Book Review: “Six Amendments” by John Paul Stevens

Six Amendments: How and Why We Should Change the Constitution is the latest scholarly work from former Supreme Court Justice John Paul Stevens. The book is as spare and strictly to-the-point as its title: discounting an index, a few pages of acknowledgements, a few more pages of glossy colour photographs, and an appendix with a complete transcription of the United States Constitution (as amended), Stevens makes his case for six distinct constitutional amendments in just 133 pages. As a retired Justice, it isn’t surprising that the selection and emphasis of many of the proposals underscore Steven’s frustration with often recently decided jurisprudence and are targeted to undermine or reverse certain decisions. The no-nonsense prose, coloured with Stevens’s famed wit, makes for an engaging and insightful read.

No proposed amendment is immune to critique, and some are less immune than others. But a majority of them clearly address pressing contemporary issues that likely need profound and dramatic legal changes to adequately remedy. The biggest challenge to Stevens’s proposed remedies is one he himself addresses in a short prologue: namely that the amendment process has been very infrequently used, and never more infrequently since the Civil War than in the last forty years. But, by suggesting remarkably simple yet concrete changes we could actually act upon, Stevens makes a powerful case that there are ways we can effect change more more decisively than what the slow and piecemeal legislative process may afford and less unexpectedly than ‘law from the bench’ often provides. I’ll discuss each proposal in turn.

I. The “Anti-Commandeering” Rule

In his most paternal and uninteresting suggestion, Stevens makes the no-nonsense argument that the federal government should have the power to compel state and local officers to help enforce controlling federal legislation. After an involved elaboration of precedent and theory, we understand that the interest in avoiding the need for a central bureaucracy to administer all federal programs is much more pressing than the speculative fear of the federal government overwhelming the States’ ability to administer to their own affairs too. At a minimum, state assistance in administering federal programs helps to forestall the inefficiency a central bureaucracy would and has created, but it also would allow for nuanced interpretation and implementation of those programs by the States, which Justice Brandeis referred to as the “laboratories of democracy.”

The proposal to end the newly inaugurated and so-called “anti-commandeering rule” which stands in opposition to the basic tenets of federalism is simple and seems clearly to follow the intent of the Framers: namely, that the Supremacy Clause should be amended to apply explicitly to “other [state] public officials” in addition to state judges. Pass it.

II. Political Gerrymandering

Political gerrymandering is the process whereby state legislatures define voting districts in perverse ways which offend spacial and geographical sense in favour of a partitioning by political affiliation in order to affect election outcomes. Stevens reminds us of the history of the term gerrymander, a portmanteau of ‘Gerry’ and ‘salamander’ coined in 1812 when Massachusetts governor Elbridge Gerry’s then-controlling Republicans redistricted in ways that reminded contemporary journalists of salamanders. In so doing, the Republicans successfully undermined the Federalists in that year’s election. The practice became fairly common thereafter, especially following the Civil War when it took on a decidedly racial element.

Stevens points to the Court’s frequent rulings striking down attempts at racial gerrymandering, but argues at length that it has “floundered when confronted” with political gerrymandering. The reader may decide whether he is convinced, but what interests me is his fairly bold claim that “there is no reason” why an accepted test barring racial gerrymandering from being a legislature’s “dominant and controlling rationale” when redistricting should not also apply to political gerrymandering. This seems like a claim worth defending, but it isn’t even addressed. The differences between racial and political identification are such that I can imagine there might well be at least one reason to allow gerrymandering based on the latter but not the former: political affiliation is a choice which can at any time be reversed, while race is an unchosen and indelible property of one’s very life. Are not political parties themselves legal mechanisms for enhancing political influence through voting, so might it not make sense to district in such a way as to focus their cohesion?

At heart is a deeper question: why do we have districts at all? Districts exist to partition voters for purposes of delegating some smaller number of individuals to represent them in legislatures. Need those voters be represented only by their geographical location? Surely I share some common interests with my physical neighbors over questions of local resource allocation and use, but I might not necessarily agree with them about anything regarding state- or nation-wide issues like taxation schemes, broader infrastructure investments, and social issues. I think it might well enhance the democratic process to align representation with ‘political location’ rather than or in addition to geographical location. Imagine a district, rather than (or in addition to) a party, that lobbies for your vote!

The geographical argument though is, in my view, a sound one as far as it goes, and Stevens’s proposed amendment would have the effect merely of requiring geographically compact and contiguous districts, or else good reasons why they cannot be had. Those reasons explicitly could not involve “the interest in enhancing or preserving the political power of the party in control of the state government.” Stevens believes this will make elections marginally more competitive by pushing the real decisions, to the extent that geographical regions remain relatively less partisan, out of the primaries and into the general elections. Absent a serious reworking of the concept of redistricting, I say why not?

III. Campaign Finance

This is the no-braineriest of all the proposals. In the wake of Citizens United, which Stevens argues (and in good company) is an unprecedented dismissal of a century of popular and well-accepted prohibitions on buying elections, it is evident to me that the influence of cash in the political process is a major malfunction. Stevens’s analysis does a good job of destroying a central argument from that decision, namely the Buckley case, and also makes the cogent observation that “voters who believe the power of the purse will determine the outcome of elections are more likely to become bystanders rather than participants in the political process,” leading to an even greater disproportionality in the power of the purse.

And to paraphrase Stevens and add a bit of my own voice to what I see as one of the central issues in contemporary American politics, I submit the following: at a fundamental level, it seems at odds with the mission of government that an object which a government itself issues — that is, money — should have such an effect on the composition of that government. Instead, the People — and not government-controlled proxies which are themselves not people — should more directly control how the government is formed.

The proposed amendment itself is also quite elegant in terms of simply overturning Citizens United and yielding thence to the legislatures:

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.

IV. Sovereign Immunity

One of the more esoteric amendment proposals (and most lengthily elaborated), this issue pertains to the States’ right under the Eleventh Amendment not to be sued under certain circumstances. Stevens simply rips apart what he says is merely a relic of English Common Law that was formally ratified largely or entirely to avoid having to pay bills otherwise legally owed after a suit was successfully brought against Georgia to repay its war debts. Much of the jurisprudence around the amendment also heavily involves cases against Louisiana, so think of the Eleventh as the Southern Cheapskate Amendment.

I don’t understand why we don’t just repeal the entire Eleventh Amendment. Didn’t our ancestors fight a revolution to end rule by a sovereign? Should States ever be above being sued due only to the citizenship of the plaintiff? Stevens stops short though of repeal and recommends only a change to the jurisprudence of its interpretation, basically guaranteeing that state actors cannot be immune to federal law. I would have guessed that Federalism itself requires this, but then again the notion of Nullification, originally invented by the South, seems to be alive and well. TL;DR: southerners are idiots.

V. The Death Penalty

This proposal provides perhaps the best juxtaposition between Stevens’s focused, evidence-based approach and the seemingly nonsensical basis of a policy he hopes to end. He destroys the deterrent argument for capital punishment by citing the rise of “life without the possibility of parole” as being sufficiently identical as to functionally eliminate any nuance in the cost/benefit analysis a would-be criminal might entertain before committing a capital offence. The relative expense in a litigious society (read: not characterized by summary executions) has long been cited as an argument against state-sanctioned executions. What then can continue to motivate the grisliest and most irreversible of all punishments a state may inflict?

Stevens concludes that it must be the desire for public retribution, but notes the gradual departure from viewing public and graphic executions for entertainment as evidence that such a primitive desire is approaching the edge of the defensible by an argument from popularity. He hints at the moral culpability that eye-for-an-eyers have without directly addressing it, and begins to wrap — in response to a published opinion of Scalia’s, no less — with this unassailable bit of rhetoric regarding the inevitable fallibility of any justice system administered by human beings:

For me, the question that cannot be avoided is whether the execution of only an “insignificant minimum” of innocent citizens is tolerable in a civilized society.

As already noted, executions have been waning in frequency and spectacle. Presumably, we have only to wait before they are totally done away by Congressional decree or popular demand. But why not quicken the pace and make it much harder for a more barbaric future Congress to reinstate them? A simple amendment to modify by five words the Eighth Amendment’s prohibition on “cruel and unusual punishments,” explicitly banning punishments “such as the death penalty,” is the Justice’s recommendation. Is there a good reason not to do this? I say we kill anyone who claims that there is while we still can. (If you’re reading this, laugh along with me.)

VI. Gun Control

If Stevens dropped the ball on any of his amendment proposals, it is emphatically this one. Destined to have been the most controversial proposal of the bunch, this proposed change to the Second Amendment was also the least elaborated and defended. Basically, the Justice rested on the emotional appeal of murdered children to justify settling by amendment what is one of the most contested interpretations of any amendment in the Bill of Rights: namely, whether a subordinate clause is controlling or merely informational.

In my view, the Second Amendment is sufficiently nuanced and valuable, not to mention popular, that I think this change warrants its own, lengthy analysis. Especially in view of its obvious ramifications, I won’t speak to the wisdom of the proposed amendment here — given a plan soon to address it more fully — except to to elaborate it here with the effective addition emphasized:

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.

The stated hope is to make guns less accessible to crazy people, but the public reaction which emphasized this among Stevens’s proposed amendments was predictable. His decision to afford just a scant nine pages to defending it seems phoned-in, a tragedy since he’s right that a change to the Second Amendment has the greatest chance of any he proposes to literally save lives in the near term.

Oh, Johnny!

The result of what is essentially a “judge’s wish list” is nevertheless an engaging and witty tour de force of a few points of historical jurisprudence, peppered with some contemporary context that makes them relevant. And the grins! Between fondly recalling the approval of a printing request after

the cheif justice acknowledged that my chambers were responsible for saving the Court even more money than the cost of an occasional colored map because I employed fewer law clerks than any of our colleagues

and observing that, “but-for” Watergate, he likely never would have served on the Court at all, Stevens frequently bends the exposition in entertaining ways.

Stevens offers actionable proposals to advance and address several important open problems which can only benefit from further discussion. Given its brevity — which still (generally) provides an insightful history and analysis — I absolutely recommend reading this. If nothing else, you get a free transcript of the US Constitution with every copy.

Published 2014, 177 pages.

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