[2]88-101[3] Ely praised the process theory principle, which was thought to have been first expounded in footnote four of the United States Supreme Court case Carolene Products[2][4][5] that affirmed the constitutionality of a regulation on filled-milk product.
Justice Harlan Stone, in addition, described circumstances where the ordinary presumption of a law's constitutionality may not apply and heightened judicial scrutiny may be triggered, including if a law: Troubled by the counter-majoritarian difficulty of judges overruling democratic majorities, Ely prefers that judges not needlessly intervene in controversial normative debates.
On the issue of political processes, Justice Stone cited cases involving restrictions on the right to vote, restraints upon the dissemination of information, interferences with political organizations, and prohibition of peaceable assembly.
[6] Ely further argues that the Warren court's jurisprudence and its defense of individual rights generally implicitly conformed to the principle set out in footnote four.
[1] Ely's book Democracy and Distrust (1980) was widely regarded as the most important academic work for two generations on American constitutional law, and was the most cited piece legal scholarship from 1978 to 2000.