1. The Anti-Commandeering rule
2. Partisan Gerrymanders
3. Campaign Finance
4. Sovereign Immunity
5. The Death Penalty
6. The Second Amendment (Gun Control)
“The first four would nullify Judge-made rules; the fifth would expedite the demise of the death penalty, and the sixth would confine the coverage of the Second Amendment to the area intended by its authors.” (All quotes in this article are from Justice Stevens in the book.) “As time passes, I am confident that the soundness of each of my proposals will become more and more evident, and that ultimately each will be adopted. The purpose of this book is to expedite that process and to avoid future crises before they occur.”
1.The “Anti-Commandeering” Rule
The “anti-commandeering” rule prohibits Congress from passing laws that require state officials to enforce or implement federal laws. For example, the Brady Act required the Attorney General to establish a national instant-background check system to prevent felons and persons with mental problems from buying guns. Because of this judge-created rule county sheriffs cannot participate in background checks for gun purchasers, despite overwhelming evidence that police officers and their national organizations support doing background checks on gun purchasers. Why do we need a constitutional amendment?
In a 1997 case, Printz v. United States 521 U.S.898 (1997) the Supreme Court interpreted the Supremacy Clause as applying only to State Judges, not other state officials.
“It creates a serious risk that the federal response to national catastrophes or acts of terrorism will be inadequate; it also impairs the efficient administration of ordinary federal programs.” . What would the Constitutional amendment state?
Four words would be added to the Supremacy Clause, the second paragraph of Article VI in the Constitution. The four words “and other public officials” would be added after the word Judges, as follows:
“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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
“Three characteristics identify every political gerrymander. First, it is a product of decisions made by a political party in control of state government; second, it benefits that party by increasing the number of elections that its candidates will win; and third, it contains districts that are anything but compact – districts with bizarre shapes that prompt observers to question the motives of their architects.”
“What Justice Antonin Scalia described in an opinion written in 2004, as “severe partisan gerrymanders” are, in his judgment, incompatible with democratic principles. Neither he nor (as far as I am aware) any other federal judge ever denied that such gerrymanders violate the Constitution. The extensive judicial debate which has existed for years is whether it is for the courts to say when a violation has occurred and to design a remedy. During that debate, I do not believe any judge has had anything good to say about partisan gerrymanders. There should, therefore, be overwhelming support for an Amendment to the Constitution that merely requires federal judges to apply the same rules in cases challenging political gerrymanders that they have applied to racial gerrymanders.’’ Why do we need a constitutional amendment?
A 2004 Supreme Court case, Vieth v. Jubelirer, 541 U.S. 267 (2004) held that there were no judicially discernible and manageable standards to apply, and therefore the Court could not decide the issues of political gerrymandering. The issue was nonjusticiable. What would the Constitutional Amendment state?
“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 power of the party in control of the state government is not such a neutral criterion.”
3. Campaign Finance
3.1 For 100 years (1907 – 2010) Corporations could not contribute to federal political campaigns.
Justice Stevens reviews the history of regulating money spent by corporations and unions in political campaigns. He starts with President Theodore Roosevelt’s request in 1906 for Congress to pass a law forbidding corporations from contributing to any political committee for any political purpose. In 1907 Congress passed the Tillman Act which completely banned corporate contributions in connection with any federal election.
Both corporations and unions were prohibited from contributing to political campaigns in the Taft Hartley Act of 1947. They were required to use segregated funds (PACs.)
In Austin v. Michigan Chamber of Commerce, 494 U.S.652 (1990), the Supreme Court held that political speech could be banned based on the speaker’s corporate identity. A Michigan statute that prohibited corporations from spending any money in election campaigns for state office was constitutional. This was in 1990. It became the model for the Bipartisan Campaign Reform Act, discussed below.
In 2003, in an opinion written jointly by Justice John Paul Stevens and Sandra Day O’Connor, the Court upheld the Bipartisan Campaign Act (BCRA) passed in 2002 and sometimes referred to as McCain/Finegold. McConnell v. Federal Election Commission, 540 U.S.93 (2003)
Corporations and Unions could not give directly to candidates or political campaigns, but the people in the corporations and unions could speak politically through PACs, a separate legal entity. Corporations could ask their shareholders, executive and administrative personnel and their families to contribute money for a segregated fund (PAC) to be utilized for political purposes. Corporations and labor union could not ask any persons outside of the corporation or union to contribute to the PAC. Any employees being solicited to contribute had to be told of the political purpose of the fund, and that they had a right to refuse without any reprisal.
All the people associated with a corporation or union had the right to speak on behalf of their corporation or union – even on the eve of an election.
This is what we lost when Citizens United v. Federal Election Commission, 558 U.S.50 (2010) was decided. (I added these last three paragraphs, which Justice Stevens did not discuss.)
3.2 One hundred years of history is overturned with the Citizens United v. FEC decision.
Justice Stevens joined the Court in November, 1975 at a time when the Court was discussing Buckley v. Valejo, 424 U.S. 1 (1976). He did not participate in the decision but he read all the briefs being circulated among the judges. (Buckley v. Valejo is the case that decided contributions to political campaigns could be limited because of the possibility of corruption, but expenditures by candidates could not be limited. No corporations were involved, only wealthy people.) In his view, the central mistake the Court made was “whether limits on campaign expenditures may be justified by the interest in providing opposing candidates with an equal opportunity to persuade their fellow citizens to vote for them.” He thought expenditures by candidates could be limited, but they might violate the First Amendment if the amounts of money allowed were so low that rival candidates didn’t have an adequate opportunity to explain to voters why they should win an election.
Justice Stevens did not repeat the arguments made in his 86 page dissent – which I regret. It could easily have been attached as an appendix. Justices Ruth Bader Ginsberg, Steven Breyer, and Sonia Sotomayor joined in his dissent, and he was told that Justice David Souter would have joined him had he still been a member of the Court and Elena Kagan would have, too, if she had been a member of the Court when Citizens United was decided.
Justice Stevens gave a very brief history of the Citizens United case. “Citizens United is a wealthy nonprofit corporation that runs a PAC with millions of dollars in assets …. In 2008 it released a ninety-minute film about then-Senator Hillary Clinton, who was a potential candidate for president; the films unambiguous opposition to her candidacy qualified it as campaign speech.’’
“Under the Bipartisan Campaign Reform Act (BCRA) the film could not be shown in the 30 days before a primary election. Citizens United sought an injunction from the Federal Election Commission against enforcing BCRA on the grounds that the statute should not apply to a non-profit corporation; and the movie was not an electioneering communication.’’
The District Court did not grant an injunction; Citizens United appealed to the Supreme Court. (“A three judge district court ruling is appealable directly to the Supreme Court.”)
“By a vote of 5-4, the Court ruled for Citizens United and essentially held that corporations have an unlimited constitutional right to finance campaign speech.” The Court over-ruled Austin v. Michigan Chamber of Commerce “apparently affording the same constitutional protection to election-related expenditures by corporations as to speech by individual voters.”
“The decision in Citizens United took a giant step in the wrong direction. Its most serious consequences can be eliminated without a total prohibition against the use of corporate funds in campaigns. 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 kinds of repetitive and excessive advocacy that the candidates typically employ.”
Justice Stevens thinks that “preventing wealth from becoming the deciding factor in contested elections is valid and significant.” “Voters who believe the power of the purse will determine outcome of elections are more likely to become bystanders rather than participants in the political process. Candidates would also benefit by being insulated from the influence inevitably exerted by the endless job of raising increasingly large sums of money. The advantages of imposing reasonable limits on the amount of money that the candidates and their supporters may spend during election campaigns clearly outweigh the disadvantages.” Why do we need a constitutional Amendment?
Only a constitutional amendment will overturn Citizens United v. FEC. What would the constitutional amendment state?
“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.”
4. Sovereign Immunity
Justice Stevens calls Sovereign Immunity “a doctrine that never should have been adopted in a democracy.” It is a doctrine established in 1600 when Henry the IV was king of England and there was a belief that “the king can do no wrong.”
After the American Revolution, there was a fear that federal judges would require states to pay their war debts – debts incurred in the war for independence from England. Alexander Hamilton assumed states would be protected by sovereign immunity. But in a 1793 decision, a citizen of South Carolina sued the State of Georgia, Chisholm v. Georgia, 2 U.S.(2 Dall) 419 (1793) and the Supreme Court determined that the doctrine of sovereign immunity was not available as a defense.
Two years later, the states reacted to Chisholm by ratifying the Eleventh Amendment, which provides that “The Judicial Power of the United States does not extend to suits in which a state is sued by a citizen of another state.”
The Eleventh Amendment did not change diversity cases, in which a citizen of one state sues a citizen of another state. Nor did it change federal question cases. It protects states from suits by creditors. It still permits suits against state officials.
After the Civil War, Louisiana adopted a new state constitution, and repudiated the state’s obligation to make payments on bonds owned by New York residents. Louisiana v. Jumel, 107 U.S.711 (1883) The Supreme Court decided that the 11th Amendment prevented the New York residents from collecting any payments on their bonds.
In 1974, Justice Rehnquist dramatically expanded the reach of sovereign immunity in a law suit brought by aged, blind and disabled people who sought to impose liability for past violations of federal law. Edelman v. Jordan 415 U.S.651 (1974) The Rehnquist opinion held that their claims were barred by the Eleventh Amendment.
Currently, law suits presenting federal questions are being defended by arguing the Eleventh Amendment. Why do we need a Constitutional Amendment?
“Congress’s power to enact laws that impose obligations on states and state agencies should include the power to authorize effective remedies for violations of those federal commands. The fact that a hospital is owned by a state should not provide it with a sovereign immunity defense to a claimed violation of federal law for which an otherwise identical hospital that is owned by a charity or a municipality would be liable. It is simply unfair to permit state-owned institutions to present defenses to federal claims that are unavailable to their private counterparts. A university should be equally responsible for copyright or patent infringement whether it is owned privately or by a state. It does not make sense to provide a police officer employed by the state of New York with a defense to a claim that he violated a suspect’s constitutional rights that is not available to an officer employed by the City of New York.” What would the Constitutional Amendment state?
“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.”
5. The Death Penalty
Justice Stevens recalls a trip to Finland, and a press conference arranged by our Ambassador to Finland, in which one question predominated: “Why does the United States still have the death penalty?” His answers did not satisfy either the press or himself.
(Eighteen states have now eliminated the death penalty.)
Justice Stevens argues that because most states authorize life imprisonment without the possibility of parole, “It can no longer be argued that execution of a potentially dangerous offender is necessary in order to remove the risk that he will commit further crimes.” “The real justification for preserving capital punishment surely rests on the interest in retribution. An eye for an eye and a tooth for a tooth” explains why we still have the death penalty.
In Ford v. Wainwright, 477 U.S.399 (1986) the Supreme Court forbid capital punishment of the insane, so some people who are on death row now cannot be executed because they exhibit symptoms of insanity.
“In 2008 in Baze v. Rees 553 U.S.35 (2008) the Supreme Court upheld the constitutionality of Kentucky’s method of executing its prisoners who have been sentenced to death. At the time, the state used a three-step lethal injection procedure similar to that used by the federal government and most other states.”
“The first drug, sodium thiopental, is a barbiturate that makes the prisoner unconscious; the second, pancuronium bromide, causes paralysis, and the third, potassium chloride causes a fatal heart attack. The purpose of the barbiturate is to prevent the prisoner from feeling the pain caused by the second injection. The second does not serve any therapeutic purpose; it is used to preserve the dignity of the procedure by preventing involuntary muscle movements that observers might incorrectly perceive to be convulsions or seizures caused by severe pain. Because it masks any outward sign of distress, pancuronium bromide creates a risk that the inmate will suffer excruciating pain before death occurs.”
“There is a general understanding among veterinarians that the risk of pain is sufficiently serious that the use of pancuronium bromide should be prohibited when an animal’s life is being terminated. As a result of that understanding among knowledgeable professionals, Kentucky, like several other states, has enacted legislation prohibiting the use of the drug in animal euthanasia. The inmate petitioners in the Base case argued that Kentucky should not be permitted to kill them by using a drug that it would not permit to be used on their pets.”
“Nevertheless, after hearing extensive testimony by experts and by Kentucky corrections officials during a seven-day bench trial, the Kentucky trial judge rejected the inmates’ challenge to the constitutionality of the procedure because he was not convinced that it created an unreasonable risk of causing excruciating pain. The Kentucky Supreme Court affirmed, as did the United States Supreme Court.”
Justice Stevens points out that codes of ethics of the American Medical Association, The American Nurses Association, and the National Association of Emergency Medical Technicians prohibit their members from taking part in executions.
“More recently, Kentucky has announced that it will join Texas, Arizona, Ohio, and seven other states that now use and employ a single dose of a barbiturate … in future executions.”
Justice Stevens ends his discussion with an awareness that innocent people have been put to death. This has been confirmed during the period after 1989 when DNA testing became available.
He also discusses a Kansas case in which the jury was instructed that “if they concluded in the penalty phase of the trial that the aggravating evidence favoring a death sentence and the mitigating evidence supporting a lesser sentence were in equipoise, the jurors should sentence the defendant to death.” The Kansas Supreme Court set aside the death sentence, but “By a vote of five to four the U.S. Supreme Court held that the instruction was proper and reversed the judgment of the state supreme court.” Why do we need a constitutional amendment?
The risk of killing an innocent civilian is at the heart of Justice Steven’s proposal. What would the Constitutional Amendment State?
“That risk can, and should, be eliminated by adding five words to the text of the Eighth Amendment, which already prohibits the states as well as the federal government from imposing cruel and unusual punishments. The inclusion of the words “such as the death penalty” in the text of that amendment would make it read:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.”
6. The Second Amendment (Gun Control)
“Each year over 30,000 people die in the United States in firearm-related incidents. Many of those deaths involve handguns.”
“The first ten amendments to the Constitution placed limits on the powers of the new federal government. Concern that a national standing army might pose a threat to the security of the separate states led to the adoption of the Second Amendment, which provides “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.”
“For over two hundred years following the adoption of that amendment federal judges uniformly understood that the right protected by that text was limited in two ways: first, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. Thus in United States v. Miller, 307 U.S. 174 (1939) the Court unanimously held that Congress could prohibit the possession of a sawed-off shotgun because that sort of weapon had no reasonable relation to the preservation or efficiency of a “well regulated Militia.”
“When I joined the Court in 1975, that holding was generally understood as limiting the scope of the Second Amendment to uses of arms that were related to military activities. During the years when Warren Burger was chief justice, from 1969 to 1986, no judge or justice expressed any doubt about the limited coverage of the amendment, and I cannot recall any judge suggesting that the amendment might place any limit on state authority to do anything.”
“Organizations like the National Rifle Association disagreed with that position and mounted a vigorous campaign claiming the federal regulation of the use of firearms severely curtailed Americans Second Amendment rights. Five years after his retirement, during a 1991 appearance on the MacNeil/Lehrer News Hour, Burger himself remarked that the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word ‘fraud’, on the American public by special interest groups that I have ever seen in my lifetime.”
“In recent years two profoundly important changes in the law have occurred. In 2008, by a vote of five to four, the Court decided in District of Columbia v. Heller 554 U.S. 570 (2008) that the Second Amendment protects a civilian’s right to keep a handgun in his home for purposes of self-defense. And in 2010 by another vote of five to four, the Court decided in McDonald v.Chicago, 130 S.Ct.3020 (2010) that the Due Process Clause of the Fourteenth Amendment limits the power of the city of Chicago to outlaw the possession of handguns by private citizens.”
Justice Stevens dissented in both cases. He blames Congress for not doing more.
In the Heller decision, Justice Scalia, went out of his way to write a narrow decision on the right to keep handguns at home for self-defense. “Prohibitions on carrying concealed weapons, on the possession of firearms by felons and the mentally ill, and laws forbidding the carrying of firearms in sensitive places such as schools and government buildings or imposing conditions and qualifications on the commercial sale of arms are specifically identified as permissible regulations.” Why do we need a Constitutional Amendment?
We need to restore the Second Amendment to its proper role as understood by federal judges for over two hundred years: to apply it only for keeping and bearing arms for military purposes, and to eliminate any interpretations that pose any limit on the power of state and local governments to regulate the ownership of use of firearms. What would the Constitutional Amendment state?
It would add five words to the Second 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.”