Monday, August 31, 2015

John Paul Stevens: Six Amendments; a former Supreme Court justice weighs in on what should change in the US Constitution

Author: John Paul Stevens

Title: “Six Amendments: How and Why We Should Change the Constitution

Publication: New York, 2014: Little Brown, ISBN 978-0-316-37372-2, hardcover, 177 pages, indexed, and 32 pages are used by reprinting the Constitution of the United States with amendments and signatories. Amazon link is here. also available in Kindle, audible, and large print.  The book comprises a Prologue and six chapters.

The author was a justice of the United States Supreme Court, from 1975 (appointed by President Gerald Ford, Republican) until retiring in 2010.  

I was attracted to this book because, in my first “Do Ask, Do Tell” book (1997) I had proposed two amendments to the Constitution myself, which would have numbered as 28 and 29.  My 28th Amendment was constructed to protect personal “privacy” (called a “Right to Privacy Amendment”) along with personal autonomy, and focused mainly on sexual privacy (first of all, adult consensual relations, and later abortion), and freedom of speech. I had added “29” to propose an interim step toward gay marriage, a kind of DOMA worded in such a way as to encourage states to experiment with introducing same-sex marriage (or at least civil union) on their own without fear of “Full Faith and Credit” repercussions.  History would move much more quickly on gay marriage than I had ever imagined it could in 1997. “History” would also repeal the “don’t ask don’t tell” policy for gays in the military by 2011, a process that seemed to be much slower and more painstaking, but probably sped up by the post-9/11 war on terror.  In fact, in the DADT-1 book I had acknowledged the possibility of terrorism as significant, but had imagined it could come from secular extremism from the Right (white supremacy) or Left (like North Korea), rather than from radical Islam (or any religion), which did not command a lot of special attention then, at least in my own mind. I had also indulged in an informal (and long) “quasi oral argument” of how a constitutional challenge to the military DADT policy would play out if it ever did reach the Supreme Court. I thought such a debate could actually invoke the history of the military draft, which I’ll come back to.
In my second DADT book (December 2002) had included a long chapter, “Launching a ‘Bill of Rights II’”, an idea that had some word-of-mouth currency in the late 1990s, especially in libertarian circles, somewhat as a result, I think, of my first book and the “word of mouth” effect that was quite effective then for a while.  All of that thinking, though, was pre-9/11. I had, in that chapter, summarized the combinations of steps (essentially four possibilities) through which the Constitution can be amended.  (A complete treatise is provided by the 1993 book “Contemporary Questions Surrounding the Constitutional Amending Process” by John R. Vile, published by Praeger).  I had also covered the possibility of the return of the military draft.  

At this point, recall that Justice Stevens had cast one of the dissenting votes in Bowers v. Hardwick (1986), about the Georgia sodomy law, as explained here and Justice Powell had voted for the majority and later admitted he regretted the vote (maybe not knowing he had a closeted gay clerk). Powell might have reread Stevens’s dissent.  That decision would be overturned by Lawrence v. Texas in 2003.  

Now Stevens starts his book with a Prologue (almost following Shakespeare!) and resummarizes the Constitution amending processes. He also points out that Article V prohibits two kinds of amendments, including anything that changes the representation of states in the Senate. His comment would seem to suggest that, for example, if the District of Columbia or Puerto Rico were to be given statehood, then such a state would have to be allowed full representation in the Senate (something that makes statehood much less likely for partisan reasons).  

The substance of Stevens’s six amendments have more to do with the integrity of the US political process and with the maintenance of proper checks and balances among the main branches of government, and between the federal government and states, under “federalism” – than they do with individual rights. That said, he does take up the death penalty, and then gun control, two topics that I did not address in my first DADT book or its amendments.  At this juncture, let me add that a lot of the legal talk around individual rights has to do with notions like due process (the 5th and 14th amendment’s incorporation doctrine), and “fundamental rights”.  At the end of 1998, I self-published a booklet “Our Fundamental Rights”, not much remembered now, because it was outside the “Do Ask, Do Tell” wordmark, but, although I talked about a right to property (very important to libertarians), I did not take up (as a “fundamental right”) the right to self-defense specifically – the Second Amendment question that will build Stevens’s last chapter.   

But Stevens’s approach obviously recognizes that there is such a thing as a common good, which is why we need dependable government.  He would not carry this idea as far as, say, Rick Santorum.  But his mindset admits that there are areas where the needs of the community can mitigate the presumed need of the individual for personal autonomy, a very important idea for me. *
Two of the six amendments would require entirely new paragraphs; four others would add key verbiage to existing clauses in the Constitution or existing amendments.  

The first topic is the “anti-commandeering rule” subsumed by Paragraph 2 of Article VI. Stevens argues that this interpretation can hinder counting on the use of local or state resources in national emergencies, which could occur with terrorism or with certain natural disasters (a huge solar storm with its effect on the power grid could be an example).  Stevens even suggests that the rule might have hindered preventing most of the 2007 Virginia Tech shooting rampage. Stevens talks (on p. 25ff) about the military draft (conscription) and (implicitly) the Selective Service registration system, mentioning the experience of World War I.  In doing so, he provides a focus on the possibility of needing to expect citizens to put themselves in harms way for the defense of others, in a manner uncommonly seen in modern books or political articles, outside of my own work or, say, Charles Moskos after 9/11.   

Then Stevens moves on to political gerrymandering, with a new amendment.  He points out that gerrymandering tends to compel political candidates to take more extreme positions than can be plausibly implemented in a normal system with democratic capitalism. 

The third topic is campaign finance reform, which goes back to a controversial 2002 law, McCain-Feingold. The chapter gets a lot of mileage over the Citizens United movie ("Hillary, the Movie", 2008, Movies blog, March 25, 2009).  Stevens apparently believes candidates (like Trump) should not be able to spend too much of their own money to get elected – to buy an office.  It’s obvious that he would like to reduce the influence of traditional lobbying on K Street. That should be good for objective political speech from the media and even amateurs, but it could raise the question as to whether the an individual should have access to his own soap box just because he can afford it.  In 2005, campaign finance reform actually got to be seen as a threat to political blogging, even by amateurs, because political blogs could be seen as indirect, untrackable contributions – but that viewpoint died away when the FEC dismissed it. I got involved personally in that aspect of the debate when I was working as a substitute teacher, a history that I have discussed elsewhere.

The fourth topic is the most convoluted for legal lay person – “sovereign immunity”. On p. 92, Stevens mentions the topic of lynching, as abetted by the idea – with some focus suggestive of the work of the late Gode Davis (the incomplete film “American Lynching”). Stevens wants an amendment to remove an exclusion of any state or local official or government from liability for failing to obey federal law – a concept related to nullifying the anti-commandeering rule.  

The fifth gets back more directly to individual rights – the death penalty, which Stevens wants to see explicitly included in the definition of “cruel and unusual punishment”.  He believes it is not a practical deterrent beyond life without parole, and that medical unknowns exist with almost any conceivable means of execution (particularly injection), and that the criminal justice system has convicted innocent people (as in TV series like “The Innocence Project” (see “wrongful convictions” label on my TV blog) or CNN’s “Death Row Stories”.  More significant, Stevens does not believe existential justice (an “eye for an eye”) for murder victims or their families is really possible. To some extent, we all live with a shared risk of “victimhood” as part of civilization. Yet, if that is true, then, I say, “there are no victims, just casualties”.  

The sixth and last concerns gun control and the Second Amendment. Stevens want so add a phrase to the Second Amendment to clarify that it applies only when a citizen is “serving in the Militia”. He points out that the Supreme Court, in interpreting the Second Amendment (as in the Washington DC case) to confer some individual right to self-defense even in a totally civilian and isolated context, did limit its applicability to measures reasonably related to legitimate self-defense, not to possession of arsenals of foreign military assault weapons. But Stevens believes states or cities should be allowed to ban ordinary ban ordinary gun possession in a manner similar to Europe or Australia if there legislature choose to.  Gun control advocates (like Piers Morgan) have often argued that countries with strong gun control have much less violence – although given the recent outbreak of “jihadist”  terrorism in Europe, one wonders if this is still true, and whether the public should count on unarmed brawny male (off duty military) young adults to protect them from armed terrorists who have bought weapons from crime syndicates. A deeper question might be to wonder again what kind of risks citizens in a civilized democratic society naturally run all the time, as if one should not expect to defend oneself against some things.   

My own take on the Second Amendment had been to agree with the Supreme Court. Part of the reason is that we do not have “militia” today in the sense that we did in 1791.  To limit the Second Amendment to people when (off-duty) serving in the military, National Guard, or police force sounds meaningless, unless we look at it the way Switzerland does.  But perhaps the idea that gun ownership should have some continual supervision (like regular license renewal background checks, or even some kind of meaningful concomitant community service) could make sense, as creating a “gatekeeper” function on firearms ownership.  But then just imagine what could happen if we applied the same idea to self-distribution of speech under the First Amendment.  

Stevens’s writing style tends to be dense and detailed (like mine), and he goes into great precision in interpreting many famous cases, even in a brief book.

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