Monthly Archives: April 2014

Six Unworthy Amendments

Six Amendments is a disappointment.

I took issue with Justice Stevens’s proposed amendments in my first post on the book, before it was released. I stand by my criticisms of the campaign finance, gun control, and death penalty amendments – they are poorly written, and for the most part would not provide the clarity judges need to make consistent, predictable rulings. (I actually have more of a problem with his campaign finance amendment after reading the book – any reasonable reading seems to allow the government to prohibit publishing books, if it so chooses, so long as the book is plausibly connected to an election.)

The other three (gerrymandering, sovereign immunity, and commandeering) have more distinct problems: I’m not convinced that the anti-commandeering rule is as harmful as Stevens claims, and he made no effort to present the arguments against his position, so I don’t fell informed enough to make a decision. Most importantly, I’m not clear what effect (if any) his amendment would have on the scope of Congress’s ability to act outside its enumerated powers.

The argument against states’ sovereign immunity (unrelated to qualified immunity, as it turns out) has basically the same problem as the commandeering argument: there’s no analysis of the policy value of sovereign immunity. That said, it’s probably one of the strongest of his proposals.

The gerrymandering proposal is likely the strongest proposal – my only serious objection is that it is inelegantly drafted. By explicitly stating that strengthening one party’s control is not a valid, neutral purpose, he leaves a huge number of equally poisonous angles (i.e. the protection of incumbents) open to litigation, if not acceptance.

Predictably, since the amendments are sloppily drafted, there’s no redeeming the rest of the book. Stevens goes into some depth on the history of how the law reached its current state (arguing, in each case, that dissents he wrote or joined would have prevented this outcome), but as I noted, he spends little or no time discussing the wide variety of possible solutions to each problem, and the arguments for or against each one. Even worse, he spends no time arguing for his phrasing by addressing different ways his proposed text might be interpreted by judges in the future. Even for a rank purposivist such as Stevens, the flaws and ambiguities in his text should be clear and important.

Overall, the book is unambitious, and unworthy of its premise. When one promises to explain “How and Why We Should Change the Constitution,” especially when the promisor is a former Supreme Court Justice with a broad-ranging knowledge of the legal issues facing the country, it seems reasonable to assume the pool of possible topics is wider than “dissents I’m still mad weren’t majority opinions.” Stevens didn’t follow through on that at all.