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On Constitutional Ground

On Constitutional Ground

John Hart Ely
Copyright Date: 1996
Pages: 510
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  • Book Info
    On Constitutional Ground
    Book Description:

    John Hart Ely is a leading contemporary writer on political theory from the standpoint of American constitutional law. This collection covers a full range of topics of constitutional interpretation: federalism, separation of powers, freedom of expression, religious freedom, criminal procedure, racial discrimination, "substantive due process," and honesty in government. Organized under these heads and linked by the author's witty explanatory and autobiographical remarks, the essays and other documents--many previously unpublished in any forum--range chronologically over the past three decades, from memoranda he wrote as a student working with lead counsel Abe Fortas on the landmark case ofGideon v. Wainwrightto a comment on the constitutional implications of the O. J. Simpson verdict.

    Before beginning his academic career, Ely was the junior member of the Warren Commission's sixteen-lawyer staff, Chief Justice Earl Warren's law clerk, and a public defender in San Diego; and during the Ford Administration he took time off to serve as the third-ranking official of the U.S. Department of Transportation. This book reflects his various experience. It comments on many of the past quarter century's "hot button" issues--including abortion, affirmative action, anti-Communist legislation, busing, flag burning, governmental display of nativity scenes, the Nixon impeachment, "trial by newspaper," the Clarence Thomas-Anita Hill contretemps, congressionally unauthorized war in the Persian Gulf and Bosnia, and whether the Warren Commission Report should be officially reexamined.

    eISBN: 978-1-4008-2205-8
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-2)
  3. 1 The General Theory
    (pp. 3-30)

    The image of Earl Warren often conveyed by the popular press was that of a glad-handing politician whose accomplishments resulted very largely from his winning personality. A sunny, even jolly man: a sort of lovable uncle. Thus while he may not have been a great scholar, the theme seemed to run, he sure did have a “way with people” and that’s what accounted for his success as Chief Justice. But somehow that just doesn’t add up to greatness, and this was, unmistakably, a great man.

    Don’t get me wrong: the Chief went out of his way to show respect for...

  4. 2 Federalism
    (pp. 31-88)

    Though contemporary commentators tend to forget it, the two principal means by which the framers of the original Constitution sought to protect our liberties from governmental tyranny were the state-federal division (the subject of this chapter) and the separation of powers at the federal level among legislature, executive, and judiciary (the subject of the next). On the rare occasion that either subject should come up today—actually the latter does with increasing frequency—it has become fashionable to respond that we needn’ t worry, as the branch whose authority has allegedly been usurped (generally in the one case the states,...

  5. 3 Separation of Powers
    (pp. 89-151)

    The separation of powers among the branches of the national government remains an active interest of the Supreme Court. It is also a long-term interest of mine; indeed, the two pieces that follow were both written while I was in law school.

    Written for Professor Telford Taylor’s seminar in Constitutional Litigation,² this piece was not published until years later. It too is rather different for a law review, focusing not on what the law is or should be, but rather on the techniques of litigating test cases. It’s not too far afield, however, as I have throughout my career taught...

  6. 4 Freedom of Expression
    (pp. 152-187)

    In 1965–66 I had a Fulbright Scholarship, and was theoretically enrolled as a nondegree student at the London School of Economics and Political Science. Despite the fact that I set foot there only twice, the year was important to me. It was the peak year of the Carnaby Street/Beatles scene, and theater tickets still cost about a dollar (and rarely required booking in advance). This also was the year I really got into what have remained to this day two of my chief cultural interests, jazz piano (playing) and ballet (watching). I did, however, also write the following piece....

  7. 5 Religious Freedom
    (pp. 188-197)

    I seem to have become something of a dinosaur on the subject of what law clerks should reveal about the workings of the courts for which they clerked. (See, e.g., B. Woodward & S. Armstrong,The Brethren[1979].) Thus you’ll find nothing of substance here about the interchanges among the justices, or substantive interchanges between me and Chief Justice Warren, concerning the cases decided during the 1964–65 term, which is when I clerked for him. What follows is a short excerpt from a memorandum I wrote to the Chief Justice before theSeegercase was argued; it does not...

  8. 6 Criminal Procedure
    (pp. 198-246)

    Between my second and third years of law school, I had the best summer job ever (well, best ever for a law student), helping Abe Fortas—this was obviously before his appointment to the Court—prepare the brief for the petitioner inGideon v. Wainwright.¹ The circumstances of my employment are briefly described in the speech that follows these excerpts from memoranda I wrote Mr. Fortas.

    At first blush, the transcript inState v. Gideonseems to present the very model of the myth of Betts:² a case in which defense counsel is not needed. For the defendant demonstrated remarkable...

  9. 7 Racial Discrimination
    (pp. 247-278)

    Some of the chapters of this book, even on important topics, are short for the obvious reason that I haven’t written much about them. This one’s relatively short for a different reason, however: that racial discrimination is much discussed inDemocracy and Distrust.Nonetheless, there’s a whole lot here that isn’t there. I begin my discussion here with excerpts from my “tenure piece,” a 136-page tome I wrote during the first two years I taught. This was an important article, of which I remain proud, really the first to argue against what was then the conventional wisdom, that laws could...

  10. 8 “Substantive Due Process”
    (pp. 279-328)

    Appellant Buxton is a physician and professor at Yale Medical School. Appellant Griswold is executive director of the Connecticut Planned Parenthood League. After this Court’s decision inPoe v. Ullman, 367 U.S. 497, the Planned Parenthood Center of New Haven was opened. Buxton was its medical director, Mrs. Griswold its acting director. The center’s purpose was to provide information, instruction, and medical advice to married persons about the ways of preventing conception. It did so during the period it was open, November 1 to November 10, 1961. The general procedure with regard to a woman who came seeking advice was...

  11. 9 Candor
    (pp. 329-339)

    This letter is in support of the Department of Transportation’s request that it not be required to invoke executive privilege respecting Secretary Rogers’ cable of January 23, 1973, to Ambassador Annenberg, which cable incorporated the text of President Nixon’s letter of January 19, 1973, to Prime Minister Heath regarding the admission of the Concorde to the United States. In our opinion the department, and the administration generally, look much worse by withholding the cable despite repeated congressional requests than we would by turning the cable over. True, the cable is mildly embarrassing, but our withholding it is quite understandably causing...

  12. 10 In Conclusion
    (pp. 340-366)

    I’m pleased to reproduce this one here, as I frankly don’t think it’s received the attention it deserves. (Before you convict me of insufferable arrogance, let me add that I’m fully aware thatoverallmy work has acquired ample attention: indeed, this piece appeared in an issue of the Virginia Law Review devoted entirely toDemocracy and Distrusta decade after its publication. Can’t ask for a lot more than that.)

    There is nothing worse than an idea whose time has come.

    Linda Hunt²

    Modern constitutional scholarship is generally characterized by a desire to take up the question . ....

  13. Notes
    (pp. 367-496)
  14. Index
    (pp. 497-507)