Six Amendments: Retired Justice Stevens calls for Changes In the Constitution

Six Amendments: How and Why We Should Change the Constitution
John Paul Stevens
Little Brown, 172 pp., $23

Reviewed by Stewart Pollock

Justice John Paul Stevens retired from the United States Supreme Court in 2010 after 35 years of distinguished service, but his reverence for the Constitution remains unabated.

In “Six Amendments,”; he identifies Supreme Court decisions that, over the past 40 years, have so adversely affected basic law as to require six specific constitutional amendments.

Regarded as an original thinker, Stevens cut his own path on the court, and his book invites the reader to join him on his journey. Along the way, you will question decisions of the current Supreme Court majority and wonder about the meaning of the Constitution.
This is a book for thinkers. It also is a handbook for constitutional change.

The lightning rod among the proposed amendments is a change to the Second Amendment, which in its present form provides: “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.”

Until recently, Stevens explains, federal courts understood the amendment was subject to two limitations: “It applied only to keeping and bearing arms for military purposes,” and it limited the power of the federal government, but not state or local government, “to regulate the ownership or use of firearms.”

Since 2008, however, the Supreme Court has profoundly expanded the Second Amendment. In a 2008 opinion, the court ruled “that the Second Amendment protects a civilian’s right to keep a handgun in his home for purposes of self-defense.” In 2010, the court held “that the Due Process Clause of the Fourteenth Amendment limits the power of the city of Chicago to outlaw possession of handguns by private citizens.”

Those two opinions, Stevens writes, “curtail the government’s power to regulate the use of handguns that contribute to the roughly eighty-eight firearm-related deaths that occur every day.”

To support his argument for gun control, he points to the massacre of 20 first-graders and six adults at the Sandy Hook Elementary School in Newtown, Conn., on Dec. 14, 2012, and the tragic mass killings in recent years in Virginia, Colorado and Arizona.
Stevens dissented from both opinions, which have “given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arms.”

A dissent, however, is often an appeal to a future generation. So is a book that echoes the dissent. Notwithstanding foreseeable opposition from gun owners and the National Rifle Association, Stevens recommends adding five words to 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.

Other proposed amendments include amending the supremacy clause in Article Six to permit Congress to require state officials, in addition to state judges, to enforce federal law. Stevens believes such a requirement will enhance “the federal response to national catastrophes or acts of terrorism,” as well as ordinary federal programs.

“The simple interest of justice” justifies another amendment that would abolish sovereign immunity for states, state agencies or state officials from liability for violating federal legislation or the U.S. Constitution. Yet another amendment would change the Eighth Amendment by declaring the death penalty unconstitutional as a form of cruel and unusual punishment. As a practical matter, that proposal would not affect New Jersey, because the Legislature repealed the death penalty in 2007.

New Jersey, however, moves front and center in Stevens’ proposal “for an amendment to the constitution that merely requires federal judges to apply the same rule in cases challenging political gerrymanders that they have applied to racial gerrymanders.” He contends that congressional and legislative districts should honor natural or historic boundary lines, something that New Jersey failed to do in drawing the boundaries of the 1983 congressional map.

The court, in a 5-4 opinion, rejected the 1983 map as not having been drawn in good faith. The map, which Stevens describes as “bizarre,” “grotesque” and “uncouth,” is included as a full-page exhibit. His proposed amendment would require congressional and legislative districts to be “compact and composed of contiguous territory.”

Stevens also proposes a constitutional amendment that would permit state and federal legislation prohibiting corporations from making unlimited contributions in political election campaigns, and authorize Congress and the states to place “reasonable limitations” on such contributions.

In one sense, Stevens’ proposed amendments are quixotic. In a larger sense they are inspiring, and may lead to action by a future generation.

Stewart Pollock, a retired justice of the Supreme Court of New Jersey, is of counsel to the law firm of Riker Danzig Scherer Hyland & Perretti.

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