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STANFORD -- The constitutional law theory advanced by John Hart Ely of Stanford Law School in his prize-winning 1980 book, Democracy and Distrust, is the sole subject of the current issue of the Virginia Law Review.
For its May 1991 issue, the prestigious journal published seven original articles by eminent scholars throughout the country assessing the thesis and impact, from the perspective of a decade, of Ely's landmark work.
Ely originally advanced the theory that courts of law, in dealing with constitutional issues, should concentrate on guaranteeing access to the political process and protecting minorities from majority tyranny, as opposed to upholding rights not actually designated in the Constitution.
The authors of the journal articles, though often critical, acknowledged the intellectual importance of Ely's analysis.
"Nothing has made me feel this good in years," said Ely, 52. "Of course, most of the articles contain criticisms, but each of them is a class act by a class person.
"I'm particularly gratified that the book was thought to merit a symposium 10 years after its publication. I frankly can't think of anything comparable -- I'm not even dead. I'm just delighted by the whole thing."
This is the second law review symposium on Democracy and Distrust. The first appeared in 1981, the year after the book's publication, in the Ohio State Law Journal. It was organized by Northwestern University professor Michael J. Perry, one of the contributors to the new Virginia symposium. Perry holds the Northwestern title of Howard J. Trienens Professor of Law.
The other contributors to the Virginia issue are: Michael J. Klarman, University of Virginia School of Law; Daniel R. Ortiz, Virginia; Hon. Richard A. Posner, Judge, U.S. Court of Appeals for the Seventh Circuit; Frederick Schauer, John F. Kennedy School of Government, Harvard University; and Mark V. Tushnet, Georgetown Law Center.
Ely is one of the most cited law scholars in America. He has held faculty appointments at both Yale and Harvard, and was appointed to Harvard's Ralph S. Tyler Jr. professorship in constitutional law.
Democracy and Distrust received the 1982 Triennial Award of the Order of the Coif, the nation's top accolade for scholarly work in law.
Ely was dean of Stanford Law School from 1982 to 1987 and now pursues teaching and scholarship as the Robert E. Paradise Professor of Law. His current research and writing concerns war and the Constitution, specifically the relative power of Congress and the president to involve the nation in hostilities.
Comments in the Virginia Law Review include the following:
Tushnet: "Over the past decade, Justice Harry Blackmun, former Attorney General Edwin Meese, and Professor John Hart Ely shaped the agenda for constitutional theory."
Perry: "It is a testament to the quality of John Ely's book that over a decade after its publication, at a time when debates about the legitimacy of different conceptions of constitutional interpretation seem increasingly to have played themselves out, Democracy and Distrust remains a vital text for anyone who would do constitutional theory. . . ."
Ortiz: "Few, if any, books have had the impact on constitutional theory of John Hart Ely's Democracy and Distrust. . . . Although Ely has persuaded few theorists and gained few adherents, he did change the territory and define the arguments to which most constitutional theorists now feel obliged to respond. If he did not win the game, he at least forced the play onto his own court. And despite the great amount of criticism the book has drawn, Democracy and Distrust still fascinates the academy."
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