As
promised in my previous
column
on the reception by the press and news media of Justice John Paul’s
new book, Six Amendments: How and Why We
Should Change the Constitution
, I have read his book and now can review it
here.
There
is a prologue, an appendix containing the Constitution,
and six chapters, each chapter devoted to one of Stevens’s recommended
amendments. At the end of each chapter, after lengthy and often in-depth
discussions of the history and role of the existing amendment in Supreme Court
and other federal court decisions, Stevens states his amendment. Stevens is an
excellent writer. His prose is clear and unburdened by jargon and legalese. One
supposes that is a natural consequence of having written numerous 100-page or
more opinions during a six-year stint on the U.S. 7th Circuit Court
of Appeals, and then over a 35-year career on the Supreme Court.
Readers
accustomed to encountering a concluding, assertive statement, followed by an
explanation for the conclusion (e.g., at the beginning of a trial, a prosecutor
would say, “The State will prove that John Doe murdered Bob Smith.”),
will experience a reversal of that usual order of reasoning, which employs
deduction and often induction. Stevens instead explains first, and concludes
with his opinion at the end of each chapter (e.g., “Here is what happened,
and why, this is what X said and this is what Y said, and the timetable; and
the jury, in the end, must find John Doe guilty of murder.”).
Stevens’s
writing style, however, is double-edged, for his hostility towards the existing
amendments to the Constitution, three of which he wishes to rewrite, and three
new ones he wishes to be added, is made clearer. That hostility is not
disguised by verbose and affected discourse or by a sophist’s bewildering labyrinth
of irrelevancies and false turns that would flat-line the mind of the sharpest
reader. The six areas Stevens discusses are the “anti-commandeering”
rule, political gerrymandering, campaign finance, sovereign immunity, the death
penalty, and the Second Amendment (gun control). I shall address these subjects
in the order in which Stevens presents them.
It
would be fair to say up front that, in all cases and all issues he discusses,
Stevens champions federal power and authority over that of the individual
states (and, indirectly, over individual rights). In his Prologue, after
briefly discussing how the withdrawal of federal troops in the Southern states
in 1877 engendered the rise of the Ku Klux Klan (with the approbation of
Southern Democrats), he inadvertently demonstrates how destructive
Constitutional amendments can be.
In 1913 two amendments to the
Constitution were adopted. The Sixteenth Amendment overruled the five-to-four
decision of the Supreme Court in Pollock v. Farmers
Loan and Trust Co
.
which had held that a federal statute imposing a tax
on income violated the constitutional prohibition against unapportioned
“direct taxes”; that amendment is the source of the federal power to
impose an income tax. The Seventeenth Amendment replaced the practice of having
United States senators chosen by state legislatures with direct elections by
the people.
The Eighteenth Amendment,
prohibiting the manufacture, sale, or transportation of intoxicating liquors,
became effective in 1919; it was repealed by Section 1 of the Twenty-first
Amendment in 1933. (pp. 9-10)
The
destruction wrought by the Sixteenth Amendment needs no explication here. The
Seventeenth Amendment clearly flies in the face of the Framers’ intention to
create a legislative body that would serve as a check on populist legislation
emanating from the House, and which, as a body, would be imbued with a higher degree
of wisdom and integrity in the name of individual rights and limited government.
Today, the Senate is a mere echo chamber of the House’s collectivist, statist
agendas.
Reading
Pollok case, it was interesting to
learn that Congress had passed in income tax in 1894; the Supreme Court voided
it in this case. It was also startling to learn that income taxes had been
discussed in the early days of the Republic by some of the Framers. Abraham
Lincoln signed the first income tax
into law in 1861, to help finance the Civil War (it was repealed by Congress in
1872). And in every instance I could find, the issue confronting the opponents
and advocates of income taxation of any kind was not the sanctity of private
property, but rather the irrelevancies of whether or not the tax was a
“direct” or “excise” tax, or whether or not it violated
states’ rights vis-à-vis apportionment, and other technicalities About Pollock, The Chicago-Kent
College of Law
site notes:
The Court held that the act
violated the Constitution [Article I, Section 9] since it imposed taxes on
personal income derived from real estate investments and personal property such
as stocks and bonds; this was a direct taxation scheme, not apportioned
properly among the states. The decision was negated by the adoption of the
Sixteenth Amendment in 1913.
In
all of Stevens’s proposals, the issue of individual rights is never brought to
the fore, positively or negatively; it is though they did not exist for him. Individual
rights are invisible, they do not exist in his universe of political propriety.
It was only the powers of the State that must be elucidated and sorted out;
those powers, to the retired Justice, are of paramount importance.
In
Chapter 1, Stevens discusses the background of the so-called
“anti-commandeering” rule, established in 1997 by the Supreme Court
in Printz v. United
States
, “a rule that prohibits Congress from requiring state
officials to perform federal duties,” that is, “commandeering”
the authority and persons of state or local officials to enforce federal law. Printz arose out of the attempted
assassination of President Ronald Reagan in 1991, from the Gun Control Act of
1968 – “a detailed federal scheme governing the distribution of
firearms” – and finally from the Brady Handgun Violence Act of 1993. Two
law enforcement officers, one from Montana and one from Arizona, brought suit
against the Brady Act that would establish a national background check system
for buyers of firearms. They argued that it was an unconstitutional imposition
on them to perform background checks at the behest of the federal government.
Stevens
also, in the same chapter, includes the “commandeering” of state
judges to enforce federal statutes. He regards it as disgraceful that state
officials and state judges should be exempted from taking orders from the
federal government to enforce its law. Why? Because it smacks of inefficiency
when the federal government is pursuing a “common good” or acting in
the “public interest.”
In addition to increasing the
risk of a national catastrophe and hampering the federal government’s ability
to make a prompt and effective response to disasters, the anti-commandeering
rule also limits the government’s options in the routine administration of its
programs. Federal programs involving the protection of the environment, the
distribution of electric power, and the regulation of interstate
transportation, as examples, may be implemented more efficiently by the
reliance, in part, on state personnel instead of enlarging the federal bureaucracy.
(pp. 27-28)
It
does not occur to Stevens that a supremely “efficient” government is
a totalitarian one, one to be feared. An “inefficient” one is merely
authoritarian or statist, sustained by a mixed economy of regulations,
controls, and “conditional” freedoms of trade and speech. The Nazis
and Soviets ran very “efficient” governments. Further, the existence
of the “anti-commandeering” rule has not contributed to federal
regulatory bureaucracies swelling in size and power. They do that because of
their intrinsic nature, coupled with a vested interest in their growth by their
champions in Congress, their directors or heads, and federal employee unions.  Stevens concludes:
Adding just four words –
“and other public officials” – immediately after the word
“Judges” in the Supremacy Clause, would, under the Court’s reasoning,
expressly confirm the power of Congress to impose mandatory duties on public
officials in every state. (p. 29)
I
had expected Chapter 2, “Political Gerrymandering,” to be dull,
plodding reading, and, indeed it was. Stevens begins the chapter with an
explanation of the term “gerrymander.”
In 1811…the governor, Elbridge
Gerry [of Massachusetts], and a majority of both branches of the legislature
were Republican. In order to retain control of the government…they redrew the
boundaries of the thirty senatorial districts, packing enough Federalists into
a small number of districts to give the Republicans comfortable majorities in
the others….The shapes of the districts drawn by Gerry’s partisans were
anything but compact. Because one of them resembled a salamander, contemporary
newsmen coined the term “gerrymander” to describe the governor’s
electoral stratagem. Both the term and the stratagem have survived for the past
two centuries. (pp. 33-34)
I
will spare the reader Stevens’s account of how gerrymandering was and is still
practiced in the United States. It’s much like describing how rival college
fraternities and sororities conduct membership drives or “rushes” and
divvy up campus turf in “spheres of influence.” The issue, for
Stevens, is one of fair or equal representation of an electorate that is at the
mercy of the district line drawers. Stevens doesn’t think they should have the
power to disenfranchise one portion of the electorate at the expense of
another. He writes:
Admittedly, the Constitution does
not require proportional representation, but there is a world of difference between
such a strict requirement and a more limited prohibition against a political
party’s use of government power to draft bizarre districts that have no purpose
or justification other than enhancing that party’s own power. Just as a
controlling political party may not use public funds to pay its campaign
expenses, it is also quite wrong to use public power for the sole purpose of
enhancing the political strength of the majority party. (pp. 47-48)
That
was just an introduction to Stevens’s real concern:
As discussed above, the gerrymandering
process makes elections – both in districts the majority expects to carry, and
in districts packed with voters who belong to the minority party – less
competitive, and leads candidates, whether liberal or conservative, to adopt
more extreme positions. Ending political
gerrymandering will help promote political compromise.
(pp. 53-54; Italics mine)
To
end the nasty phenomenon of “extremism” and to foster the habit of
compromise, Stevens recommends the following fresh new amendment to the
Constitution;
Districts represented by members
of Congress, or by members of any state legislative body, shall be compact and
composed of contiguous territory. The state shall have the burden of justifying
any departures from this requirement by reference to neutral criteria such as
natural, political, or historic boundaries or demographic changes. The interest
in enhancing or preserving the political party in control of the state
government is not such a neutral criterion. (p. 55)
And
what unbiased politico or consultant would establish that “neutral
criteria”? Would a Federal Election Commission-like bureaucracy enforce
it? And, it seems that any party that advocates individual rights (e.g., the
Tea Party) must compromise with statists and Progressives in the holy spirit of
“compromise.” Regardless of whether or not gerrymandering has
governed the outcome of elections, that is precisely what has been happening
without Stevens’s new amendment.
On
to Chapter 3, “Campaign Finance.” Ever since the Supreme Court’s Citizens United v.
Federal Election Commission
ruling in 2010, liberals and Progressives
like Stevens have been in a dither, if not in a rabid state of outrage.
Corporations and businesses are as invisible to Stevens as individual rights,
and have no First Amendment, freedom of speech protections. However, Oyez distills
the muddled premises and reasoning of the ruling, for it was not an
overwhelming victory for Citizens United.
The majority maintained that
political speech is indispensable to a democracy, which is no less true because
the speech comes from a corporation. The majority also held that the BCRA’s
disclosure requirements [Bipartisan Campaign Reform Act (BCRA) of 2002, which
established the Federal Election Commission or FEC] as applied to The Movie
were constitutional, reasoning that disclosure is justified by a
“governmental interest” in providing the “electorate with
information” about election-related spending resources. The Court also
upheld the disclosure requirements for political advertising sponsors and it
upheld the ban on direct contributions to candidates from corporations and
unions.
At
issue was a movie released by Citizens United, Hillary: The Movie, which portrayed Hillary Clinton as unqualified
to be president. Citizens United, a well-endowed political action committee
(PAC), wanted to televise the movie within the FEC-enforced 30-day
“gagging” period during a local or national election, in this instance,
during the 2008 presidential primaries. The FEC had determined that neither the
movie nor Citizens United was protected by the First Amendment, because, at any
rate, Citizens United was a corporation, and that the movie itself was
“campaign speech” that was restricted during a national election
cycle. Citizens United sued the FEC over the various restrictions placed on
corporations, citing violations of the First Amendment.
Stevens
writes that there is nothing to fear from his proposed amendment:
A constitutional amendment
authorizing Congress and the states to place “reasonable” limitations
on campaign expenditures would allow corporations to make public announcements
of their views but would prohibit them from engaging in the kind of repetitive and
excessive advocacy that the candidates typically employ. It would also
repudiate both the holding and the reasoning in the Citizens United case, giving corporations an unlimited right to
spend their shareholders’ money in election campaigns. (p. 78)
Do
the shareholders want a corporation to spend their money advocating issues? To Stevens,
their wishes are irrelevant. Do individuals who encounter “repetitive and
excessive” advocacy mind such encounters? That’s irrelevant, too. Of course,
those on the opposite side of an issue might mind it, but, like Muslims who
object to critical things being said and written about Islam, they can just
ignore it. Speech, written, oral, or visually, after all, is not a form of
physical aggression or force. But Stevens doesn’t want the champions of big government
and incremental socialism to be subjected to such “hate speech” over
and over again. Poor babies! Stevens’s suggested amendment, which does require
force, reads:
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. (p. 79)
Who
will define what is “reasonable” and what is not? Is there an
infallible mathematical formula that would define “reasonableness”? It
would be okay, by Stevens, to abridge the scope of the First Amendment and thus
violate its essential, fundamental meaning, just a little bit, to shut those
wealthy, anti-big-government people up, and a public service, as well, don’t you
see?
A
telling aspect of Stevens’s book is that nowhere in his discussion of campaign
finance does he address the influence of liberal/Progressive billionaires and
millionaires on the political process, nor their own humongous contributions to
the Democrats and liberal programs, nor the overflowing war chests and coffers
of the Democratic Party in any given year. But, like the IRS, when it targeted
conservative or Tea Party groups for audits and special scrutiny, but largely
ignored the “deprecations” of liberal groups, the Federal Election Commission
has a record of ignoring liberal/Progressive groups and fishing for evidence of
wrongdoing by conservative or anti-big-government groups.
I
don’t think senility can explain that particular omission in Justice Stevens’s
book.
Part
III of this column will discuss the last three of his proposed amendments,
“Sovereignty,” the death penalty, and the Second Amendment.
Six
Amendments: How and Why We Should Change the Constitution
, by John Paul Stevens. New York:
Little, Brown and Company/Hachette Book Group, 2014. 192 pp.