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A prominent legal scholar, John Hart Ely (1938–2003) contributed to First Amendment jurisprudence with an approach set forth in his highly influential book Democracy and Distrust: A Theory of Judicial Review (1980). The Court, he asserted, should concentrate less on attempting to enforce absolutist interpretations of the First Amendment, or other amendments within the Bill of Rights, than on interpreting such amendments to enhance democratic processes.

Born in New York City, Ely graduated from Princeton University and Yale Law School and clerked for Chief Justice Earl Warren. He later taught law at Yale and Harvard and served as dean at Stanford Law. His last position was as the Richard A. Hausler Professor at the University of Miami Law School.

Ely argued against absolutist interpretations of the Constitution

In Democracy and Distrust, he argued that what he calls a “clause-bound interpretivism” of the Constitution—like that advocated by Justice Hugo L. Black—was appealing, but largely unworkable. Accordingly, he preferred “a participation-oriented, representation reinforcing approach to judicial review” (p. 87).

Applying this theory to the First Amendment, Ely wrote that “[j]udicial review in this area must involve, at a minimum, the elimination of any inhibition of expression that is unnecessary to the promotion of a government interest” (p. 105). He asserted that his theory was consistent with the Supreme Court applications of the doctrines of “overbreadth,” “less restrictive alternative,” “tight fit,” and the like (p. 105).

Ely’s theory built in part on Justice Harlan Fiske Stone’s footnote four of United States v. Carolene Products Co. (1938), especially the second paragraph, which focused on the importance of keeping political processes open. Ely also built on the jurisprudence of Warren. Ely’s theory has been especially important in justifying judicial decisions relative to legislative apportionment and voting rights, but it also supports broad interpretations of most First Amendment rights, especially those relating to political speech.

Ely is also the author of War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath (1993) and On Constitutional Ground (1996).

John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.

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