Former supreme court justice John Paul Stevens has just published a
book,
Six
Amendments, in which he proposes some very poorly worded
reforms, and some that are misguided in their intent. Here are the
amendments, with the key changes made in present provisions in bold:
- The “Anti-Commandeering Rule” (Amend the Supremacy Clause of
Article VI) — This Constitution, and the laws of the United
States which shall be made in pursuance thereof; and all
treaties made, or which shall be made, under the authority of
the United States, shall be the supreme law of the land; and the
judges and other public officials. in every state shall
be bound thereby, anything in the Constitution or laws of any
State to the contrary notwithstanding.
- Political Gerrymandering — 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 historical boundaries or demographic changes. The
interest in enhancing or preserving the political power of the
party in control of the state government is not such a neutral
criterion.
- Campaign Finance — 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.
- Sovereign Immunity — Neither the Tenth Amendment, the Eleventh
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.
- Death Penalty (Amend the 8th Amendment) — Excessive Bail shall
not be required, nor excessive fines imposed, nor cruel and
unusual punishments such as the death penalty inflicted.
- The Second Amendment (Amend the 2nd Amendment) — 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 demonstrates that even one whose job was to decide
constitutional cases does not thereby acquire the knowledge and
skills needed to competently draft amendments to the U.S.
Constitution. I estimate there are probably less than 200 such
persons alive, and none of them are on the federal bench.
Drafting competent constitutional amendments is awesomely difficult.
My attempt to do so is at
http://constitution.org/reform/us/con_amend.htm
and I am still making revisions from comments. I have not seen
better ones from people one might expect should be able to do this
kind of thing.
There are several things wrong with his proposed amendments.
First, an amendment should not restate what is already in the
Constitution, but only refer to what is being added or revised.
Now to discuss the flaws in each of his proposals, similarly
numbered:
- The wording is unclear as to whether it makes state actors
federal and subject to federal command, or omits to provide such
authority, making his amendment a nullity.
- Void for vagueness. My approach is to eliminate single-member
districts and go to a system of proxy voting for the lower house
of both Congress and the state legislatures. I also have a
non-amendment proposal for using a computer to randomly
draw districts using a mathematical algorithm.
- Interpreted strictly it would enable making campaigning a
crime, perhaps selectively enforced, which would not only be
ineffective but highly counterproductive of any rational
benefit. Horrible idea.
- His amendment only provides for construction of the U.S.
Constitution, but does not address immunity based on state
constitutions or judicial doctrine, federal or state, that don't
reference any constitution. Stevens lumps sovereign and official
immunity and covers only liability for violation of federal
statutes or Constitution. My amendment states: "Sovereign
immunity of a state or the nation shall not be a bar to
suit, only to execution of judgment against assets not
provided by an act of Congress or the state legislature for
payment of claims." I address official immunity in a separate
amendment that provides a procedure for removing it. "No person
shall be unreasonably impeded from access to a randomly selected
grand jury of 23, who, if they should return an indictment or
presentment, may appoint that person or any other to prosecute
the case, and shall decide which court, if any, has
jurisdiction, and whether any person shall have official
immunity from suit." Stevens only provides for states,
state agencies, or state officials, and not federal actors, and
not private actors acting at the direction or instigation of
public actors. I extend these reforms to federal actors and to
private actors under government instigation.
- Surplus language. Could have been simply stated: "The death
penalty shall not be imposed."
- Vaguely tries to suggest that "militia" is only some kind of
government-directed activity, while I make it clear it is any
defense activity, including solitary unorganized activity or
preparation for defense.
Readers are encouraged to submit suggestions for better wording of
my amendments.
-- Jon
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Constitution Society http://constitution.org
2900 W Anderson Ln C-200-322 twitter.com/lex_rex
Austin, TX 78757 512/299-5001 jon.r...@constitution.org
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