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

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Overview

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 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 more than six hundred law journals - professional publications 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.
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Editorial Reviews

From the Publisher
"Fair, fearless, and ferocious, Bob Spitzer has done it again. In Saving the Constitution from Lawyers, he dissects law journals run by law students - and demolishes their one-sided and poorly supported briefs for the line-item veto, the unitary theory of the executive, and the right to bear arms."
—Glenn Altschuler, Litwin Professor and Dean, Cornell University

"No one will read law review articles in the same way after reading Spitzer. Let's hope that no one will write them in the same way either. This book is a tour de force, and should be required reading for every law student, legal scholar, and student of constitutional and public law."
—Richard M. Pious, Adolph and Effie Ochs Professor, Department of Political Science, Barnard College Graduate School of Arts and Sciences, Columbia University

"In this compelling and erudite work, Robert Spitzer skewers the legal profession and legal (mis) education with skill, wit and elegance. This brilliant and insightful indictment of the profession is a clarion call for citizens to recapture the essence of the Constitution that has been lost, stolen and perverted by so-called "legal authorities". Spitzer asks us to be wary of constitutional interpretation as filtered through the decidedly unbalanced lens of a profession accustomed to adversarial advocacy as opposed to a systematic search for truth. This book is certain to give the legal profession a first-rate headache."
—Michael A. Genovese, Loyola Chair of Leadership, Loyola Marymount
University, Author of Memo to a New President

"American law schools are filled with smart students and even smarter scholars. Yet it is hardly a secret that the basic medium of scholarly discourse—the law review—repeatedly trades in a debased currency, in part because scholars over-argue like the future lawyers they are training, and in part because their students lack the intellectual credentials to evaluate legal scholarship. Nowhere is the gap between pretension and performance more evident than in the realm of constitutional law, and Robert Spitzer explains why."
—Jack Rakove, W. R. Coe Professor of History and American Studies & Professor of Political Science, Stanford University, Pulitzer Prize for Original Meanings: Politics and Ideas in the Making of the Constitution

"Spitzer's critique of law reviews is balanced by his respect for lawyers, their function in the American system of justice, and his reverence for the Constitution. But just as valuable as his analysis of the systemic problems with law journals is his impressive, scholarly analysis of three major contemporary constitutional issues: the item veto, the Second Amendment, and the "unitary executive" theory. Spitzer's book will be controversial, but his constitutional analysis will remain valuable to everyone who wants to understand these important Constitutional issues."
—James Pfiffner, Professor of Public Policy, George Mason University

"I devoted the Labor Day weekend to reading Saving the Constitution from Lawyers. It was time well spent. I have no serious disagreement with anything in the book. ...thesis is sound, ...proof for it is overwhelming. I agree that all who write for law reviews, whether students, faculty members, or others, should possess the skills of scholarship and ideally formal training in scholarship. ...I hope the book is taken seriously by law school deans and faculty members, judges, lawyers, and constitutional scholars generally. It is an important and timely work."
—David Danelski, Professor of Law and Political Science, Yale University

"The dominant theme of this little book is that law school law review journals have a publishing process that sometimes results in judges and justices misinterpreting the Constitution....Recommended."
—D. S. Mann, College of Charleston, CHOICE

"...Spitzer has staked out his position in these fascinating debates, revealing for us how political movements throw off generations of precedent and historical meaning and take on a new cloak of constitutional authority."
—Patrick Schmidt, Department of Political Science, Macalester College, The Law and Politics Book Review

"...In Saving the Constitution from Lawyers, political scientist Robert J. Spitzer presents a sharp critique of the "wayward constitutional theorizing" (p. 177) published in law journals...Professor Spitzer contributes detailed case studies showing that a lack of rigor in law schools turned laughably bad arguments into law - "and no one is laughing now" (p. 128)."
—HARVARD LAW REVIEW [Vol. 122:1279]

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Product Details

  • ISBN-13: 9780521721721
  • Publisher: Cambridge University Press
  • Publication date: 4/30/2008
  • Edition description: New Edition
  • Pages: 206
  • Product dimensions: 6.00 (w) x 8.90 (h) x 0.70 (d)

Meet the Author

Robert J. Spitzer (PhD, Cornell University, 1980) is Distinguished Service Professor of Political Science at the State University of New York, Cortland. His books include The Presidency and Public Policy (1983), The Right to Life Movement and Third Party Politics (1987), The Presidential Veto (1988), The Bicentennial of the U.S. Constitution (1990), President and Congress (1993), Media and Public Policy (1993), The Politics of Gun Control (5th edition, 2012), Politics and Constitutionalism (2000), The Right to Bear Arms (2001), Essentials of American Politics (9th edition, 2013), Gun Control (2009) and The Presidency and the Constitution (co-authored, 2005). He is also Series Editor for the book series American Constitutionalism for SUNY Press. In 2003, he received the SUNY Chancellor's Award for Excellence in Scholarship. Spitzer is the author of over 300 articles and papers appearing in many journals and books on a variety of American politics subjects. He served as President of the Presidency Research Group of the American Political Science Association from 2001 to 2003. He also served as a member of the New York State Commission on the Bicentennial of the US Constitution, and has testified before Congress on several occasions. Spitzer has appeared on NBC's 'Today Show', ABC's 'Good Morning America' and 'Network Nightly News', PBS's 'News Hour With Jim Lehrer', CNN, CNBC, in the PBS documentary film 'Guns and Mothers' and on 'Fresh Air' with Terry Gross, and has been quoted in or by The New York Times, The Washington Post, Time Magazine, Newsweek, the Los Angeles Times, USA Today, The Wall Street Journal, The Christian Science Monitor, The Boston Globe, the Chicago Tribune, The Philadelphia Inquirer, The Miami Herald, The Dallas Morning News, Newsday, The Denver Post, Toronto's Globe and Mail, Congress Daily, The Hill, Rolling Stone, The Nation, the National Journal, The Spectator, Reuters, AP, Gannett, Knight Ridder, the BBC (Britain), CBC (Canada), NHK (Japan),

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Table of Contents

1 The Logic, and Illogic, of Law 9

2 The Law Journal Breeding Ground 33

3 The Inherent Item Veto 60

4 The Unitary Executive and the Commander-in-Chief Power 90

5 The Second Amendent 129

6 Conclusion 177

Index 189

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