This WSJ law blog post references a Georgetown constitutional law professor who thinks we should get rid of the Constitution because, effectively, he’s smarter than 200+ years of Americans and will get it exactly right.
You should know that law journals are not edited by professionals, and law review articles are not subject to anything you would recognize as peer review. Law students read and select articles, which come from professors at law schools and a handful of judges. Practicing lawyers don’t write law review articles (practicing scientists do). My professor friends (economics and political science) were shocked to hear this; even they had assumed that law professors were part of the same academic tradition as they were. Not true; not close.
Most law review articles by professors (law students typically write much more helpful pieces called “notes,” collecting reams of cases on a particular topic) aim to be as interesting and dynamic and exciting as possible, which often ends up as some shocking claim or argument to extend the law in some fashion. There is no “right” or “wrong” with articles like these. This means that there is little natural evolution in the system, and law professors living in a publish or perish world can focus on getting published rather than worry about getting anything right.
Oh, and look:
Helpfully, the post mentions some of the most obvious reasons his arguments are unhelpful, namely that there is already a process that allows us to change the Constitution. His retort? It’s too hard. This is the argument for everyone who disagrees vehemently with con law jurisprudence.
- People who want to outlaw guns believe the Constitution is too hard to change to get rid of the Second Amendment.
- People who want to outlaw abortion believe the Constitution is too hard to change to get rid of Roe v. Wade.
That, to me, sounds like we’ve very likely hit on the right balance. The Constitution is an extremely heavy pendulum, providing the inertia that keeps our society from sliding too far in either direction, right or left. As I’ve written elsewhere on conservatives and liberals, there are many people who simply want what they want and forget that the system they want to game can just as easily be gamed against them. Libertarians are often mindful of exactly this problem, and this has become a major part of the definition of libertarianism for me.
Important caveat about law journals: there is at least one journal that aims to produce meaningful scholarship by publishing articles regarding empirical studies. Ted Eisenberg and the Journal of Empirical Legal Studies deserve a specific mention here because they are pointed in the right direction. In the past, most articles similar to these would have been published in the Journal of Law and Economics or perhaps another social sciences journal.
Of course, the deep problem is that it’s really hard to do good scientific experiments with legal rules. Many studies touching on these notions end up in psychology and behavioral economics papers.
My response: this is one very important reason I’m a federalist and believe that we are more often harmed by federalizing policies in ways that reduce the number of approaches to a problem to exactly one. The states function in part as a natural laboratory in which we as Americans can try 50 different ways of balancing the various interests that define our political system. A single federal rule stifles innovation and experimentation.