Wednesday, April 23, 2014

Justice Stevens's Liberty-Destroying Amendments

The liberal/left is forever releasing trial balloons to see who shoots at them and who doesn’t. The multiple interviews of retired Supreme Court Justice John Paul Stevens upon publication of his new book, Six Amendments: How and Why We Should Change the Constitution, on April 22nd, represent one such balloon. I have not yet read the book, but have ordered it and will review it in a future column. But the lubricious reception of Stevens's book and the unrestrained fawning over him by the press is such that I can't hold my tongue. So these remarks will focus on the interviews, and not the book per se.

The book would not be reviewed, nor Stevens even interviewed, but for the liberty-destroying amendments he proposes be made to the Constitution. Liberal "journalists" across the spectrum sidled up to the buffet and feasted on helpings of the retired liberal, pro-government power justice's fare of senile lunacy, washed down with large draughts of Happy Juice.

All the interviewers treated Stevens as a kind of judicial "guru" whose "wisdom" must be shown deference and couldn't be challenged or questioned without committing a heinous faux pas. They asked him leading questions to prompt the answers they wanted to hear from Stevens. For example, in the video on the NRO site, George Stephanopoulos asks Stevens about the five words Stevens would add to the "amended" Second Amendment: "…the right of the people to keep and bear arms [when serving in the militia] shall not be infringed."   

The "militia" meaning the National Guard or virtually any federal SWAT or armed enforcement entity. It means that the government would have a monopoly on all weapons.

Stephanopoulos: "Wouldn't that take away any limits what a legislature could do to the rights of gun owners?"

Stevens: "I think that's probably right." [Still of rows of hand guns] "I think that's what should be the rule, that it should be legislatures rather than judges who draw the line on what is permissible…." (Italics mine)

Stephanopoulos: "Do you think that….clearly…that was what was intended?"

Stevens: "I do think that was what was originally intended, because there was a fear among the original framers that the federal government would be so strong that they might destroy the state militias. The amendment would merely prevent arguments being made that Congress doesn’t have the power to do what is in the best public interest." [More "scary" images of weapons; Italics mine]

Stephanopoulos: "But to be clear, if Congress passed a national ban on individual gun ownership, that would be constitutional under your amendment?"

Stevens: "I think that's right."

Have an argument that questions Congress's power to enforce gun-control? Stow it. Stevens's amendment forbids you to make it. Are you against the "public interest," or what, you unpatriotic American!

Stevens's amendment makes no sense at all. The right to bear arms as a private citizen either is or isn't "infringed." If it is infringed upon, then the only time you can exercise your "right" is when you're working for the government enforcing the government's will at gunpoint (lawfully or unlawfully). Then, when the task is completed, you would hand the weapon you used back to the armorer. You may "bear" the arms, but not own it.  

If it isn't infringed upon, then you may own and "bear arms," certainly without leave of the authorities, and without having to serve in any government policing or military force. Period.

And Stevens's secret, unspoken thought at that point: Thank you, Mr. Stephanopoulos, for putting those words in my mouth. I couldn't have said it better myself. What an instance of evasion by Stevens! What an example of prompting by Stephanopoulos! But this is his usual interrogative habit: acting like a theatrical prompter cueing Stevens on the right lines.

In the Framers' time, state militias were drawn from a population of armed citizens. Stevens can't have been ignorant of this fact. What the Framers had in mind when including that amendment was not only the ability of states to protect their sovereignty from federal power, but also the ability of private citizens to protect themselves from federal power, as well. The Framers were thinking in fundamentals.

Of course, long ago the states surrendered their sovereignty by becoming addicted – sometimes at extortionate gunpoint, but too often not – to federal largesse various forms drawn from a national taxpayer population. States have become submissive and dependent satrapies of the central federal government.

Richard Wolf, in his April 21st USA TODAY article, "Former justice Stevens wants to change the Constitution," opens with:

Former Supreme Court justice John Paul Stevens wants to reduce gun violence, abolish the death penalty, restrict political campaign spending, limit states' independence and make Congress more competitive and less combative. His solution: Amend the Constitution….

"It's certainly not easy to get the Constitution amended, and perhaps that's one flaw in the Constitution that I don't mention in the book," he said during a wide-ranging interview with USA TODAY in his chambers at the court. Noting his book's half dozen proposed amendments, he mused, "Maybe I should have had seven."

A seventh amendment to allow easier gutting of the Constitution? Why not? What Stevens proposes would be a step in the right direction. I mean, the left direction.

Though Stevens proposes precise language for each proposed amendment, he admits the process is extremely difficult. It takes two-thirds of both houses of Congress or state legislatures to propose an amendment and three-fourths of the legislatures to approve it. The last amendment, blocking Congress from changing its members' salaries between elections, passed in 1992.

Wolf reports:

Among the amendments Stevens suggests:

•Changing the Second Amendment to make clear that only a state's militia, not its citizens, has a constitutional right to bear arms.

•Changing the Eighth Amendment's prohibition against "cruel and unusual punishments" by specifically including the death penalty.

•Removing from First Amendment protection any "reasonable limits" on campaign spending enacted by Congress or the states.

•Requiring that congressional and state legislative districts be "compact and composed of contiguous territory" to stop both parties from carving out safe seats.

•Eliminating states' sovereign immunity from liability for violating the Constitution or an act of Congress, which he calls a "manifest injustice."

•Allowing Congress to require states to perform federal duties in emergencies, in order to reduce "the risk of a national catastrophe."

What prompted Stevens to write Six Amendments?

It was the December 2012 school shootings in Newtown, Conn., that focused Stevens' [sic] attention on a rule that prevents Congress from requiring states to perform federal duties. The rule had led to holes in a federal database of gun purchases.

"It's called the anti-commandeering rule, which turned out to be the first chapter of a book that kind of grew like Topsy," Stevens said. "I thought that maybe the only way to get rid of the rule is to have a constitutional amendment, and then it occurred to me ... that there really are other provisions of the Constitution that should be looked at more closely."

Wolf concludes his article with a friendly warning:

Among the issues to watch for, [Stevens] said, are a constitutional right to same-sex marriage ("Sooner or later, they'll have to address the question"), gun control (Scalia's 2008 opinion protecting handguns in the home won't be the final word), and government surveillance programs, which Stevens defends as constitutional. [Italics mine]

As long as the government doesn't watch Muslims. In Stevens's mind, anything may be made constitutional – as long as it has nothing to do with individual rights, the sanctity of property, and an individual owning his own life, and not the state.

PBS NEWSHOUR's Judy Woodruff practically sat at Stevens's feet during her interview of Stevens, in "How retired Supreme Court Justice Stevens would amend the constitution," and prompted Stevens as well as Stephanopoulos had. On campaign finance:

JUDY WOODRUFF: Another controversy you’re jumping right into is campaign finance. You believe Congress should be able to put limits on the amount of money candidates spend on their campaigns…


JUDY WOODRUFF: … and that the Supreme Court has made mistakes in several decisions, allowing corporations, labor unions to advocate and spend money on candidates. Considering all the court has done, Justice Stevens, to open the door for huge money to pour into American politics, including the recent McCutcheon decision, what effect does all this have on American politics?

Judy Woodruff counts to three, and says quietly, "You're on!" Stevens answers:

FMR. JUSTICE JOHN PAUL STEVENS: Well, I don’t think it’s a healthy effect. And I think it’s a change from what the people who direct — framed our basic government envisioned. For the — as the chief justice said, I think, in the first sentence of his opinion in the McCutcheon case the other day, there is nothing more important than participation in electing our representatives.

But the law that developed in that case and in a number of other cases involved not electing the representatives of the people who voted for them, but electing representatives of — in other jurisdictions where the financing is used. In other words, that was a case that involved the right of the — of an individual to spend as much of its money as he wanted to elect representatives of other people. He didn’t use any of that money to elect his own representatives.

Meaning that one would not be allowed to donate money to the candidate or advocate of one's choice, except in amounts predetermined by the government or the Federal Election Commission. However, as an outraged Fred Wertheimer notes in his SCOTUS Blog:

With its Citizens United and McCutcheon decisions, the Supreme Court has turned our representative system of government into a sandbox for America’s billionaires and millionaires to play in.

The Court’s decisions have empowered a new class of American political oligarchs and have come at the enormous expense of the voices and interests of more than 300 million Americans.

Cloaked in jurisprudence, the five Justices who make up a majority on the Supreme Court are imposing their ideology and politics on the country. In the process, they are issuing radical, not conservative, opinions.

Meaning that opinions at odds with the reigning leftist ideology are to be feared; left-wing billionaires would be free to dominate the "sandbox" with impunity, as Barack Obama's donors and backers did in 2008 and 2012. That would be all right with Wertheimer – and Justice Stevens.

Woodruff turns to gun control and flashes Stevens her cue cards:

JUDY WOODRUFF: The last area that I want to ask you about is what this country should do about guns. You would change the wording of the Second Amendment to the Constitution to say the right of people to bear arms to own a gun should apply only when serving in the militia. Is it your ultimate hope that there would be no right to own a gun for self-defense?

FMR. JUSTICE JOHN PAUL STEVENS: Well, it would be my ultimate hope that legislatures would decide the issues, and not be hampered by constitutional restrictions, because, clearly, legislators are in a much better position than judges are to decide what could be permissible in different contexts.

And the effect of the Second Amendment as it is now construed is to make federal judges the final arbiters of gun policy, which is quite, quite wrong, I think, and quite contrary to what the framers intended when they drafted the Second Amendment, to protect states from the danger that a strong federal armed force would have been able [sic] to the states of their own militias.

Finally, an April 21st, article in the New York Times, by Adam Liptak, who also interviewed, Stevens, "Justice Stevens Suggests Solution for 'Giant Step in the Wrong Direction," focuses on the campaign finance law.

The occasion for our talk was Justice Stevens’s new book, “Six Amendments: How and Why We Should Change the Constitution.” One of those amendments would address Citizens United, which he wrote was “a giant step in the wrong direction.”….

He talked about what he called a telling flaw in the opening sentence of last month’s big campaign finance ruling. He filled in some new details about the behind-the-scenes maneuvering that led to the Citizens United decision. And he called for a constitutional amendment to address what he said was the grave threat to American democracy caused by the torrent of money in politics.

Last month’s decision in McCutcheon v. Federal Election Commission struck down aggregate contribution limits, allowing rich people to make donations to an unlimited number of federal candidates.

Chief Justice John G. Roberts Jr. started his controlling opinion with a characteristically crisp and stirring opening sentence: “There is no right more basic in our democracy than the right to participate in electing our political leaders.”

But that was misleading, Justice Stevens said. “The first sentence here,” he said, “is not really about what the case is about.”

Then what was it about, if not the right of citizens to participle in elections, regardless of their tax brackets? Well, it was about something else, about not allowing rich donors dominate and elections. Rich donors, of course, meaning rich "conservatives" like the Koch Brothers supporting candidates who oppose big government. Rich donors and manipulators like George Soros should be exempt from campaign contribution laws and the number of candidates they can support in political action committees (PACs), under the table, and across state lines.

Liptak writes:

The new amendment would override the First Amendment and allow Congress and the states to impose “reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.”

I asked whether the amendment would allow the government to prohibit newspapers from spending money to publish editorials endorsing candidates. He stared at the text of his proposed amendment for a little while. “The ‘reasonable’ would apply there,” he said, “or might well be construed to apply there.”

Or perhaps not. His tentative answer called to mind an exchange at the first Citizens United argument, when a government lawyer told the court that Congress could in theory ban books urging the election of political candidates.

Justice Stevens said he would not go that far. “Perhaps you could put a limit on the times of publication or something,” he said. “You certainly couldn’t totally prohibit writing a book.”

Well, why not? I'm sure a justice with Stevens's intellectual acumen could knock together an argument for prohibiting the publication of books critical of candidates and their agendas during an election cycle. That, of course, would be censorship.

The New York Times would howl like a stuck pig were it prohibited from editorializing about its favorite candidates. Political non-profits, and competing newspapers of the "conservative" bent, however, must gag themselves in a censorial "fairness doctrine," or else feel the weight of the FEC and the IRS.

Not to worry. Stevens is a little foggy on how he'd construe "reasonable." Note: The occasion of the publication of Stevens's book is about as trial balloon as you can get. After all, Stevens, now 94, still had enough energy to fit in numerous interviews with sympathetic, bedazzled journalists in the space of two days, doubtless with the cooperation of his publisher.

In the near future, I will take out my bow and arrow, and, emulating Katniss Everdeen (a mnemonic device for "Can't Miss Ever, Dear"?) of The Hunger Games movies, and puncture of few of the trial balloons in Stevens's book.

Six Amendments: How and Why We Should Change the Constitution, by John Paul Stevens. New York: Little, Brown and Company/Hachette Book Group, 2014. 192 pp.


Michael Neibel said...

I haven't read his book yet either but judging from his proposed six amendments I'll say they are a recipe for totalitarian dictatorship.

Edward Cline said...

Michael: And Stevens's hands are just one pair of many that have written that recipe. We could go all the way back to Oliver Wendell Holmes, Jr., for starters.