Indiana Law Journal Volume 54 Issue 2 Article 5 Winter 1979 Government by Judiciary: John Hart Ely's "Invitation" Raoul Berger Member, Illinois and District of Columbia bars Follow this and additional works at: https://www.repository.law.indiana.edu/ilj Part of the Courts Commons, Fourteenth Amendment Commons, and the Judges Commons Recommended Citation Berger, Raoul (1979) "Government by Judiciary: John Hart Ely's "Invitation"," Indiana Law Journal: Vol. 54 : Iss. 2 , Article 5. Available at: https://www.repository.law.indiana.edu/ilj/vol54/iss2/5 This Article is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact
[email protected]. Government by Judiciary: John Hart Ely's "Invitation" RAOUL BERGER* Professor John Hart Ely's Constitutional Interpretivism: Its Allure and Impossibility' solves the problem of government by judiciary quite simply: the framers of the Fourteenth Amendment issued an "open and across-the-board invitation to import into the constitutional decision pro- cess considerations that will not be found in the amendment nor even, at least in any obvious sense, elsewhere in the Constitution. ' 2 This but rephrases the current view, framed to rationalize the Warren Court's revolution, that the "general" terms of the amendment were left open- 3 ended to leave room for such discretion. By impossible "interpretivism" Ely refers to the belief that constitu- tional decisions should be derived from values "very clearly implicit in the written Constitution"; he labels as "non-interpretivism" the view that courts must range beyond those values to "norms that cannot be discovered within the four corners of the document."'4 But unlike most of his confreres, Ely insists that a constitutional decision must be rooted in the Constitution,5 though he does not explain how extra-constitutional factors can be so rooted.