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April 03, 2014

Retired Justice John Paul Stevens Proposes A Good Constitutional Amendment -- And Five Stinkers

You know, I've always liked John Paul Stevens, even as I came to disagree with his judicial philosophy. After all, he is a scholarly man who has always seemed to be a good and decent one. It's just that, to my way of thinking, he is so often wrong.

Which brings me to his latest book, Six Amendments: How and Why We Should Change the Constitution -- the good, decent, and scholarly man has one proposal I agree with and five that would tip the balance of power in the United States towards the federal government and away from the states and, more troublingly, the people.

Here are Justice Stevens' offerings:

  1. The “Anti-Commandeering Rule” (Amend the Supremacy Clause of Article VI) This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges and other public officials. in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
  2. Political Gerrymandering – Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historical boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.
  3. Campaign Finance – Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.
  4. Sovereign Immunity – Neither the Tenth Amendment, the Eleventh Amendment, nor any other provision of this Constitution, shall be construed to provide any state, state agency, or state officer with an immunity from liability for violating any act of Congress, or any provision of this Constitution.
  5. Death Penalty- (Amend the 8th Amendment) Excessive Bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.
  6. The Second Amendment – (Amend the 2nd Amendment) A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms when serving in the Militia shall not be infringed.

I like the second proposal -- the restriction on gerrymandering -- but am troubled by the rest.

Justice Stevens offers a superb proposal for fixing the problem of gerrymandered districts. That is an issue I discuss with my students on both the high school and college levels -- the reality that districts are generally not compact and are drawn with goals other than logic and existing geography in mind. Look at any congressional or legislative district map and you will see it -- strange twists and turns designed to draw some voters in and others out of a district so that one party or the other benefits. In recent years that has also applied to creating districts that will elect a legislator of the proper race or ethnicity. In either case, it amounts to legislators picking their voters rather than voters picking their representatives. Justice Stevens is quite right to object and propose a solution -- though may I point out that his is hardly an original proposal, having already been adopted by a number of states.

The rest of the proposed amendments are, to say the least, more troubling. They are also designed to turn several of his dissents into Constitutional mandates.

I could use his proposal to eviscerate the Second Amendment by turning the right to keep and bear arms into a privilege except when one is in active military service, but others have done a better job of it. And I could also point to his effort to ban the death penalty by Constitutional amendment as well, as an example of his desire to impose a counter-majroitarian position on the vast majority of Americans.

But instead, I want to comment on his desire to explicitly allow the federal government and the several states to effectively gag those who they believe are engaging in too much political speech by explicitly permitting them to tell candidates and their supporters to shut up and to quit spending any money to communicate their political messages.

What that means, of course, is that candidates for office could be muzzled by the political establishment. After all, the name advantage that an incumbent has is incalculable in most races. By preventing a challenger from self-funding without limits -- and preventing supporters from spending more than a limited amount in support of an insurgent candidate -- the balance is tipped in favor of the current officeholder. Even more troubling is the prospect of a candidate being attacked late in the election cycle by one or more media outlets -- the press, you see, would not be limited and would be free to decide not to allow any response in their pages. As a result, the candidate would be unable to get the message out on any scale. And if you doubt me, just imagine what would happen if such an amendment were in place and Sarah Palin were to seek office again and the savaging she would take in the media simply by virtue of her existence.

So let's consider what these amendments amount to.

  1. The federal government can override state government and require state officials to perform federal duties, regardless of the will of the electorate of that state.
  2. No gerrymandering.
  3. Abridgement of the right to engage in political speech.
  4. States and state officers engaging in actions designed to challenge a federal law in court would be subject to crippling penalties.
  5. Despite popular support for the death penalty, its use would be forbidden.
  6. Gun rights are rescinded.


As I've said -- one good proposal amongst a pack of stinkers.

Indeed, the more I look at those amendments, the more I find myself questioning whether or not Stevens the Justice was worthy of the high regard in which I held him.





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Comments on Retired Justice John Paul Stevens Proposes A Good Constitutional Amendment -- And Five Stinkers

#6 would have no force. For example, under the Illinois state constitution the state militia is comprised of all of the residents of the state.

|| Posted by Dave Schuler, April 10, 2014 05:39 PM ||

Yes -- but the amendment would be construed to forbid possession of a firearm when not on active militia duty.

|| Posted by Rhymes With Right, April 11, 2014 04:23 AM ||
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