He argues ejusdem generis that the Constitution's unenumerated rights (such as the 9th Amendment or the Privileges or Immunities clause of the 14th Amendment) are procedural in nature rather than substantive, thus protecting rights to democratic processes but not rights of a substantive nature. Justice Stone's Footnote Four from United States v. Carolene Products Co. (1938) is a chief inspiration for Ely's theory of judicial review. In her recent book on Hans Kelsen, Sandrine Baume identified Ely as a significant defender of the ``compatibility of judicial review with the very principles of democracy.''
Carolene Products Co.
Sandrine Baume