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Six Amendments, by John Paul Stevens (2014)

6 May 2014
Six Amendments: How and Why We Should Change the Constitution, John Paul Stevens (2014)

Lately politicians and pundits have been piling on with proposals to amend the Constitution. Particularly curious is the phenomenon of activists who show their support for the Constitution by demanding that we change it. Last year we were inflicted with the ranting of conservative talk show host Mark Levin (The Liberty Amendments, 2013). More recently we have Philip K. Howard (The Rule of Nobody, 2014), who wants to break government deadlocks by giving the President the power of a dictator.

Into this fray steps retired Supreme Court Justice John Paul Stevens, with Six Amendments. In contrast to the aforementioned politicos Stevens steps gingerly indeed, with proposals couched in legal nuance. Consequently he wields far more authority through care and diligence than the others achieve through bluster.

Stevens steps through six noteworthy Constitutional issues in a sparse one hundred twenty pages, which is a miracle of no small note, coming as it does from one of the nation's pre-eminent jurists. It is also a blessing, because once he gets going he wields case references, some dating to the Founding, with a dexterity that rivals Machete with his weapon of choice.

One of his best decisions was to not propose a laundry list of amendments to add or remove. The long-difficult issues he proposes to resolve can be changed by the addition of a few words here and there. Some of his issues are well known political hot potatoes, but others are obscure and require more explanation. His six amendments fall in the realms of 
  • Supremacy Clause: clarifying Congress' ability to direct state officials
  • Political Gerrymandering
  • Campaign Finance
  • Sovereign Immunity: making it clear that the federal government cannot refuse lawsuits against it on the basis of sovereign immunity
  • The Death Penalty
  • The Right to Bear Arms
For you as a reader the question is, can you read a legal analysis of this sort and appreciate its thoughtful perspective for what it is? Are you so politically minded that you can enjoy the book only if you agree with it in its entirety? If the latter, stick with Ann Coulter or Michael Moore, depending on your preferred mode of masochism.

I fall in the former category. As such I found Stevens' work to be a fast and compelling read  but it was fast because it was concise, a blessing (I repeat) in these days of encyclopedic works. Stevens does fail to satisfy on one count, but it is a count common to legalistic works. The changes he advocates are grounded purely in legal issues. As he advocates changes, he completely ignores the political concerns. Stevens blithely assumes that the direction of the changes he wants  federal dominance over the states, an end to the general right to bear arms, an end to the death penalty  are desirable, with no discussion at all. Let's look at a couple of his choices.

The first choice relates to the anti-commandeering case law that has emerged around Article VI of the Constitution, commonly called the Supremacy Clause. Under this clause Congress may give orders to state judges but no other state officials. Stevens spends a lot of time reviewing the cases of note in this area, but in the end he simply wants an amendment that will allow Congress to give orders to state officials whenever it wishes. He spends no time at all discussing the political implications of this change, which would be at odds with the rights of the states as defined in the Tenth Amendment.

In the realm of campaign finance Stevens does indeed advocate a brief amendment, to modify the power of the First Amendment: Neither the First Amendment nor any other portions of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns. If you are in general agreement that we must find a way to curtain campaign spending, this amendment is reasonable to a point: it never defines what is reasonable. The years that followed such an amendment would see numerous court cases challenging the reasonableness of the legislation that emerges. This is a necessary shortcoming of any such amendment.

Finally, Stevens advocates an end to the right to bear arms without any discussion of the pros and cons of the issue: as he does throughout the book, the discussion revolves around case law. He would modify the Second Amendment to read as follows: A well regulated Militia, being necessary to the security of a free State, the rights of the people to keep and bear arms when serving in the Militia shall not be infringed. While that change would not end the right to bear arms among ordinary people, it would certainly allow individual states to end it. Pitched battles would likely take place of the definition of Militia. A militia is not an armed gang of hoodlums like the fellows gathering at Cliven Bundy's ranch; a militia is a paramilitary adjunct to the army, subject to the orders of army officers. If the army does not recognize the militia, it's not a militia. Militias typically exist only in places without a standing professional army, but the United States has had a standing professional army ever since the Civil War. The last time regiments of unaffiliated volunteers were allowed to participate was during the Spanish-American War, with groups such as Teddy Roosevelt's Rough Riders.

Six Amendments is a book well worth reading with an open but critical mind. Everyone will have their favorite chapters, but I think those concerning gerrymandering and campaign finance are the most compelling. These two issues are on the verge of destroying our democratic republic, so I am heartened to read Stevens' advocacy of viable solutions. Will you agree with them? Don't take my word for it  read the book!

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