Saving the Constitution from Lawyers: Part III

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 19^th 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.

Comments

[John C]

Professor Spitzer,

Maybe I should read your book in its entirety, but you seemed to have failed in your posts to show just how the debates over CIC powers and gun control were distorted because academics are lawyers, and because legal academics publish in student run journals.

First, I will point out an obvious epistemological point - you state with the certainty of truth that the Unitary Executive and Individual Rights theories are, in fact, false. How can you possibly say that? I happen to disagree with those theories, but therein lies the rub - I merely disagree. How can there be one independent truth to what the text of the Constitution says (when it is often unclear and at time contradictory) and what history means? These theories might ultimately be wrong, but to call them not "sane"? That is ridiculous. If these theories were so prima-facie insane, they would have been laughed out of the discourse long ago and forgotten. They have not been, and so they have obviously convinced some people. Unless you are arguing that some sort of massive conspiracy is at work to keep these theories alive, in which case you have provided no evidence of such in your postings here.

But that is merely a side point to your larger argument, which I take great issue with. How can you decry the fact that "lawyers" have run the academic debate on this issue? Isn't is just as likely that if non-lawyers had considered these issues over the years, similar "wrong" theories might result? Aren't other academics, when exploring non-scientific topics, susceptible to the same foibles you decry (or are there no debates, and no questionable analysis, in disciplines like history, sociology, or philosophy)?

And as far as the student-run nature of journals, again I ask: if these ideas were so prima facie bad, why have they gained traction? Or are the 6 justices of the Supreme Court that seem ready to rule in Heller simply rubes that can't distinguish good scholarship from bad? Or are they part of the conspiracy too?

Finally, is there any reason to believe other legal debates have been "warped" by the system you decry? Or is it just these two?

Maybe there is another post coming, and I've jumped the gun on some of these issues. If not, please consider adding to what you have posted here. We would all benefit from your thoughts.

[Bob Spitzer]

Thanks much for your comments. Unfortunately, it takes about 100 printed pages of text to establish my propositions about the CIC and Second Amendment theories, and for that I apologize. But your central question gets to the nub of the issue. As you say: “If these theories were so prima-facie insane, they would have been laughed out of the discourse long ago and forgotten.” That’s my point. The early “individualist” articles I mentioned previously ignored the prior published literature, for example, none of which supported its argument. In a peer-reviewed journal, that could not have happened, because scholars with appropriate expertise would have known that the existing literature had been ignored. Student editors would have no way of knowing that. The argument gained traction because more articles were published also without benefit of peer review or any expertise-based evaluation. It cannot be the reader’s job alone to determine if the argument is sensible, simply because there is too much to know, even in the realm of constitutional interpretation. The history of the Second Amendment was obscure, and that provided the ideal condition to essentially invent a theory and build a literature over 30 years that now has academic respectability. Other disciplines are surely not infallible, but they all have one huge advantage: publication decisions are made by trained specialists. Politics and ideology certainly also play a role; gun rights groups have poured millions of dollars over the decades into cultivating this writing, but I don’t fault them. They simply capitalized on the law’s publishing realm where expertise plays no role in publication decisions. And there may well be other such wayward writing, but I limited my analysis to the cases I knew.

[John C]

You state:

The argument gained traction because more articles were published also without benefit of peer review or any expertise-based evaluation.

I still don't buy it. You are arguing that individual rights (or Unitary Executive) proponents managed to hoodwink student editors, and therefore those theories became accepted in the academic discourse. That seems awfully insulting to the rest of the professors, practitioners, judges, and yes students that make up the legal academic community. If these theories were as academically indefensible as you make them out to be, why haven't their proponents been ostracized by the professional community? You seem to argue that because a few proponents 30-odd years ago hoodwinked some student editors into publishing their pieces, the ball started rolling and today, those proponents have managed to fool the legal academy as a whole into believing their "false" theories.

And yet, on the backs of these theories have many reputations and careers been made. Are you really saying that the legal academy has been fooled and doesn't even realize it? That the legal academy (which is far more "liberal" than not and therefore predisposed against these positions) can't tell the difference between good scholarship and bad and stupidly granted tenure and status (and judgeships) to hucksters?

[Bob Spitzer]

I wouldn’t say that student editors were hoodwinked, on two grounds: the authors surely believed in the veracity of what they wrote, and student editors were and are simply unqualified to judge work on its merits, so no hoodwinking necessary. Both sides function in good faith; unfortunately good faith alone is no salve for the structural problem. Key criteria for accepting articles for publication, according to studies of law journal acceptance decisions, include factors like the prestige of the author and author’s university, and of those cited in the “Acknowledgments” footnote; whether the authors were from the law review’s home institution; whether the submission offered a new or unusual argument; and if the article was long and heavily footnoted (and articles on constitutional law and corporate law also favored). Student editors generally report that they also make decisions based on merit, but they lack the necessary expertise to give that any meaning. Add to this the fact that the nation’s 220 law schools publish over 600 law journals – no other academic discipline has such a gigantic academic publishing realm; by contrast, political science has about 100 academic publications – and it’s not hard to see how a body of thought can be constructed. You’re correct that many careers have been built on this system. This might be taken as an “insult” to those involved, but there’s nothing I can do about that, except to note that some of the fiercest criticisms of this system are found in law journal articles written by law school faculty. Thanks again.

[William P]

Thanks, Bob, for bringing your important discussion to this site. I would like to think that the sparse response is due to the exam season, but I am afraid it has more to do with how hard it is for us law professors to hear what you have to say.

Legal scholarship is the important "currency" through which we purchase appointment, promotion, and tenure, as well as participation in the active "lateral hire" market (reported here and at other sites). The availabilty of "over 600 journals" is a huge resource for (potential) professors who want to seek the obvious rewards for publication.

What you demonstrate appears to be another example of Gresham's law at work: bad currency driving out good. It is far easier for our branch of the academy to count articles and to calibrate the prestige of the journals in which they are published, than it is actually to read them critically.

Thanks for trying to force us to face the collateral damage. We are currently enduring a presidential campaign in which each major candidate, having more-or-less failed adequately to undertake the Senate's Article I responsibilities with respect to national war powers, is trying to make the transition to the Article II branch. Neither Democrat has abjured presidential signing statements. All three--including the one who taught Con Law for ten years--gladly read the Second Amendment as protecting an individual right. O tempora, o mores!

I am afraid there is also harm done within the law school. Deans and faculty personnel committees would rather look to and proudly publicize publications, than do the messier work of assuring effective law school teaching. What the system does teach law students is that, as John C implies, as long as there is "accepted" scholarship supporting an opinion, it is at least as valid as any other. A Supreme Court majority seems similarly conditioned.

I look forward to reading your book. Thanks again for spending some time trying to sober us up.