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The Refounding Father

John Paul Stevens; drawing by James Ferguson

It’s hard to amend the United States Constitution. Under Article V, an amendment can be proposed only with the approval of either two thirds of both houses of Congress or the legislatures of two thirds of the states. It’s difficult enough to obtain that level of agreement, but there is another obstacle, which is that no proposed amendment can be ratified without agreement from either three fourths of the state legislatures or conventions in three fourths of the states. The authors of the Constitution knew exactly what they were doing. They wanted to limit amendments to what James Madison called “great and extraordinary occasions.”

Their plan worked. In well over two centuries, only twenty-seven constitutional amendments have been ratified. Two periods of constitutional change stand out. In 1791, the nation added the ten amendments that constitute the Bill of Rights, thus rejecting the view, originally pressed by Madison himself, that an explicit enumeration of rights was unnecessary. After the Civil War, the nation added three amendments, which (among other things) abolished slavery, applied the due process clause to state governments, adopted a new principle of “equal protection,” and guaranteed the right to vote to African-Americans.

The Bill of Rights and the Civil War amendments account for nearly half of the total. Other amendments allow Congress to collect income taxes, call for direct elections of senators, forbid denial of the vote to women, impose a two-term limit on presidents, prohibit poll taxes, and allow all citizens who are eighteen or older to vote. In the successful efforts to amend the Constitution, a recurring theme has been improvement of self-government, above all by extending the right to vote.

As a member of the Supreme Court from 1975 to 2010, John Paul Stevens was widely liked and admired. Modest and eclectic, he could not be pigeonholed, and he displayed a consistent openness to both facts and arguments. He frequently emphasized that under the American Constitution, the government must be “impartial,” and he exemplified impartiality with his own capacity to listen, his unfailing humility, and his insistence on giving respectful attention to opposing views. Stevens also revered, and reveres, the American Constitution. It is nothing short of remarkable that at the age of ninety-four, he has published a book calling for no fewer than six new amendments to the nation’s founding document. No Supreme Court justice, sitting or retired, has ever done anything of this kind.

It is noteworthy, though perhaps not surprising, that in every case, Stevens wants an amendment that will overturn what he sees as a wrongheaded decision by the Supreme Court. In each of these cases, Stevens was a dissenter. It is also noteworthy that Stevens’s broadest theme is the importance of democratic rule. His general goal is to promote self-government, which, as he sees it, has been badly compromised by recent Supreme Court rulings.

Let’s begin with gun control. The Second Amendment states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” For over two hundred years, federal courts generally interpreted the Second Amendment quite narrowly. In their view, the opening reference to a “well regulated Militia” limited the scope of the amendment. The Second Amendment did not create a freestanding individual right to have guns.

Well-organized groups, above all the National Rifle Association, rejected this interpretation and insisted that the Second Amendment did indeed create an individual right. For many years, their view was widely regarded as unpersuasive, a form of ideology masquerading as constitutional law. Stevens notes that as late as 1991, even retired Chief Justice Warren Burger—a well-known conservative, appointed by President Richard Nixon—said that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.”

It is remarkable but true that in 2008, in District of Columbia v. Heller, a majority of the Court accepted the very view that Burger deemed to be a “fraud.” Stevens thinks that in so ruling, the Court departed from the original understanding of the Second Amendment, and in the process greatly increased judicial power to oversee what state and federal governments do to prevent gun violence. He laments that a constitutional provision

adopted to protect the states from federal interference with their power to ensure that their militias were “well regulated,” has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arms.

Stevens thinks that democratic processes, and not federal judges, should decide on the fate of regulations designed to minimize gun violence. As a remedy for “what every American can recognize as an ongoing national tragedy,” he would amend the Second Amendment to specify that it applies only to those who keep and bear arms “when serving in the Militia.”

Stevens begins his discussion of campaign finance with the Court’s 2010 decision in the Citizens United case, which held that under the First Amendment, Congress cannot limit the ability of corporations to make independent expenditures on political campaigns. In that case, Stevens wrote an eighty-six-page dissent, but his most fundamental objection is to a critical part of the Court’s opinion in its first significant campaign finance case, Buckley v. Valeo (1976). In that case, the Court upheld restrictions on campaign contributions, ruling that such restrictions could provide legitimate protection against corrupt practices. (Citizens United did not disturb that ruling.) But it simultaneously struck down restrictions on campaign expenditures by which people spend on their own behalf and do not contribute to anyone. In its key passage, the Court said that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”

This conclusion was exceedingly important, because it meant that campaign finance limits could never be justified as a way of promoting political equality, or of ensuring that inequalities in wealth are not translated into inequalities in political power. Stevens believes that here the Court made a big mistake. To be sure, he agrees that speech about controversial issues “may not be censored for the purpose of enhancing the persuasive appeal of either side of the debate.” But he thinks that it is altogether different, and entirely legitimate, if rules are issued to restrict the quantity of speech in order to give “adversaries an equal opportunity to persuade a decision maker to reach one conclusion rather than another.”

Acknowledging that some campaign finance restrictions may be too low, he insists that Congress should be able to act to reduce the risk that wealth will be the deciding factor in contested elections. Hence his proposed constitutional amendment, which would allow Congress and state governments to impose “reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.”

In 1972, the Supreme Court seemed to be on the verge of ruling that the death penalty is cruel and unusual punishment, prohibited by the Eighth Amendment. But in 1976, the Court backed off, allowing the death penalty so long as its imposition was preceded by a set of procedural safeguards designed to reduce the risk that innocent people would be executed. Stevens joined the majority at the time, and for most of his years on the Court, he accepted that basic approach.

In 2008, however, he concluded that because the risk of executing the innocent could not be eliminated, the death penalty must be abolished. Here he insists that the ultimate penalty is unlikely to have a deterrent effect and that its real justification lies in retribution. In his view, that justification is not sufficient, because execution of innocent people is not “tolerable in a civilized society.” He would amend the Constitution to entrench that judgment.

The Constitution is universally understood to forbid racial gerrymanders. No state can structure its electoral districts so that they consist only of white people. But political gerrymanders, favoring one party over another, are pervasive, and under existing law, they are rarely struck down. Stevens thinks that from the standpoint of democratic self-government, this is a most unfortunate result, because it makes general elections far less competitive and ensures that in many places, the primary elections are what matter. As a result, “gerrymandering has made our elected officials more doctrinaire and less willing to compromise with members of the opposite party.”

Indeed, Stevens contends that political gerrymandering “may well have been the principal cause of the government shutdown that occurred in October 2013.” He would amend the Constitution to say that districts “shall be compact and composed of contiguous territory,” and that any departures from that requirement cannot be justified by the “interest in enhancing or preserving the political power of the party in control of the state government.”

Issues of federalism, as such, rarely get people’s blood boiling, but Stevens is greatly troubled by a seemingly technical principle that constitutional lawyers know as the “anti-commandeering rule.” The Court gave birth to that idea relatively recently. In 1997, the Court decided Printz v. United States, which forbids Congress from requiring state officials to perform federal duties (hence the term “commandeering”). In Printz, Congress sought to require state law enforcement officers to make a “reasonable effort” to determine whether a proposed sale of a firearm would be lawful. The Court ruled that under the Constitution, Congress must respect the sovereignty of state governments, and cannot force state authorities to take such action as it deems fit. Stevens insists that this idea is not merely wrong and inconsistent with the original constitutional plan but also dangerous, because it might turn out to be damaging to “the federal government’s ability to respond effectively to natural disasters that recur with distressing frequency.” He would amend the Constitution to eliminate the anti-commandeering rule.

Sovereign immunity is an ancient English doctrine, stating that the sovereign (meaning the government) cannot be sued without its consent. The idea is sometimes attributed to the idea that “the King can do no wrong.” In Stevens’s account, that idea is essentially un-American. It had little appeal in the nation’s first century, having been explicitly rejected by Chief Justice John Marshall and also by Abraham Lincoln, who said:

It is as much the duty of Government to render prompt justice against itself, in favor of its citizens, as it is to administer the same between private individuals.

After the Civil War, however, the Court began to construe the Constitution to create barriers to lawsuits brought by citizens against states as such. In recent decades, the Court has said that the Constitution does not allow Congress to give private parties the right to obtain damages against state treasuries when states have acted inconsistently with the Fair Labor Standards Act, or denied people benefits payments in violation of federal law.

Sunstein_2-060514.jpg
Walker Evans Archive/Metropolitan Museum of Art
Electric chair, Sing Sing Prison; postcard, early 1900s

Stevens believes that the Court’s decisions, immunizing official wrongdoing, have not only departed from the constitutional plan but also produced serious unfairness. He believes that if a hospital is owned by a state, it should not be given sovereign immunity when an otherwise identical hospital, owned privately, would have to pay damages. He would amend the Constitution to deprive states of sovereign immunity for violating federal law.

Gun control, campaign finance, capital punishment, political gerrymandering, anti-commandeering, and sovereign immunity—it’s a heterogeneous list. But there is a unifying theme, which is the importance of democratic self-government. With respect to gun control, campaign finance, anti-commandeering, and sovereign immunity, Stevens would free the political process from the control of the courts. In the case of political gerrymandering, he would go in the other direction, because he would impose a constitutional barrier where one does not now exist. But the reason for the barrier is to improve the functioning of American democracy. It is only in the case of the death penalty that Stevens would create a new, rights-based safeguard, designed to protect an individual right, not to promote self-government as such.

There is a general lesson here. A Republican appointee to the Supreme Court, having served for thirty-five years with mostly Republican appointees and under three Republican chief justices, is arguing for constitutional amendments that would largely entrench judicial restraint, and that would reduce the role of the federal courts in American political life. His proposals attest to the fact that in recent decades, the most aggressive judicial decisions have tended to come from the right—and have an uncomfortable overlap with the political positions of the conservative wing of the Republican Party.

However much one may applaud or deplore that tendency, Stevens’s book raises a more fundamental question: whether and when the Constitution should be amended to correct a mistaken or harmful decision by the Supreme Court. No one thinks that whenever the Court has erred, the nation should amend the Constitution to set things right. Do we have, in any or all of the six cases, a “great and extraordinary occasion,” sufficient to justify constitutional amendments? The answer depends in part on the kind of burden that must be met by those who seek such amendments. Exactly how great, and exactly how extraordinary?

Some people think that by making the Constitution so hard to amend, the founding generation compromised self-government, reducing the capacity of We the People to alter their handiwork. In principle, there is no abstract answer to the question whether a constitution should be made easy or difficult to amend; we need to know some details. If a nation’s constitution is full of mistakes, or if its high court is systematically misinterpreting it, easy amendment might be a good idea. If we should adopt a strong presumption against constitutional change, it must be because the existing document is excellent, or at least excellent enough, so that frequent or easy amendments would be likely to make things worse rather than better.

Throughout American history, citizens have participated in the equivalent of an arms control agreement, in which they engage in a kind of mutual forbearance with respect to constitutional change. In recent decades, some people have vigorously supported amendments that would allow school prayer, make a commitment to sex equality, impose term limits, protect “victims’ rights,” allow states to ban same-sex marriages and flag-burning, and require a balanced budget. None of these has been ratified.

You might think that the Constitution would be better if one or more of them were part of it, but you might agree that the general pattern of forbearance is also in the national interest. You might even think that the founding generation was wise to make forbearance more likely, if only because of the importance of constitutional stability and the risk of harmful or ill-considered amendments. There could well be strong national majorities in favor of some amendments that Justice Stevens and civil libertarians would deplore, while national majorities would be exceedingly difficult to muster for some of the amendments that he proposes—a point that might strengthen the case for forbearance. And if you approve of forbearance, you might be inclined to reject most or even all of Stevens’s proposals for constitutional change, even if you think that on most or even all of them, he is right as a matter of public policy.

Consider the two federalism issues, anti-commandeering and sovereign immunity. Stevens is correct to suggest that if Congress deems it necessary to require state officials to take certain actions—say, to combat a natural disaster—it is hard to see why the Constitution should stand as a barrier. And if states have violated federal law, and injured people in the process, the national legislature should be authorized to require them to pay compensation. By their very design, the compositions of the Senate and the House of Representatives make it unlikely that Congress will be inattentive to the legitimate concerns of states as such.

But in both cases, we might wonder whether the problems are serious enough to call for constitutional change. If the federal government cannot commandeer the states, it might well be able to persuade them to help voluntarily, or to act either on its own or with the private sector to achieve its goals. And as the law now stands, principles of sovereign immunity generally do not bar people from suing states to require them to comply with federal law. The main function of sovereign immunity is to prevent people from invading state treasuries to obtain monetary damages. That’s unfair, to be sure, but do we really have a “great and extraordinary occasion,” justifying a change to our founding document?

On gun control, there is a strong reason to think that constitutional change is unwarranted, which Stevens himself emphasizes: the Court’s rulings continue to leave considerable flexibility to state and federal governments. True, the Court has recognized an individual right to bear arms, but it has pointedly declined to impose anything like an across-the-board barrier to gun control. The individual right remains relatively narrow, and if states or the nation really wants to impose new limits on gun ownership, they can do a great deal.

The Obama administration, for example, proposed a number of new restrictions, including background checks for all gun sales, a ban on military-style assault weapons, and a limitation on magazines to a capacity of ten rounds. These restrictions, and many more, would be fully consistent with the Second Amendment as the Supreme Court understands it. The principal obstacle to new gun control legislation is an absence of political will, not the Second Amendment. And in light of the strong political opposition to any such legislation, it is an understatement to say that a constitutional amendment would be extremely difficult to obtain.

With respect to capital punishment, any judgment will, of course, depend on contested questions of both fact and value. Stevens is right to say that no legal system is likely to be able to eliminate the risk of executing innocent people. One recent study estimates that over 4 percent of all death row inmates were wrongly convicted. If you consider the risk of executing the innocent to be intolerable, or if you believe that capital punishment is a form of unconscionable barbarity, you will very probably support his proposal. Moreover, Stevens has a good argument that political gerrymandering is creating serious problems for our system of self-government, above all because it allows political parties to entrench themselves, and simultaneously contributes to a high degree of polarization in Washington. One objection to his proposed amendment is that party leaders would try to evade it, and it would not be so easy for courts to prevent that evasion.

Stevens’s strongest proposal involves campaign finance regulation. In the defining First Amendment cases, a political majority is attempting to entrench itself by censoring speech that it deems to be dangerous. The free speech principle forbids that kind of self-entrenchment. It ensures political liberty, and with respect to ideas, a kind of political equality. With campaign finance regulation, the goal is not to entrench the power or opinions of the majority, but to ensure that economic inequalities are not turned into political ones. In a society that tolerates disparities in wealth, that is not merely a worthy goal; it is essential. As those disparities continue or even grow, there is a serious risk that wealthy people will be able to buy not only their preferred goods and services, as they are certainly entitled to do, but also their preferred policies and candidates, which is anathema to a system that prizes self-government.

To be sure, some campaign finance restrictions could turn out to be measures that protect incumbents. But the best way to combat that risk is through democratic debate, not through judicially imposed constraints on campaign finance laws as such. In support of his proposed amendment, Stevens could invoke the views of James Madison, who was not at all enthusiastic about economic equality, but who insisted on the importance of “establishing a political equality among all.” In the end, Madison himself might be willing to agree with Stevens that in the twenty-first century, a democratic effort to promote that ideal would count as a “great and extraordinary occasion,” warranting a change to the nation’s founding document.

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