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

This book is a sweeping indictment of the legal profession in the realm of constitutional interpretation.

Robert J. Spitzer (Author)

9780521721721, Cambridge University Press

Paperback, published 7 April 2008

206 pages
22.8 x 15.2 x 1.5 cm, 0.39 kg

"...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]

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.

1. The logic, and illogic, of law
2. The law journal breeding ground
3. The inherent item veto
4. The unitary executive and the commander-in-chief power
5. The second amendment
6. Conclusion.

Subject Areas: Constitutional & administrative law [LND], Politics & government [JP]