IN RECENT DECADES the US Supreme Court has become something quite other than the crown jewel in the third branch of government. Under Chief Justices Rehnquist and Roberts it has become much more like a fifth column of the right flank of the Republican Party, firmly entrenched inside the guts of the Republic.
Whether it’s the court’s recent ruling punching a hole in the barrier between church and state by allowing Baby Jesus more space in the public square, its ongoing broadening of police powers with a progressive weakening of the Fourth Amendment, its questionable intervention into the 2000 presidential election, its undermining of affirmative action, its kowtowing to corporate political muscle in Citizens United, the undermining of the historic Voting Rights Act, or its hobbling of Obamacare with the de facto exclusion of millions from expanded Medicaid coverage under the banner of states’ rights, the five to four conservative majority has become the exact opposite of what its defenders claim to most detest: a highly partisan, politicized, and activist bench, hell-bent on reshaping, or better, retarding, the American body politic. Indeed, one can pretty much guess the outcome well in advance of any issue before the court. The only variable being what kind of mood swing “swing” Justice Anthony Kennedy is having on the day of the decision.
You’d think, then, that a new manifesto calling for a liberal overhaul of the Constitution from former Justice John Paul Stevens (who sat on the court for 35 years after being appointed by Gerald Ford in 1975, and who turned out to be surprisingly liberal himself) would come as sweet music to the ears of those of us dog-tired of the court’s current destructive path. You’d think so, but you’d be wrong.
Not that most of what Stevens proposes in his Six Amendments: How and Why We Should Change the Constitution, doesn’t make a lot of sense (with a few nitpicks). Writing with muscular legal logic but in easily accessible prose, Stevens argues that the Constitution itself was a compromise, cobbled together to please the then-reigning elites. “[The] important imperfections in its text were the product of compromises that were certain to require that changes be made in the future” to keep the nation’s charter relevant and timely. Yet, Stevens readily concedes that only 18 times in history has the document been modified. The last time was in 1992, a minor amendment that was first introduced some 200 years earlier. Several European countries rewrite their constitutions every couple of years.
The former justice says it’s time for all that to change, and he targets six broad categories or interpretations of the Constitution that he proposes be reformed and, in fact, formally amended.
Before I get into what I find is so unsettling about this book, let’s at least give Stevens some due process in arguing his case.
The six-pack Stevens proposes would (1) severely curtail individual states from skirting federal laws and mandates (see thwarted Medicaid expansion), (2) put an end to gerrymandering, (3) radically revisit the notion that “money is speech” and impose serious campaign finance limits, (4) abolish the death penalty, (5) strengthen and guarantee universal voting rights, and (6) reword the Second Amendment so that gun ownership would be restricted to those actually serving in an official government “militia,” i.e., no individual right to gun ownership.
Not pretending to be a legal scholar, I will refrain from any granular analysis of the briefs offered by Stevens in making his arguments, other than to repeat that, for the most part, they seem quite logical and persuasive. It seems rather evident at this juncture in our history that the ability of individual states to opt out of national reform legislation to this or that degree — be it on gun background checks or the unfettered right to choose an abortion — is a relic of the Civil War era and puts broad civil liberties and social justice at risk.
As is his argument for abolishing the death penalty. It’s a nice idea, especially after the recent butchery in Oklahoma, to leave the ranks of countries like Iran and Saudi Arabia and upgrade our penal system to something resembling modern times.
Stevens’s most important proposals concern reform of the political system. His slam on gerrymandering is right on target and quite timely given the upcoming 2014 elections. Some analysts project that less than just a few percent of eligible voters will actually decide the new congressional majority based only on which jiggered district they live in. Serious campaign finance reform as put forth by Stevens, overturning such abominations as Citizens United, seems an imperative if we are to preserve that Republic that Ben Franklin worried we could not keep. So, again, Stevens rings the bell.
Where he completely misfires (so to speak) is on his proposed reforms of the Second Amendment. He is particularly riled by the 2008 Heller decision, which capped decades, if not two centuries, of debate over what the hell the framers intended in the Second Amendment, which either meant you have a right to own a gun as part of an armed “militia” OR that you just have a right to own your own gun. Period. The Supremes, much to the delight of the NRA and much in line with the facts on the ground, went with the latter.
I am not prepared to debate the wisdom or lack thereof in Heller, but I do know something about guns and gun ownership and apparently somewhat more than Stevens. Like most liberals, his knowledge of the actual machinery is scant, and he makes continuous and serious errors in explaining the role of “automatic” as opposed to “semi-automatic” weapons, and this is much much more than a minor semantic error. Automatic weapons — machine guns — have been outlawed (with very very few minor exceptions) for some 80 years, and they are NOT responsible for any of the high-profile mass killings of our times and therefore not the problem that Stevens argues. Semi-automatics are the problem, and the rub is that outlawing semis would outlaw a majority of so-called “hunting rifles” as well as handguns using century-old technology, and even Grandpa’s souvenirs from “The Big One” or Korea.
Stevens wants to go even further by simply making all private gun ownership illegal. While I join him in his open disdain for the NRA, the scare-mongering arm of the gun-maker lobby, any proposal to ban guns in the United States is … um … not realistic. You can’t start history over, and our history has bestowed upon us an estimated 300,000,000 to 400,000,000 guns currently in circulation, most of which are built to last a century or more. The gun debate has been distorted by both sides, which, in common, invest the guns themselves with magical and mystical powers. For the gun control side, guns more or less radiate the vibes of the Devil, while Second Amendment proponents fetishize them as the highest material embodiment of Freedom. A serious debate about guns would focus less on the guns and much much more on the social inequities and social violence that make them such an attractive weapon of choice in ending disputes.
But what is really off with this book is Stevens’s arguments about amending the Constitution. He ably lays out in his introduction how Article Five of the Constitution, the one providing for amendments, was itself a concession to the weaker slave-holding states. To amend the constitution, you need a two-thirds vote in both houses of Congress. (When was the last time that happened, on any issue?) Oh yeah, after that little detail is overcome, you then need three-fourths of the states to ratify the Amendment for it to become law. In other words, Article Five was the poison pill the slave-holding elites put into our basic law to make sure nobody seriously fiddled with it for centuries to come.
Let’s put those majorities into some current political context. The Equal Rights Amendment, giving women across the board equal standing in all 50 states, passed (miraculously) by Congress in 1972 never got the 38 states it needed to ratify it. It’s a dead letter.
Obamacare itself, the Affordable Care Act, passed the Senate by one vote, not two-thirds — a figure it didn’t even come close to in the Democratic-controlled House. Universal gun buyer background checks proposed in the wake of the Sandy Hook massacre never made it past the Hill. And so on. Now, Justice Stevens, what exactly is the plan to confiscate 20 or 30 million Glock semi-automatics? Or to ban corporate money in campaigns? I could go on but I think the point is obvious.
What’s so damn frustrating about Stevens’s book is that he devotes exactly ZERO space to even speculating how, maybe, possibly, figuratively, any of this might come to be. This is truly the political manifesto of a pure Justice of the Supreme Court who apparently believes the constituency he needs to persuade is made up of just eight other people, or more likely, the one person of Anthony Kennedy.
Stevens does mention the roadblock of Article Five at the outset but then blithely just steers around it. I would have preferred the book turned on its head. Maybe just two or three pages synthetically summing up his proposed amendments and then the other 150 pages suggesting some way to amend Article Five so we can actually DO some of this.
Political change in this country, to a great degree, has come down from various incarnations of the Supreme Court — or Congress — reacting to massive political pressure being applied from the streets and suites. Not from polite and ultimately utopian pamphlets that offer no clue about how to build political movements for change.
While reading this book, I was reminded of one enlightening moment I had a couple of decades ago while covering the 1992 presidential primaries. Jerry Brown was running a pre-internet populist campaign for the White House against Bill Clinton by innovatively flashing his 800 number so people, for the first time ever, could make small immediate campaign donations to offset the fat-cat money being raked in by Clinton. One evening I caught up with Brown in his Santa Monica office for an interview and started asking him for details on his policy platform. Paraphrasing as closely as possible, Brown kept giving me the same answer. I am not going to propose any details, he insisted, because they don’t make any difference. No difference as long as Congress and the president are elected the way they are. I only have one proposal: limit campaign contributions to $100. Period. When we elect a government on that basis, then maybe we can talk about what it would really do.
Good idea. Cap contributions at $100. Amend Article Five. Either or both of these will not happen until millions of Americans exert the political will to make them happen.
Marc Cooper is a contributing editor to The Nation and associate professor and director of Annenberg Digital News at the USC Annenberg School for Communication & Journalism.