For nearly thirty years as a political scientist, I have focused my research and writings on two main subjects: the American presidency, and gun control. In both areas, I discovered full-blown constitutional theories that were starkly at odds with prevailing analysis and understanding. The more I examined these theories, the clearer it became that they distorted facts, ignored or misstated past writings, relied on selective analysis, and overstated conclusions, in a manner resembling the adversarial, advocacy-based American legal system -- a system well suited to American justice, in which one-sided arguments collide to produce a just outcome, but antithetical to scholarly inquiry. When applied to constitutional theorizing as published in student-run law journals, the result, in these instances, was stark distortion of any sane reading of the Constitution.
One such example, examined in much greater detail in Saving the Constitution from Lawyers, is the Unitary Executive theory as applied to the president’s commander-in-chief (CIC) power. Advocates of a strong presidency can make a credible, “living Constitution” argument in support of the two-century expansion of presidential power as a necessary development for a large, powerful nation and where, for the most part, the public and the rest of the government have supported this development. Yet law journal writing in the 1980s and 1990s promoted an allegedly new “originalist” view, the Unitary Executive. First developed in the Reagan Justice Department, the theory then sought, and arguably found, scholarly legitimacy in the pages of law reviews. Its linchpins are 1) the claim that presidential power had declined, not increased, since 1789; 2) that presidents have sole and exclusive control over the executive branch, and 3) that the other two branches of government may not interfere with whatever the president declares to be within his sole prerogative. The first claim contradicts one of the most well established truisms of American governance, as presidential power has (with fluctuations) grown, not declined, since 1789. The other two claims represent a flat rejection of checks and balances in the separation of powers system. One may propose in the modern era that checks and balances are obsolete or ineffective, but one may not argue that the Constitution’s founders rejected the very power arrangement that is the centerpiece of American governance -- yet writers in law reviews have busily done just that. Then in 1996, law professor John Yoo published a 135-page law journal article arguing that the framers established presidential CIC powers modeled on the British monarchy, when in fact the framers did the reverse: they rejected giving monarchical powers over the military and war to the president. For all its pretensions and erudition, Yoo’s analysis, now shrouded with academic legitimacy and embraced by the second Bush administration, is a cartoonishly distorted depiction of what the founders said and wrote. Does America need this imperialist presidency today? That, at least, is an arguable proposition. Did the founders create such a presidency? Not a chance.
Second, law reviews were the well-spring for a new theory of the Second Amendment’s “right to bear arms,” arguing that the amendment provides an individual right to own and use guns for purposes other than service in a government-regulated militia (as the first part of the amendment says: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed”). While popularly misunderstood, the amendment’s framers, court decisions, and history all confirm the militia-based meaning. But in 1960, a law student wrote an article for a prominent law journal asserting that the amendment protected personal self-defense (ignoring self-defense’s common-law lineage), and also a right to overthrow the government (a proposition of startling absurdity). Within ten years, two more articles appeared staking out this position; in the 1970s, six more were published; in the 1980s, 21 were published in law journals; in the 1990s, 58 (from the late 19th century to 1959, 13 law journal articles all endorsed the militia view). Today, the Supreme Court is poised, for the first time, to embrace the law-review-invented individualist view in the Heller case. Should the Second Amendment be now read to protect personal self-defense because of threats from crime or terrorism? Perhaps. But did the founders create such a right? No.
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