Nel's New Day

January 28, 2015

Fix the Supreme Court’s Constitution

Conservative justices serving on the Supreme Court try to make people believe that every ruling that they make follows the U.S. Constitution literally—just as fundamentalist Christian leaders swear that every word out of their mouths came from their bible. Both conservative elements are wrong, however, and retired Justice John Paul Stevens has written a book suggesting how the constitution can be brought back into its original text. Six Amendments: How and Why We Should Change the Constitution presents these recommendations with an explanation of the problem and the history to the issues.

Following is a summary of these amendments, thanks to a posting on Daily Kos.

The “Anti-Commandeering” Rule: A 1997 5-4 ruling bans Congress from ordering state officials to carry out federal duties because two county sheriffs didn’t want to carry out Brady Act-mandated background checks for firearm sales. Now people prone to violence, such as the Virginia Tech mass shooter in 2007, can easily get guns. The ruling also affects other federal laws such as emergency responses to national catastrophes and acts of terror.

Suggested amendment adding the four words in boldface to the Constitution’s Supremacy Clause: “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.”

Political Gerrymandering: The practice of gerrymandering, loading districts with people registered in one political party, makes politicians more radical and elections less competitive, according to Stevens. A 1986 Supreme Court ruling eliminated most challenges to state legislatures controlling elections of U.S. House members: “[A] finding of unconstitutionality must [show] continued frustration of the will of a majority of the voters or effective denial to a minority of the voters of a fair chance to influence the political process.” Stevens believes that public power should not be allowed to enhance “the political strength of the majority party.”

Suggested amendment: “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.”

Campaign Finance: Congress passed a law 108 years ago that banned all corporate contributions to political candidates; this federal law was followed by many states passing total bans of corporate activity to influence public policy. The laws were slowly reversed, culminating in the 2010 Supreme Court disaster that gave corporations the unlimited right to finance campaign speech. Feeling that they had not gone far enough, the same five justices struck down any limit on total donations a person could make to candidates four years later, giving rich persons the right to spend millions in a single election. Three “sulky Supremes”—Justices Alito, Scalia, and Thomas—annually boycott President Obama’s State of the Union speech because he disagrees with their ruling. Thanks to the Supreme Court, the two Koch brothers plan to spend almost $1 billion in the 2016 election—more than the GOP—to control the results. Stevens purports that the problem can be solved by an amendment stating that corporations are not persons and money is not speech.

Suggested amendment: “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: Citizens of one state are banned from suing another state in federal court, according to the 11th Amendment. This legal doctrine of “sovereign immunity” originated in 1400 when the king didn’t want to be sued without his consent. It shields the “sovereign,” any of the individual states, from court action by putting it above the law. Stevens disagrees and gives the argument against this amendment from Chief Justice Oliver Wendell Holmes: “It is revolting to have no better reason for a rule of law than that it was so laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since and the rule simply persists from blind imitation of the past.” Chief Justice William Rehnquist began a spate of rulings that extended sovereign immunity and weakened state compliance with national law. For example, Illinois avoided paying damages for non-compliance with a federal law for aiding aged, blind and disabled persons in 1974, and 15 years later the Rehnquist Court used this unwritten state sovereignty rule to keep Congress from authorizing the suing of a state of violating the Fair Labor Standards Act. In this case, Maine successfully refused to pay probation workers overtime. According to Stevens, state-owned institutions such as hospitals or police forces should not have a defense to federal claims that private institutions lack.

Suggested amendment: “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.”

The Death Penalty: Arguments for the death penalty such as deterrence of crime are invalid, and DNA technology shows that many convicted murders, some already put to death, are innocent of the crime. Supreme Court rulings, including upholding a judge’s jury instruction to choose death when the evidence for and against it is balanced, made the death penalty more likely.

Suggested amendment adding the five words in boldface to the 8th Amendment: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted.”

Gun Control: No amendment has been more debated in the past few years than the 2nd Amendment. For over two hundred years, federal judges ruled two limitations of this amendment: it applies only for military purposes; and while it limits the power of the federal government, it does not limit the power of state or local governments to regulate ownership or use of firearms. Twice, however, the Roberts Court ruled against governments trying to control gun violence. One was creating a new constitutional right for a resident in Washington, D.C. to keep a handgun in the home, and the other extended this newly-created constitutional right to states.

Suggested amendment returning the 2nd Amendment to its original meaning and the power of regulating firearms to state and local governments with the five words in boldface: “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.” 

In an interview with NPR, Stevens said:

“I think in time that what I have to say about each of these six issues will be accepted as being consistent with what the framers really intended in the first place. I think in time, reason will prevail.”

We can only hope. 

Referenced Supreme Court Cases:

  • Printz v. United States: 1997. 5-4 ruling. Bans Congress from ordering state officials to carry out federal duties. Holding: Scalia, Rehnquist, O’Connor, Kennedy, Thomas; Dissenting: Stevens, Souter, Ginsburg, Bryer.
  • Davis v. Bandemer: 1986. 7-2 ruling. Adopts a lofty and cloudy standard for unconstitutional gerrymandering. Holding: White, Brennan, Marshall, Blackmun, Burger, O’Connor, Rehnquist; Dissenting: Powell, Stevens.
  • Citizens United v. FEC: 2010. 5-4 ruling. Gives corporations the unlimited right to finance campaign speech. Holding: Kennedy, Roberts, Alito, Scalia, Thomas; Dissenting: Stevens, Ginsburg, Breyer, Sotomayor.
  • McCutcheon v. FEC: 2014. 5-4 ruling. Gives individuals the right to spend millions in a single election. Holding: Roberts, Scalia, Kennedy, Alito, Thomas; Dissenting: Breyer, Ginsburg, Sotomayor, Kagan.
  • Edelman v. Jordan: 1974. 5-4 ruling. Lets Illinois avoid paying damages for past non-compliance with a federal law for aiding aged, blind and disabled persons. Holding: Rehnquist, Burger, Stewart, White, Powell; Dissenting: Douglas, Brennan, Marshall, Blackmun.
  • Alden v. Maine: 1999. 5-4 ruling. Cites an unwritten state sovereignty rule imagined to be in the “plan of the [Constitutional] Convention” and forbids Congress to authorize suing a state for violations of Fair Labor Standards Act. Holding: Kennedy, Rehnquist, O’Connor, Scalia, Thomas; Dissenting: Souter, Stevens, Ginsburg, Breyer.
  • Baze v. Rees: 2008. 7-2 ruling. Holds that Kentucky’s three-drug death penalty system is not “cruel and unusual.” Holding: Roberts, Kennedy, Alito, Breyer, Thomas, Scalia, Stevens; Dissenting: Ginsburg, Souter.
  • Kansas v. Marsh: 2006. 5-4 ruling. Allows a judge’s jury instruction to choose the death penalty when aggravating and mitigating evidence were equal in weight. Holding: Thomas, Roberts, Scalia, Kennedy, Alito; Dissenting: Stevens, Souter, Ginsburg, Breyer.
  • United States v. Miller: 1939. 8-0 ruling. Holds that Congress can ban possession of a sawed-off shotgun because that weapon has no reasonable relation to “a well regulated Militia.” Holding: McReynolds wrote unanimous opinion; Not Involved: William O. Douglas.
  • District of Columbia v. Heller: 2008. 5-4 ruling. Overturns a Washington, D.C., law and creates a new Constitutional right for a civilian in D.C. to keep an enabled handgun at home for self-defense. Holding: Scalia, Roberts, Kennedy, Thomas, Alito; Dissenting: Stevens, Souter, Ginsburg, Breyer.
  • McDonald v. Chicago: 2010. 5-4 ruling. Overturns a Chicago handgun ban and extends the Court’s newly-created Constitutional right for a civilian to keep a handgun to the states. Holding: Alito, Roberts, Scalia, Kennedy, Thomas; Dissenting: Breyer, Ginsburg, Sotomayor, Stevens.
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