Tag: John Paul Stevens

Stevens Advocating for the Liberal Constitution

John Paul Stevens, the former Supreme Court justice whom Lee once called a dick for his decision in Raich v. Gonzalez, has a book out about how to rewrite the Constitution so that liberal agendas will be easier to advance. I wish I were joking about that.

There’s been a lot of noise about rewriting the Constitution from the Left lately. You can read screeds about it here and here (that’s from Brooks, but he’s practically a lefty these days). The basic complaint is that our system has created gridlock and stops the President from doing things that need to be done so we should drastically overhaul it. Needless to say, these essays vanish very quickly once Republicans are in power and stopping the President from doing whatever the fuck he wants is suddenly a good thing again.

You can read a really good response to this nonsense here, but months ago, I marked down this tweet as the absolute perfect response:

Stevens, to his credit, was one of the few justices — left or right — who cared about civil liberties. But like many lefties, he thinks the only problem with our Constitution is that it doesn’t give government enough power. So, in his new book, he proposes six constitutional amendments. I’ll get to the first one in a minute but here are the other five. You can go to Hot Air for the in-depth descriptions.

  • An “Anti-Commandeering Amendment” This would essentially ramp up the supremacy clause and break the power of the states to oppose federal law. If I read this correctly, it would mean that no state could sue against Obamacare. It would mean that pot would be illegal in every state again — no surprise from John Paul “Raich” Stevens. It would also mean — and liberals never do seem to see the flip side of this — that President Santorum could outlaw abortion nationwide with a stroke of his pen. You can probably guess what I think of this idea. Our federalist system does stop the federal government from imposing “good” laws on the entire nation; it also stops them from imposing bad ones.
  • An Anti-Gerrymandering Amendment — I wouldn’t really have a problem with this, as gerry-mandering has created huge problems for both parties. But I’m curious whether it would be applied to districts gerrymandered to create majority-black districts.
  • An amendment to legalize campaign finance law. A question: do people never learn from history? The last time we let our political twitches produce a government-empowering amendment, we got Prohibition.
  • A Sovereign Immunity Amendment. This would enable the prosecution of states and state officers that violate Congressional laws and amendments. If I read this correctly, it means that every state official in Colorado and Washington could be arrested for violating Federal anti-drug laws.
  • Amending the 8th Amendment to outlaw the death penalty.
  • Really, this is unworthy of a Supreme Court justice. There’s no subtlety; no concession to any conservative interests. It’s just another liberal wish list. I don’t find it any more insightful that the ramblings of some bonged-up college freshman.

    But the real beauty is in his proposals is the one I left out. In an appalling op-ed, Stevens argues that we should change the second amendment:

    For more than 200 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, decided in 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.”

    None of this is correct. The history of the Second Amendment doesn’t start with Miller, it starts with founders who stated openly and repeatedly that the Amendment was meant to protect an individual right. And yes, that applies to modern weapons just like the First Amendment applies to the internet (or should; you never know how SCOTUS will move).

    As a result of the rulings in Heller and McDonald, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were “well regulated,” has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arm.

    Just like they have the ultimate power to decide what constitutes cruel and unusual punishment; the power to decide when something restricts free speech; the power to decide when someone’s fourth amendment rights have been violated; the power to decide when someone is being discriminated against. In short, just like the kind of powers Stevens liked to use when it came to civil liberties he supported.

    That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen. As so amended, it would read:

    “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.”

    No word on if Stevens wants the First Amendment abridged to read: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof as long as it is Christianity; or abridging the freedom of speech, or of the press of the government; or the right of the people peaceably to assemble with permission, and to petition the Government for a redress of grievances as long as they ask nicely.”

    A Second Amendment written like that is no second amendment at all. It would completely abrogate any right to bear arms and allow the President to simply outlaw all firearms completely. Our right to bear arms would be completely dependent on the whims of our government.

    And, frankly, Stevens can drop that horseshit about how the purpose of the amendment is to “protect the states from federal interference with their power”. His other two proposed amendments would completely destroy that protection. If you’re going to change the Second Amendment like that, just repeal it. Don’t put on a fig leaf about state militias when you’ve completely gutted federalism.

    See, this is why amending the Constitution is hard and is supposed to be hard. This is why people like me get so uppity about it. Since the day it was written, powerful men have fought like hell to try to remove its restrictions on government power and erode our civil liberties. Stevens knows this. He was very big on recognizing when our civil liberties were being eroded in attacks on the fourth, fifth, sixth, seventh and eight amendments. But when it comes to amendments and civil liberties he doesn’t like … well, we just need to amend the Constitution, don’t we?

    But … I’ll give him some credit here. At least he’s advocating the we change the Constitution. Most Democrats are advocating that we completely ignore it and that Barack Obama do whatever the hell he wants. So while I may think Stevens’ ideas are bad, at least he has the integrity to advocate the right way to go about them.