Justice John Paul Stevens, who retired from the Supreme Court in 2010 at age 90, has carved out a unique postcourt career for himself in terms of his willingness to offer public commentary on — and criticism of — the handiwork of his former colleagues. He offers a vivid contrast to the two other living retired justices, Sandra Day O’Connor and David Souter, whose public statements have been less frequent and more anodyne. Stevens’ perspective is well captured in the title of his new book, “Six Amendments: How and Why We Should Change the Constitution.”
Stevens deserves great credit for asking whether we are well served by recent interpretations of the Constitution by the contemporary Supreme Court. His conclusion, unsurprisingly, is that we are not. That being said, he cannot escape his mindset as a judge. Not only does he concentrate on what he regards as judicial errors — rather than more fundamental features of the Constitution that rarely, if ever, come before judges — but he also quite unaccountably believes the only way to correct those errors is through the nearly impossible process of constitutional amendment. (Even if his basic criticisms are correct, I would argue there is a less radical way to achieve such changes. More on this later.)
The six areas he focuses on involve campaign finance; partisan gerrymandering of legislative districts; the principle of sovereign immunity, which protects government from being sued for clear legal wrongs committed by public officials; the anti-commandeering doctrine, which gives states license to refuse to enforce or implement federal programs; the constraints placed on states and localities in regulating firearms because of controversial interpretations of the Second Amendment; and finally, the infliction of the death penalty.
Stevens offers legitimate criticisms of the court’s decisions in these areas, though there’s no room for fleshed-out arguments in this slender book. (For those inclined to disagree with him, this may be a problem.)
But it is not my disagreement with him on the issues he discusses that leads me to view this as an exceedingly perplexing book. Despite its exclusive focus on cases recently decided by the Supreme Court, he at no point argues that the court was forced to its conclusion because the Constitution, correctly interpreted, required it — though this is the only such argument that demands that one must change the Constitution to get a better outcome.
In fact, almost all the decisions Stevens condemns involved quite bitter 5-4 divisions, with the dissenters, including himself, largely believing the majority had incorrectly interpreted the Constitution in making its judgment. The easiest path to correcting judicial error is simply to change the judges making the rules. (Republicans have long realized this, and Presidents Ronald Reagan, George H.W. Bush and George W. Bush all used their appointment power to enhance very specific constitutional agendas. The Republican base should rejoice in the presence of Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, John Roberts and Samuel Alito, who voted to gut our campaign finance laws and the Voting Rights Act of 1965 and uphold a variety of controversial death sentences.)
If one agrees with Stevens’ critique, the most cogent response is simply to support the Democratic candidate for president in 2016 (and thereafter) and Democratic senators who would have the power to confirm Democratic presidents’ nominees to the court. This is far more likely to achieve desirable results than the near-quixotic path of amendment. Stevens himself in his first chapter details Article V of the Constitution, which states that two-thirds of each house of Congress must vote to propose an amendment and three-quarters of the states must ratify it in order for the proposal to take effect. This makes amendment difficult and politically unfeasible.
But Stevens pays little attention to this practicality. Can he believe there is the slightest likelihood that politically relevant elites (or a mass movement that would pressure these elites) would organize around his proposals? Take his suggestion to modify the Second Amendment by adding to it the words “when serving in the militia,” which would in effect give legislatures carte blanche to regulate guns in everyday life. To support this would be the equivalent of drinking political hemlock for all but a few politicians ensconced in extremely liberal urban districts. As for the issue of partisan gerrymandering, which Stevens also addresses, it is (as I argued in an earlier post) impossible to imagine current members of Congress agreeing to change the legislative districting processes that may well account for their own presence in the House.
In fact, if one believes that the kinds of changes Stevens advocates require constitutional amendment, then the only sensible path is the most quixotic one of all: a new constitutional convention controlled by delegates outside the present structure of such national political institutions as Congress. That is the only way to do an end run around the cast-iron barrier that the present Congress would erect with regard to all his proposals. In his review of my book “Framed,” which advocates such a convention (authorized by Article V but, of course, never used), Stevens indicated his doubts about this scenario, perhaps because he is fearful that a runaway convention would endanger our fundamental liberties. The alternative, though, is de facto acceptance, however anguished, of the status quo. If one believes, as I do, that the stasis generated by the present Constitution threatens to take us careering over a cliff, it is less risky to take it in for a tune-up through a national convention than to delude ourselves that we are in no danger at all.
This brings me to a more serious criticism. Perhaps it is a professional deformation of judges (as with most law professors) to fixate exclusively on judges and the cases they decide. But this myopic focus understates the importance of what I call the Constitution of Settlement — those parts of the Constitution whose meaning is not in contention (and has in effect been settled since the Constitution was written in 1787). This is most obvious with regard to the numerical parts of the Constitution, by which each state gets two (and only two) senators and by which representatives, presidents and senators serve terms of two, four and six years, respectively. Article V, as mentioned previously, is also filled with numbers. It is these provisions — and more besides — that help explain the gridlock that afflicts our politics and increasingly generates alienation among citizens across the political spectrum.
The failure to pay any attention to that part of the Constitution undercuts Stevens’ analysis. Is it possible he believes that we could achieve a more perfect union if only the aforementioned six mistakes of the Supreme Court were corrected by the amendments he suggests? The paralysis of our political system has almost nothing to do with decisions of the Supreme Court and far more to do with the defects of our Constitution. But those, sadly, are left unaddressed by Stevens.