On Constitutional Ground (ebook)

Argumento de On Constitutional Ground (ebook)

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linked by the author's witty explanatory and autobiographical remarks, the essays and other documents--many previously unpublished in any forum--range chronologically over the past three decades, from memoranda he wrote as a student working with lead counsel Abe Fortas on the landmark case of Gideon v. Wainwright to 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.01 The General Theory 3 The Chief (1974) 3 Excerpt from Another Such Victory: Constitutional Theory and Practice in a World Where Courts Are No Different from Legislatures (1991) 5 Democracy and Judicial Review (1982) 6 On Protecting Fundamental Interests and Powerless Minorities under the United States and Canadian Constitutions (1986) 18 The Rule of Clear Mistake: "A Great and Stately Jurisdiction"? (1993) 25 2 Federalism 31 Remarks at American-German Bicentennial Symposium on Constitutional Law (1976) 31 Excerpt from The Limits of Logic: Syntactic Ambiguity in Article I of the U.S. Constitution (1963) 33 Excerpt from The Irrepressible Myth of Erie (1974) 35 Excerpt from Legislative and Administrative Motivation in Constitutional Law (1970) 36 The Irrepressible Myth of Erie (1974) 39 Choice of Law and the State's Interest in Protecting Its Own (1981) 61 Another Spin on Allegheny Pittsburgh (1990) 86 3 Separation of Powers 89 United States v. Lovett: Litigating the Separation of Powers (1975) 89 The Bounds of Legislative Specification: A Suggested Approach to the Bill of Attainder Clause (1962) 111 Excerpt from Legislative and Administrative Motivation in Constitutional Law (1970) 136 Memorandum to Special Prosecutor Archibald Cox on the Legality of Calling President Nixon before a Grand Jury (1973) 137 Letter to The New York (1973) 140 Letter to The New York Times (1994) 142 Whose War Is It, Anyway? The Gulf and the War Powers Act (1988) 143 Perspective on the Persian Gulf: "War by Default" Isn't the Law (1990) 146 Clinton, Congress, and War (1993) 148 Now Bosnia (1994) 150 4 Freedom of Expression 152 Trial by Newspaper and Its Cures (1967) 152 Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis (1975) 173 5 Religion Freedom 188 Memorandum to Chief Justice Warren Concerning United States v. Seeger (1965) 188 Excerpt from Legislative and Administrative Motivation in Constitutional Law (1970) 190 Letter to The New York Times (1984) 197 6 Criminal Procedure Excerpts from Memoranda to Abe Fortas Concerning Gideon v. Wainwright (1962) Remarks at American University Conference Marking the Thirtieth Anniversary of Gideon v. Wainwright (1993) 203 Letter to Anthony Lewis (1990) 207 Harris v. New York: Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority (1971) 211 The Proposed "Good Faith" Exception to the Exclusionary Rule (1983) 228 Sure Money Talks, but That's Precisely the Reason We Need the Reasonable Doubt Standard (1995) 230 Letter to Stanford Campus Report (1991) 232 Memorandum to Other Members of Yale University Police Advisory Board (1971) 233 What Counts as Liberal? Some Observations on French Criminal Procedure and the "Projet Peyrefitte" (1980) 235 7 Racial Discrimination 247 Excerpts from Legislative and Administrative Motivation in Constitutional Law (1970) 247 School Desegregation: A Sense of Deja Vu (1977) 258 Excerpt from Professor Dworkin's External/Personal Preference Distinction (1983) 261 The Constitutionality of Reverse Racial Discrimination (1974) 267 Excerpt from Legislative and Administrative Motivation in Constitutional Law (1970) 275 8 "Substantive Due Process" 279 Memorandum to Chief Justice Warren Concerning Griswold v. Connecticut (1965) 279 The Wages of Crying Wolf: A Comment on Roe v. Wade (1973) 281 Excerpts from Testimony on S. J. Res. 119 and 130 before the Senate Judiciary Committee, Subcommittee on Constitutional Amendments (1974) 297 Let There Be Life (1981) 301 Abortion for the Rich (1977) 303 Letter to Justices Kennedy, O'Connor and Souter Concerning Planned Parenthood v. Casey (1992) 304 Democracy and the Right to Be Different (1981) 306 Excerpt from Professor Dworkin's External/Personal Preference Distinction (1983) 311 9 Candor 329 Letter to Attorney General Levi (1975) 329 About the Evidence (1975) 331 Draft Letter to "the Media" Concerning the Warren Commission (1992) 333 On Living Lies for Professional Reasons (1992) 334 Letter to The New York Times (1988) 338 Letter to The New York Times (1989) 338 10 In Conclusion 340 Another Such Victory: Constitutional Theory and Practice in a World Where Courts Are No Different from Legislatutes (1991) 340 Author's Comment on Legislative and Administrative Motivation in Constitutional Law and The Wages of Crying Wolf: A Comment on Roe v. Wade (1991) 361 Excerpt from On Constitutional Nihilism (1980) 363 Notes 367 Index 497