Amending Justice Stevens: How and Why We Shouldn’t Change the Constitution Like This

Justice Stevens’s amendments package leaves much to be desired.
April 23, 2014 • Commentary
This article appeared on Forbes​.com on April 23, 2014.

It’s generally not a good idea to review a book you haven’t read. Not because you can’t get away with it—although it’s harder than even the all‐​too‐​common method of reading the introduction, conclusion, and bits‐​and‐​pieces along the way—but because it does a disservice to your readers. It’s also pretentious: I, writer/​pundit, am much too important to bother reading this sniveling little tract.

Which is why I’m not going to review Justice John Paul Stevens’s new book, Six Amendments: How and Why We Should Change the Constitution. It’s beencovered enough—and panned from both the left and right—such that I both get the gist and wouldn’t have anything new to add.

Instead, I’m going to review the actual amendments he proposes (controversially) in his book. Three of these are structural: (1) requiring state officials to enforce federal law; (2) doing away with political gerrymandering; and (3) eliminating state sovereign immunity. 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.

Let’s take them in order:

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 officialsin every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

This amendment would reverse two important Supreme Court precedents—New York v. United States(1992) and Printz v. United States(1997)—to give the federal government the power to deputize state and local officials to enforce federal law. This is a terrible idea because it would end state sovereignty such that states would be required to create Obamacare exchanges and enforce federal laws regarding immigration, marijuana, and much else. Say farewell to federalism!

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.

This sounds good—Lord knows that congressional and state legislative districts are drawn beyond any sane measure of compactness, contiguousness, or any other measure of maintaining existing political communities—but the devil is in the details. Apparently Justice Stevens’s measure of an illicit gerrymander is that he knows it when he sees it. Truth be told, most gerrymanders are a product of misinterpretations of the Voting Rights Act, such that race is the key factor and map‐​makers can never reduce the percentage of racial minorities in a given district. I would prefer to eliminate the collusion between so‐​called civil rights groups and the Justice Department that produces racially polarized districts that lock in extremes on both the left and the right.

3. 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.

This is the least objectionable of the six amendments. Heck, I probably support this one. It doesn’t make sense to provide federal constitutional protections against state violations of individual liberty but then to absolve the people doing the violating of any liability. But it doesn’t go far enough. I would remove immunity from federal actors too, as well as private actors acting under color of federal or state law.

4. The Second 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.

It’s not that he doesn’t think that people shouldn’t be able to defend themselves, but that it should be the state or local authorities that decide whether they can (though he misses the underlying facts of the debate). This goes against longstanding American tradition regarding natural rights and is based on emotional responses to multi‐​victim rampages (which new restrictions on law‐​abiding citizens wouldn’t have prevented), but—even worse—Stevens’s rewording doesn’t even make sense. (Can a soldier’s weapon never be taken away by his commanding officer?)

5. 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.

Given that Stevens’s dissent in Citizens United v. FEC (2010) was his judicial swansong—his faltering while reading it prompted his resignation—this is probably the “crown jewel” of these half‐​dozen amendments. Unfortunately, the idea is half‐​baked. Think about it: far beyond the modern progressive’s dream of restricting the power of mustachioed plutocrats, it potentially limits the amount an insurgent could spend against an entrenched machine politician—and gives to unelected bureaucrats (the Federal Election Commission) the power to determine whether some organization’s issue advocacy supports a particular candidate (and thus can be banned). And you thought calls to deny corporate personhood were extreme!

6. 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.

I’m ambivalent about this one; even if capital punishment is warranted for serious crimes, there are real problems with the way our justice system administers it. On balance, I think I’d rather this play out in the state political process—with federal judicial oversight—but I commend Justice Stevens for recognizing that, even if his views have “evolved,” that doesn’t make the death penalty unconstitutional. There can certainly be bad policies that are constitutional—or good policies that are unconstitutional.


In sum, I don’t want to come down on Justice Stevens too hard—I hope that I’m alive at 94, let alone writing books!—but his amendments package leaves much to be desired. He seems to have a vision of “good government” run by responsible technocrats, with none of the messiness that separation‐​of‐​powers or checks‐​and‐​balances entail. Because I don’t trust government any farther than I can throw it, however, I’ll take my constitutional protections—both structural and rights‐​defining.

While there are many constitutional amendments I could endorse, the best course would be to add after every clause in the text the magic words: “And we mean it.”

About the Author
Ilya Shapiro

Ilya Shapiro is a vice president of the Cato Institute, director of the Robert A. Levy Center for Constitutional Studies, and publisher of the Cato Supreme Court Review.