Saving the Constitution from Lawyers: HOW LEGAL TRAINING AND LAW REVIEWS DISTORT CONSTITUTIONAL MEANING pptx

This page intentionally left blank SAVING THE CONSTITUTION FROM LAWYERS This book is a sweeping indictment of the legal profession when it enters the realm of constitutional interpretation. The adversarial, advocacy-based American legal system is well-suited to American justice, where one-sided arguments collide to produce a just outcome. But when applied to constitu- tional theorizing, the result is selective analysis, overheated rhetoric, distorted facts, and overstated conclusions. Such wayward theorizing finds its way into print in the nation’s more than six hundred law journals – professional publi- cations run by law students, not faculty or other professionals, and in which peer review is almost never used to evaluate worthiness. The consequences of this system are examined through three timely cases: the presidential veto, the “unitary theory” of the president’s commander-in-chief power, and the Second Amendment’s “right to bear arms.” In each case, law reviews were the breeding ground for defective theories that won false legitimacy and political currency. This book concludes with recommendations for reform. Robert J. Spitzer is Distinguished Service Professor of Political Science at the State University of New York, College at Cortland. His books include The Presidency and Public Policy, The Right to Life Movement and Third Party Politics, The Presidential Veto, The Bicentennial of the U.S. Constitu- tion, President and Congress, Media and Public Policy, The Politics of Gun Control, Politics and Constitutionalism, The Right to Bear Arms, Essentials of American Politics, and The Presidency and the Constitution. Saving the Constitution from Lawyers HOW LEGAL TRAINING AND LAW REVIEWS DISTORT CONSTITUTIONAL MEANING Robert J. Spitzer State University of New York, College at Cortland CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK First published in print format ISBN-13 978-0-521-89696-2 ISBN-13 978-0-521-72172-1 ISBN-13 978-0-511-47883-3 © Robert J. Spitzer 2008 2008 Information on this title: www.cambrid g e.or g /9780521896962 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. 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Published in the United States of America by Cambridge University Press, New York www.cambridge.org p a p erback eBook ( EBL ) hardback To Jinny Spitzer and Tess Spitzer, the two most brilliant and beautiful women I know Contents Acknowledgments page ix Introduction 1 1 The Logic, and Illogic, of Law 9 Lawyers as Liars? 11 Thinking Like a Lawyer 14 The Adversary System, Advocacy, and Truth 17 Lawyering versus Scholarship 22 Social Sciences and the Rules of Inquiry 25 Conclusion 31 2 The Law Journal Breeding Ground 33 History 35 Students in Charge? 38 A Scholarly Enterprise? 41 How the System Works 44 Criticisms 46 Professional Peer Review: The Academic Gold Standard 49 The Problems with Student Control 53 Length, Redundancy, and Footnotes 56 Conclusion 58 3 The Inherent Item Veto 60 Colonial Precedents 63 Defining the Veto 69 vii viii CONTENTS What the Founders Understood about the Veto 72 The Veto as a “Revisionary” Power 81 An Eviscerated Veto? 84 Conclusion: Rescuing Constitutional Interpretation 85 4 The Unitary Executive and the Commander-in-Chief Power 90 The Unitary Executive Theory: Article II on Steroids 92 The Constitutional Commander-in-Chief 99 The Commander-in-Chief According to Yoo 103 From Law Journal to Law 105 The Bush Commander-in-Chief 108 Distorting the Courts 109 What Hamilton Says 111 Other Cases 114 A Political Document or a Legal One? 121 Conclusion: Reinventing the Commander-in-Chief 125 5 The Second Amendent 129 The Meaning of the Second Amendment 131 Supreme Court Rulings 136 Other Court Rulings 141 The “Individualist” Critique 145 The “Right of Revolution” 148 Collateral Claims and the Research Record 153 Seeking Shelter under the Fourteenth Amendment 160 Public Policy Consequences 164 Interest-Group Involvement 172 Conclusion 175 6 Conclusion 177 Reform 179 Law Reviews Will Still Matter 186 About the Author 187 Index 189 [...]... doctrinal-oriented legal education “by emphasizing abstract theory at the expense of practical scholarship and pedagogy,” including such subjects as critical legal studies, feminist legal studies, and various “ law and movements” such as law and economics, law and literature, and law and sociology Harry T Edwards, The Growing Disjunction Between Legal Education and the Legal Profession,” Michigan Law Review... lawyers practice law – when they apply their training and trade within the bounds of the civil and criminal justice systems or in similar, traditional legal activities But when individuals with those principles and training engage in academic scholarly analysis regarding the Constitution, the results may well be inimical to an accurate understanding of constitutional meaning This chapter examines the. .. coincided with another: the decline of apprenticeship as the standard process for joining the legal profession In 1870, only a quarter of those admitted to the bar attended law school, with the rest receiving their legal training through apprenticing themselves to lawyers By 1910, two-thirds of bar-admitted lawyers had graduated from law schools See Lawrence M Friedman, American Law in the 20th Century... analysis To understand the principles of legal training and the workings of law reviews is to understand why there are so few restraints on so much of its writing The presence of no little wayward writing on constitutional subjects in the professional writings of the legal discipline – at least, as I observed it in the two otherwise divergent subjects of the American presidency and gun control that... of the “importance of the distinction between morality and law with reference to a single end, that of learning and understanding the law. ” Holmes was not arguing that the law was itself immoral or amoral, for “[t]he law is the witness and external deposit of our moral life.” Rather, he believed that the separation of law and morals was “of the first importance for a right study and mastery of the. .. kind or quality of writing And, the principles and norms of the legal profession, as taught in law schools, are markedly different from – indeed, at odds with – those of every other academic discipline: legal training (understandably and properly) emphasizes and elevates the principles that are the hallmark of American law in practice, including the adversary principle and the preeminence of client... pedagogical underpinnings and core principles that compose legal training and then compares them with professional training in other academic fields These characteristics and traits of legal training are well known to lawyers and even to many in the general public, thanks – in part, at least – to the blizzard of movies, television programs, and other elements of popular culture that depict what lawyers do My purpose... and scholarly pursuits Legal training is fine for lawyering but inadequate for – even antithetical to – the conduct of academic and scholarly inquiry Thinking Like a Lawyer The discipline of law, as it is taught in American law schools, emanates from the nature of the legal profession According to a widely used law text, the teaching of legal reasoning” lies at the heart of a law school education It... legitimated in the pages of law reviews, a venue deigned to be “scholarly” rather than political or polemical Fourth, in each instance, the constitutional theories described reverberated beyond the academic world’s narrow confines, influencing national public debate, and even public policy, on these profoundly important constitutional matters And fifth, they are all based on constitutional and historical... to question the propriety or adequacy of legal training as preparation for a conventional career in law but rather to clearly identify these traits in order to explain how they contribute, even if unwittingly, to the distortion of constitutional knowledge, especially among the small 14 THE LOGIC, AND ILLOGIC, OF LAW number of lawyers who later engage in academic and scholarly . Politics and Constitutionalism, The Right to Bear Arms, Essentials of American Politics, and The Presidency and the Constitution. Saving the Constitution from. Constitution from Lawyers HOW LEGAL TRAINING AND LAW REVIEWS DISTORT CONSTITUTIONAL MEANING Robert J. Spitzer State University of New York, College at Cortland CAMBRIDGE