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Honors Project Prep: John Paul Stevens, “Six Amendments: How and Why We Should Change the Constitution”

May 19, 2014

What document is more quintessentially American than the country’s Constitution?  What document has been more inspiring, challenging, or frustrating than the framework for government ratified in 1789?  It has proved both durable and inadequate as time has passed, and changes have been required from time to time.  Since its adoption by “the several States”, the Constitution has been amended 27 times, most recently in 1992.  More amendments will surely be ratified in the future as the country’s needs change.

In the decades since the Twenty-Seventh Amendment was ratified, legislators and interest groups have advocated for various constitutional amendments – relating to flag-burning, same-sex marriage, term limits, and so forth.  That someone would write a book proposing six amendments to the Constitution is not surprising, but this particular book’s author is notable: John Paul Stevens, the retired Supreme Court Justice who served on the high court from 1975 to 2010.

So, let’s talk about Six Amendments: How and Why We Should Change the Constitution.

As the title promises, John Paul Stevens has six amendments he’d make to the Constitution, instead of waiting for the Supreme Court to address the problems.  Stevens’ proposed amendments could be divided into two broad categories, which I’ll call “procedural” and “political”.

The procedural amendments, which address the “anti-commandeering rule,” political gerrymandering, and sovereign immunity, clarify how the government is to operate; the issues tend not to be subjects of passionate public debate.  They matter to politicians and how they carry out their jobs, but other than perhaps political gerrymandering are unlikely to be the focus of political campaigns.

The political amendments, on the other hand, do address matters of public controversy: campaign finance reform, the death penalty, and the right to keep and bear arms.  These are topics which are sure to cause shouting matches and dominate cable news programs.  When the Supreme Court chooses to decide on such cases…well, I’m sure they’d prefer not to.

Granted, this “procedural” / “political” divide is arbitrary, and not especially neat.  For example, from a deliberative perspective, campaign finance reform impacts the political process by regulating the volume and content of political speech.  Similarly, gerrymandering can affect which policies are approved or rejected if it gives one party disproportionate representation in the legislatures.  In reality, the divide I propose is murky and complicated.

That might be why I found Stevens’ chapters on those two amendments the most interesting.  Those chapters include an interplay between theoretical reasoning (the “procedural” side) and real-world consequences (the “political” side) that makes for compelling reading.  They are neither distant nor polemical, but a solid position between.

The other four chapters have their moments, but are not as engaging to a legal layman.  Even as someone who likes reading through Supreme Court decisions, Article VI and the Eleventh Amendment are not particularly exciting subjects.  And while the chapter on the death penalty provides a detailed history of its practice in the United States, the one on the Second Amendment is far too brief, concluding just as it seems to be getting started.

I’m glad I read this book, though, as it provides some possible fodder for poetry.  I would like to explore the murky line between policy and procedure, and perhaps the, er, “complicated” relationship between the states and the federal government.  And one line in particular might make for a good epigraph:

A legal rule should not persist merely because of its unmerited longevity. (p. 50)

Succinct and well-phrased.  Who wouldn’t want to expand on that conversation?

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