John Hart Ely, Former Stanford Dean, Dies
The Mercury News
October 27, 2003

John Hart Ely, a constitutional scholar of dazzling originality and wide influence, died Saturday in Miami. He was 64.

The cause of death was cancer, his wife, Gisela Cardonne Ely, said.

Mr. 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, echoing a widely held view.

The book proposed a distinctive middle ground between the two conventional positions on the proper role of judges in interpreting the Constitution.

Mr. 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, Mr. Ely wrote, requires judges to protect and enhance the democratic process itself, ensuring that it remains open and fair.

Born in New York City in 1938, Mr. 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. Mr. 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 U.S. Supreme Court ruled in Gideon's favor, holding that poor people accused of serious crimes are entitled to legal representation paid for by the government.

After graduating, Mr. 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.

Mr. 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 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.