by John Paul Stevens. New York: Little, Brown 2014. 192 pp. Cloth $23.00. ISBN: 9780316373722.
Reviewed by Daniel Hoffman, retired from Johnson C. Smith University. Email: guayiya [at] bellsouth.net.
Scholars have argued (Ackerman 2014) that Article V amendments are obsolete, and that constitutional reform nowadays proceeds differently, when mass movements capture a political party that wins landslide elections and enacts landmark statutes, such as Social Security, Medicare, and the Civil Rights Acts of the 1960s.
Former Justice John Paul Stevens, however, sees Article V amendments as necessary and appropriate for correcting mistaken interpretations of the Constitution by the Supreme Court. In this short book he calls for six separate amendments to overrule recent decisions where he was on the losing side. Those cases pertained, respectively, to federal commandeering of state officials, election gerrymandering, campaign finance, sovereign immunity, the death penalty, and gun controls.
Justice Stevens offers a concise, specific solution to each separate problem. He does not examine the ways in which some of them are interconnected, nor does he analyze who would be helped and what interests harmed by the changes he advocates. His proposals are narrowly focused on correcting the errors of the Court’s rulings in the cases he criticizes.
There have been several amendments in the past that were prompted entirely or in part by Supreme Court decisions, including the eleventh, thirteenth, fourteenth, sixteenth, nineteenth, twenty-fourth, and twenty-sixth. (I must point out a curious error in the Prologue, where the Justice states that the method of ratifying amendments by conventions in the States has never been used (p.4). That method was indeed used to ratify the Twentieth Amendment, repealing Prohibition.)
The cases Justice Stevens criticizes were mostly 5-4 splits, consistent with the current ideological polarization of our polity. This makes it highly unlikely that any change requiring supermajority support, whether using Article V or of Ackerman’s sort, will bear fruit any time soon.
Two of the issues – commandeering and sovereign immunity – are relatively obscure to non-experts in constitutional law. The death penalty and gun controls are hot-button issues on which nearly everyone has strong views, and consensus may be out of reach. Gerrymandering and campaign finance are complex matters, on which there may be widespread recognition of a problem, but little in the way of solutions acceptable to most elected officials. [*234]
Let us examine each proposal in turn.
1. Commandeering: modify Article VI, section 2 by adding the four upper-case words.
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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
This is of course a stylistic innovation, in that all previous amendments have been freestanding, not interpolations into the existing text. The intent is to clarify the power of the federal government to meet emergencies and effectively administer other programs by imposing on state officials affirmative duties to act. An alternative approach might begin with the expression, “Congress has power to require ….” It might also clarify the unfunded mandates question: who shall pay for the newly mandated actions by State officials?
2. Gerrymandering: add the following amendment.
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 historic 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.
The intent here is to prevent partisan gerrymanders that operate by creating irregularly-shaped districts. Yet it is possible that such gerrymanders could still be accomplished by other means. For example, the loophole for “political boundaries,” such as county lines, is not inherently neutral; those lines can themselves be redrawn by a State at will. While there is a vague reference to “demographic changes,” it is remarkable that the “one person, one vote” principle is not spelled out in this proposal. Nor is it made explicit that facilitating the reelection of incumbents is not a neutral criterion.
Justice Stevens’s proposed election reform proceeds from the view that elected officials have a “duty to govern impartially” (p. 54), on a standard that is neutral WITH RESPECT TO POLITICAL PARTY. Wait. Do voters not have a right, emphasized by Ackerman, to elect a new party, with a mandate to make fundamental changes? Is a member of party A really obliged to give equal weight to the desires of voters of party B? Perhaps Justice Stevens is aiming at neutrality regarding only STRUCTURAL issues, like election processes, but he does not say so. By the way, up through the Twenty-sixth Amendment, the word “State” has consistently been capitalized. In that regard, this proposal is another stylistic departure.
3. Campaign finance: add the following [*235] amendment.
Neither the First Amendment nor any other provision of the 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.
This proposal would apparently shift the standard of judicial review in campaign finance cases from the test of “strict scrutiny,” normally applied to free speech questions, to the test of “rational basis,” normally applied to economic regulations. Whether any Justice’s vote on a specific limitation would necessarily be altered by this shift of standard is open to serious question. After all, the Roberts Court finds it entirely reasonable to treat corporations as if they were voters, and writing a check as if it were voicing a political argument. By the same token, Justice Stevens’s suggestion that it is more acceptable to limit spending by nonresident individuals (p.77) will be highly controversial. Do voters not have a valid interest in which party controls the House or the Senate? Incidentally, the expression “Nothing in this Constitution shall be construed ….” would serve as well as the Justice’s “Neither … nor” formulation.
4. Sovereign immunity: add the following amendment.
Neither the Tenth Amendment, the Eleventh Amendment nor any other provision of the 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.
It is obscure why this excellent provision is not extended to federal officers as well; nor should Congress be allowed to exempt itself from laws of general application. One might also specify, “immunity from civil or criminal liability.” Again, the expression “Nothing in this Constitution shall be construed ….” would serve.
5. Capital punishment: modify the Eighth Amendment by adding the five upper-case words.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments SUCH AS THE DEATH PENALTY inflicted.
This approach could lend itself to a perverse argument that from now on ONLY the death penalty violates this clause, since no other is equally severe. It would be better to add a new, separate provision, simply forbidding the death penalty – assassinations without trial included.
6. Gun rights: modify the Second Amendment by adding the five upper-case words.
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.
Again, a separate provision, authorizing Congress and the States to enact [*236] reasonable limitations on manufacture, sale, possession and use of lethal weapons might well be preferable.
Justice Stevens is eloquent and, in my view, generally correct in his criticisms of the cases that prompted his proposals. Still, others would no doubt have quite different lists of the Supreme Court’s worst mistakes. Most spectacularly unmentioned is the horrendous decision in BUSH V GORE, another 5-4 case in which Justice Stevens dissented.
How might one ensure that nothing like THAT will happen again? One possibility would be an amendment excluding cases of that nature from the Court’s jurisdiction. A better approach, in my opinion, would be to abolish the electoral college and elect the president by national popular vote. The entire process could become a federal operation. An amendment for this purpose might go further in reforming our election system, addressing the problems of gerrymandering and campaign finance as well. For example, it might require that redistricting be done by nonpartisan commissions, or even move toward a system of proportional representation. It might limit the duration of campaigns, provide for public funding, and require the media to broadcast debates, reducing the role of money in elections. And of course, it is long past time to explicitly confer the right to vote on all citizens.
The piecemeal nature of the Justice’s treatment clearly reflects the perspective of one whose task has been to decide one case at a time. There is, however, a broader ideological pattern to the recent 5-4 decisions of the Court. Although the other Justices in all likelihood have the same case-by-case, clause-by-clause mentality as does Justice Stevens, that pattern becomes clearer if we expand our review to include other cases failing to uphold capacious interpretations of civil liberties, equality, and the people’s right to know. Even if all six of the Justice’s amendments were ratified, it would scarcely begin to address the underlying problems of class, racial and gender domination, the rights of real persons vis-a-vis artificial ones like corporations and governmental bodies, or the obsolescence of a State-centered election system in our highly mobile society.
A final question Justice Stevens does not address is the advisability of making it easier to correct or prevent judicial errors. This could be accomplished by one or more of the following: an amendment limiting the length of judicial tenure in office; one requiring a unanimous or near-unanimous Court for constitutional rulings; or one modifying Article V, widely seen as the most defective part of the Constitution (Levinson 1995), to facilitate future constitutional amendments.
Justice Stevens deserves the highest kudos for raising awareness about harms done by recent Court decisions to our system of governance. That system already ensures that those who most benefit from its flaws will have ample opportunities to block attempts at reform, and Article V amendments in particular. And yet, it is worth noting that all of Justice Stevens’s relatively modest objectives could be accomplished with infinitely less difficulty by appointing one or more Justices who understand the Constitution as he does. If his book persuades enough voters that his positions are [*237] STcorrect, exactly that could happen soon enough.
Ackerman, Bruce. 2014. WE THE PEOPLE VOLUME THREE: THE CIVIL RIGHTS REVOLUTION. Belknap, Harvard University Press.
Levinson, Sanford, ed. 1995. RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT. Princeton University Press.
BUSH V. GORE, 531 U.S. 98 (2000).
Copyright 2014 by the author, Daniel Hoffman.