SIX AMENDMENTS: How and Why We Should Change the Constitution. By John Paul Stevens. Little, Brown & Co. 177 pages. $23.
Most people freely acknowledge that, where the U.S. Constitution is concerned, the Supreme Court's interpretive responsibilities are quite mysterious. No wonder, judicial adjudication about the Constitution's content is arcane, and often politically charged, yet dressed up in the language of legal precedent, settled law, and alleged intent of framers.
On the other hand, many people profess to understand the Constitution intimately. The truth is that one cannot plausibly claim to understand that text without having at least a rudimentary working knowledge of what the Supreme court has wrought with it.
John Paul Stevens' "Six Amendments" is a worthwhile, accessible and blessedly short reminder of just how much Supreme Court deliberations and rulings have come to color our understanding of the Constitution's content, sometimes giving it more specificity, sometimes twisting it to an entirely new meaning that serves either the ideological purposes of individual members of the court, or a collectively perceived social imperative.
Jeffrey Toobin, reviewing "Six Amendments" for The New Yorker, suggested that Stevens is still fighting yesterday's battles with his former colleagues. Toobin's assessment is misleading. Stevens does think the court has indulged itself in politically motivated overreach in recent years, and troubles to explain (politely) just how wrong his colleagues were in their deliberations - unusual behavior for a former Supreme Court justice. But "Six Amendments" is not simply reminiscence about old judicial regrets.
Stevens' proposals are motivated primarily by serious fears he has about the future of our nation. Two of his amendments have little to do with perceived misbehavior of his colleagues. One chapter, advocating an amendment to prohibit political gerrymandering of electoral districts, actually relies on some precedents created by a series of late-20th-century judicial decisions to construct the language of the proposed amendment.
Another chapter, advocating a modification of the Eighth Amendment to prohibit the death penalty, is an expression of Stevens' regret about his own 1976 decision during his first year on the bench, when he voted with the 7-2 majority to restore the death penalty in Gregg v. Georgia, after a four-year court-imposed hiatus.
Even these proposals have problems. The argument he offers for modifying the Eighth Amendment - "nor cruel and unusual punishments such as the death penalty" (italics added to the original) - doesn't speak to the issue. He appeals to neither cruelty nor rarity of the death penalty, but to its irrevocability in the face of our undeniable capacity to wrongly convict. That's a reason for a very different amendment.
The proposal he offers to eliminate gerrymandering - requiring that districts be compact and composed of contiguous territory - is unlikely to achieve the stated goal. The standard of compactness itself licenses a form of judicial aesthetic subjectivism that might be implemented in politically motivated ways.
As for Stevens' battle with the conservative ascendency on the court, he does think his former colleagues blundered in several high-profile decisions, including:
Citizens United v. Federal Election Committee, the 2010 decision which opened the floodgates to more direct corporate and labor union financing of elections. Stevens' proposed amendment would allow Congress and the States to impose "reasonable limits" on the amount of money that could be expended on campaigns.
D.C. v. Heller and McDonald v. Chicago, the 2008 and 2010 decisions devising the novel doctrine that the common law right of self defense is enshrined in the Second Amendment, constraining State as well as federal gun control laws in significant ways.
The social policy problems exacerbated by these decisions are quite real, and concisely explained by Stevens. His proposed amendments, however, are touchingly optimistic. What would a polarized court say, for example, about the meaning of "reasonable limits" in his campaign spending amendment?
Or consider his proposed solution of the damage that may potentially be wrought by the two gun control cases - insert the following boldfaced phrase in the Second Amendment in order to clarify its original meaning:
"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."
Stevens' analysis of the original purpose of the Second Amendment is, unlike Antonin Scalia's self defense analysis in his Heller majority, historically plausible. But an amendment which simply chooses sides in this politically charged historical debate is unlikely to attract supermajority support in our polarized Congress, polarized State legislatures, or even among our polarized citizenry.
More significantly, why would we even want to salvage an amendment which, so understood, is as much of a cultural antique as the Seventh Amendment, which grants defendants in civil suits valued at $20 or more the right to demand a jury? Given the nature of modern military technology, the guns issued to National Guard personnel are stored, for good reasons, in military armories, not in the homes of Guard members, eliminating the need to "keep and bear arms" for that purpose. Why wouldn't we simply repeal the Second (and Seventh) Amendments instead?
Scalia's contention that the Second Amendment enshrines a right of self-defense in the Constitution is pure judicial invention, born of his libertarian-laced conservative ideology. But William O. Douglas, motivated by a different, left-libertarian political ideology two generations ago, was equally inventive, declaring a broad non-textual Constitutional right of privacy in order to repudiate an archaic sexist anti-contraception law in Griswold v. Connecticut.
Stevens, unlike both Scalia and Douglas, is a judicial moderate in the mold of Douglas's contemporaries, Potter Stewart and Hugo Black. Although these two both deplored Connecticut's anti-contraception law, they also dissented from Douglas' Griswold plurality because they could find no sufficiently broad right of privacy in the Constitution's text or history to invalidate Connecticut's law.
Stevens also believes Constitutional text transmits a distinctive body of substantive content that ought to be respected. Many other Supreme Court justices, Antonin Scalia, Chief Justice John Roberts, and even Douglas among them, profess to share those same values, but in fact engage in what Richard Posner and others have derisively labeled "law office history": authoritative-sounding historical fictions crafted to serve some political agenda.
But Stevens' approach fails to address this question: What should we do when judicial invention itself becomes enshrined as part of our Constitutional lore? This is what has become of Douglas' right of privacy, and is probably happening now with Scalia's ahistorical self-defense interpretation of the Second Amendment. It's hard to imagine future Constitutional jurisprudence under which all informal judge-made "amendments" to the Constitution were summarily abandoned.
The worry, of course, is this: just how much latitude should Supreme Court justices award themselves to amend the Constitution as they see fit? The real lesson of "Six Amendments" is that this is a delicate balancing act, and judicial excesses sometimes have to be reined in.
Reviewer Richard Nunan is a professor of philosophy at the College of Charleston.