Justice Stevens’ Proposed Six Amendments

Former supreme court justice John Paul Stevens has just published a book, Six Amendments, in which he proposes some very poorly worded reforms, and some that are misguided in their intent. Here are the amendments, with the key changes made in present provisions in bold:

  1. The “Anti-Commandeering Rule” (Amend the Supremacy Clause of Article VI) — 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, anything in the Constitution or laws of any State to the contrary notwithstanding.
  2. Political Gerrymandering — 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 historical 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.
  3. 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.
  4. Sovereign Immunity — 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.
  5. Death Penalty (Amend the 8th Amendment) — Excessive Bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.
  6. The Second Amendment (Amend the 2nd Amendment) — 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.
This demonstrates that even one whose job was to decide constitutional cases does not thereby acquire the knowledge and skills needed to competently draft amendments to the U.S. Constitution. I estimate there are probably less than 200 such persons alive, and none of them are on the federal bench.

Drafting competent constitutional amendments is awesomely difficult. My attempt to do so is at http://constitution.org/reform/us/con_amend.htm and I am still making revisions from comments. I have not seen better ones from people one might expect should be able to do this kind of thing.

There are several things wrong with his proposed amendments.

First, an amendment should not restate what is already in the Constitution, but only refer to what is being added or revised.

Now to discuss the flaws in each of his proposals, similarly numbered:

  1. The wording is unclear as to whether it makes state actors federal and subject to federal command, or omits to provide such authority, making his amendment a nullity.
  2. Void for vagueness. My approach is to eliminate single-member districts and go to a system of proxy voting for the lower house of both Congress and the state legislatures. I also have a non-amendment proposal for using a computer to randomly draw districts using a mathematical algorithm.
  3. Interpreted strictly it would enable making campaigning a crime, perhaps selectively enforced, which would not only be ineffective but highly counterproductive of any rational benefit. Horrible idea.
  4. His amendment only provides for construction of the U.S. Constitution, but does not address immunity based on state constitutions or judicial doctrine, federal or state, that don't reference any constitution. Stevens lumps sovereign and official immunity and covers only liability for violation of federal statutes or Constitution. My amendment states: "Sovereign immunity of a state or the nation shall not be a bar to suit, only to execution of judgment against assets not provided by an act of Congress or the state legislature for payment of claims." I address official immunity in a separate amendment that provides a procedure for removing it. "No person shall be unreasonably impeded from access to a randomly selected grand jury of 23, who, if they should return an indictment or presentment, may appoint that person or any other to prosecute the case, and shall decide which court, if any, has jurisdiction, and whether any person shall have official immunity from suit." Stevens only provides for states, state agencies, or state officials, and not federal actors, and not private actors acting at the direction or instigation of public actors. I extend these reforms to federal actors and to private actors under government instigation.
  5. Surplus language. Could have been simply stated: "The death penalty shall not be imposed."
  6. Vaguely tries to suggest that "militia" is only some kind of government-directed activity, while I make it clear it is any defense activity, including solitary unorganized activity or preparation for defense.
Readers are encouraged to submit suggestions for better wording of my amendments.


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