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Justice Stevens’s Liberty-Destroying Amendments: Part II

As promised in my previous column on the reception by the press and news media of Justice John Paul’s new book, Six Amendments: How and Why We Should Change the Constitution, I have read his book and now can review it here.

There is a prologue, an appendix containing the Constitution, and six chapters, each chapter devoted to one of Stevens’s recommended amendments. At the end of each chapter, after lengthy and often in-depth discussions of the history and role of the existing amendment in Supreme Court and other federal court decisions, Stevens states his amendment. Stevens is an excellent writer. His prose is clear and unburdened by jargon and legalese. One supposes that is a natural consequence of having written numerous 100-page or more opinions during a six-year stint on the U.S. 7th Circuit Court of Appeals, and then over a 35-year career on the Supreme Court.

Readers accustomed to encountering a concluding, assertive statement, followed by an explanation for the conclusion (e.g., at the beginning of a trial, a prosecutor would say, “The State will prove that John Doe murdered Bob Smith.”), will experience a reversal of that usual order of reasoning, which employs deduction and often induction. Stevens instead explains first, and concludes with his opinion at the end of each chapter (e.g., “Here is what happened, and why, this is what X said and this is what Y said, and the timetable; and the jury, in the end, must find John Doe guilty of murder.”).

Stevens’s writing style, however, is double-edged, for his hostility towards the existing amendments to the Constitution, three of which he wishes to rewrite, and three new ones he wishes to be added, is made clearer. That hostility is not disguised by verbose and affected discourse or by a sophist’s bewildering labyrinth of irrelevancies and false turns that would flat-line the mind of the sharpest reader. The six areas Stevens discusses are the “anti-commandeering” rule, political gerrymandering, campaign finance, sovereign immunity, the death penalty, and the Second Amendment (gun control). I shall address these subjects in the order in which Stevens presents them.

It would be fair to say up front that, in all cases and all issues he discusses, Stevens champions federal power and authority over that of the individual states (and, indirectly, over individual rights). In his Prologue, after briefly discussing how the withdrawal of federal troops in the Southern states in 1877 engendered the rise of the Ku Klux Klan (with the approbation of Southern Democrats), he inadvertently demonstrates how destructive Constitutional amendments can be.

In 1913 two amendments to the Constitution were adopted. The Sixteenth Amendment overruled the five-to-four decision of the Supreme Court in Pollock v. Farmers Loan and Trust Co. which had held that a federal statute imposing a tax on income violated the constitutional prohibition against unapportioned “direct taxes”; that amendment is the source of the federal power to impose an income tax. The Seventeenth Amendment replaced the practice of having United States senators chosen by state legislatures with direct elections by the people.

The Eighteenth Amendment, prohibiting the manufacture, sale, or transportation of intoxicating liquors, became effective in 1919; it was repealed by Section 1 of the Twenty-first Amendment in 1933. (pp. 9-10)

The destruction wrought by the Sixteenth Amendment needs no explication here. The Seventeenth Amendment clearly flies in the face of the Framers’ intention to create a legislative body that would serve as a check on populist legislation emanating from the House, and which, as a body, would be imbued with a higher degree of wisdom and integrity in the name of individual rights and limited government. Today, the Senate is a mere echo chamber of the House’s collectivist, statist agendas.

Reading Pollok case, it was interesting to learn that Congress had passed in income tax in 1894; the Supreme Court voided it in this case. It was also startling to learn that income taxes had been discussed in the early days of the Republic by some of the Framers. Abraham Lincoln signed the first income tax into law in 1861, to help finance the Civil War (it was repealed by Congress in 1872). And in every instance I could find, the issue confronting the opponents and advocates of income taxation of any kind was not the sanctity of private property, but rather the irrelevancies of whether or not the tax was a “direct” or “excise” tax, or whether or not it violated states’ rights vis-à-vis apportionment, and other technicalities About Pollock, The Chicago-Kent College of Law site notes:

The Court held that the act violated the Constitution [Article I, Section 9] since it imposed taxes on personal income derived from real estate investments and personal property such as stocks and bonds; this was a direct taxation scheme, not apportioned properly among the states. The decision was negated by the adoption of the Sixteenth Amendment in 1913.

In all of Stevens’s proposals, the issue of individual rights is never brought to the fore, positively or negatively; it is though they did not exist for him. Individual rights are invisible, they do not exist in his universe of political propriety. It was only the powers of the State that must be elucidated and sorted out; those powers, to the retired Justice, are of paramount importance.

In Chapter 1, Stevens discusses the background of the so-called “anti-commandeering” rule, established in 1997 by the Supreme Court in Printz v. United States, “a rule that prohibits Congress from requiring state officials to perform federal duties,” that is, “commandeering” the authority and persons of state or local officials to enforce federal law. Printz arose out of the attempted assassination of President Ronald Reagan in 1991, from the Gun Control Act of 1968 – “a detailed federal scheme governing the distribution of firearms” – and finally from the Brady Handgun Violence Act of 1993. Two law enforcement officers, one from Montana and one from Arizona, brought suit against the Brady Act that would establish a national background check system for buyers of firearms. They argued that it was an unconstitutional imposition on them to perform background checks at the behest of the federal government.

Stevens also, in the same chapter, includes the “commandeering” of state judges to enforce federal statutes. He regards it as disgraceful that state officials and state judges should be exempted from taking orders from the federal government to enforce its law. Why? Because it smacks of inefficiency when the federal government is pursuing a “common good” or acting in the “public interest.”

In addition to increasing the risk of a national catastrophe and hampering the federal government’s ability to make a prompt and effective response to disasters, the anti-commandeering rule also limits the government’s options in the routine administration of its programs. Federal programs involving the protection of the environment, the distribution of electric power, and the regulation of interstate transportation, as examples, may be implemented more efficiently by the reliance, in part, on state personnel instead of enlarging the federal bureaucracy. (pp. 27-28)

It does not occur to Stevens that a supremely “efficient” government is a totalitarian one, one to be feared. An “inefficient” one is merely authoritarian or statist, sustained by a mixed economy of regulations, controls, and “conditional” freedoms of trade and speech. The Nazis and Soviets ran very “efficient” governments. Further, the existence of the “anti-commandeering” rule has not contributed to federal regulatory bureaucracies swelling in size and power. They do that because of their intrinsic nature, coupled with a vested interest in their growth by their champions in Congress, their directors or heads, and federal employee unions. Stevens concludes:

Adding just four words – “and other public officials” – immediately after the word “Judges” in the Supremacy Clause, would, under the Court’s reasoning, expressly confirm the power of Congress to impose mandatory duties on public officials in every state. (p. 29)

I had expected Chapter 2, “Political Gerrymandering,” to be dull, plodding reading, and, indeed it was. Stevens begins the chapter with an explanation of the term “gerrymander.”

In 1811…the governor, Elbridge Gerry [of Massachusetts], and a majority of both branches of the legislature were Republican. In order to retain control of the government…they redrew the boundaries of the thirty senatorial districts, packing enough Federalists into a small number of districts to give the Republicans comfortable majorities in the others….The shapes of the districts drawn by Gerry’s partisans were anything but compact. Because one of them resembled a salamander, contemporary newsmen coined the term “gerrymander” to describe the governor’s electoral stratagem. Both the term and the stratagem have survived for the past two centuries. (pp. 33-34)

I will spare the reader Stevens’s account of how gerrymandering was and is still practiced in the United States. It’s much like describing how rival college fraternities and sororities conduct membership drives or “rushes” and divvy up campus turf in “spheres of influence.” The issue, for Stevens, is one of fair or equal representation of an electorate that is at the mercy of the district line drawers. Stevens doesn’t think they should have the power to disenfranchise one portion of the electorate at the expense of another. He writes:

Admittedly, the Constitution does not require proportional representation, but there is a world of difference between such a strict requirement and a more limited prohibition against a political party’s use of government power to draft bizarre districts that have no purpose or justification other than enhancing that party’s own power. Just as a controlling political party may not use public funds to pay its campaign expenses, it is also quite wrong to use public power for the sole purpose of enhancing the political strength of the majority party. (pp. 47-48)

That was just an introduction to Stevens’s real concern:

As discussed above, the gerrymandering process makes elections – both in districts the majority expects to carry, and in districts packed with voters who belong to the minority party – less competitive, and leads candidates, whether liberal or conservative, to adopt more extreme positions. Ending political gerrymandering will help promote political compromise. (pp. 53-54; Italics mine)

To end the nasty phenomenon of “extremism” and to foster the habit of compromise, Stevens recommends the following fresh new amendment to the Constitution:

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 party in control of the state government is not such a neutral criterion. (p. 55)

And what unbiased politico or consultant would establish that “neutral criteria”? Would a Federal Election Commission-like bureaucracy enforce it? And, it seems that any party that advocates individual rights (e.g., the Tea Party) must compromise with statists and Progressives in the holy spirit of “compromise.” Regardless of whether or not gerrymandering has governed the outcome of elections, that is precisely what has been happening without Stevens’s new amendment.

On to Chapter 3, “Campaign Finance.” Ever since the Supreme Court’s Citizens United v. Federal Election Commission ruling in 2010, liberals and Progressives like Stevens have been in a dither, if not in a rabid state of outrage. Corporations and businesses are as invisible to Stevens as individual rights, and have no First Amendment, freedom of speech protections. However, Oyez distills the muddled premises and reasoning of the ruling, for it was not an overwhelming victory for Citizens United.

The majority maintained that political speech is indispensable to a democracy, which is no less true because the speech comes from a corporation. The majority also held that the BCRA’s disclosure requirements [Bipartisan Campaign Reform Act (BCRA) of 2002, which established the Federal Election Commission or FEC] as applied to The Movie were constitutional, reasoning that disclosure is justified by a “governmental interest” in providing the “electorate with information” about election-related spending resources. The Court also upheld the disclosure requirements for political advertising sponsors and it upheld the ban on direct contributions to candidates from corporations and unions.

At issue was a movie released by Citizens United, Hillary: The Movie, which portrayed Hillary Clinton as unqualified to be president. Citizens United, a well-endowed political action committee (PAC), wanted to televise the movie within the FEC-enforced 30-day “gagging” period during a local or national election, in this instance, during the 2008 presidential primaries. The FEC had determined that neither the movie nor Citizens United was protected by the First Amendment, because, at any rate, Citizens United was a corporation, and that the movie itself was “campaign speech” that was restricted during a national election cycle. Citizens United sued the FEC over the various restrictions placed on corporations, citing violations of the First Amendment.

Stevens writes that there is nothing to fear from his proposed amendment:

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 kind of repetitive and excessive advocacy that the candidates typically employ. It would also repudiate both the holding and the reasoning in the Citizens United case, giving corporations an unlimited right to spend their shareholders’ money in election campaigns. (p. 78)

Do the shareholders want a corporation to spend their money advocating issues? To Stevens, their wishes are irrelevant. Do individuals who encounter “repetitive and excessive” advocacy mind such encounters? That’s irrelevant, too. Of course, those on the opposite side of an issue might mind it, but, like Muslims who object to critical things being said and written about Islam, they can just ignore it. Speech, written, oral, or visually, after all, is not a form of physical aggression or force. But Stevens doesn’t want the champions of big government and incremental socialism to be subjected to such “hate speech” over and over again. Poor babies! Stevens’s suggested amendment, which does require force, reads:

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. (p. 79)

Who will define what is “reasonable” and what is not? Is there an infallible mathematical formula that would define “reasonableness”? It would be okay, by Stevens, to abridge the scope of the First Amendment and thus violate its essential, fundamental meaning, just a little bit, to shut those wealthy, anti-big-government people up, and a public service, as well, don’t you see?

A telling aspect of Stevens’s book is that nowhere in his discussion of campaign finance does he address the influence of liberal/Progressive billionaires and millionaires on the political process, nor their own humongous contributions to the Democrats and liberal programs, nor the overflowing war chests and coffers of the Democratic Party in any given year. But, like the IRS, when it targeted conservative or Tea Party groups for audits and special scrutiny, but largely ignored the “deprecations” of liberal groups, the Federal Election Commission has a record of ignoring liberal/Progressive groups and fishing for evidence of wrongdoing by conservative or anti-big-government groups.

I don’t think senility can explain that particular omission in Justice Stevens’s book.

Part III of this column will discuss the last three of his proposed amendments, “Sovereignty,” the death penalty, and the Second Amendment.

Six Amendments: How and Why We Should Change the Constitution, by John Paul Stevens. New York: Little, Brown and Company/Hachette Book Group, 2014. 192 pp.