Democracy in Danger
A friend who sits in the legislature of my home state, Washington, recently told me he was thinking about sponsoring a bill calling for a constitutional convention and asked me what I thought. Although the framers provided for this process to amend our charter of government, throughout American history all attempts to make that happen have failed to garner the requisite support from two-thirds of the states. Most thoughtful observers have feared that this meeting might open up a constitutional can of worms. Yet I told my friend, half-seriously, that he ought to go ahead because such a desperate measure might be needed to cope with the dreadful rulings of our current Supreme Court.
In a highly-readable new book, however, retired Supreme Court Justice John Paul Stevens proposes that we stick with the alternative, time-honored method of changing the Constitution by adopting particular amendments. That itself is no easy task requiring approval of two-thirds of each House of Congress and ratification by three-fourths of the states. Aside from the first 10 amendments that were added as the Bill of Rights soon after our nation began, the Constitution has been amended only 17 times in over 200 years. And that is even more unlikely today given the polarized political climate—particularly with the controversial changes that Justice Stevens is proposing.
Yet knowing all that, Stevens is undaunted. He is now 94 and stepped down from the high court just four years ago after serving there for over 34 years. Appointed by a Republican president, Gerald Ford, he was at first part of the court’s moderate wing, but by the time of his retirement he was its most liberal. Stevens’s transformation might be best explained by a comment from Justice Felix Frankfurter about his years on the Court, “I didn’t change, everyone around me did.”
As Stevens implies in his earlier memoir, Five Chiefs, the opinions of new justices appointed by Republican presidents made his earlier approach seem progressive. His most bitter remark about the politicization of the court came in his dissent in Bush v. Gore. Protesting that his conservative colleagues would not let the state judges in Florida proceed with the vote count in the 2000 presidential election, he wrote, “The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land.”
Yet during his tenure Justice Stevens’s constitutional vision also clearly deepened; in Six Amendments: How and Why We Should Change the Constitution he gives us the benefit of those insights. He makes these proposals, he says, as part of a continuing response to the capacious charge of America’s founders “to form a more perfect union.” And his well-argued suggestions are targeted to reverse ill-considered Supreme Court decisions or long-standing practices that he sees as undermining the strength of our nation and our democratic values.
Two of his amendments take aim at deficiencies in our election process. Federal courts have historically tolerated gerrymandering of legislative districts except in recent decisions when it has disenfranchised minorities. Stevens rightly asserts, however, that this perverse practice can be just as harmful to our country when it is done to entrench the power of one political party. Not only does it stack elections in favor of candidates from that faction, it also sends partisans to Congress. The result, as many have observed, is a national legislature in the control of extremists who are unwilling to compromise.
Even more deleterious to our democracy, Stevens points out, is the notorious Citizens United case that struck down restrictions on corporate campaign contributions because they violate the First Amendment. One of the justice’s last major opinions was a lengthy dissent from that decision where he showed that the majority’s jurisprudence was totally foreign to the intent of our country’s founders. In his book Stevens also forcefully describes how unlimited campaign expenditures corrupt our political process by making wealth the deciding factor in elections.
In two more of his proposed amendments, Stevens seeks to remedy other large shortcomings in our governmental structure that have been brought about by the narrow “states’ rights” views of some of his colleagues. One would overturn a ruling that state officials do not have to assist the federal government in background checks for gun ownership. Such an approach, says Stevens, not only hampers federal law enforcement efforts that might be necessary in a situation like the Sandy Hook/Newtown shooting, but could even cause wider harm by impeding measures necessary for national defense.
His next amendment would correct any impression that sovereign immunity could be used by states to frustrate federal laws, in particular those that promote civil rights. Justice Stevens’s discussion of the history of that antiquated doctrine is impressive and culminates with his conclusion that “The Sovereign can do no wrong” philosophy underpinning it directly contravenes our commitment to justice under law.
In advocating for his last two amendments Justice Stevens makes his most forceful arguments for policies that will make the United States a more civilized society. He points out how recent Court rulings striking down state and municipal gun regulations are contortions of the original and long-accepted meaning of the Second Amendment that it applies only to state militias. Neither the Constitution nor logic, he says, should interfere with what local officials believe is necessary to curb the rampant gun violation in our society. School shootings and other mass killings are “an ongoing national tragedy” and the law should do everything it can “to encourage intelligent discussions of possible remedies.”
As for the death penalty, which he originally supported, Stevens now regards it as a national embarrassment. Writing even before this summer’s botched executions in Oklahoma and Arizona, he says that our current procedures allow prison officials “to make mistakes that will cause excruciating and undetectable pain.” Life in prison without parole, he argues, should suffice to keep dangerous individuals out of society and deter homicidal activity. That leaves only retribution as a logical justification for the death penalty. But who these days, says Stevens, wants to think of the government as a cold-blooded killer? In addition, the ever-present possibility of innocent defendants being given this ultimate and irreversible punishment should now convince us that America is better than the death penalty.
There may be little chance that these amendments will be formally adopted, but as Stevens well knows, the court itself has the power to modify or even reverse its earlier decisions. As he points out, it did just that in Citizens United and in its recent rulings on the Second Amendment. So the justice’s contribution to our constitutional discourse is hardly a futile effort; rather it is gift to our nation.
Stevens was the last veteran of World War II to sit on the Court. When he ended his distinguished judicial career commentator E.J. Dionne called him “The greatest Justice of the greatest generation.” With the publication of Six Amendments we should again thank him for his service to our country.