Anti Terrirosm Legislation And Legal Theorists Essay

3694 words - 15 pages

John H. Ely: The Political Process and DiscriminationJohn 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that laws that violate the political process should have the highest level of scrutiny and should be reviewed and/or repealed (lecture October 15th 2001).Ely believed that in a democracy the majorities always rule over the minorities; this to him is a problem.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).He speaks about legislation that's motivation is clearly intended to target certain groups. He refers to Gamillion v. Lightfoot where the city decided to change the shape of a voting district to exclude a black population from voting there. He argues that "unconstitutionally motivated legislative actions are similarly unconstitutional" (Ely 61). He too says that there are times when the discriminatory motivation of the legislators is clear, but there are also times when it is not. The example is about an army sergeant choosing three black soldiers to go on a mission. Was the decision racially based, or were those three soldiers the most capable of accomplishing the mission? (Ely 60). However, in the instances where it is clear that the motivation of the legislation is to target a certain people, such as refugees and immigrants, he would argue that the motivation is unconstitutional therefore so is the legislation.Ely argues that there are certain minority groups that do not have representation in the government to object to proposed legislation that affect them (Ely 66). He argues that in the case of aliens, since they cannot vote, it would be unfair to have legislation against them since they have no say in the laws because they cannot vote (Ely 67). He says that this type of legislation needs to be re-examined by the courts because the democratic political process is breached.One of the most important elements of Ely's...

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