He Is the Very Model of a Modern Retired Justice

Justice John Paul Stevens, who left the high court in 2010, is on fire. He just released a book, Six Amendments: How and Why We Should Change the Constitution, and is now on a media tour that has thus far featured his views on campaign finance, guns, and the death penalty—the subjects of three of his proposed constitutional amendments—and, just today, marijuana. All this, and last weekend he celebrated his 94th birthday!

It might not be appropriate for Stevens to propose constitutional amendments or otherwise opine on political matters because he’s technically still an Article III federal judge (though he hasn’t been hearing cases in the lower courts as Justices Sandra Day O’Connor and David Souter have), but nevertheless the ideas he floats are worth examining. To that end, I recently wrote two op-eds related to the Stevens book tour.

The first looks at the response to the justice’s proposal to abolish the death penalty. Some have criticized him for having taken so long to reach this position, but that misunderstands what he’s saying. It’s not that capital punishment is unconstitutional—as recently as 2008 he concurred in a ruling that upheld Kentucky’s method of lethal injection—but that he feels that it’s wrong and that we need to amend the Constitution to remedy that wrong. That’s the proper response, which can be hard to understand for those who conflate law and policy.

My second piece is a quick-and-dirty critique of all six amendments, three of which are structural—(1) requiring state officials to enforce federal law; (2) doing away with political gerrymandering; and (3) eliminating state sovereign immunity—while the other three relate to individual liberties—(4) excising the Second Amendment’s protection for the right to armed self-defense; (5) allowing Congress and state legislatures to limit the money people can spend on election campaigns; and (6) outlawing the death penalty. I’m firmly against 1, 4, and 5, on balance against 6, am sympathetic to 2 but it needs to be redrafted, and support 3 (but it could go farther).

Happy belated birthday, Justice Stevens! I may not have seen things your way too often when you were on the bench, and don’t much agree with you now, but I hope that I live long enough in good health to be able to read books at your age, let alone write them.