Review: Six Amendments: How and Why we should change the Constitution
by Justice John Paul Stevens
I admire Justice Steven for speaking out on problems with recent Supreme Court decisions, and I share the concerns indirectly expressed by the specific issues he chooses to address. Reading these critiques, as described by a former member of the “cabal” which is responsible for these terrible rulings, is quite illuminating, albeit, as a non-lawyer, quite tedious also.
Given the way in which Amendments to the Constitution must be proposed and ratified, however, it is virtually impossible that new Constitutional Amendments to remedy the described issues will ever be enacted. In the current polarized political environment, where State Legislatures, which must ratify, are predominantly under conservative/reactionary control, enacting even one of the six proposed Amendments, which generally have a progressive/liberal leaning, is virtually impossible. And this political polarization is only going to increase.
It is also disappointing to read the, in my non-legal view, rather simplistic Amendments proposed by Justice Stevens. Words, sentences, and language in general, to a lawyer are infinitely flexible, and can, under the weight of individual prejudices, be interpreted in virtually any way.
Phrases such as “reference to natural criteria” (Gerrymandering) or “imposing reasonable limits” (Campaign Finance) impose absolutely no limits to a clever lawyer in terms of allowing virtually anything.
This is made painfully obvious by the current Supreme Court majority interpretation of the Second Amendment. Any “normal” person with rudimentary reading and comprehension skills at the grade school level would unhesitatingly interpret the Second Amendment as it was interpreted for the first 200 year - that it allows the possession of arms only in the context of State Militias, i.e to protect the sovereignty of States, NOT for any individual’s “protection”, however that is interpreted.
Similarly, the current majority interpretation of a Corporation as person, and thus the protection of “its” free speech rights, separate, or in addition to, the free-speech rights of the individual members of the Corporation, are ludicrous. Corporations are a legal construct precisely to shield individual members from direct responsibility for actions by the “Corporate entity”, for the purpose of simplifying and enhancing commercial activity.
If the Corporation as a “person” has the guaranteed right to free speech, does it also have the right to vote? Why not? Where is this arbitrary limit between a Corporate person and a natural person drawn?
This interpretation of the Corporation as a “person” is, in my view, consciously and unscrupulously designed to re-introduce special, if not exclusive” privileges for the “property owners”, the wealthy, as was quite commonly accepted at the time of the framing of the Constitution. That this is indeed the effect is amply documented by the increasing divergence in society between the poor and the rich - the rich, under cover of the smoke screen of "Corporations as persons", are relentlessly using their special political privileges and power. This is a far cry from any modern interpretation of democracy, and a far cry from the stated intentions of the Constitution.
In general, it seems to me, the Supreme Court is much too concerned with deciphering, or divining the original, literal meaning of the Constitution. Obviously, from the divergent opinions, even in just the last 50 years, these supposed original meanings can be interpreted in radically different ways. What should be part of the interpretation is to ensure that the Constitution remains relevant and useful, broadly within the original intent, in the context of a radically changed world. Otherwise the Constitution will become increasingly irrelevant in guiding America’s evolving democracy through an ever changing reality, which in no way resembles the reality of the Founding Fathers.
The proposed Amendments individually:
Anti-Commandeering:
If the basic thrust of this first suggested amendment, as the author suggests, is to enable federal gun control legislation, at least as far as background checks are concerned, to be "forced" on states in order to prevent another Sandy Hook, and the many other tragedies which have followed, it strikes me as a very indirect, and thus ineffective way of going about it. This can be much more directly, and much more globally achieved with a proper interpretation, or rewrite of the existing Second Amendment.
If, however, this proposed amendment is intended to extend federal powers over state powers, then I am ambivalent about its wisdom. The Federal Government does have a tendency to go overboard sometimes, especially when it decides that "national security" is involved. The Patriot Act, in my view is a prime example of federal overreach, which, in a panic over “national security” makes a laughing stock of “the Bill of Rights”.
Gerrymandering:
The possibility for "Gerrymandering" is really an outgrowth of another flaw in the U.S. Electoral System, namely that at almost all levels it is based on the "winner take all" principal. Thus, if geographic entities defined purely for the purpose of the electoral process, such as electoral districts, were eliminated, and only "sovereign" entities, such as counties and states remain, and in these remaining entities a proportional electoral system were set up, then the possibility for Gerrymandering would go away, and representation would be much more "proportional" to the actual social and political values and preferences of people in cities, counties and states.
Thus, if, according to population, a given State is entitled to “x” representatives, then different political parties would be allocated representatives according to their electoral results, from a prioritized list from each party - very likely with some minimum entry requirement.
The critique, that the much ballyhooed “personal representation” would be hurt, is largely fiction - except for the rare high-profile citizen request, our representatives only listen to moneyed lobbyists, anyway.
Another advantage would be the emergence of more than the two “big tent” parties, which have been so institutionalized as to allow virtually no new entries, and which have usurped much too much control over the election process.
Campaign Finance:
Campaign Finance reform, and specifically the "Citizens United" ruling by the Supreme Court, goes to the heart of what is in my view currently the biggest problem faced by democracy in the US.
There are two areas where money plays an unholy role in American democracy: the power of the lobbies to determine legislation, and, in this case, the legal ability for money to determine the outcome of elections at all levels. This is enabled by the First Amendment, in its guarantee of the right of "the people" to partition their government, and perverted by the definition of “Corporations as people”.
The second area is the influence, I would argue, the determining influence, of money on the outcomes of elections.
Both of these issues have been created by the idiotic interpretation by the Supreme Court of what is meant by "person".
The current interpretation that a Corporation, as a collection of individuals, has he same constitutionally guaranteed rights, such as "free speech" as a "natural person" is a complete perversion.
In practice this interpretation has reversed, and completely emasculated the concept of "one person, one vote", and thus reintroduced the concept that "persons of property" are the only ones who should be allowed to vote, or more accurately, the wealth of a person determines the leverage with which he or she votes. This is, or should be, completely counter to any modern concept of democracy.
Sovereign Immunity:
As far as I can understand the discussion in this chapter, the issue here is the ability of the Federal government to bring legal actions against state governments for violating federal laws or the constitution. Given, for example, that the Federal government successfully forced state and local governments to abide by the Equal Rights legislation, this to me seems a mute point. Other examples cites, as for example that a State University might be immune from prosecution for violation of copyright laws, while a private university might be held liable, is in the scheme of things a relatively minor issue.
The Death Penalty:
On balance I am in favor of eliminating the death penalty. It has obviously not worked as a deterrent to violent crime, as most other advanced countries, which have eliminated the death penalty, have lower violent crime rates than the U.S. The increasing evidence of significant numbers of executions of innocents is also a powerful argument against the death penalty. Finally, the long and expensive appeals process, once sentenced to death, makes it a less reasonable alternative to life imprisonment without parole.
This particular issue, given the current trends, might be non-controversion enough to actually make it the the process of passing an Amendment.
The Second Amendment (Gun Control)
The new Amendment, as proposed by Justice Powell, strikes me as silly. Who would ever think of organizing a militia and then bar its members from bearing arms?
If the legal minds on the current Supreme Court, trained in the perversion of simple English, can misrepresent the meaning of the current text of the Second Amendment, then they will not be deterred from finding a way around the amended wording either.
We will just have to wait for a new slate of reasonably literate Supreme Court Justices.
