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Anti-Terrorism Legislation and Legal Theorists
John H. Ely's argument has to do with the political process being obstructed and laws that target certain minorities. He argues that the law itself doesn't matter, unless a minority group has been restricted in representation in the political process (Ely 56) or where a certain group is targeted (Ely 55). Ely argues that not all battles need to have a constitutional violation to be heard by the courts, the political process is most important.
Ely based his argument on the Carolene Products footnote, where the Justice said it was not necessary to look at cases that clearly violated the political process (Ely 53). Contrary of this, Ely argued that laws that violate the political process should have the highest level of scrutiny and should be reviewed and/or repealed (lecture October 15th 2001).
Ely believed that in a democracy the majorities always rule over the minorities; this to him is a problem. If the majority of people are always getting what they want, there is no fair treatment for the minority. The majority will always make laws that affect the minority and not themselves, this is a problem (Ely 54). He argues that when one group is gaining an unfair advantage over its opponents (which isn't necessarily the wrong view) this is a time when the courts should intervene or think of intervening (Ely 56). He also argues that always listening to the majority, allows for the majority to take advantage over a minority or to not take their interests into consideration (Ely 58).
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