Six Amendments: How and Why We Should Change the Constitution.

• Author: Koppelman, Andrew
• Position: Book review

SIX AMENDMENTS: HOW AND WHY WE SHOULD CHANGE THE CONSTITUTION. By John Paul Stevens. New York, Boston and London: Little, Brown and Company. 2014. Pp. vii, 133. $23.

INTRODUCTION

John Paul Stevens, (1) who retired in (2010) at the age of ninety after more than thirty-four years on the Supreme Court, has capped his astoundingly distinguished career by becoming an important public intellectual. He reviews books, (2) gives high-profile interviews, wrote a memoir of the chief justices he has known, (3) and has now written a second book.

Six Amendments revisits half a dozen old, lost battles. Stevens appeals over the heads of his colleagues to a higher authority: the public. Now that he is off the Court, Stevens explains why six decisions in which he dissented should be overruled by constitutional amendment.

Four of his proposed amendments would discard judicially constructed doctrines that, in his view, improperly constrain legislatures. Stevens would allow broader limits on private contributions to political campaigns. He would abandon limits on the regulation of private possession of firearms. He would discard the anti-commandeering doctrine, which empowers state officials to refuse to enforce federal law, and the sovereign immunity principle, which holds that even clear legal wrongs committed by public officials cannot be remedied in court.

The other two amendments would involve new judicial interventions in areas where the Court now allows broad legislative discretion: partisan gerrymandering, which Stevens thinks should be subjected to judicial oversight, and the death penalty, which he would abolish.

The book is wonderful when it addresses points of procedure that are likely to be abstruse to the ordinary reader. Most people have never heard of the anti-commandeering rule or sovereign immunity. Stevens lays out each of these points with impressive compression and clarity, showing where the pertinent doctrines came from, why they matter, how the Court reached the result it did, and why its reasoning was wrong. For these discussions alone, this book should be read by any American who wants to understand the Supreme Court's strange judge-made limitations on federal power. In other parts of the book, Stevens briefly sketches and augments views that he has elaborated elsewhere, and so these parts are less useful to the nonspecialist.

In this Review, I will consider each of Stevens's six amendments, giving sustained attention to the arguments concerning campaign finance and the death penalty--arguments that he has not made in earlier writings.

1. ABOLISHING THE ANTI-COMMANDEERING RULE

   The anti-commandeering rule, which the Supreme Court announced in Printz v. United States, (4) forbids Congress from requiring state and local officials to enforce federal law. It was settled decades ago that state courts had no such privilege; they were bound to enforce federal law whether they wanted to or not. (5) Despite the acknowledged supremacy of federal law, however, the Court struck down a statute requiring local law enforcement officers to check the backgrounds of gun purchasers. (6) As Stevens observes, "the burden imposed on local officials was trivial, while the benefits of the background checks were significant" (p. 18). The Court thought that "laws conscripting state officers violate state sovereignty and are thus not in accord with the Constitution." (7)

   The state rights in question are not enumerated anywhere in the Constitution. Rather, they are inferences from the general structure of our constitutional system, in which the states are independent of the federal government. (8) In his dissent in Printz, Stevens argued that the Court would accomplish the opposite of what it intended by requiring the federal government to "create vast national bureaucracies to implement its policies." (9) In his book, he makes the same argument in less technical terms (p. 28).

   His first proposed amendment, then, is to change the Supremacy Clause by adding the words in italics below:

   This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges and other public officials in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (10) The question of whether states need judge-made, categorical rights against federal power is more complex than Stevens can fully address--and more complex than can be addressed here. One's judgment about this question is likely to depend, like most rights-based arguments, on some combination of optimism about what will happen if the right is created and distrust of the state. (11) Here, one needs to believe that this limitation will not hamstring the federal government in a way that is bad for the country, and that the limitation is necessary in order to stop Congress from doing bad things. (12) It is at least equally relevant that the Constitution's fundamental purpose, the reason the country abandoned the Articles of Confederation, is to give Congress adequate power to solve the country's problems. (13) The Court's rigid rule impairs more than the ability of the federal government to control guns. (14) Stevens wrote the following in his dissent: "Matters such as the enlistment of air raid wardens, the administration of a military draff, the mass inoculation of children to forestall an epidemic, or perhaps the threat of an international terrorist, may require a national response before federal personnel can be made available to respond." (15) The Court has no resources other than its own prudential judgments to deal with such situations. As a result, there is no good reason not to trust Congress to make such determinations.

2. ABOLISHING STATE SOVEREIGN IMMUNITY

   The notion of state sovereign immunity from suits under federal law is another innovation of the modern Court (pp. 91-92, 104). Stevens shows that it is a huge innovation--one masquerading as tradition (p. 105). In England, the prerogatives of the king included immunity from being sued without his consent. The early Supreme Court ignored that doctrine. We have no king here (pp. 81-82).

   Article III of the Constitution gives federal courts jurisdiction in "diversity" cases, in which a citizen of one state sues a citizen of another state, and in "federal question" cases, which involve federal law. (16) In (1793), the Court allowed a diversity suit against a state government. (17) This was unpopular and provoked enactment of the Eleventh Amendment, which provides that the "Judicial power of the United States" does not extend to suits against a state by citizens of another state. (18) The Eleventh Amendment by its terms applies only to diversity cases, not federal question cases (p. 84). In the Reconstruction period, however, the Court began to extend the amendment beyond its terms (pp. 86-92). That extension has now reached explosive proportions (pp. 98-106).

   The expansion of sovereign immunity, Stevens succinctly shows, is an artifact of the Reconstruction-era Supreme Court's hostility to federal interference with state prerogatives, itself a reflection of the nation's abandonment of the former slaves (pp. 86-92). A Court that permitted lynchings and Klan violence was not much troubled by states' refusal to pay their debts (p. 92). In 1882, the Court rejected a similar sovereign immunity defense by the federal government, holding that such a defense was inconsistent with the protection of property under the Due Process Clause. (19) In (1974), however, the Court held that the "Eleventh Amendment"--one must put the term in scare quotes, because the plain language of the text cannot plausibly be read to require this result--bars Congress from imposing monetary liability upon states for violations of federal law. (20)

   As an interpretation of the text of the Eleventh Amendment, this is embarrassing. But this reasoning has been casually endorsed and even expanded upon by such professed originalists as Chief Justice Rehnquist and Justices Scalia and Thomas. Their purported deployment of original-meaning textualism here is evidently a screen for raw judicial lawmaking. (21) In his recent coauthored treatise on interpretation, Justice Scalia recites with approval the familiar canon expressio unius est exclusio alterius--"The expression of one thing implies the exclusion of others." (22) He has yet to explain how this canon can be consistent with his sovereign immunity decisions.

   The Court later placed a "rather bizarre limitation" (p. 99) on this rule: Congress may abrogate state sovereign immunity when legislating under the Fourteenth Amendment or the Bankruptcy Clause, but it may not do so under any of its other enumerated powers. (23) The Court further held that federal law cannot make states monetarily liable in state courts, (24) though it then "explained that the source of the state's sovereign immunity defense was not the Eleventh Amendment after all, but rather an unwritten rule that was [somehow] embodied in the 'plan of the Convention.'" (25)

   Stevens thinks the whole structure is indefensible:

   It is simply unfair to permit state-owned institutions to assert defenses to federal claims that are unavailable to their private counterparts. A university should be equally responsible for copyright or patent infringement whether it is owned privately or by a state. It does not make sense to provide a police officer employed by the state of New York with a defense to a claim that he violated a suspect's constitutional rights that is not available to an officer employed by the city of New York. (p. 106) To remedy this structural problem, Stevens proposes adding the following language to the Constitution: "Neither the Tenth Amendment, the Eleventh Amendment, nor any other provision of this Constitution, shall...