Former Justice John Paul Steven’s has taken hits from left and right wing quarters based on his new book, Six Amendments, but I thought we should consider looking at them.
A quick summary:
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.
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.
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.
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.
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.
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 am not sure if the issues of Gerrymandering, Sovereign Immunity, or Commandering are sufficient enough to warrant an amendment. I would argue banning the death penalty within the Constitution would be a great way to end the practice and rejoin the civilized world on that issue, we would modify the Second Amendment in a way the framers intended, and we would ensure no court could overrule Congress and the people on regulating campaign finances.
Out of those three, only campaign finance seems somewhat realistic a goal to get passage. What are your thoughts?
Mark Adler says
I don’t think we should consider the constitution so perfect that it never needs amending. From time to time changes should be welcomed.
Having said that, absolutely none of these proposals would ever make it through one house of Congress, let alone the other, let alone through the states.
But even without enactment/ratification, it’s still a good political exercise and we shouldn’t be afraid to try it.
Christopher says
I don’t see what the anti-commandeering amendment changes or resolves.
Seems the sovereign immunity amendment would already be true – see supremacy clause.
The death penalty wording is awkward; maybe “including” rather than “such as” sounds better?
Campaign finance – I like Move To Amend’s wording better.
Gerrymandering – I would strike the last sentence. I like that our Constitution has never officially recognized the existence of parties.
Militia – This might be going a bit far. Of course you can carry if you are in the militia. Then again, I wouldn’t mind outright repeal.
JimC says
But I find these inelegant. Some of them are better covered by the equal protection clause, in my expert legal opinion.*
*May not be considered expert in all US jurisdictions.
fenway49 says
We have a tradition in this country of interpreting broad, vague constitutional provisions to mean all sorts of things. But how isn’t it better to be plain as day?
I could see how equal protection could apply to gerrymandering (as in Baker v. Carr) or to campaign finance (skewing political power by dollars is just as bad for political equality as the districting question), but there’s already adverse precedent on both points. It would be hard to find a workable campaign finance test. Amendments along the lines of those above (though I think they’ll have a very hard time getting passed) would eliminate pretty much all doubt.
jconway says
I think his death penalty and campaign finance rulings are pretty unambiguous. And I would actually argue it is better for proponents of the ‘living Constitution’ to use textuality to their advantage and propose updating the document for the present. It would do a lot to depoliticize SCOTUS nominations. If we truly do want judges to call balls and strikes it’s sort of up to us to make the rules clearer and update them for the modern game so to speak.
Another way around that would be making it easier to amend the Constitution as Eric Posner and others has argued.
JimC says
But I feel like it is. Maybe because the principle protects the specifics; being too specific would be limiting. I think.
fenway49 says
but I don’t see these are too specific, and they’re fundamental. The gerrymandering and campaign finance proposals go to the heart of a functioning democracy.
The death penalty proposal is straightforward enough, as is the guns proposal. Personally (and this has come up before on BMG) I’d remove the first comma, a product of odd 18th-century grammar that offers nothing but ambiguity today.
The other two eliminate mischief dating from over two centuries ago and make clear that federal law is supreme. Sad that he’d even think them necessary but events have shown them to be so.
mike_cote says
For example, there is a piece of Kentucky that is separated from and surrounded by Missouri.
I think there is a piece of Minnesota that is completely surrounded by Canada.
And then there are parts of Maryland and Virginia that look like they should be Delaware.
And because of Mountains, there are parts of West Virginia that you can only get to from other states.
There would need to be so many Grandfathered exceptions, that I believe this issue would be pointless or unenforceable.
Christopher says
I’m sure those pieces already are and would continue to be included in the districts closest to them.
fenway49 says
Cases like you’ve mentioned would be handled as always: included in the nearest district, just like Nantucket is in the same district as Hyannis. The proposed amendment already covers the WV mountain issue, in its reference to natural boundaries.
There already are criteria political scientists use (compactness, contiguity, water and other natural boundaries, county or town boundaries) to evalute districts. They can give districts a “score” of sorts for how well they match the neutral districting criteria.
jconway says
A contiguous district would also eliminate the majority-minority districts in a lot of areas. Routinely derided as one of the ugliest districts in the country, the IL 4th does in fact knit the Hispanic neighborhoods and majority-Hispanic suburbs together. A more contiguous district split alongside geographic boundaries like the Stevenson expressway or the Chicago river or a North/South/West Side demarcation would likely result in the Hispanic neighborhoods having a white Congressman on the North Side and a black Congressman on the South Side.
I would prefer whole towns and cities (or whole neighborhoods) get included contiguously, but some would argue Cambridge is better represented with two members of Congress rather than 1. And Boston now has 3 instead of 2.
I think a better amendment would have non partisan panels make the districts, they have a fairly good track record when employed.
Christopher says
…that Boston itself is only represented by Capuano and Lynch, but I wish it were just one. I also value compactness (which I think is the word people are looking for here as I believe contiguity is already required) over demographics.
jconway says
I thought JFK III had a piece but he doesn’t.
As to compactness I think it’s important, and there was evidence that in most states majority minority districts actually served to dilute the voting power of their respective minorities-particularly in the South with black voters and the Southwest with Hispanics. And then there is the Charlie Rangel/Bill Jefferson issue where it serves as an incumbent protection scheme. Independent commissions rather than partisan state legislatures would solve a lot of these problems. There is a unique coalition of out of power Republicans and progressive liberals pushing a referendum to that effect in Illinois. Since it’s binding and on the ballot it’s Mike Madigan proof.
Trickle up says
I wonder how much of these Justice Stevens honestly believes to be changes and how much simply overruling bad decisions?
For instance, I doubt that Stevens believes reasonable restrictions on campaign spending really violate the constitution.
jconway says
In my OP I link to Andrew Cohen’s article bashing him, but I actually think he would argue the death penalty is not unconstitutional at present, and that is why we need to modernize and update our definition of ‘cruel and unusual’ to include the death penalty.
Even ‘progressives’ like Breyer have also endorsed it’s constitutionality though the court continually limits it. This gets rid of it for all time. In much the same way the 13th, 14th, and 15th amendments settled the results of the civil war (at least on slavery) for all time.
I think the campaign finance amendment could be a way to galvanize the populists, progressives, and libertarians in all parties around a simply solution that ensures we get the corrosive influence of money out of our politics, and it ensures for all time that no court or Congress can interfere with that power.
Christopher says
I for one favor extremely limited usage, but would not favor an absolute and outright abolition.
JimC says
It’s called “supporting the death penalty.”
Christopher says
I am open to it (a little different from support which is more affirmative) in extremely fewer cases than most who say they support it. I want the record to reflect that distinction.
JimC says
But if you substitute something else, you’ll see the position differently.
“I am open to” ______
Torture
Abortion
Drone use
Drone surveillance of US citizens
Warrantless wiretapping
Death panels
Etc. Substitute any issue you like, whether you support it or not. If you’re “open to it” in a context where it’s already occurring … sorry, you support it.
I don’t mean to single you out; a lot of people hold your position. But the net effect is enforcement of the status quo.
jconway says
I think it would be better to prohibit it in the Constitution. I really don’t see why “life in prison without parole” is somehow a deficient alternative.
And I think the Kerry/Obama/Christopher position that ‘terrorism and treason are so extreme as to warrant it’ serves to create a class of people (terrorists) that are expendable, and that leads to a lot of the abuses of due process we have seen, particularly against citizens with that label.
Christopher says
I do believe terrorists are a class for which the death penalty option should remain. However, because once applied it is irreversable if anything I would want due process to be even MORE ironclad than we might insist on for more routine cases.
SomervilleTom says
You forget that one person’s “terrorist” is another’s “freedom fighter”.
We’re about to celebrate Patriot’s Day, which actually DOES have a meaning beyond the day the marathon is run. The episode we commemorate was, by the standards of its day, a “terrorist” episode. Those despicably brutal colonials violated all the standards of civilized society — they hid behind rocks and trees and shot at British soldiers, rather than doing the honorable thing and standing in straight lines out in the open.
Israel was created as a result of a long campaign by Zionist terrorists.
Sorry, but I see no way to avoid the conclusion that you are compromising an obvious (and absolute) moral standard in order to accommodate your own emotions. I also see no way to reconcile your opposition to abortion with your support of the death penalty.
One of the most significant contributions the ancient Hebrews made to modern society as we know it was the concept of using law and rationality to explicitly and intentionally separate the emotions of the victim of a crime from the punishment exacted for that crime. That was the enormous innovation of “an eye for an eye” — it essentially ended the “wars of vengeance” that it replaced.
The US lags the rest of the western world by generations in rejecting the death penalty, just as we lagged the western world by generations two centuries ago in rejecting slavery.
SomervilleTom says
I meant your personal opposition to abortion. I understand, and appreciate, that you support abortion rights as a matter of public policy.
jconway says
From my moral arguments above, since I do get for some people the idea that we must extend a right to life to people that have absolutely no respect for it can be jarring. I certainly respect that my mother, who has waffled on this issue, has a different perspective since she lost her father and had to deal with the aftermath in a way I never will since I never knew him. I respect where victims come from, I respect where my HS guidance counselor whose son and daughter in law lost limbs in the Marathon bombing is coming from.
But Tom is exactly right that it is an emotional response, and a somewhat irrational one. Is an unarmed man behind bars for life, under 24 hour supervision from armed guards, whose life is under complete state control somehow a physical threat to the lives of his victims or those around him? How does his continued physical presence among the living truly violate the harm principle, beyond emotional or psychological harm? How is killing him by lethal injection really any different from having the guards empty a few clips into him while he is behind his cell? In both instances its state sanctioned murder of an unarmed man, but in one case it has the illusion of sanitation, sterilization, and painlessness. And this is an increasingly expensive illusion to maintain, even Fox News concedes this.
There have been numerous examples where the death penalty, after Furman, has been misapplied. The risk of losing a Glenn Ford far outweighs any benefits we get from the long and drawn out process it takes to kill a Timothy McVeigh or Jesse Holmes. It is not a reason based policy. It is a policy that fails to deter, fails to reduce recidivism, is more expensive than the alternative which succeeds just as well at protecting society from further harm.
Christopher says
You’ll be happy to know I am no longer of the life for life opinion I once held. I do think philosophically there are people beyond redemption. I do not insist on death and am happy to let the prosecuter decide to seek it and the judge or jury decide to apply it. You won’t see me at any protests holding a sign saying “Fry him!” nor will I dance on the grave of anyone so sentenced. The list of people I can think of for whom it’s appropriate is pretty short, but it does exist.
Christopher says
I do not consider myself to be personally opposed to abortion, though I am certainly happy to promote policies and options that reduce the necessity thereof.
Regarding terrorism, the standard for me is really multiple murders, not the moral value of the political statement being made. Terrorism often is manifested in multiple murders, but I’m referring to just plain serial killers as well. The patriots were firing at British troops sent here, not going to England and blowing up civilians going about their business.
Christopher says
Of the things you list I favor abortion rights, open to drone use, and oppose the others outright. I should reserve the right to make that call without others putting words in my mouth.
JimC says
I was not implying you support or not support any of those, and I don’t think people would take it that way.
Christopher says
I was just continuing using your examples to show how distinctions could be made.
Christopher says
“Open to” means I’m OK with the option existing; “support” means that is absolutely what I want to see happen. I really do think that is a huge difference morally, though I understand that on a simple up or down vote on banning people with both positions will end up voting the same way.
jconway says
I think we need to move toward a full system of restorative justice in this country. It is incredibly powerful, and dare I say what our faith dictates is true justice. A system whereby criminals are rehabilitated, forgiveness can be facilitated, and even those serving life sentences still have regular access to family, books, and the privilege to write. We have to end the death penalty, solitary confinement, the drug war, the prison industrial complex, and the mentality of mass incarceration. Democrats may have tried to look tougher on crime the past three decades, but it should shame us that Michael Gerson, Chuck Colson, and Rand Paul sound far more compassionate on this issue than we do.
This President had a unique opportunity due to his career as a constitutional lawyer, law professor, State Senator for a district wracked by drug violence and mass incarceration, and as a US Senator for a state that has historically had some of the worst instances of police brutality, police torture, misapplied and inaccurate death penalties so appalling a Republican signed a moratorium against them, and some of the worst prisons, and as the first black President, to really be a drum major on this issue. Is silence, and those of other liberals is deafening.
And to me it goes back to the death penalty. If preserving the right to life is the basic function of a state, declaring a class of citizen undeserving of such protection and actually deserving of state sanctioned murder goes a long way to allowing all sorts of other abuses to happen. High recidivism rates seem to indicate this ‘deterrent’ isn’t particularly working.
Christopher says
…but I also think is overly idealistic in some circumstances. I’m sure there are many reforms on which we can agree. We can’t go just by faith any more than the Religious Right can in the real world, for both constitutional and practical reasons. For the record, I’ve never made the deterrence argument.
walt says
As some above have noted, contiguity is far from the most important aspect of redistricting. A much better solution would be something along the lines of fair voting solution, a form of proportional representation where each state has fewer districts that would elect more representatives, better reflecting the political landscape of the state. This would have the added benefit of working to reduce the partisanship everyone seems to hate in our political system, because instead of small, extremist districts, we would have much broader, more representative ones.