This is a worthwhile consideration by Stephen Griffin of the distortion of Constitutional history by legal scholars, who write articles in non-peer reviewed law reviews and then cite their own scholarship to defend radical and ahistorical positions. One extreme of this technique is John Yoo and his invention of unrestrained executive power:
" 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."
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