January 6, 2010

Saving the Constitution from lawyers?

By Saving the Constitution from lawyers?

Author: R. S. Radford

In his 2008 book, Saving the Constitution from Lawyers, Robert J. Spitzer tackles an issue that troubles most thoughtful Americans. The Constitution is interpreted every day to mean things that never occurred to the Founders, and is often applied in ways that seem inconsistent with, or even contrary to, the concerns that prompted the drafting of the document in the first place.

Spitzer, a political scientist, recognizes that the Constitution’s meaning has been distorted through what might broadly be termed the legal process. His identification of the specific agents of this distortion, however, seems oddly off-target.

First, Spiter zeros in on the nation’s law schools, which unabashedly prepare their students to be advocates, rather than scholars. Well, yes. But weren’t the majority of the Founders lawyers, who earned their living by zealously advancing their clients’ interests, rather than conducting dispassionate and objective investigations to determine where the truth, in a particular case, might lie? Granted, it may not require an intellect of the first order to be an advocate, but surely the two qualities are not mutually exclusive.

Second, Spitzer lambastes the publication of legal scholarship by student-edited law reviews. Again, there is much merit to his critique. In no other academic discipline do professors allow their scholarly papers to be edited and published by second- and third-year students. And undoubtedly, a great deal of drek winds up being printed in law reviews as a consequence, that should never have seen the light of day.

Still, Spitzer doesn’t really show a plausible connection between the publication of dubious legal scholarship and the erosion of the Constitution’s original meaning. It doesn’t help that one of his leading examples, the spate of articles advancing the supposedly "nonsensical," "fatally defective" view that the Second Amendment protects an individual right to bear arms, were fully ratified by the Supreme Court in District of Columbia v. Heller, a case decided shortly after the publication of Spitzer’s book.

What the author seems to have missed is that neither lawyers, law schools, law students, nor law reviews have the power to alter, or even to shape, the Constitution’s meaning. That can only be done by judges, specifically the nine justices of the Supreme Court.

Clarence Thomas got it right in his dissenting opinion in Kelo v. City of New London, when he said, "Something has gone seriously awry with this Court's interpretation of the Constitution." The Constitution is unquestionably in need of saving, but not from the villains Spitzer identifies. What America needs is a follow-up volume: Saving the Constitution from Judges. That one could be a best-seller.

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