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Thursday, May 1, 2014 12:01 am

Why Justice Stevens wants to amend the Constitution

SIX AMENDMENTS: How and Why We Should Change the Constitution, by John Paul Stevens. Little Brown

Retired Supreme Court Justice John Paul Stevens has earned the right to weigh in on the Constitution and how the nation can improve the document that governs so much of American life. In 1975, President Gerald Ford nominated Stevens to serve on the Supreme Court, where he remained until June 29, 2010, ranking him all-time third in years of service. Stevens is a proud son of Illinois, having attended the University of Chicago and Northwestern University Law School. Perhaps his greatest claim to fame is his attendance at the famous “called-shot” home run game at Wrigley Field in the 1932 World Series. (See Illinois Times, March 27, 2014)

Despite his four-year absence from the crucible of Supreme Court jurisprudence, Justice Stevens remains a vibrant and active observer of the law. In addition to playing golf and tennis, the 94-year-old jurist is on the lecture circuit promoting his new book, SIX AMENDMENTS: How and Why We Should Change the Constitution. As the title suggests, Stevens has strong opinions about recent Supreme Court decisions interpreting the Constitution. Those decisions, Stevens contends, have negatively impacted our basic law. Stevens is too much of a gentleman and legal scholar to suggest that the court’s recent work is unprincipled or unsound. Instead, he accepts the doctrine of stare decisis and suggests that the Constitution should be amended to overcome the doctrine enunciated in recent Supreme Court decisions.

Two of the six amendments he recommends involve mundane legal matters relating to the “Anti-Commandeering” Rule and Sovereign Immunity. Leaving these proposals aside for a longer treatment of Justice Stevens’ proposals, his discussion regarding reapportionment, campaign finance, the death penalty and the Second Amendment are the issues that are certain to provoke debate and fire up the political juices of readers both for and against the Stevens proposals.

Each chapter follows the same format, with Stevens discussing the present state of the law and the difficulty created by present legal doctrine. For gerrymandering, the problem is very simple. Voters are thrown into legislative districts tailored by the political party in power to give that party an electoral advantage. In 2012, for example, there were more total Democratic votes for House members than Republican votes. But Republicans had controlled the map-drawing process in most states and the districts they had created allowed more Republicans than Democrats to be elected to the House of Representatives.

Racial gerrymandering is prohibited by the Constitution and legal decision. But political gerrymandering, although anti-democratic, remains allowable under the law. To remedy this problem, Stevens proposes a constitutional amendment that prohibits gerrymandering for partisan political reasons. Gerrymandering is practiced by both political parties, and for this reason a Constitutional Amendment appears highly unlikely. Some states, however, have confronted this problem by creating nonpartisan reapportionment bodies. Citizen pressure in more states to proceed along this path would obviate the need for a constitutional amendment.

On campaign finance, Justice Stevens is far too charitable to his former colleagues on the Supreme Court. While describing the process whereby money became defined as speech and thus gained constitutional protection, the justice declines to criticize members of the court during his service. Criticism is warranted. Those decisions are perfect examples of judicial activism run amok. The justices decided an issue that had not even been brought to them for decision and decided it incorrectly. Money is simply not speech and even if it were, it can be regulated just as other elements of speech. To correct this constitutional problem, an amendment is not required.

Justice Stevens is straightforward and brief on the death penalty. He would abolish it. On the Second Amendment, Stevens once again avoids criticizing his colleagues for their judicially active treatment of its meaning. For centuries the “militia’ clause” of the amendment was read as a limitation upon the free and unlimited access to many weapons. In 2008, five justices found in the Second Amendment a right to possess weapons for self-defense. Stevens dissented from that decision as well as a subsequent court ruling prohibiting states from limiting weapon possession. While proposing a constitutional amendment, Justice Stevens certainly understands it has no hope of adoption.

Justice Stevens has presented a thoughtful and informative discussion on how the Constitution and our nation can begin to solve some of the serious difficulties we face as a country. Unfortunately, the Constitution, as Stevens notes, is not easily amended. In these current times of deep political division and strife, constitutional amendments are a pipe dream. Incremental change is the best America can obtain. Hopefully politicians may soon come to their senses and begin such a process. If not, our very Constitution is in danger.

Stuart Shiffman served 22 years as a judge in Illinois. He is currently of counsel to Feldman-Wasser in Springfield, and serves as an adjunct professor in the political science and legal studies department at Illinois State University.


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