Streams

Justice Stevens' Six New Amendments

Friday, May 02, 2014

John Paul Stevens, retired Supreme Court Justice and author of Six Amendments: How and Why We Should Change the Constitution (Little, Brown and Company, 2014), offers six specific amendments to be made to the U.S. Constitution, drawing on his extensive experience on the Supreme Court.

 

Stevens' Proposed Amendments Relate To

  • The "Anti-Commandeering" rule that relates to the relationship between Congress and the states
  • Gerrymandering and redistricting
  • Campaign finance
  • Change the "sovereign immunity" laws that protect the state from lawsuits
  • The death penalty
  • Gun control

 

 

Guests:

John Paul Stevens

Comments [34]

RCT from NYC

Just circling back to reply to Mr. Bad.

Law students are told to pay attention to the Supreme Court dissents, because those dissents often expressed important principles that went on to govern the next generation's majority view. Such is what occurred re Justice Harlan's great dissent in Plessy v. Ferguson, Brandeis's dissent in Olmstead, Holmes dissent in Abrams, and the Brandeis/Holmes passionate defense of free speech in their concurrence/dissent (because the disagreed with the majority's theory) in Whitney -- to name just a few.

Many legal scholars believe that Heller was wrongly decided. After bloviating for pages about sentence structure, the meaning of "arms," the history of militias and the Catholics v. Protestants in Great Britain, what Scalia finally could not explain is why, although state constitutions had referenced both private and public possession in their provisions ensuring the right to bear arms, the 2nd Amendment does not not reference any such individual right. The sole reference is to the militia.

I repeat that the dissenters, Stevens and Breyer had the better arguments.

Also: I always quote other comments when they are good comments. And BTW, as many readers of this blog probably know, Gordon Wood, whom I also quoted, is a noted historian, Alva O. Way University Professor and Professor of History Emeritus at Brown University.

May. 05 2014 12:28 PM

Top GOP Senators Seek Obama's Whereabouts During Benghazi Attacks-

"Three top Republican senators asked President Barack Obama on Friday to disclose where he was during the 2012 attack on the U.S. Consulate in Benghazi that killed four Americans. In an earlier interview, Vietor said he was in the Situation Room during the Benghazi attack -- where four Americans including the U.S. ambassador died -- but Obama was not."

May. 03 2014 08:18 AM

@Sue from NYC

"But could he deny that Chief Justice Roberts was not fully forthcoming during his confirmation hearing when he said he respected precedent (and then immediately flouted precedent, on so many different levels, in Bush v. Gore)?"

John Roberts has done many things but time travel is not one of them. How could he possibly be nominated by George Bush and cast votes for the SCOTUS decision that put Bush in office?

Sorry-est day in my history.

May. 02 2014 06:27 PM

TIME FOR A SELECT COMMITTEE ON THIS SCREW-UP / COVER-UP

“General: We Didn't Even Try To Save American Lives In Benghazi”

“A former general is accusing the U.S. military of not even trying to save the Americans under attack at Benghazi in 2012 In explosive testimony before the House Committee on Oversight and Government Reform.”

(http://www.thedailybeast.com/articles/2014/05/01/general-we-didn-t-even-try-to-save-american-lives-in-benghazi.html)

May. 02 2014 03:25 PM
Mr. Bad from NYC

@ Joe from nearby

You wrote:

"Wrong. They were afraid of the British, not our own federal government, as the impetus for the 2d amendment."

The sheer, unadulterated ignorance betrayed by this comment is instructive. This is the voice of the "gun control" lobby... shameful isn't it?

May. 02 2014 12:38 PM
Mr. Bad from NYC

@ rct from NTC

Oh, one other thing, when you're trying to win your case you don't cite a dissent. That's one of the first things you learn in law school. Just sayin'...

May. 02 2014 12:34 PM
Mr. Bad from NYC

@ rct from NTC

So, where is the historical document that states "The words in the amendment -- "the people" referred to the citizens of the states, and the arms that were to be borne were those used in the state militias."?

You're the one engaged in "what if's", obviously.

But yes, Federalists and anti-Federalists did but heads over the meaning and intent of the 2nd amendment but that was not the ONLY reason it was included nor were those two groups the only parties involved in the debate. Your argument is reductive, ignorant and biased, intended only to support your own narrow view. As I've stated before the "right to keep and bear arms" is not subordinate to the "well regulated militia".

At one point during the drafting of the constitution the individual right to keep and bear arms was in fact a separate independent amendment. They were joined into one amendment for political reasons, (i.e. ease of passage)but it was never intended and it was never considered that anyone would seriously misunderstand the meaning of the "the right of the people to keep and bear arms shall not be infringed." Read Heller. Just because you don't like it you can't pretend it doesn't exist.

The common law right to keep and bear arms has ALWAYS EXISTED IN AMERICA. It was not invented by the framers, it was codified BECAUSE IT WAS SO IMPORTANT... Don't worry about me coming off as stupid BTW, you're arguments aren't blowing up any skirts. I can't believe you referenced another commenter as your source. Get it together dude.

May. 02 2014 12:31 PM
Joe from nearby

@rct:
"There was a great fear among the states that the new federal government would develop a large, standing army that could terrorize the states -- the "people." Hence, the second amendment, which was meant to preserve the rights of the people to form militias."

Wrong. They were afraid of the British, not our own federal government, as the impetus for the 2d amendment. Ever heard of the Minutemen militia??

So please keep your NRA historical revisionism to yourself.

May. 02 2014 12:26 PM
rct from NTC

@Mr. Bad. The question is historical context, not "what if" scenarios. The words in the amendment -- "the people" referred to the citizens of the states, and the arms that were to be borne were those used in the state militias.

Joe Mirsky's selected quotations bear this out. There was a great fear among the states that the new federal government would develop a large, standing army that could terrorize the states -- the "people." Hence, the second amendment, which was meant to preserve the rights of the people to form militias.

Heller was wrongly decided. Read the dissent. And please hold the "Oh wows." They make you sound sort of dumb -- and I know you're not.

May. 02 2014 11:55 AM
Steinman

Biran:
You keep insisting the fact that Michigan has more whites than blacks is the key to the case and that therefore the majority is stomping on the rights of the minorities. This implies that a state constitutional amendment that essentially repeats the Fourteenth Amendment is somehow forbidden and that the boards of regents of U Mich, MSU and Wayne State are superior, in a constitutional sense, to the people. If the court had ruled the way you wanted would it have been unconstitutional for the people to vote for different regents?

May. 02 2014 11:45 AM

Without the second amendment, the arms will go underground, as will "The Resistance." That will be truly dangerous. Better arms above ground than underground.

May. 02 2014 11:44 AM
plinden from Park Slope

Lehrer schooling Stevens.

a) How does a punishment become "cruel and unusual" just because the system of finding guilty is not absolutely perfect? If so ANY punishment is cruel and unusual.
b) There is "gerrymandering" that is for good cause.

Man.

May. 02 2014 11:43 AM
plinden from Park Slope

Lehrer schooling Stevens.

a) How does a punishment become "cruel and unusual" just because the system of finding guilty is not absolutely perfect? If so ANY punishment is cruel and unusual.
b) There is "gerrymandering" that is for good cause.

Man.

May. 02 2014 11:42 AM
Steven from Brooklyn

Please ask the Justice his opinion of any changes to the electoral college...

May. 02 2014 11:41 AM
randy l from brooklyn

there are mathematical ways of measuring the irregularity of shapes. it makes me a little sad that neither host nor guest are aware of this. the justice said "it's quite simple, don't allow bizarre shapes" but that is entirely subjective, not simple at all.

May. 02 2014 11:40 AM
Mr. Bad from NYC

@ RCT from NYC

Oh wow, where does it say "state militia's" in the 2nd Amendment? This is what it says:

"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."

The "right of the people" is simply a way of referring to every citizens collective INDIVIDUAL right to keep and bear arms. Ownership of firearms is HEAVILY "regulated". Your a fantasist projecting your own views the same as Stephens. The state governments were representatives of the people, yes, they are not "the people". Cite your references. The right to keep and bear arms was a common law right LONG before the constitution was ever written, it just didn't appear overnight.

May. 02 2014 11:38 AM
Sue from NYC

Justice Stevens is, of course, most cordial toward his former colleagues. But could he deny that Chief Justice Roberts was not fully forthcoming during his confirmation hearing when he said he respected precedent (and then immediately flouted precedent, on so many different levels, in Bush v. Gore)?

May. 02 2014 11:36 AM
Joe from nearby

What is Justice Stevens' opinion on how Roberts promised in confirmation hearings to be non-activist, then after he was confirmed, became the exact opposite- i.e. the most radical right wing activist judge?

May. 02 2014 11:35 AM
Amy from Manhattan

Could Justice Stevens tell us the date of the letter from Pres. Ford & whether it followed any specific Supreme Court decision?

May. 02 2014 11:34 AM

Without the First AND Second Amendments, this nation is doomed. Those two freedoms are the bedrock of a free people. Change those and you change America forever for the worse and not for the better. And arms will be kept underground anyway. They are in many countries that do not allow citizens to bear arms. And that is more dangerous in the long run.

May. 02 2014 11:33 AM

Without the First AND Second Amendments, this nation is doomed. Those two freedoms are the bedrock of a free people. Change those and you change America forever for the worse and not for the better. And arms will be kept underground anyway. They are in many countries that do not allow citizens to bear arms. And that is more dangerous in the long run.

May. 02 2014 11:32 AM
RCT from NYC

Justice is also right about the purpose of the 2nd Amendment. At the time that the Constitution was written -- it's a heavily negotiated document -- the states, which were giving up certain powers to the federal government, were considered representatives of the "people." Most state legislatures were socioeconomically diverse and were thought to directly represent the average citizen (see Gordon Wood's excellent books on the subject).

When the amendment was discussed and passed, the issue debated was whether the Constitution sufficiently protected the rights of the states -- the people -- vis a vis the new federal government. The second amendment protects the rights of "the people" -- the citizens of the states --= to "bear arms" -- maintain state mililias. In other words, who got to carry guns was a "states rights" issue, and the "people" whose rights were protected were those citizens embodied in state government.

May. 02 2014 11:27 AM
Joe Mirsky from Pompton Lakes NJ

Organized Propaganda

“Washington has seldom seen so numerous, so industrious, or so insidious a lobby. The newspapers are being filled with paid advertisements calculated to mislead the judgement of public men not only, but also the public opinion of the country itself. There is every evidence that money without limit is being spent to sustain this lobby…”
— President Woodrow Wilson, statement to the press, May 26, 1913.

Hold Lobby Exists, But Of A New Kind
It’s the Organized Propaganda, Say Senators, Justifying Wilson’s Charges headlined The New York Times on June 6, 1913.

May. 02 2014 11:27 AM
Joe from nearby

@geTaylor- For every so called hero who managed to avoid a bad situation using a firearm, there are 10 that end tragically. So stop cherry picking your "facts" and repeating the NRA (National Whiners Association) propganda.

Now, for anyone besides GE who wants actual facts:
http://nyagv.org/wp-content/uploads/2013/03/Firearms-and-Domestic-Violence-NYAGV.pdf

May. 02 2014 11:27 AM
Mr. Bad from NYC

I've had it with people laughing off private gun ownership as a "joke" and no impediment to a tyrannical government. When people are armed they can resist effectively and the resistance is what matters. Nobody is suggesting that a citizen's militia could defeat the US armed forces. The point is will the US armed forces go to war with a militia? It's easy to shoot people with rubber bullets, hose them down with water cannons, etc. But what happens when both sides, hypothetically speaking, start taking casualties? Because I know plenty of vets (mostly pilots)and they're not going to carpet bomb main street USA just because they're ordered to. I'm sure plenty of soldiers feel the same way. Take away guns and all you have is a mob that can be easily corralled, controlled and if need be imprisoned WITHOUT RISK TO THE STATE.

May. 02 2014 11:27 AM
2nd Amndmnt

In Chicago, three armed teens tried to rob a man at a gas station late at night.

Fortunately for him and unfortunately for them, the man was a sheriff's deputy. No one I know who has seen the security camera of the attack doubts that the man was about to be killed for his money, phone and car. Instead, he drew his own gun and killed one attacker as the others fled.

Chicago kept guns out of citizens hands for decades. Now they have the right to concealed carry. So perhaps an average CITIZEN will be able to protect himself like the officer was able to.

May. 02 2014 11:24 AM

What's his view on Justice Powell, the ex-Philip Morris lawyer who appears to be the primary generator of the "money = speech" tenet, and other positions that would favor tobacco companies' power over the federal government?

May. 02 2014 11:24 AM
RCT from NYC

I believe that the Federalist Papers were written by Madison, Jay and Hamilton AFTER the Constitution was written; the essays were part of the debate regarding whether the Constitution should be ratified by the states.

The Second Amendment, as well as all of the other amendments, came later, as Justice Stevens said. They were passed after ratification.

May. 02 2014 11:23 AM

How did this guy ever become a judge, much less a Supreme Court one? American freedom depends on the first and second amendments: freedom of speech and freedom to bear arms. Without those two rights, there is no freedom.

May. 02 2014 11:21 AM
Nick from UWS

Since the campaign financing issue had not been any kind of problem for decades and then suddenly out, of nowhere the vile “Citizens United” magically appears, why don’t you ask the Justice to comment on the blatant corruption, criminality and corporate takeover of the current so-called “Supreme Court” and their participation in the attempt to wrest Democracy from the American people?

May. 02 2014 11:18 AM

"I got over there and I told them 'Don't nobody hit him anymore,'" Hughes said. "I had a gun in my pocket, I was ready to do some damage if I had to."

"Somebody had to stand up. It was maybe 100 people out here. I was the only one [who stepped up]" said Hughes.
http://www.wxyz.com/news/region/detroit/retired-nurse-saves-steve-utashs-life-steps-in-when-driver-was-getting-beat

Someone should relieve this dangerous, self-appointed "budinski" of her gun.

Remember, "When seconds count, the police are only minutes away."

May. 02 2014 10:22 AM
Mr. Bad from NYC

I like Stevens and he is a thoughtful justice who votes how I would about 95% of the time but his weak spot is gun control and it's obviously based more on passion than intellectual merit. The idea that a "militia" can only be constituted lawfully by state institution is simply absurd. Yes, the militia's were sometimes, but certainly not always, sponsored and formed by the "state" but the bounds of the "state" was much less explicit and expansive during colonial times. Most militia were raised and led by a prominent citizen FOR the lawful government not BY it. The militia defends the rights, lives and property of the citizenry, they are not a law enforcement body or a rival to the Police or Army (who incidentally have no legal obligation to do any of that, they keep order and enforce laws as they see fit). A militia does not have to "drill in the county square" because modern weapons and tactics do not require close order drill, in fact they make it suicidal to fight in that fashion. An armed "militia", i.e. an armed citizenry is the last line of defense against a tyrannical government. The idea that that would never happen/is not needed in the USA is easily dispelled by even a cursory reading of post 9/11 legal developments and governmental action. Guns are dangerous but self defense is the first right, a natural right, and self defense requires a gun nowadays. Most arguments against gun ownership are trumped up emotional appeals with no logical or legal basis in law.

May. 02 2014 10:16 AM
Joe Mirsky from Pompton Lakes NJ

Original Intent

“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.” — Second Amendment.

“The right of the people to keep and bear arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country..."
— James Madison, I Annals of Congress 434, June 8, 1789

Madison said in Federalist Paper 46 that a standing army could only have 25-30,000 men with the population of the country at that time, but that “To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.”

“What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty .... Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins."
— Rep. Elbridge Gerry of Massachusetts, spoken during floor debate over the Second Amendment, I Annals of Congress at 750, August 17, 1789

“A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.“
— Draft version of the Second Amendment sent by the House of Representatives to the United States Senate, on August 24, 1789.

“In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.”
— United States v. Miller, Supreme Court decision 8-0, May 15, 1939

“The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
— District of Columbia v. Heller, Supreme Court decision 5-4, June 26, 2008

May. 02 2014 10:09 AM

"I got over there and I told them 'Don't nobody hit him anymore,'" Hughes said. "I had a gun in my pocket, I was ready to do some damage if I had to."

"Somebody had to stand up. It was maybe 100 people out here. I was the only one [who stepped up]" said Hughes.
http://www.wxyz.com/news/region/detroit/retired-nurse-saves-steve-utashs-life-steps-in-when-driver-was-getting-beat

Someone should relieve this dangerous, self-appointed "budinski" of her gun.

Remember, "When seconds count, the police are only minutes away."

May. 02 2014 09:59 AM

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