Constitutional Scholar, Former Law School Professor Dies at 64

John Hart Ely, an innovative legal theorist and former Harvard professor whose ideas about constitutional interpretation widely influenced the discourse on democracy and the law over the past quarter century, died of cancer on Oct. 25 at his home in Coconut Grove, Fla. He was 64.

During his tenure at Harvard Law School (HLS), Ely served as the school’s first chair in constitutional law and wrote his most influential book, Democracy and Distrust: A Theory of Judicial Review.

In the book, Ely (pronounced EE-lee) argued that judges cannot interpret the Constitution by its language and history alone, nor can they infer a code of morality from it. Instead, Ely said, judges have an obligation to protect the democratic process as laid out in the Constitution.

Since 1978, Democracy and Distrust has been cited more times than any other legal work, according to a study published in the January 2000 edition of The Journal of Legal Studies.

The same study named Ely as the fourth most frequently cited American legal scholar of all time, trailing only Richard A. Posner, Ronald Dworkin and Oliver Wendell Holmes Jr., Class of 1829.

Ely also explored issues of free speech, racial discrimination and voting rights in the book.

A professor at the University of Miami School of Law since 1996, Ely also taught at Yale and served as dean of Stanford Law School from 1982 to 1987.

Tyler Professor of Constitutional Law Laurence H. Tribe ’62—who succeeded Ely as HLS’s expert in the field—said he would miss Ely, whom he considered a close friend.

“Ely’s tendency to keep to himself and to avoid the flamboyant public gesture might have prevented him from cutting as dashing a swath through this community as some of my more colorful colleagues manage to do,” Tribe wrote in an e-mail. “But for those of us who were lucky enough to be among this very private man’s real friends, his death leaves an enormous rip in the human tapestry.”

Tribe said that Democracy and Distrust was “the most important contribution” to the subject of judicial review in the last 25 years.

Ely’s other books include War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath and On Constitutional Ground.

Born in New York City in 1938, Ely spent his undergraduate years at Princeton University.

During the summer after his second year of law school at Yale, Ely worked as a summer clerk at the Washington law firm Arnold, Fortas & Porter.

He assisted future Supreme Court Justice Abe Fortas in 1962 with the preparation of a brief on behalf of Clarence E. Gideon, a destitute Florida man who was tried and convicted without legal representation.

The next year, the Supreme Court ruled in Gideon v. Wainwright that the government must provide attorneys to those who cannot afford them.

After graduating from Yale Law School in 1963, Ely served as the youngest staff lawyer on the Warren Commission, which investigated the assassination of President John F. Kennedy ’40.

He then clerked for Chief Justice Earl Warren and later worked as a criminal defense lawyer in San Diego.

Ely taught at Harvard, Yale and Stanford, and in 1975 spent a year serving as general counsel of the U.S. Department of Transportation, but the University of Miami captured his heart.

While on a scuba diving trip in the Florida Keys, Ely visited the University of Miami and found the faculty and atmosphere to be “intellectually alive,” according to the dean of Miami’s School of Law, Dennis O. Lynch.

Ely left Stanford for the other sunshine state in 1996. He was on the faculty at Miami when he died.

Lynch, who attended Ely’s funeral yesterday at Coral Gables Congregational Church, remembered the impact that Ely had on the university.

“He generally encouraged and cultivated the intellectual life of the school,” Lynch said.

As a colleague, Lynch said Ely was very generous with his insights into administrative duties.

“He was very helpful to me because of his former experience as dean of Stanford Law School,” Lynch said. “He always gave me wise counsel whenever I asked for it.”

Lynch said that the university did not have any immediate plans on replacing Ely, who held the most distinguished chair at the law school, but he said that the university would look to other universities during their search for a new professor.

Ely is survived by his wife of one year, Gisela Cardonne Ely; his two sons, Robert and John; and two grandchildren.