Still Saving the Constitution from Lawyers: A Response

Robert J. Spitzer, Still Saving the Constitution from Lawyers: A Response, 46 Gonz. L. Rev. 103 (2011).

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In a recent issue of this Review, Benjamin H. Barton[1] offered an extended critique of my book, Saving the Constitution from Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning.[2] In this article, Barton addresses a series of important questions with which my book deals. I am motivated to write this essay because of the importance of the issues to which my research, and therefore Barton’s article, are focused, including the nature and effects of legal education and law reviews on constitutional meaning. While I am grateful to the time and energy Barton has devoted to the analysis of my book, and while I believe some of his comment has merit, I also write because much of his analysis mischaracterizes or misstates my arguments. In addition, he offers as fact some assertions which are simply false. Ironically, Barton’s essay illustrates some of the very problems I identify in my book.

In Part I of this essay, I summarize my book’s arguments. In Part II, I examine Barton’s critique in detail. In Part III, I discuss Barton’s treatment of the Second Amendment’s right to bear arms, which is an important case study in my book. Part IV offers a brief conclusion. %CODE2%
I. My Book’s Argument

The primary argument of my book is, as the consciously provocative title and subtitle say, that law reviews are a breeding ground for wayward constitutional theorizing. Why? Three key reasons: first, law school training prepares its graduates well for the practice of law, but poorly for academic research.[3] I believe this to be true because legal training, by its nature, emphasizes traits invaluable to the courtroom—zealous advocacy, aggressive argument, client loyalty, the honing of persuasive skills—but inimical to academic inquiry. The research and analytical skills central to law are valuable in any endeavor, including academic research and writing, but they are counterbalanced by other aspects of legal training and practice. Thus, these traits produce far too much law journal writing that offers selective analysis, cherry-picked evidence, overheated rhetoric, factual distortion, and conclusions that outrun evidence. These traits are squarely at odds with the principles of inquiry, and the type of writing, found in literally every other academic discipline—from anthropology to zoology—including the philosophy of science, the scientific method, hypothesis testing, and other research methodologies that embody the principles of intellectual inquiry (research methodology is generally not taught in law schools[4]).

The second problem with legal writing is its venue, law reviews.[5] Virtually all of the nation’s law reviews are run by law students, not by academics or other professionals; moreover, publication decisions, with the rarest exceptions, do not employ the universally accepted gold standard for publication in every other academic discipline: namely, peer review (meaning that manuscript review is given over to people who have demonstrated, usually through their own research and prior publications, knowledge and expertise in the subject matter of the manuscript being reviewed). In contrast, the decision to publish in law reviews is given over entirely to a cadre of people who, though intelligent, diligent, serious, and hard-working, do not possess, and cannot be expected to possess, the expertise necessary to judge a piece of work on its merits. Work not judged on its merits cannot be assumed at face value to be meritorious.

The consequence of these two traits, combined with the sheer size of the law review publishing hole (in all, there are over 850 publications attached to America’s law schools[6]), is that any and every sort of writing on any and every imaginable subject can find a publishing venue. The problem, as I discuss in my book, is not that there is no limit to superb writing, but that there is no floor to the insidious, the incompetent, the inane.[7] It would be astonishing, in fact, if defective constitutional and other theorizing did not arise from the conditions I describe.[8]

The balance of my book is organized around three intensive case studies that illustrate this defective constitutional theorizing: the presidential inherent item veto,[9] the unitary theory of executive power and the commander-in-chief clause,[10] and the Second Amendment’s right to bear arms.[11] In each case, I argue, wayward constitutional theorizing found primarily or exclusively in law reviews produced defective constitutional theories that had an important impact on governing and public policy.[12] By way of explanation, my choice of these three cases was not arbitrary. The American presidency and the issue of gun control have been my chief research and publication focus for, in the case of the presidency, over thirty years,[13] and in the case of gun control, for almost thirty years.[14] The arguments I present in Saving the Constitution from Lawyers arose from, and were a consequence of, decades of intensive research in these fields, which included reading many hundreds of law journal articles in these areas.

II. Barton’s Critique

Let me say first that Barton’s article does some things well. Barton ably summarizes the arguments I make in my book, particularly in regard to the principles that underlie legal education, the strengths and limits of the adversarial system, and their relationship to how lawyers view the Constitution. He concedes that law school faculty face a complicated task when making the transition from the practice of law to the teaching of law, and when seeking to write about academic areas and disciplines that fall beyond the confines of law. With Barton, I agree that academic disciplines need to learn more about other disciplines, and not shirk from constructive interchanges between disciplines (this was, in fact, one purpose of my book). Barton concedes that I present “many fair critiques of the law review system”[15] and that I do “a nice job of highlighting the hybrid nature of the law professoriate.”[16] Barton also raises legitimate questions about the causal connection I draw between law review writing and public policy (which I discuss below). But let me now turn to a more detailed analysis of Barton’s essay.

Barton’s article sets out two purposes. One is to “offer a defense of lawyers, law professors, and law reviews,”[17] which indeed he does. Barton states his second purpose this way: “I show that Spitzer’s book proves that peer-reviewed political science scholarship suffers from at least as many faults and foibles as law review scholarship. . . .”[18] This he does not do. Nowhere in his article does Barton make the case, or provide evidence to support his claim that peer review (whether in political science or in any other discipline) produces publishing results as problematic as those found in law reviews. At no point does he justify the proposition that expertise-based evaluation of scholarly work—the gold standard used in every other academic discipline[19]—is no different in result from the non-expertise-based (i.e. student-run) evaluative system found in most law reviews. In fact, his only evidence against peer review comes from my book, wherein I discuss the famous plagiarism cases of historians Stephen E. Ambrose and Doris Kearns Goodwin, and the evidence fabrication problems of historian Michael Bellesiles and economist John Lott.[20] The point of my analysis of these cases is two-pronged: first, peer review, like any human activity, is not infallible. But to say that peer review is not infallible provides no exoneration of student-run law reviews, because the second point of my analysis is that, in every field of endeavor, save law, the remedy for the limitations of peer review is more peer review, not less. And no other field of academic endeavor would dream or contemplate turning over publication decisions to students who have not even completed training in their respective disciplines.

The essence of peer review is that subject matter experts are best positioned to judge the substantive merit of a piece of academic writing. It is not a perfect system,[21] but it is the best system available to the academic world. With the rarest exceptions, law students possess no such expertise, meaning that criteria other than merit play an important, even determinative role in law school publication decisions.[22] No serious argument can be made to suggest that a publishing system run by people who do not possess expertise can somehow hope to promote expertise as well as, or better than, an expertise-based system. I also spend considerable time in my book explaining how and why the unique system of student-run law reviews came about.[23]

Yes, as Barton notes, law students “excel at one thing . . . cite checking.”[24] I agree that it is important for citations to be factually correct, and that law students generally do this well. But what Barton does not seem to grasp is that this amounts to little more than silver-polishing on the Titanic. An article can have correct citations, yet be entirely wrong or unworthy of publication. Among the many and more important questions that cite checking does not address are: does the author know the existing literature in the field (i.e. important relevant publications neither cited nor mentioned—sources with which student editors would likely be unaware, but that subject matter experts, by virtue of their expertise, would likely be familiar with) and respond to that literature appropriately? Does the author’s argument make sense? Is the author making a new contribution to the field, or merely repeating the work (even if all scrupulously footnoted) of others? Are the methodologies employed by the author (whether quantitative or qualitative) appropriate to the stated task or goal? Peer reviewers do not normally fact-check footnotes (although they can, and sometimes do). But their ability to review an article is predicated on the fact that they already have substantial knowledge of what has been written in their specialized field of study, and this gives them the best vantage point to judge the overall quality and veracity of that which they are reviewing. Again, peer review is by no means perfect, but it is the best means yet devised to serve the gate-keeping function in academic writing. That is why it is the method employed in every other field of study.[25]

As one article highly critical of law reviews concluded, “there exists no serious basis for thinking it [the adversary system and student-run law reviews] would work better in academia than the system—indeed the only system [peer review]—that has worked so well for learning about the world in so many other disciplines.”[26] Barton says that my book “needs to prove that student-edited law reviews are more likely to publish biased or flatly incorrect scholarship,” and that on this question “he [Spitzer] does not carry the day.”[27] Yet my three case studies found in Chapters Three, Four, and Five of my book, and which account for more than half of the book’s length, present this very evidence: numerous instances where law reviews did, in fact publish “biased” and “flatly incorrect” scholarship.[28] With one exception (discussed below), Barton ignores this analysis, and so offers his readers no evidence to support his charge against my book.

Further, Barton repeatedly overstates, or misstates, my arguments. For example, he characterizes my analysis of legal training as promoting “indifference to truth”[29]; says that the “entire point of the [Spitzer’s] description” is to paint “the immoral advocacy system and the congenital liars who inhabit it . . .”[30]; that I charge that “law schools train lawyers to disregard the truth”[31] and that “law professors do not care about the truth”[32]; and that I fault the adversarial system because it fails to “discover the absolute truth of past events.”[33] I say none of these things in my book. Here is what I do say.

Legal education trains lawyers, as it must, to be advocates who will work zealously and loyally for the lawyer’s client. My observation about this is that “the value of truth-seeking [is] subordinated to the kind of values that are the foundation of legal training: to win an argument, to put the interests of the client/employer above those of the truth, or to maintain confidentiality regardless of its consequences.”[34] I am hardly alone in this conclusion. For example, Anthony T. Kronman noted succinctly that “[s]cholarship . . . aims at the truth. Advocacy, by contrast, is concerned merely with persuasion.”[35] As the noted legal theorist Lon Fuller said, the lawyer’s job is “not to decide but persuade. He is not expected to present the case in a colorless and detached manner, but in such a way that it will appear in that aspect most favorable to his client.”[36] That’s a good strategy in a courtroom, but not in an academic journal, and that is my point. In every other academic discipline, researchers and writers generally aspire to be, on the whole, “colorless and detached” (although there are certainly important exceptions). As law professor Arthur Selwyn Miller wrote on the consequences of the adversary system on scholarship:

[L]awyers, simply because they are trained to be advocates—to take sides—face a particularly difficult task when called upon to shed the habits of their training (and practice) when . . . writing for learned journals. . . . In no other profession or discipline, except theology, can it be said that the very system itself is a hampering effect on the search for truth.”[37]

Even these critics do not call lawyers “congenital liars,” and I certainly do not.

I also do not say, or argue, that the advocacy system is “immoral,” nor do I fault it for failing to discover anything resembling “absolute truth,” any more than I would criticize peer review for not achieving the same goal. I am not out to judge the morality of the advocacy system at all (this would be an endeavor well above my pay grade). Instead, my actual conclusion is this: “the core principles of legal training and practice . . . encapsulated in the adversarial system . . . function effectively and well in the practice of law in America but operate at right angles to the fundamental tenets of academic inquiry . . . .”[38] I also “side with defenders of the American system of justice. But I also believe that its traits have other, adverse consequences when removed from the practice of law.”[39] I agree with Barton that lawyers “may often be called upon to put the best face on unfortunate circumstances. . . .to massage the facts and present the best possible case . . . .”[40] These actions are understandable in the courtroom, as a corollary to the adversarial system. But these are poor values when applied to scholarship and academic inquiry.

III. The Case of the Right to Bear Arms

As I noted earlier, Barton fails to examine any of the evidence I present in my book that explores and illustrates in great detail the manner in which wayward constitutional theorizing has arisen from law reviews and has led to a defective understanding of constitutional meaning, regarding the inherent item veto and the unitary theory of executive power, two of my book’s three cases.[41] The third case in my book, the Second Amendment’s right to bear arms,[42] does come under his scrutiny briefly,[43] but Barton’s analysis, I’m afraid, illustrates the very problems I describe in the book he sets out to criticize.

To briefly summarize the debate over the meaning of the Second Amendment, two competing views of the amendment’s meaning have dominated this legal debate. One view, the “collective” or “militia” view, says that the amendment was added to the Bill of Rights to insure the right of states to organize their own government-regulated militias, coupled with the right and necessity of militia-eligible men to keep arms for militia service purposes.[44] The “individualist” view says that the amendment includes or protects a personal, individual right to own guns (i.e. a right not related to militia service) for private or personal reasons, such as personal self-protection.[45] On its face, the text of the amendment would seem to support the former, militia-based interpretation: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”[46] The collective view has, indeed, been that of four Supreme Court cases and nearly fifty lower federal court cases spanning many decades.[47]

In 2008, the Supreme Court departed from past rulings when it held in District of Columbia v. Heller that, for the first time in history, the Second Amendment protected a right of citizens to own guns for personal self-defense in the home.[48] In Chapter 5 of my book, I am severely critical of the individualist view, arguing that it was born, and acquired (undeserved) legitimacy, in the pages of law reviews.[49] For reasons of space, I cannot replicate the evidence presented in this forty seven-page chapter here, but Barton does not address that evidence. Instead, he cites as disproving my argument the Supreme Court’s Heller ruling which he says “held the exact opposite [of my argument] by a vote of 9-0 . . . .”[50] It is undeniably true that Heller upheld the individualist view, but that does not disprove my argument that the individualist view is built on a parade of defective law review writing.[51] In fact, it demonstrates the power of such writing to remake American law.

But Barton also makes a stunningly incorrect assertion—that the Heller vote was “a vote of 9-0 in District of Columbia v. Heller.”[52] It was not. The Court’s vote in Heller was 5-4: Justice Scalia delivered the majority opinion, supported by the votes of Justices Roberts, Alito, Thomas, and Kennedy.[53] The dissenting opinion was written by Justice Stevens, with Justices Souter, Ginsberg, and Breyer joining in the dissent (Breyer also wrote a separate dissent).[54] Later in his article, Barton provides a different vote: “while Heller was a 5-4 decision, it unanimously decided the underlying constitutional theory: all nine Justices recognized some form of the individual rights theory of the Second Amendment.”[55] Barton’s only evidence to support his allegation that all nine justices supported “some form” of the individualist view appears in a footnote that quotes from Stevens’ dissent. That quote, as presented by Barton, says this: “The question presented by the case is not whether the Second Amendment protects a ‘collective right’ or an ‘individual right.’ Surely it protects a right that can be enforced by individuals.”[56] Barton also cites an article co-authored by his colleague at the University of Tennessee College of Law, Glenn Reynolds, that makes the same claim.[57] Yet a closer examination of Stevens’ dissent reveals Barton’s claim to be false.

The sentence Barton quotes above from Stevens says two things: the first is that the question presented to the court is not about the individual versus collective debate, a statement that does not support Barton’s insistence that the dissenters accept the court majority’s individualist view; the second comment from Stevens is an acknowledgment that the Second Amendment protects a right enforceable by “individuals.”[58] But does this mean that Stevens accepts the “individualist” view?

Here is the full text of the beginning of Stevens’ Heller dissent, which includes the fragment quoted by Barton:

The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.

Guns are used to hunt, for self-defense, to commit crimes, for sporting activities, and to perform military duties. The Second Amendment plainly does not protect the right to use a gun to rob a bank; it is equally clear that it does encompass the right to use weapons for certain military purposes. Whether it also protects the right to possess and use guns for nonmilitary purposes like hunting and personal self-defense is the question presented by this case. The text of the Amendment, its history, and our decision in United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 (1939), provide a clear answer to that question.

The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.[59]

Stevens’ references in the first paragraph to “an individual right” is a reference to the argument, not his acceptance of the argument. The subsequent two paragraphs clearly explain his view on this matter. The Second Amendment, Stevens believes, “does encompass the right to use weapons for certain military purposes.”[60] This is the collective view. He then says that the 1939 Miller case provides a “clear answer” to how to interpret the Second Amendment.[61] Stevens proceeds to define that “clear answer,” writing that it “was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia.”[62] Also the collective view. Stevens then rejects the individualist view when he says that neither the amendment text nor the arguments of its defenders from the eighteenth century supports any notion that the amendment protects “private civilian uses of firearms.”[63] He concludes by saying that private self-defense is a common-law right, not one tied to the Second Amendment.[64]

In short, Stevens and fellow dissenters plainly reject the individualist view and embrace the collective view.[65] Most of the rest of Stevens’ lengthy and strenuous dissent is a recitation of history and law marshaled in opposition to Scalia’s arguments and in support of the Second Amendment as a militia-based right.[66] Barton’s commentary on Heller not only reveals confusion about his ability to count to nine, but misrepresents Stevens’ dissent. Barton’s interpretation of Stevens’ opinion is the opposite of what Stevens actually writes.

Finally, is Barton right when he says that the Heller ruling “cripples his [Spitzer’s] overall thesis”?[67] The answer is no. Quite the contrary. The purpose of my analysis was and is not to predict how the court will rule in any specific case, except to argue that sometimes the courts have been swayed by what I argue is defective law journal writing.[68] As a reading of Heller makes abundantly clear, the five-member majority was not only swayed by individualist law journal writing, but relied on it heavily, even decisively.[69] I am not the only person to make this observation. As one court watcher noted about the Heller decision, “One of the most interesting things about this case is the influence of the law professors” where “the scholarship on the issue. . . rushed in to fill the vacuum. . . a little tiny enclave of liberal and libertarian professors really won this case.”[70] Law professor Adam Winkler concluded that the Court’s decision to hear this case, after refusing to hear prior Second Amendment-based challenges over many decades, was attributable to a “buildup of new [academic] literature . . . .”[71] Yet another analysis of Heller concluded that it has “been dependent on scholarship: as the Court has moved from a ‘militia’ to a ‘personal’ right reading of the [Second] amendment, it has followed (and its arguments have depended on) recent scholarship that has moved along the same lines.”[72] Absent the spate of individualist law journal writing, it is difficult to imagine the Heller case being accepted by the court at all, much less that it would have created this new individual right.

To his credit, Barton raises a legitimate question regarding causality for this and the two other cases in my book,[73] but he does not examine my evidence on the matter. I cannot demonstrate or “prove” that law journal writing is the sole cause for the Heller outcome, but the whole point of the analysis in my book is to demonstrate the critical, even decisive role of this law journal writing. I believe my book makes that case, and that the very existence of the Heller decision emphatically endorses it. Finally, as for the idea that Heller per se discredits my arguments, I would simply note that the Supreme Court can change its mind, as indeed it did. The very fact that the high court agreed to hear the Heller case represented a reversal of court behavior, as it had refused to hear Second-Amendment-based appeals to gun laws for decades.[74] The Court can change the law, as indeed it did, but it cannot change history, and the historical basis for the individualist view was as defective before Heller as after Heller.[75]

IV. Conclusion

No work in the academic world is beyond criticism, and I am grateful that Barton has taken the time and effort to examine my book and its arguments in some detail. While he raises some legitimate issues, he also distorts, misstates, and misrepresents facts. These are not legitimate techniques in an academic debate, but they do underscore the obligation to respond and rebut. Not all arguments consist of two equal sides. Sometimes facts speak decisively to one side and not to another.

To cite an extreme but illustrative example, imagine a writer who composed an article on behalf of the idea that the Holocaust during World War II did not occur. Many books and articles have been written in defense of this indefensible idea, and polls have shown that some Americans either do not believe that the Holocaust occurred, or simply know nothing about it, and therefore express skepticism about its reality.[76] The existing Holocaust denial writing could all be properly and accurately cited in an anti-Holocaust article to marshal support for this otherwise foul and false proposition. A person or persons called upon to review such a piece of writing submitted for publication who knew nothing of World War II or the Holocaust might, by law review standards, agree to publish such a piece of writing on the grounds that it presented an unusual and provocative argument, that it had an obligation to publish an article in opposition to prevailing opinion on the matter, and that the article was supported by ample and accurate footnotes citing sources that also said that the Holocaust did not occur. And if the reviewer did not send the article out to review to subject matter experts, how would the reviewer know of the historical consensus that the Holocaust did indeed occur?

Holocaust deniers are an extreme case, but a clear one in support of the propositions that it is possible to arrive at a consensus or conclusion when arguments collide, that accurate footnotes do not equal an accurate article (although an accurate article has accurate footnotes), that subject matter expertise not only matters, but is absolutely vital, and that sometimes the facts favor one side more than another. As I wrote in my book, “to deny the superiority of peer review is to deny that knowledge and experience matter in the academic world.”[77] The best way to get at the veracity of any argument is to focus on the facts, the evidence, the arguments. Unfortunately, too much law review writing winds up diverted from these objectives. It can be a problem in any discipline, but, as I argue here and in my book, it is a systemic and unique problem for the legal community in ways that it is not for other disciplines.[78] And the essay to which I have responded here can be taken as a further example of these very problems.


* Robert J. Spitzer (Ph.D., Government, Cornell University, 1980) is Distinguished Service Professor and Chair of the Political Science Department at SUNY Cortland. He is the author of thirteen books and over 400 articles, essays, and papers. The author wishes to thank Louis Fisher for his insightful comments on this essay.

[1]. Benjamin H. Barton, Saving Law Reviews from Political Scientists: A Defense of Lawyers, Law Professors, and Law Reviews, 45 Gonz. L. Rev. 189 (2010) (book review). Parenthetically, I wish to note for the record the wit of Barton’s article title.

[2]. Robert J. Spitzer, Saving the Constitution From Lawyers: How Legal Training and Law Reviews Distort Constitutional Meaning (2008).

[3]. Id. at 22-23.

[4]. Lee Epstein & Gary King, The Rules of Inference, 69 U. Chi. L. Rev. 1, 115-24 (2002).

[5] Spitzer, supra note 2, at 33-59.

[6]. In 2008, the law-based web site FindLaw listed 218 law schools. USA Law Schools’ Home Pages A-Z,, (last visited Sept. 12, 2010). Westlaw’s Journals and Law Reviews Database lists 862 journals. The terms “law journal” and “law review” are treated as synonyms. Journals and Law Reviews Database, Westlaw, (last visited Sept. 12, 2010).

[7]. Spitzer, supra note 2, at 55.

[8]. Id. at 58-59.

[9]. Id. at 60-89.

[10]. Id. at 90-128.

[11]. Id. at 129-76.

[12]. Id. at 85-89, 125-28, 175-76.

[13]. The subject of my doctoral dissertation, completed in 1980, was the American presidency, which in turn became my first book, Robert J. Spitzer, The Presidency and Public Policy: The Four Arenas of Presidential Power (1983).

[14]. My first published article on gun control was, Robert J. Spitzer, Shooting Down Gun Myths, America, June 8, 1985, at 468‑69. I have since published three books on gun control, the earliest of which was, Robert J. Spitzer, The Politics of Gun Control (1995).

[15]. Barton, supra note 1, at 200.

[16]. Id. at 198.

[17]. Id. at 191.

[18]. Id.

[19]. Barton says that peer review is used in “most” other academic disciplines, id. at 194, but that’s incorrect. It is used in every other discipline, save law.

[20]. Spitzer, supra note 2, at 51-52; Id. at 195.

[21]. I also discuss the limitations of peer review. See Spitzer, supra note 2, at 49-53.

[22]. Id. at 53-55.

[23]. Id. at 38-44.

[24]. Barton, supra note 1, at 201.

[25]. Epstein & King, supra note 4, at 48.

[26]. Lee Epstein & Gary King, A Reply, 69 U. Chi. L. Rev. 191, 195 (2002).

[27]. Barton, supra note 1, at 201.

[28]. Space limitations prevent me from reciting examples from my book here, but I invite readers to judge the evidence found therein for themselves. See, for example, Spitzer, supra note 2, at 70-72, 74-77, 82-83, 85-87, 105-08, 127-28, 150-60.

[29]. Barton, supra note 1, at 193.

[30]. Id.

[31]. Id. at 197.

[32]. Id. at 192.

[33]. Id. at 197.

[34]. Spitzer, supra note 2, at 23.

[35]. Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession, at vii (1993).

[36]. Lon L. Fuller, The Adversary System, in Talks on American Law 30, 31 (Harold J. Berman ed., 1961).

[37]. Arthur Selwyn Miller, The Myth of Objectivity in Legal Research and Writing, 18 Cath. U. L. Rev. 290, 291 (1969).

[38]. Spitzer, supra note 2, at 32.

[39]. Id. at 22.

[40]. Barton, supra note 1, at 197.

[41]. Spitzer, supra note 2, at 60-128.

[42]. Id. at 129-76.

[43]. Barton, supra note 1, at 203-05.

[44]. Historian Saul Cornell refers to this as a “civic right” or “civic obligation” of citizens, and his argument is persuasive. Moreover, it is consistent with the collective view because the right or obligation pertains only to militia-eligible citizen service, not private uses of guns. Saul Cornell, A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America 167, 186, 197-99, 202-03 (2006).

[45]. Stephen P. Halbrook, The Founders’ Second Amendment 323-24, 333 (2008); Spitzer, supra note 14, at 25-27, 35-37.

[46]. U.S. Const. amend. II.

[47]. Robert J. Spitzer, The Right to Bear Arms: Rights and Liberties Under the Law 32-44 (2001); Robert J. Spitzer, Why History Matters: Saul Cornell’s Second Amendment and the Consequences of Law Reviews, 1 Alb. Gov’t L. Rev. 312, 316-22 (2008). The first federal court to accept the individualist view was a Fifth Circuit ruling, United States v. Emerson 270 F.3d 203, 231-32 (5th Cir. 2001), although the court’s ruling did not apply this newfound individual right to the individual then under indictment for violating a federal gun law. That ruling was appealed to the Supreme Court, which refused to hear Emerson’s appeal. Emerson v. United States, 536 U.S. 907 (2002). The case was returned to Texas, where Emerson was convicted of violating the federal gun law. Robert J. Spitzer, The Second Amendment “Right to Bear Arms” and United States v. Emerson, 77 St. John’s L. Rev. 1, 17 (2003).

[48]. 128 S. Ct. 2783, 2821-22 (2008). The Heller case was handed down in June 2008, a couple of months after the publication of my book. I did, however, begin my discussion of the Second Amendment in Chapter 5 of my book with the ruling of the U.S. Court of Appeals for the District of Columbia Circuit ruling from 2007, Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), in which a two-member majority upheld the individualist view. The appeal of that case resulted in the Heller decision. Spitzer, supra note 2, at 129.

[49]. Spitzer, supra note 2, at 145-60.

[50]. Barton, supra note 1, at 191.

[51]. I researched the provenance of individualist writing on the Second Amendment, and traced it to a law review article published by a law student in the William and Mary Law Review in 1960. Stuart R. Hays, The Right to Bear Arms, A Study in Judicial Misinterpretation, 2 Wm. & Mary L. Rev. 381 (1960). Prior to that time, fifteen law review articles, published from 1874 to 1959, all reflected the collective view of the Second Amendment. Spitzer, supra note 47, at 72; Robert J. Spitzer, Lost and Found: Researching the Second Amendment, 76 Chi.-Kent L. Rev. 349, 364-66 (2000).

[52]. Barton, supra note 1, at 191.

[53]. Heller, 128 S. Ct. at 2790-805 (2008) (majority opinion of Scalia, J., joined by Roberts, Alito, Thomas, and Kennedy, JJ.).

[54]. Id. at 2822-47 (Stevens, J., dissenting, joined by Souter, Ginsburg, and Breyer, JJ.).

[55]. Barton, supra note 1, at 204.

[56]. Id. at 204 n.88 ( quoting Heller, 128 S. Ct. at 2822 (Stevens, J., dissenting)).

[57]. Id. at 204; Glenn H. Reynolds & Brannon P. Denning, Heller’s Future in the Lower Courts, 102 Nw. U. L. Rev. 2035, 2035 (2008).

[58]. Heller, 128 S. Ct. at 2822 (Stevens, J., dissenting).

[59]. Id.

[60]. Id.

[61]. Id.; United States v. Miller, 307 U.S. 174 (1939).

[62]. Heller, 128 S. Ct. at 2822 (Stevens, J., dissenting).

[63]. Id.

[64]. Id.

[65]. This is also how the media reported the Heller ruling. For example, one account said that Stevens “took vigorous issue with Justice Scalia’s assertion that it was the Second Amendment that had enshrined the individual right to own a gun.” Linda Greenhouse, Justices, Ruling 5-4, Endorse Personal Right to Own Gun, N.Y. Times, June 27, 2008, at A1. Another account said that “Stevens rebutted Scalia . . . in a line-by-line battle over the meaning of the amendment.” Robert Barnes, Justices Reject D.C. Ban On Handgun Ownership, Wash. Post, June 27, 2008, at A1. Another said: “The more liberal justices said the [Second] amendment protected only a collective right tied to state militias . . . . The more conservative justices found an individual right . . . .” Adam Liptak, Ruling on Guns Elicits Rebuke From the Right, N.Y. Times, Oct. 21, 2008, at A15.

[66]. Heller, 128 S. Ct. at 2824-47 (Stevens, J., dissenting).

[67]. Barton, supra note 1, at 205.

[68]. Spitzer, supra note 2, at 150-60.

[69]. Heller, 128 S. Ct. at 2795, 2800, 2803.

[70]. Emily Bazelon, Dahlia Lithwick & David Plotz, The Supreme Court Wrap-Up Gabfest, Slate (June 27, 2008, 12:13 PM),

[71]. Mary Gilbert, Heller’s Fallout, Nat’l J. (July 17, 2008),

[72]. Paul Martin, The Supreme Court, in Developments in American Politics 6, at 140 (Gillian Peele et al., eds. 2010).

[73]. Barton, supra note 1, at 205-06. Of my three cases, the inherent item veto power discussed in Chapter 3 presents the clearest case of a theory that found favor in government circles solely because of law journal writing written on its behalf. The individualist view of the Second Amendment I examine in chapter 5 is, I believe, similarly decisive in causing and bringing to fruition the Supreme Court’s adoption of the individualist view, even though that adoption came after my book’s publication. My discussion of the unitary theory of executive power presents, I believe, the most complex causal argument, where a law journal article by White House lawyer John Yoo played a vital role in Yoo’s legal opinions, and their elevation as doctrine, during the second Bush administration regarding the unitary executive theory of presidential power as specifically applied to the president’s power over foreign policy and national security matters. More to the point, the unitary theory was itself the product of a group of conservative lawyers working in the Reagan White House and also through the newly-formed Federalist Society, which in turn planted its views in the pages of law reviews. I propose in my book that the Bush administration would in all likelihood have proceeded generally as it did had Yoo not published his writings and brought them into the White House as counsel, but that his (and similar) writings “invented and legitimated a constitutional provenance for a contemporary legal construct that gave the unitary CIC [commander-in-chief] a kind of status and dignity that it could not have otherwise claimed.” Spitzer, supra note 2, at 128.

[74]. Spitzer, supra note 2, at 142-43, n.39 (listing twenty instances between 1943-2006 when the Supreme Court denied certiorari in Second Amendment cases).

[75]. Criticisms of Heller have come from all ideological directions. For example, Federal Judge Richard A. Posner concludes that Scalia’s majority decision “is not evidence of disinterested historical inquiry. It is evidence of the ability of well-staffed courts to produce show jobs.” To Posner, Scalia’s decision arises from “‘law-office history’”: “law professors all tendentiously dabbling in history . . . .” Posner also says that “professional historians were on Stevens’s side.” Richard A. Posner, In Defense of Looseness, The New Republic (August 27, 2008, 12:00 AM), See also J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253 (2009); Jack Rakove, Thoughts on Heller from a “Real Historian,” Balkinization (June 27, 2008),

[76]. For more on Holocaust deniers, see for example the web site for the U.S. Holocaust Memorial Museum. Holocaust Deniers and Public Misinformation, U.S. Holocaust Memorial Museum, (last updated Apr. 1, 2010). Holocaust denial is not hypothetical: public opinion polling has shown that one to two percent of Americans firmly believe that the Holocaust never occurred, and that as much as a third of Americans have doubts about whether the Holocaust actually occurred. This latter number reflects ignorance of history rather than entrenched anti-semitism. See George Gallup, Jr., The Gallup Poll: Public Opinion 1999, at 234-35 (2000).

[77]. Spitzer, supra note 2, at 55.

[78]. Id. at 9-59.

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