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. 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.

This sweeping indictment of the legal profession's forays into constitutional theorizing argues that legal training and writing are ill suited to scholarly analysis of critical constitutional issues. Through careful examination of legal principles and the law's vast student-run publishing venue - law reviews - Spitzer concludes that wayward constitutional theorizing is too often the result.

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),