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War Powers, Guns, and Spitzer's Complaint (with a note on original meaning)

By Jack M. Balkin

This semester I?m teaching ?Foreign Affairs and the Constitution? (from the Bradley-Goldsmith casebook) after a long hiatus. I?ve been meaning to blog about some of the issues I?m covering, especially war powers. But in this post I?ll also look at a 2008 book by political scientist Robert Spitzer, Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning. I couldn?t resist buying a book with that title and it is worth noting it comes with strong endorsements from prominent historians and political scientists who are apparently fed up with the law reviews.

This is a long post and I don't mean to break up the discussion as the biggest financial rescue in U.S. history goes forward. So the rest is after the jump.

Spitzer develops two well-supported indictments of legal scholarship. First, much of it is not scholarship in search of the truth but lawyering, clever brief writing in the wrong forum. Second, much of it is published in student-run law reviews as opposed to peer-reviewed journals and that leads to bad habits and poor quality control (note some law journals are peer reviewed). In the heart of the book, he offers three examples of poor quality constitutional scholarship, as run by law professors: the line item veto, presidential commander in chief powers, and gun control. Spitzer has previously published on all three topics and apparently feels his scholarship, and that of other political scientists, including some giants like Edward Corwin, has been slighted in the law reviews. To be fair, that?s not the main focus of his critique. An undercurrent in the book is his dismay at some of the questionable constitutional interpretations put forward by the Bush administration, particularly those advanced by John Yoo in the area of presidential war powers. Spitzer clearly believes that the fact that these ideas were first advanced in law reviews gave Yoo and his theories a credibility in the administration that was unwarranted.

Spitzer does not deny that law reviews publish a great deal of first-rate scholarship. He contends, ?the central problem is not that there is no limit to superb writing and analysis but rather that there is no floor to dreadful writing and analysis.? He thinks peer review might reduce this problem, but offering solutions is not his main focus (they are not likely to be adopted). Rather, he tries to illustrate the effects of poor analysis on the quality of constitutional argument and to policies adopted by the executive and judicial branches. In other words, bad articles can have real-world effects.

No one will deny that law reviews sometimes print bad articles with terrible arguments. Whether there is a clear advantage for peer reviewed journals in this respect might be doubted. Certainly Spitzer does not turn his critical gaze on political science journals in his quest for shoddy scholarship. He does argue that poor quality scholarship is less likely to be published in peer reviewed journals. But how to show this? I suppose he might have looked at citation counts of articles he thinks are bad. If poor work is cited favorably in law reviews, that would show the ?hundred flowers bloom? approach of law schools is not self-correcting. But he would have to show the same thing doesn?t happen in political science journals.

Spitzer makes some valid points. I can hardly disagree with his specific argument that law professors do not always distinguish carefully between advocacy lawyering and scholarship because I have made this argument myself (as have other lawprofs). Once we move to his examples, doubts arise. The first is the advocacy by a few commentators of the idea that the president already has an inherent line item veto without the need for a statute or constitutional amendment. This near-crackpot notion got some attention in the Bush I administration, but Spitzer does not show it was accepted uncritically in law reviews. It seems to have garnered attention through a fortuitous chain of circumstances and was soon forgotten. The second example is Yoo?s advocacy of presidential war powers and a broad interpretation of the CIC clause. That?s my focus below. The third example is gun control and here I fear Spitzer undermines his credibility by contending that the traditional ?collective? approach to the Second Amendment has no serious scholarly challengers. Spitzer is horrified by the case that became DC v. Heller (the book was published before Heller was decided), regarding its rejection of decades of militia-based collective precedent as a sure sign of a judiciary that has run off the rails. I believe Mark Tushnet in a recent book concludes that the historical argument between these two points of view is close. Spitzer will have none of it, treating Heller as an outlier case that proves how shoddy scholarship can gain a foothold in the law reviews and then become the law against all the evidence. I don?t believe his presentation will convince many law professors who hold that the individualist interpretation is well grounded in original meaning.

With respect to war powers, I think Spitzer is on to something, although the argument might not come out as clean and sharp as he would like. Let?s start by trying to extend Spitzer?s point about the differences between law reviews and peer-reviewed journals. Thinking also of dissertations, what does research and writing in the PhD disciplines have that legal scholarship lacks? Bearing in mind there are always exceptions, two standard elements come to mind: the literature review and the defense of methodology. Legal scholars can be so eager to demonstrate their bright new idea that they can forget to assess what has gone before. As many have noted, this leads to a staggering amount of argumentative repetition in law reviews and the reinvention of not a few wheels. And a lack of attention to methodology defense can lead to law professors claiming new insights when all they have done is an elaborate version of changing the subject. Both suggest legal scholars lack standards for writing articles when there has been past work in the field. This may be related to the reality that most law professors were never graduate students in the same sense as PhD candidates. When you are in law school, for the most part you are being trained to be a lawyer rather than a scholar. It seems likely that this would have some effects on legal scholarship.

I?m going to illustrate these points by examining Yoo?s argument, as expressed in his book The Powers of War and Peace, that the president has the power under the Constitution to initiate war. I?ve argued in previous articles that we have to be careful how we use history to address contemporary constitutional questions. We must ensure we are asking a question of history that history can answer. One reason the debate over war powers has been so contentious is that it does appear we are asking a question that members of the founding generation literally considered: how should the nation go to war? There is a clear asymmetry in the evidence on this question. Those who see Congress as having the power to initiate war under the ?declare war? clause have the support of a long chain of consistent statements extending from the Federal Convention through the ratification debates into the 1790s and beyond attesting to three points: 1) the power to initiate war must and does belong to Congress; 2) we must beware of the abuse of executive power with respect to war and 3) the power to initiate war was deliberately not given to the president, leaving aside defensive responses to sudden attacks. The acceptance of these propositions arguably poses serious practical problems as we try to operate the contemporary constitutional system. This is a matter for theories of constitutional change. However, as a matter of history, the record is very clear.

So how have ?pro-President? scholars like Yoo proceeded? Largely by constructing a series of historical what-ifs. What if members of the founding generation were greatly impressed by the division of authority in the British system of government? What if they sought to preserve the British balance in the U.S. Constitution? What if they believed as a matter of theory that foreign affairs powers were executive in nature? How would we then understand the allocation of war powers? As reviewers of Yoo?s book have noted, Yoo spends pages on life in the British empire while devoting comparatively little attention the actual course of debate at Philadelphia and in the state conventions. But even more important, what is notably lacking from these what-ifs is any endorsement of the fundamental concept of the survival of the British system by any member of the founding generation during the debates over the Constitution. In other words, the advantage of the pro-Congress side is that their arguments are actually endorsed by the framers. Yoo tends to rely on what the framers ?must have? thought as opposed to what they actually said.

So here?s my promised point about the ?new originalism? of original meaning that I wrote about last year at this time in ?Rebooting Originalism.? There is a distinct tendency in the presidential power literature to embrace an implication of the turn to original meaning by emphasizing word choice (?declare?) and context (we?re all familiar with Locke, Blackstone and the British empire) over what actually took place in the process of constitution writing (the framers reordered what they learned from Britain and came up with new ideas). I?m not saying any prominent advocate of the theory of original meaning endorses this specifically. The logic of the theory demands we vacuum up meanings no matter where they occur. But that?s the problem! In actual practice in the area of presidential power, original meaning theory has tended to validate readings of the Constitution that either did not actually occur to anyone who wrote and ratified the document, or were outliers. How could this happen, you say? Remember advocates of original meaning don?t like looking for subjective intent (how the notables actually thought). They elevate ?objective? evidence of original meaning over subjective intent. But, as Woody Allen once remarked, ?Objectivity is subjective? (maybe it was the reverse ? see Love and Death). This means we can look for evidence of meaning anywhere in the eighteenth century (or earlier) regardless of how closely it is connected with the debates that led to the Constitution?s adoption. The search for ?objective? evidence of meaning allows the subjectivity of the scholar to do the picking and choosing among possible worlds of meaning. And that?s what we get ? possible worlds of meaning, not analysis confined to the actual world in which the Constitution was adopted. Now back to Yoo.

The relevance of Yoo for Spitzer?s argument is that anyone previously familiar with the war powers debate who has read through the records of the Federal Convention, the ratification debates, and the relevant historical commentary would spot all of this immediately. If Yoo?s argument had been peer reviewed before appearing in the law reviews, he would have had to respond to some hard questions. At a minimum, he would have had to address the historical evidence point for point. Instead, once his views were published, they could be cited (including by himself when in government) and he was off to the races.

What?s more, once Yoo?s arguments were out there, he and other pro-presidential scholars could use their publication as proof that reasonable persons disagree over the status of the historical evidence. The use of this particular argument by advocates of an inherent presidential line item veto drives Spitzer up the wall. They seemed to argue: (1) there is some evidence in favor of an inherent veto, while (2) there is overwhelming evidence against, so (3) reasonable minds can differ, and thus (4) it is legitimate for a president to pick the position of the group he prefers. I think everyone can see that this sort of mega-bootstrapping is sophistry at best. But doesn?t it sound familiar? It should! Roughly the same pattern of argument has been used by the Bush administration multiple times in reasoning about presidential power in the context of the torture and NSA controversies. It?s a sort of ?heads I win? (if you buy my argument), ?tails you lose? (if you don?t we use the avoidance canon and I still win) approach that the administration used to spin the press that the arguments were at least equally balanced. Spitzer somewhat plaintively compares this to the case of creationism and points out, soundly I think, that to ask whether people are differing is the wrong question. He pleads for ?objective analysis? and ?empirical research? that must be based on ?a careful weighing of legal, historical, and political evidence.? But is that truly what legal scholarship is interested in? If so, it is plain that the method of publication cuts against realizing these goals. And as we have seen with the Bush administration, this has real-world consequences.

Neal Katyal has gone on record in The New Republic (reviewing Goldsmith?s book The Terror Presidency) wondering if something hasn?t gotten out of hand given that Yoo?s reputation for publishing ?innovative? and ?pathbreaking? law review articles might have helped him get a job with the administration. The case of Yoo may have highlighted the loss of methodological consensus in constitutional law.

Would things be better if conlawprofs paid more attention to political science scholarship? I?m a fan of political science, so I would say yes, but you would see conlawprofs dragging their feet somewhat if the query became one of paying attention to what political scientists say about constitutional meaning. There would be questions about how a group composed largely of non-lawyers could have relatively better insights into the Constitution. Talking about peer review and the values of scholarship doesn?t get us anywhere because there is a disconnect in what the two camps write about. Political scientists gave up writing about the Court?s stream of decisions a long time ago. No contemporary political scientist has the doctrinal-treatise respect among lawprofs that Corwin once did because political scientists don?t earn any professional points for describing what the Supreme Court has done with respect to doctrine, wondering about what the Court is likely to do next, or, still less likely, trying to help the Court decide the next case. Political scientists aren?t interested in these topics, but lawyer-lawprofs are. And I?m sure we?ll stay interested. However, as I?ve tried to convey in this post, this fundamentally non-scholarly orientation leaves some very difficult questions open about the quality of legal ?scholarship."

Full post as published by Balkinization on September 28, 2008 (boomark / email).