In a groundbreaking new book, the 94-year-old retired Supreme Court justice John Paul Stevens has unveiled a blueprint for improving the Constitution.
The jacket of “Six Amendments: How and Why We Should Change The Constitution” points out that Stevens is the first current or former justice to propose such amendments. Indeed, Supreme Court justices interpret the law rather than make it.
But it stands to reason that Stevens would understand the Constitution’s flaws after analysing it so deeply during his 35 years on the bench. Here are Stevens’ six amendments and his justifications for proposing them.
A Constitutional Amendment To Prevent Mass Murder
The very first amendment Stevens proposes would go a long way toward preventing mass murder, he says.
Stevens wants to get rid of a doctrine known as anti-commandeering, which says the U.S. government can’t force state officials to comply with federal laws.
As The New York Times noted after the Sandy Hook Elementary School tragedy, this doctrine prevents the U.S. from forcing states to comply with a federal background check system for guns. From The Times:
As a result, when a gun dealer asks the FBI to check a buyer’s history, the bureau sometimes allows the sale to proceed even though the purchaser should have been prohibited from acquiring a weapon, because it’s database is missing the relevant records.
Virginia Tech shooter Seung-Hui Cho may not have been able to purchase a gun if the state had reported his mental health issues to the FBI, several publications have noted.
To make sure state officials do have to comply with federal mandates, Stevens would fix the part of the Constitution that makes anti-commandeering possible. That’s the Supremacy Clause, which says:
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 in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
In the past, the Supreme Court has found that this clause lets Congress impose federal duties on state judges — but not state officials. Stevens would amend this section so it says “and other public officials,” which would require states to furnish information necessary for federal background checks.
A Constitutional Amendment To Stop Gerrymandering
Stevens wants a Constitutional amendment to end gerrymandering, the manipulation of Congressional districts to ensure one party or group has an unfair advantage.
A gerrymandered district might, for example, have a disproportionate number of Democratic or Republican voters.
As Princeton professor Sam Wang has written in The New York Times, “Through artful drawing of district boundaries, it is possible to put large groups of voters on the losing side of every election.”
Stevens argues that gerrymandering can also make politicians more radical. It makes elections less competitive, Stevens says, spurring candidates to embrace more extreme positions than they’d take if they had to appeal to a more diverse group of voters.
Here’s the Stevens amendment that would end 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 historic 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.
A Constitutional Amendment To Stop The Wealthy From Buying Elections
In its landmark 2010 Citizens United case, the Supreme Court ruled corporations can spend as much money as they’d like on political campaigns. Then, this term, the high court struck down the overall limit that individuals can give to candidates or political campaigns over a two-year election cycle.
In both cases, the Supreme Court’s majority said the First Amendment’s guarantee of free speech protected people’s — and corporations’ — right to give these contributions. It is this kind of free-flowing money into elections that led to the Watergate scandal and the resignation of President Richard Nixon, Stevens points out.
Here’s the amendment Stevens would enact to make sure money doesn’t influence politics:
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.
A Constitutional Amendment To Help People Sue US States
Stevens’ next amendment would put an end to a legal doctrine he says never should have been adopted in a democracy. That doctrine is “sovereign immunity,” which often makes it impossible for people to sue U.S. states for violating federal laws without the state’s consent.
This legal doctrine originated in 1400, when Henry IV was king of England and decreed that he couldn’t be sued without his consent. Here’s what Stevens has previously written on the subject:
That rule of law — known as sovereign immunity — was supported by two reasons, first a belief that the king could do no wrong, and second, the fact that the architect of a legal system has the power to decide whether judges should entertain such suits. Neither of those reasons provides any support for an American judge-made rule giving states an immunity from suits in federal court based on violations of federal law.
This practice often makes it impossible for U.S. citizens to sue states that may have wronged them. In the case of Alden v. Maine in 1999, the Supreme Court ruled that probation workers couldn’t sue the state for allegedly denying them overtime because of the doctrine of sovereign immunity. Here is Stevens’ fix:
Neither the 10th Amendment, the 11th 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.
A Constitutional Amendment To Stop The Government From Killing People
Stevens argues compellingly that America should abolish the death penalty because of the risks that innocent people could be killed.
“We may never know how many innocent prisoners have actually been put to death,” Stevens writes. “We do know, however, that the risk of such injustice arises whenever a defendant is sentenced to death.”
To make sure this injustice never happens, Stevens proposes adding the words “such as the death penalty” to the Eighth Amendment, which already prohibits “cruel and unusual punishment.” Here is his amendment:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.
A Constitutional Amendment To Control Guns In America
As it’s currently written, here is what the Second Amendment says:
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.
When Stevens joined the Supreme Court in 1975, he says, the courts generally held that the Second Amendment protected the right to bear arms for military activities. It wasn’t until 2008 that the Supreme Court ruled in District of Columbia v. Heller that the Second Amendment protects Americans’ right to keep handguns in their homes for self-defence.
While he doesn’t go as far as to say handguns should be banned, Stevens says the right to bear arms should not be Constitutionally protected.
“Emotional claims that the right to possess deadly weapons is so important that it is protected by the federal constitution distort intelligent debate about the wisdom of particular aspects of proposed legislation designed to minimize the slaughter caused by the prevalence of guns in private hands,” he writes.
Here is Stevens’ fix:
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.
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