorities will do to perpetuate themselves once in power.

To Ely, the Constitution was meant as a procedural document only, meant to protect access to the democratic process, where undesirable laws, if passed, could be repealed (and, of course and more often, desirable ones passed and enforced) -- the role of constitutional jurisprudence was to be "participation-oriented, representation-reinforcing."

"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 (quoted by the Times). "Rather than dictate the substantive result, it intervenes only when the `market,' in our case the political market, is systematically malfunctioning."

This is a compelling argument, better made by Ely, whose book I seem to have lent away years ago, and I'm sure I don't know to whom, so I ordered a new one today. With the exception of the Third (a pet peeve of the time!), each Amendment in the Bill of Rights can be read as meaning to ensure that majorities cannot perpetuate themselves by artificial means: criminalizing dissent, cutting off access to Congress or the courts, inventing charges on which to ransack a political opponent's house, jail him till after election day, deny him a public trial etc.

He strongly favored the privileges and immunities and equal protection clauses as a means to ensure that (political!) minorities were not trod upon. I bet he would have regarded homosexual sodomy laws as violative of equal protection, so long as all sodomy was not outlawed. But this "substantive due process" nonsense he thought was a backdoor way to get to what should have been gotten to by the equal protection and especially privileges and immunities clauses, the latter having been rendered effectively inoperative by the Supreme Court about five minutes after the ratification of the Fourteenth Amendment. There is no such thing as "substantive process," he said; quite correctly, if English is your first language.

It is in "penumbras of the Fourth Amendment" via the concept of "substantive due process" forbidding legislation abridging "fundamental liberty interests," of course, that the Court discovered a Constitutional right to abortion. From the Times obit:

[Professor Ely wrote] a caustic critique of the reasoning in Roe v. Wade, the 1973 decision finding a right to abortion in the Constitution. Earl Warren [for whom Ely clerked] 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."

His plain-spoken clarity in person and in his book were a tremendous influence on me, and the law, too -- according to the Times, Democracy and Distrust [which, this is me in December, 2004 again, I did receive and happily re-read] is "by a considerable margin" the book on the law most cited by other legal scholars since 1978. And Ely himself was the legal scholar cited more than anyone since 1956 but Richard Posner, Ronald Dworkin and Oliver Wendell Holmes.

Browse books from Amazon.com: