Justice Stevens: Money is not speech
In law school, the words, "J. Stevens, dissenting" became as expected as the daily pits in our stomachs which formed at the threshold of Professor Wheeler's classroom (an ex-Marine, he ran us first-years like the drill sergeant he once was). Justice Stevens often disagreed with the majority of his colleagues on the highest court in the land. When he didn't - now that was surprising.
Former Supreme Court Justice John Paul Stevens was appointed by a conservative President Ford, yet became something of a rebellious presence on the court. In April he testified to Congress about his views on campaign finance and democracy. He is none too happy.
Stevens proposes six solutions to our constitutional ills. Described by reviewers as a "re-founding father," his book published this year, "How and Why We Should Change the Constitution," is based on amendment history, nearly 35 years of experience as a justice (preceded by five more on a federal appeals court) and - critics say - written in reaction to a string of rulings of which the retired justice strongly disapproves.
We need six new amendments, says the 94-year-old who retired in 2010. He believes the high court has strayed too far from the focus on self-government which the founders intended. We're contradicting ourselves as a society, interfering too much where it's politically convenient. Some may call this position ironic, coming from a justice associated with the idea that the constitution is a "living" thing meant to evolve with society.
As with all constitutional issues, perspective shapes the logic of historical reasoning.
In any case, Stevens proposes the following amendments, intended to reduce judicial power and eliminate past expansions of the Second Amendment, as well as the death penalty:
1. Anti-commandeering rule: Put simply, this would reinforce the Supremacy Clause in Article VI and include public officials in the rule that constitutional law reigns supreme, when in contrast with state laws. After the Newtown, Conn., and other school shootings, Stevens pointed to a high court decision exempting states from complying with certain federal firearms regulations, such as background checks. He also believes without this change, the ability of government to react to acts of terrorism, and the efficient administration of federal programs, are significantly hampered.
2. No more gerrymandering, or political redrawing of district boundaries contorted to meet partisan election goals (without meeting a high burden of neutral reasons, so rare if not impossible).
3. 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."
As Justice Stevens told Congress, "Money is not speech... Unlimited campaign expenditures impair the democratic process. (We need a) level playing field."
4. (End) sovereign immunity, i.e., states and their officials shall not be immune, via the Tenth and Eleventh Amendments or any other reason, from liability for violating citizens' constitutional rights.
5. Death penalty, which Stevens describes as "a relic of the past" and inconsistent with civilized society: Amend the Eighth Amendment to explicitly include death as an example of cruel and unusual punishment.
6. Second Amendment: Add "when serving in the militia" to the non-impingement of the right to bear arms.
Harvard law professor and former Obama administration official Cass Sunstein in The New York Review of Books recently called the book an "illuminating tour" of recent constitutional jurisprudence, but disagrees that all the amendments are politically viable. One example is the limitation of the Second Amendment; while some restrictions such as those regarding background checks, "loopholes," and certain mental health conditions may be viable, proposal number six may be regarded as a ban on all private ownership (although scholars might disagree that it is - what the founders meant by "militia" did not then equate to the U.S. military; rather as later interpreted, to males aged 18 to 45), highly unlikely in today's American society.
However current trends in subjects two and three, gerrymandering/redistricting and campaign finance, in some aspects are reversals of prior positions, so who knows whether things may swing the other way again. Stevens sees his proposals as inevitable in the long run, "with ample time and reflection."
Whether or not readers of the 133-page book (plus text of current Constitution) would agree with the amendments, a review of the history of constitutional amendments thus far is an illuminating reminder, minus modern political punditry. You can read several chapters excerpted at HachetteBookGroup.com, and hear his speech to Congress at C-span.org.
Sholeh Patrick, J. D. is a columnist for the Hagadone News Network. Contact her at [email protected].