The Refounding Father

John Paul Stevens
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.…

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