Six Good Ideas from a Former Supreme Court Justice


The book is entitled “Six Amendments: How and Why We Should Change the Constitution,” and it’s written by a justice who retired in 2010. While it’s difficult to read the book without wondering why Justice Stevens didn’t magically bring about change while in office, I suspect that the article that I found in The Atlantic is unreasonably harsh in its pursuit of this argument. As in:

The retired Supreme Court justice would like to add five words to the Eight Amendment and do away with capital punishment in America. It’s a shame he didn’t vote that way during his 35 years on the Supreme Court.

Those words would have abolished the death penalty by constitutional amendment. The new eighth amendment might include the italicized words:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.”

If you’re on death row, or if you care deeply about someone there, those five words make all the difference.

Similarly, Justice Stevens would add five words to the second amendment, forever clarifying the confusion about personal gun use as a constitutional right:

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.”

So far, just ten words, and we end up with a vastly different free and criminal culture. And even if I am several months late in reviewing Stevens’ book and his ideas, I think every American citizen ought to be thinking about what we want from our amazingly effective governing document. Here’s another, this time about the practice of reorganizing election districts for political gain (“gerrymandering” dates back to 1812—it’s named for Massachusetts governor Elbridge Gerry). This is all new, and a bit dense:

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 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.”

UnknownAfter reading this suggestion carefully, I’m left wondering how it would be enforced, and whether politicians would pay it any mind. Maybe it’s the wording, maybe its the concept, maybe its a matter of “giving up” on the political system. That last statement, about giving up, is the whole point. We’re giving up on a system that doesn’t work as it should, perhaps because it has been gerrymandered beyond reason or recognition. Maybe Stevens has the right idea or the wrong words.

Moving on to 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.

New words, good idea, but we’re caught in the non-virtuous circle of politicians making rules for themselves and other politicians. Interesting article in The New York Times focuses on this issue, and on Justice Stevens’ book. (And yes, Stevens dissented on the Citizens United decision.)

One of the reasons I am writing this article is selfish. I want a good clean list of the former justice’s ideas, and I couldn’t find one on the internet, so I wrote it myself.

The last two are more complicated and require a deeper understanding of Constitutional law and government action. He would like to add “and other public officials” to

All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

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.

The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, and other public officials, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.

The final item is entitled Sovereign Immunity, and it’s more difficult to understand than the others. His suggested amendment:

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.”

OUnknownn the surface, this is clear, but it’s made more clear by the Justice’s twenty pages of commentary. In that endeavor, I’m sometimes a fan—his historical and contextual understanding is, well, supreme, but his ability to connect with a broad audience sometimes falters. The history becomes too complicated, the issues too tangled, nods to other justices sometimes adding complexity. On the other hand, we’re talking about a book that’s less than 150 pages and contains a whole lot of provocative, clearly presented material.

Wouldn’t it be interesting if every Supreme Court justice wrote a similar book?

 

 

 

 

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