Monthly Archives: March 2014

In which I contradict a Supreme Court Justice (ret), without having been able to read his complete argument.

As the title suggests, this post is entirely speculative, and will probably be wrong on several counts. But that’s never stopped me before.

Former Supreme Court Justice John Paul Stevens has a new book coming out in April: “Six Amendments: How and Why We Should Change the Constitution.” I wasn’t particularly impressed with Stevens’s last book (Five Chiefs), but I’m intrigued by this one – it should benefit from having a narrower focus, rather than reflecting on a long judicial career.

Author Josh Blackman has a review copy of the book and posted the six proposed amendments here. He hasn’t posted a response to the actual arguments in the book yet, since he wants to read it first.

I don’t have that kind of sense, so here are my quick reactions to the text as presented in Blackman’s post:

  1. “Commandeering” of state officials: Apparently a reference to Printz v. US, which I’m not familiar with, so no comments.
  2. Gerrymandering: Protecting elections is an appealing (and predicted) target, and I guess this would probably do some good. Complaints: I’d like to see some explicit requirement that districts be created by a body with no stake in their composition, and the “enhancing or preserving the political power of the party in control of the state government” language is probably too narrow; the necessity of including it suggests weakness in the rest of the proposed text.
  3. Campaign finance: Another obvious target. I like this avenue better than trying to insert clarifying text directly into the First Amendment, and Stevens (thankfully) doesn’t fall into the trap of only focusing on corporate spending. But the language here is ambiguous, and seems either entirely too broad (broad enough to limit protected political speech to standing on a soapbox in the park), or to re-create exactly the hard money/soft money distinction that used to exist, where only speech that explicitly endorsed or opposed a particular candidate in a particular election was regulated. That might not be a bad regime to have, compared to our other options, but I’m not sure it would really change the importance of fundraising in elections, and the speech costs (depending on where Congress sets limits) might be substantial.
  4. Sovereign immunity: Not an area I know well, but I’d be curious about whether this has any effect on determinations of qualified immunity. I’d love to see an amendment that clarified and expanded the opportunities for Bivens suits (suits for damages against state employees for violations of an individual’s constitutional rights).
  5. The death penalty: Again, the topic was predicted – Five Chiefs includes substantial discussion of Stevens’s personal journey on the death penalty. Inserting this into the 8th Amendment is the wrong way to go, though – as worded, this basically inserts a factual finding that capital punishment is cruel and unusual – which may be true, but isn’t really the kind of thing that should be inserted into the constitution. It could(?) also drive judges to a particular interpretation of “unusual” – perhaps one which takes more account of international norms, since the death penalty is not unusual in the US. Would be cleaner & better practice to insert a separate amendment, “Neither the federal government, nor any state or subsidiary government of a state, shall execute any person in punishment for any crime, including Treason.”
  6. The Second Amendment: Obviously any change is DOA, but more importantly, this phrasing is stupid. Placing gun rights in the context of militias is outdated, and accomplishes nothing except perpetuating the confusion caused by associating gun rights with militias.More importantly, I don’t think tying gun rights to service in a militia clears up any interpretive ambiguity. What defines service in a militia? If Wyoming wants to create a volunteer militia that anyone can join by just signing up online, may it do so? If it does, can the Feds then regulate the weapons available to such a militia? Aren’t militias traditionally a matter for state regulation?Seems like a better phrasing would be to delete the militia entirely, and insert text that recognizes some sort of individual right to bear arms (in line with Heller and McDonald) – but which explicitly allows for rational-basis regulation: “The right of persons to keep and bear arms, in accordance with such rational laws and regulations as Congress and the States may create, shall not be infringed.” (Basically, if I’ve written that coherently, people who choose to carry weapons in accordance with the law should be protected from arbitrary government interference with their activities on that basis alone.)

Other notes: I’m disappointed not to see something dealing with executive powers, especially in wartime. If there’s any chance that we will continue in a state of perpetual semi-declared war (and there is), and if Presidents will be tempted to use that war to disregard the basic rights and liberties of citizens and noncitizens alike (they will), we ought to have clearer constitutional boundaries on the conduct of those wars.

I also would have liked to see Stevens address how the Fourth Amendment might be changed or clarified, to respond to the possibility of perpetual, suspicionless surveillance. The Court has muddled through, to a certain extent, but technological advances seem to have so broadened the realm of the possible that an explicit protection from generalized surveillance, even in “public,” would be worth including.

Escaping “clannism”

Mark Weiner’s peice in this month’s Cato Unbound is important and insightful. Basically, he points out that the project of modern society is, in essence, the escape from tribalism (what he calls “the rule of the clan”). From that emerges all of the social progress, by which I mostly mean increased individual autonomy (including the establishment of rights for women and minorities)) that Western liberal societies have achieved since the Dark Ages.

The crucial context for that idea is that the strong nation-state is a necessary replacement for the clan as a source of social organization and cohesion. A key quote from the end of the piece:

“Equally, to maintain its legitimacy, government must seek to address the needs that the rule of the clan meets far more directly. It must pursue policies that moderate economic inequality; it must provide a space for the flourishing of voluntary civil society organizations that provide opportunities for solidarity; and it must ensure that individuals have fair opportunities to exercise their autonomy within the marketplace and that they can effectively navigate the host of bureaucratic state institutions that provide the conditions of modern life.”

It’s good to hear from a libertarian who recognizes that maintaining the basic structure of modern society is far more fundamental to human welfare and human freedom than protecting low marginal tax rates and the freedom to not bake wedding cakes for gays. There’s a certain baseline level of agreement about “yes, we should have a society” that’s useful for carrying on meaningful policy conversations, and remembering the real alternative to modern liberal democracy is a good way to maintain that agreement.

Finally, this piece interacts interestingly with two posts by Noah Smith – one from a while ago on libertarianism and the “liberty of local bullies,” and one from today that notes the importance of firearms in creating precisely the centralized nation-states that backstopped the development of individualistic societies.