Constitutional Law

Law prof analyzes former SCOTUS justice's 6 proposed constitutional amendments, deems these 2 worst

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Cover image from Hachette Book Group.

Justice John Paul Stevens backed six constitutional amendments in a book published in April, including amendments that would abolish the death penalty and take away an individual right to bear arms.

Those may be the most controversial proposals, but they are not the most ill-considered, according to Northwestern University law professor Steven Calabresi. In a review of Stevens’ book for the Wall Street Journal (sub. req.), Calabresi says these proposed amendments are more damaging:

Allow Congress to force state officials to enforce federal law.

“It isn’t hard to imagine what would follow,” Calabresi writes. “State officials would end up working for the federal government; they would lose their independence; and the states would pay the resulting costs.”

Josh Blackman’s Blog says the proposal would amend the supremacy clause to state that judges “and other public officials” in every state are bound by the Constitution and laws of the United States. The proposed amendment is intended to overturn a 1997 Supreme Court decision, Printz v. United States, which said states can’t be forced to participate in the federal system of gun background checks, according to coverage of the book by the Associated Press and Business Insider.

Require state and congressional districts to be “compact and composed of contiguous territory” and require states to justify departures from the requirement based on neutral criteria. An interest in enhancing or maintaining political power would not be a neutral criteria.

Calabresi says the proposal mandates judicial review of gerrymandering, transferring “historic state power to the federal courts, further politicizing the courts and reducing state power.” According to Calabresi, the amendment “would put special emphasis on the duty of federal courts to monitor the compactness of congressional districts.”

Calabresi says legislative redistricting should be done by politically accountable state legislatures. He thinks Congress could pass a law, however, requiring congressional districts to be compact and contiguous.

Stevens’ book is Six Amendments: How and Why We Should Change the Constitution. His other proposals would authorize laws that impose reasonable limits on campaign spending and would eliminate sovereign immunity for violations of the Constitution or federal laws.

Related articles: “Legalize marijuana, urges retired SCOTUS justice” “Ret. Justice Stevens pushes for campaign finance law changes in Senate hearing”

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