Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning

by Robert J. Spitzer

• ISBN13: 9780521721721
• ISBN10: 0521721725
• Edition: 1st
• Format: Paperback
• Copyright: 2008-04-07
• Publisher: Cambridge University Press

Summary

This book is a sweeping indictment of the legal profession in the realm of constitutional interpretation. The adversarial, advocacy-based American legal system is well suited to American justice, in which one-sided arguments collide to produce a just outcome. But when applied to constitutional 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 over 600 law journals - professional publications run by law students, not faculty or other professionals - and 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.

Table of Contents

Acknowledgments	p. ix
Introduction	p. 1
The Logic, and Illogic, of Law	p. 9
Lawyers as Liars?	p. 11
Thinking Like a Lawyer	p. 14
The Adversary System, Advocacy, and Truth	p. 17
Lawyering versus Scholarship	p. 22
Social Sciences and the Rules of Inquiry	p. 25
Conclusion	p. 31
The Law Journal Breeding Ground	p. 33
History	p. 35
Students in Charge?	p. 38
A Scholarly Enterprise?	p. 41
How the System Works	p. 44
Criticisms	p. 46
Professional Peer Review: The Academic Gold Standard	p. 49
The Problems with Student Control	p. 53
Length, Redundancy, and Footnotes	p. 56
Conclusion	p. 58
The Inherent Item Veto	p. 60
Colonial Precedents	p. 63
Defining the Veto	p. 69
What the Founders Understood about the Veto	p. 72
The Veto as a "Revisionary" Power	p. 81
An Eviscerated Veto?	p. 84
Conclusion: Rescuing Constitutional Interpretation	p. 85
The Unitary Executive and the Commander-in-Chief Power	p. 90
The Unitary Executive Theory: Article II on Steroids	p. 92
The Constitutional Commander-in-Chief	p. 99
The Commander-in-Chief According to Yoo	p. 103
From Law Journal to Law	p. 105
The Bush Commander-in-Chief	p. 108
Distorting the Courts	p. 109
What Hamilton Says	p. 111
Other Cases	p. 114
A Political Document or a Legal One?	p. 121
Conclusion: Reinventing the Commander-in-Chief	p. 125
The Second Amendent	p. 129
The Meaning of the Second Amendment	p. 131
Supreme Court Rulings	p. 136
Other Court Rulings	p. 141
The "Individualist" Critique	p. 145
The "Right of Revolution"	p. 148
Collateral Claims and the Research Record	p. 153
Seeking Shelter under the Fourteenth Amendment	p. 160
Public Policy Consequences	p. 164
Interest-Group Involvement	p. 172
Conclusion	p. 175
Conclusion	p. 177
Reform	p. 179
Law Reviews Will Still Matter	p. 186
About the Author	p. 187
Index	p. 189
Table of Contents provided by Ingram. All Rights Reserved.