Amend the Constitution? Justice Stevens sought 6 changes

In April 2014, retired U.S. Supreme Court Justice John Paul Stevens published “Six Amendments: How and Why We Should Change the Constitution.” This was the second of three books he would publish. His first is the 2011 memoir, “Five Chiefs: A Supreme Court Memoir” that reviews the lives of five Supreme Court justices including Burger, Rehnquist and Roberts. The third, published in 2019 at age 99, was “The Making of a Justice: Reflections on My First 94 Years.”

What were the six constitutional amendments he proposes? Each are described in this six-chapter book.

Stevens would expand the narrow jurisdiction of federal law over states to strictly state judges. This comes from Article VI of the Constitution. The wording states that “…the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby…”

Adding “and other public officials” after the word “Judges” would “expressly confirm the power of Congress to impose mandatory duties on public officials in every state.”  That is not the case now, and he cites the federal inability to take actions relative to school shootings as an example. More recently, the federal inability to manage health care during the pandemic likewise caused several hundred thousand needless deaths.

It often comes as a surprise to citizens that drawing up voting districts for political reasons is perfectly legal. This is called “political gerrymandering,” and on May 23, the current Supreme Court ruled the 1st Circuit U.S. Court of Appeals had wrongly used “race” (a legitimate reason to prevent gerrymandering) rather that politics (completely legal) in drawing up political districts.

Stevens would amend the Constitution by adding wording that defines voting districts as compact and contiguous and not allowing “enhancing or preserving the political power of the party in control of the state government…”

John Paul Stevens (1920–2019) served as an associate justice on the Supreme Court from 1975 to 2010. It was in that last year that he wrote a detailed dissenting opinion in Citizens United v. FEC. This Citizens United decision treated corporations like individual persons and allowed massive amounts of anonymous money to underwrite candidates. He described the majority opinion as “a disaster for our election law.”

He would amend the Constitution to state: “Neither the First Amendment for 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.”

Today, some citizens will be aware of the use of “sovereign immunity” to prevent citizens from suing a state or federal agency insofar as those are government agencies. Here, Stevens provides a long history of this concept and proposes the addition to the Constitution of: “Neither the 10th Amendment, the 11th Amendment, nor any other provision of this Constitution, shall be construed to provide any state, state agency or state officer with an immunity from liability for violating any act of Congress, or any provision of this Constitution.”

His fifth proposed change would add five words to the Eighth Amendment so it would read: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.” This would end the death penalty.

His last revision would add five words to the Second Amendment so that it reads: “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.”

This book concludes by providing the full text to the U.S. Constitution and a detailed index.

A reader might very well ask whether Justice Stevens was a Republican or Democrat, conservative or liberal. When appointed in 1975 by President Gerald Ford, Stevens was a registered Republican and was considered by some to be a “Rockefeller Republican.” During his 30 years in the Supreme Court, Stevens refused to discuss politics and identified as a conservative. He retired in 2010, and President Obama then appointed Justice Elena Kagan as his successor.

Whether you agree with Justice Stevens or not, readers of this book will gain a deeper understanding of the depth of reasoning that goes behind Supreme Court decisions.

John Richard Schrock is a Roe R. Cross distinguished professor and biology professor emeritus at Emporia State University.

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