Notes on Six Amendments
from Six Amendments by John Paul Stevens
by Ben Rautenberg
“In the following
pages I propose six amendments to the Constitution; the first four would
nullify judge-made rules, the fifth would expedite the demise of the death
penalty, and the sixth would confide the coverage of the Second Amendment to the
area intended by its authors… “ Justice John Paul Stevens …
He, “shall begin with
a discussion of the ‘anti-commandeering rule,’ which prevents the federal
government from utilizing critical state resources, thus impairing the federal
government’s ability to respond to problems with a national dimension, and
explain why it would be prudent to eliminate the rule before a preventable
catastrophe occurs.”
In close of his
Prologue Stevens says, “As time passes, I am confident that the soundness of
each of my proposals will become more and more evident, and that ultimately
each will be adopted. The purpose of this book is to expedite that process and
to avoid future crises before they occur.”
So what is Stevens talking
about? He mentions catastrophe and crisis both in what I’ve excerpted
from the prologue. Indeed the first chapter regarding the anti-commandeering
rule intends to add four words to the Supremacy Clause in Article 6 to make it
read “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 officals in
every state shall be bound thereby, any Thing in the Constitution or Laws of
any State to the Contrary notwithstanding.”
Because the clause
does not currently contain the words “and other public officials” national
federal programs like administering background checks on gun purchases are
blighted, prone to be botched up, and ruined. The great country we live in
should not shy away from harmony; after all, we are the United States of America. In ’97, the Supreme Court ruled that the
federal government cannot force state officials to participate in the federal
background check system to prevent felons or persons with mental illness
problems from buying guns. Not only would his proposal remedy this difficulty,
but can also maximize the federal government’s ability to mobilize response to
natural disasters.
What is burning in
many Americans minds as far as political issues go regards elections.
Campaigning takes up more and more time for our representatives these days,
with local and national politicians enjoying various degrees of power and
payback with their donors. In Chapter 2 and Chapter 3 Stevens discusses
amendments to address gerrymandering and campaign finance.
Gerrymandering, if
you don’t already know, is when you're elected and in power to redraw district
lines, then you draw them in a fashion that makes you and people in your
specific party more likely to be elected because of which neighborhoods are
included and which are excluded. For example a democratic party might group
together 3 or 4 rich neighborhoods with 5 or 6 more impoverished neighborhoods
because they expect the poor folks to vote for candidates espousing progressive
taxation policies. In my view today, Republicans tend to favor less taxes than
Democrats, as well as keeping socially conscious views in favor of gun rights,
anti-abortion laws, and some more military leaning dispositions. These basic
trends contrast todays Democrats, who I prefer vastly for views that embrace
LGBTQ people, pro-choice, less focus on business and more on citizens, and less
hawkish, more peaceful foreign policy. In terms of drawing district lines,
gerrymandering if you will, districts are meant to be contiguous, compact, and
roughly equal in terms of population; many of the shapes on district maps become
so distorted that they may look like salamanders (the origin of the term).
Making redistricting a constitutional issue will help prevent extreme positions
from arising during the primary process, as Stevens says, “the gerrymandering
process makes elections – both in districts the majority expects to carry and
in districts packed with voters who belong to the minority party – less
competitive. For candidates who have no fear of losing to a member of the
opposite party, the primary rather than the general election will be the
decisive event in their campaigns. Whether liberal or conservative, candidates
can be expected to adopt more extreme positions when competing within a single
party than when competing with a member of the opposite party.”
The truth is this
compounds the underlying issue, in my view, that distorting the reality of our
democracy in favor of partisan bashing, hurts us by shackling us with Manichean
thinking. Republicans especially are preventing compromise for the sake of
appearing to be the morally high group. Let’s remember they are also the party
of Bush Tax Cuts for the wealthy, subtracting from public resources that could
go to our undervalued state employees. Franklin D. Roosevelt in his day, and
progressive Democrats and Independents today lead us in the fight to unshackle
the chains to dirty energy, the prison industrial complex, the military
industrial complex, underfunded public school systems, and public institutions
that are barely skating by.
The concept of
Manichean thinking is hit on by Cornel West in his writing. West, a graduate of
Harvard and a published scholar, has elucidated some destructive qualities in
our democracy in his books. The trouble as he explains is that our divisions
put us into positions where common progress is not the goal, but actually the
powerful and wealthy setting out to increase their lead through our flawed
system that divides people into adversarial positions. Candidates are able to
prey on low lying public cynicism and exploit popular selfishness, by vilifying
foreigners and selling us idealist dreams.
Governing is hard
work, but our flaws mustn’t lead us to ascribe on it the belief that federal
policies are inherently bad and that states rights are more important.
Assuredly not all Republicans are bad people, or bad candidates; Maine’s own
Susan Collins has been serving in the Senate for multiple terms and recently
enjoyed another reelection with her moderate platform. (Even more recently she denounced Donald Trump.) The Republicans court
voters with their anti free-rider mentality that tends to be harder on welfare
recipients. The appeal of the Republican party is its grit and hard work
reputation, but in our two party system is also houses a host of other
features. Rather than dirtying the page with party typecasts, I’d sooner applaud
Independent thinking and compromise that puts the interest of improving our
culture first.
Steven’s experience
in the Supreme Court, and the express purpose set out in Six Amendments is to improve our government, a natural extension of
the philosophy of Utilitarianism, also known as the greatest happiness
principle. Addressing the ludicrously high levels of campaign fund raising
seems prudent, and though Stevens shies away from proposing a number upon which a
limit should be set for campaign spending, he does suggest this amendment to the Constitution:
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.
People who have a lot
of money, this suggests, are sometimes inclined to use it to influence public
officials; however another drawback to unlimited campaign expenditures is that
it subtracts from the amount of time and energy our officials have to focus on
their jobs, to establish public policy that supports popular well-being, that
is happiness, that is also to work towards setting the best possible example of
a modern society going forward.
Returning to the
topic of States rights, Stevens helps to explain the topic of his next chapter, a tough concept at first to understand if you're not familiar, but really one that gets to my point about being United States, under the Constitution and its provisions. He says about Sovereign Immunity,
“Congress’s power to enact laws that impose obligations on states and state
agencies should include the power to authorize effective remedies for
violations of those federal commands. The fact that a hospital is owned by a
state should not provide it with a sovereign immunity defense to a claimed
violation of federal law for which an otherwise identical hospital that is
owned by a charity or a municipality would be liable. It is simply unfair to
permit state-owned institutions to asset defenses to federal claims that are
unavailable to their private counterparts." Stevens explains why the Soverign Immunity defense that States and their agents use is sloppy and pernicious. "A university should be equally
responsible for copyright or patent infringement whether it is owned privately
or by a state. It does not make sense to provide a police officer employed by
the state of New York with a defense to a claim that he violated a suspect’s
constitutional rights that is not available to an officer employed by the city
of New York. To avoid such injustices, the Constitution should be amended to
provide:
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 provision of the
Constitution.
So that I may wrap this up and move on toward finishing my book I would like to
briefly explain the final two amendments Justice Stevens is proposing in Six Amendments: How and Why We Should Change
the Constitution, published in April of 2014.
In something of a
revelation for me, I’ve come to agree that the Death Penalty should be done
away with. Previously it was my opinion that a person in jail who is condemned
to spend their life in prison ought to be killed to prevent unnecessary
expenditures on their behalf. What has changed my mind is the simple fact that
mistakes are inevitable. The finality of a death sentence prevents redress if a
mistake is made, and an innocent life is taken. The idea that criminals are
taking the time to stop and think, “Oh boy I might get the death penalty if I
do this crime,” and that would deter them significantly more than life in
prison would is rather silly. Add to this decision making process the fold that
inmates can contribute positively to society from prison by working and
producing, among other things, art, license plates, and even grown food.
Stevens recommends amending the Eighth Amendment to say:
Excessive Bail shall not be
required, nor excessive fines imposed, nor cruel and unusual punishments such
as the death penalty inflicted.
On the very touchy
issue of Gun Control I would yield to the perspective of Stevens perhaps more
heavily than I already have been; because I know and respect gun owners who
themselves concealed carry, most of whom have served in our armed forces. My personal opinion is that gun
owners shouldn't be flashy or intimidating as you sometimes hear reported in news. Safety is one thing, but egotism-chauvinism is another.
Stevens begins his
final chapter by reminding the reader that the anti-commandeering rule is pivotal
in rendering states responsible for complying with federal background check
programs. He says, “Concern that the anti-commandeering rule hampers the
federal government’s ability to obtain adequate databases that will identify
persons who should not be permitted to purchase guns prompted my discussion of
the importance of doing away with that rule… Each year over 30,000 people die
in the United States in firearm-related incidents. Many of those deaths involve
handguns.
The adoption of rules
that will lessen the number of those incidents should be a matter of primary concern
to both federal and state legislators… It is those legislators, rather than
federal judges, who should make the decisions that will determine what kinds of
firearms should be available to private citizens, and when and how they may be
used. Constitutional provisions that curtail the legislative power to govern in
this area unquestionably do more harm than good.”
Stevens believes that
the original intent of the draftsmen can be asserted by amending the second
amendment to read:
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.
He closes the chapter
by saying, “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.
Those emotional arguments would be nullified by the adoption of my proposed
amendment. The amendment certainly would not silence the powerful voice of the
gun lobby; it would merely eliminate its ability to advance one mistaken
argument.
It is true, of
course, that the public’s reaction to massacres of schoolchildren, such as the
Newton killings, and the 2013 murder of government employees in the Navy Yard
in Washington, D.C., may also introduce a strong emotional element into the
debate. That aspect of the debate is, however, based entirely on facts rather
than fiction. The law should encourage intelligent discussion of possible
remedies for what every American can recognize as an ongoing national tragedy.”
"Admittedly the
Constitution does not require proportional representation, but there is a world
of difference between such a strict requirement and a more limited prohibition
against a political party’s use of governmental power to draft bizarre
districts that have no purpose or justification other than enhancing that party’s
own power. Just as a controlling political party may not use public funds to
pay its campaign expenses, it is also quite wrong to use public power for the
sole purpose of enhancing the political strength of the majority party."
