The Public Interest

Constitutional Law Today

William Kristol

Winter 1981

HARVARD Law professor John Hart Ely’s new book is a superior representative of the contemporary American legal mind.” Its argument is more thoughtful, and its conclusions more sensible, than most writing in the field of constitutional law. Yet it is a representative work, in manner and substance. In manner, it is quick rather than deep, cheerfully clever rather than soberly judicious; it stands in striking contrast to Bacon’s admonition (which according to Story was followed by Marshall) that “judges ought to be more learned than witty; more reverend than plausible; and more advised than confident.” In substance, Ely’s book is concerned to offer “a theory of judicial review” superior to those of other law professors and recent judges; he is little concerned either with the fundamental questions of political philosophy that underlie the disputes among law professors, or with the actual effects of judicial decisions on the American polity and American society. 

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