SAVING THE CONSTITUTION FROM LAWYERS: HOW LEGAL TRAINING AND LAW REVIEWS DISTORT CONSTITUTIONAL MEANING
by Robert J. Spitzer. New York, NY: Cambridge University Press, 2008. 206pp. Cloth. $85.00/£45.00. ISBN: 9780521896962. Paper. $27.99/£15.99. ISBN: 9780521721721.
Reviewed by Patrick Schmidt, Department of Political Science, Macalester College, Email: schmidtp [at] macalester.edu.
With apologies to Archilochus and Berlin, Robert Spitzer, as viewed through SAVING THE CONSTITUTION FROM LAWYERS, might be a hedgehog who knows two big things. He knows that there is something deeply wrong with the constitutional politics advanced, primarily by conservatives, over the past few decades. He also knows the mode of production of legal ideas in the United States is something of a duckbill platypus: a species among the world’s creatures that evolution hath wrought but that no one would imagine or design if left to their own devices. For both of these views, Spitzer will undoubtedly find a ready audience for his thorough and vigorous attacks. If he “has you at hello” so far as his attack on student control over law reviews or John Yoo’s views on executive power, Spitzer’s ultimate step requires fox-like dexterity: as stated plainly by the title, there is a connection between these two observations about the world of contemporary legal scholarship and thought.
In a fast-paced fifty-one pages, the first two chapters present the two-fold problem of legal scholarship. In the first chapter, he explores the distinction between advocates and scholars. Trained for contestation, the instincts of lawyers have been honed by education and socialization to value client needs and interests over truth. Spitzer defends these instincts for adversarial adjudication but, leaning heavily on Epstein and King (2002a), rejects this sensibility for the work of the social sciences. Lawyers never develop the culture of diligence and care required of scholarship. Spitzer seems to appreciate that the “social sciences” represents an ideal type, imperfect in practice, though his thumbnail sketch could do more to flesh out what should be expected of constitutional theorizing. In Chapter Two, Spitzer seeks to link the moral economy of “advocacy scholarship” with a structure of publication – law reviews – that provides no check. He very helpfully synthesizes the history of legal writing and publication and rehearses the criticisms of the law review system, including the familiar problems of footnoting and article length. The key to his account lies in the further comparison with the “academic gold standard” of professional peer review (p.49). While imperfect in practice, “the logic of peer review is self-evident” (p.50), and student control over legal publication lacks a “barrier to writing that is incompetent, bad, and wrong” (p.55), giving the legitimacy of publication to false ideas that then seep into constitutional discourse. [*780]
How bad, exactly? And what does it matter if some “wrong” claims get published among the 1,100 law publications in print? Three case studies, in Chapters Three through Five, are Spitzer’s data for the claim that the problem is quite serious. Here Spitzer’s commitments are most evident, as he engages in a blow-by-blow analysis of the arguments made for three contemporary constitutional positions: Chapter Three takes on the “inherent veto” argument, that the President holds line item veto power irrespective of whether Congress attempts to delegate it (as it did in 1997). Chapter Four engages the arguments concerning the “unitary executive” theory, especially as it pertains to the powers of the Commander-in-Chief. Chapter Five reviews the arguments that have been advanced in favor of an individualist interpretation of the Second Amendment. All three chapters are sterling in their close analysis of the issues, and they can serve as valuable reference points to these debates. Consistently and emphatically across all three of these, Spitzer rails against the faulty scholarship that found expression in law review articles, and he never strays far from his indictment of the (mostly) conservative “invention of a fictionalized constitutional past. The desire to mold constitutional, originalist understandings to fit contemporary political needs is understandable but reprehensible” (p.127).
In order to sustain his larger argument, a couple questions must be answered. First, were “advocacy scholarship” and the sloppy standards of law reviews essential in driving the proposed change in constitutional meaning? To put it counter-factually, in the absence of legal scholarship as it is now understood, would the movement for change have had any life? Second, would a system of peer review have prevented the publication of these materials or otherwise frustrated the causes? Spitzer may assert neutrality on the second question, claiming as he does, for example, that the policy merits of gun control is irrelevant; he claims simply to oppose the form of the argumentation being used to give the Second Amendment an individualist meaning. But that feint is difficult to sustain because his arguments about historical understandings drive at the impossibility of certain new constitutional meanings as well as of the separate arguments being used to arrive there. And, as I will note below, his willingness to outline more acceptable arguments for the positions taken by conservatives creates its own problem.
In recounting the three debates, Spitzer must demonstrate the clear dependence of the constitutional debates in Washington, DC on what was happening in law reviews. Unquestionably, law reviews are a battleground of ideas, but even as revealed by Spitzer’s citations for the arguments he attacks, those debates have other outlets in newspapers, books, book chapters, speeches, and the briefs of government lawyers. Spitzer thus sometimes struggles to remind readers that his well-grounded attacks on contemporary constitutional views should be read as an indictment of law reviews, such as when he writes, “The Bush Administration’s 2003 ‘Working Group Report’. . . articulated a singularly broad and sweeping view of the CIC power. The evidentiary support for its executive-power claims consisted almost entirely [*781] of court cases, although its logic and case law cites were rooted in Yoo’s 2001 memorandum, which in turn arose from his 1996 law journal article” (p.109). In a similar vein he pens, “the inherent item veto was planted, cultivated, and legitimated in the pages of legal publications” (p.62), though many of the most important arguments that he engages (the work of Stephen Glazier and Forrest McDonald especially) found expression in books. The counter-factual question, raised above, is a useful exercise: if law reviews had not been available for the scholarship by conservatives in the past thirty years, where would the movement be? Clearly, as recent work has elegantly noted (e.g., Haltom and McCann 2004, Teles 2008), conservatives long ago recognized the need to fight the battle of ideas, but that work just as much points to the multiplicity of venues – including think tank publications, newspaper editorials, mainstream and academic books, and public speeches and discussion – that successfully nurtured the passage of interests into policy. The regular appearance of non-law review publications in Spitzer’s own recounting of the debates makes it difficult to pin the blame on law reviews, when there are alternative paths available for those attempting to change the Constitution’s meaning.
Spitzer does have the other leg of his argument, that “advocacy scholarship” should not even see the light of day. “[P]artisan advocacy,” he concludes, “cannot be allowed to twist evidence, distort or ignore the rules of inquiry, or offer up certainty for that which is anything but certain” (p.179). The thoroughness of his case studies brings many scholars into his sights – including those with credentials beyond law (such as Forrest McDonald) – and widens the sweep of his critique. Perhaps we live in an age in which we have thoroughly muddied the ideal of scholarship with the culture of American adversarialism. The presence of a few liberal law professors in his critique – including Lawrence Tribe and Akhil Amar, named in a 1999 Wall Street Journal article as supporters of an individualist reading of the Second Amendment – strengthens that reading, though it also invites the thought that perhaps Spitzer has merely launched an ad hominem, accusing of bias anyone any lawyer with whom he disagrees.
Spitzer’s most frequent tack against such an accusation is to assail the “reasonable minds differ” standard that would allow legitimate scholarly disagreement over the meaning of the Constitutional provisions in question. If reasonable minds can disagree on these questions, views contrary to his own might have been published, even after peer review. “No such standard is useful or appropriate,” he injects into Chapter Three, “for the empirical research question of whether Article I, sec. 7, of the Constitution actually gives such a power to the president, for this is a matter to be resolved by a careful weighing of legal, historical, and political evidence” (p.87). Spitzer leaves no doubt about his belief in definite meanings to the Constitution, writing that “if the Constitution can be said to mean the opposite of what it does mean, then it has no meaning at all” (p.176).
In Chapter Five, similarly denying the possibility of reasonable disagreement, he describes as “transparently false” [*782] Sanford Levinson’s arguments – published in the YALE LAW JOURNAL, he notes – that the Second Amendment protects the rights of citizens to use firearms for self-defense, as well as the suggestion that the 19th century decisions on the 2nd Amendment are irrelevant because they were made prior to incorporation (p.151). Setting aside the unfortunate pre-HELLER timing of this chapter, overall Spitzer can reject the opposing arguments as unreasonable only by out-originalizing the Originalists. This approach privileges an understanding of constitutional meaning-making that gives primacy to historical analysis. He is willing nevertheless to entertain a “bona fide constitutional argument” that advocates of the individualist view could offer: that “the original, collective/militia-based meaning of the Second Amendment is now obsolete . . . .Therefore, the Second Amendment should be vested with a twenty-first-century meaning to confront contemporary needs” (p.176). Spitzer simply cannot tolerate the sheer disingenuousness of the scholarship in this field, but apparently he would suffer more gladly arguments constructed along the lines of contemporary non-interpretive theorizing – that law can be made to adapt, if freed from the artifice that it is historically grounded.
That turn might make it safe for lawyers to be advocates, just as long as they do not pretend to be scholars. But then could anything that Spitzer might have wanted by way of peer review have prevented advocates of a constitutional counter-revolution from spinning new theories, protected by the banner of “reasonable disagreement”? Can we view any constitutional arguments, under a non-interpretivist frame, as beyond reasonableness? The answer to that casts doubt on whether peer review of legal writing or any reconceptualization of the role of the legal professoriate could forestall the ebb and flow of constitutional reformations and counter-reformation. His call, in a brief concluding chapter, for reform to legal training and publication certainly faces an uphill struggle, but what happens ex ante through student editing or peer review may be beside the point. Instead, Spitzer has given us a window into the relationship between advocacy and the production of “the law” in practice through an ex post marketplace, in which the political quest for a different constitutional order seeks inspiration, direction, and sometimes legitimation. Contrary to Epstein and King’s emphasis on the importance of social science methods for “learning about the world” (2002b, at 194, 195), what passes for legal scholarship and theorizing may be more about “imagining” and “making” the world. Do precedents, text, and history factor into the possibilities and limits of constitutional meaning? Clearly they can. But they may be no more determinative today than they were when the hedgehogs of the past struggled quixotically against revisions – sometimes liberal in origin – to what people thought they knew about the Constitution. 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. [*783]
Epstein, Lee and Gary King. 2002a. “The Rules of Inference.” 69 UNIVERSITY OF CHICAGO LAW REVIEW 1-133. Available at SSRN: http://ssrn.com/abstract=1082915
Epstein, Lee and Gary King. 2002b. “A Reply.” 69 UNIVERSITY OF CHICAGO LAW REVIEW 191-209.
Haltom, William and Michael McCann. 2004. DISTORTING THE LAW: POLITICS, MEDIA, AND THE LITIGATION CRISIS. Chicago, IL: The University of Chicago Press.
Teles, Stephen M. 2008. THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT: THE BATTLE FOR CONTROL OF THE LAW. Princeton, NJ: Princeton University Press.
DISTRICT OF COLUMBIA v. HELLER, 554 U.S. ___ (2008).
© Copyright 2008 by the author, Patrick Schmidt.
Labels: Vol. 18 No.9