Tag: amending the constitution

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

By John Paul Stevens April 11, 2014

John Paul Stevens served as an associate justice of the Supreme Court from 1975 to 2010. Following is a part of his essay is excerpted from his new book, “Six Amendments: How and Why We Should Change the Constitution.”

The Second Amendment expressly endorsed the substantive common-law rule that protected the citizen’s right (and duty) to keep and bear arms when serving in a state militia. In its decision in Heller, however, the majority interpreted the amendment as though its draftsmen were primarily motivated by an interest in protecting the common-law right of self-defense. But that common-law right is a procedural right that has always been available to the defendant in criminal proceedings in every state. The notion that the states were concerned about possible infringement of that right by the federal government is really quite absurd.

As a result of the rulings in Heller and McDonald, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were “well regulated,” has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arms. That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen. As so amended, it would read:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”

Emotional claims that the right to possess deadly weapons is so important that it is protected by the federal Constitution distort intelligent debate about the wisdom of particular aspects of proposed legislation designed to minimize the slaughter caused by the prevalence of guns in private hands. Those emotional arguments would be nullified by the adoption of my proposed amendment. The amendment certainly would not silence the powerful voice of the gun lobby; it would merely eliminate its ability to advance one mistaken argument.

The Supreme Court Under Attack

Once again and for the umpteenth time there are many people unhappy with Supreme Court decisions.   This probably goes back to the beginnings of America. Every time there is a major decision handed down the opposition wants to modify the Supreme Court in some manner. Happily those unhappy people have never managed to change the roll of the Supreme Court in any way. The reason may be that every proposed modification has a serious downside.

In 1937 President Franklin Roosevelt attempted to circumvent the court by proposing an enlargement to 15 justices. It was his intention to add justices that would favor his new deal legislation. Before the bill came to a vote in Congress, two Supreme Court justices came over to the liberal side and the FDR plan was dropped.

Brown v. Board of Education in my memory brought on the greatest resistance. The result of that decision was forced busing and that created more turmoil in the schools without a significant improvement to education.

Following is a list of some of the most significant cases before the Supreme Court. In most cases the losers believed that the court was wrong and wanted to change the rules governing the court.

Marbury v. Madison, 1803 (4-0 decision)

Established the Supreme Court’s power of judicial review over Congress.

McCulloch v. Maryland, 1819 (7-0 decision)

Established the federal government’s implied powers over the states.

Dred Scott v. Sandford, 1857 (7-2 decision)

Denied citizenship to African American slaves.

Plessy v. Ferguson, 1896 (7-1 decision)

Upheld “separate but equal” segregation laws in states.

Brown v. Board of Education, 1954 (9-0 decision)

Separating black and white students in public schools is unconstitutional.

Massive resistance was a strategy declared by U.S. Senator Harry F. Byrd, Sr. of Virginia to unite white politicians and leaders in Virginia in a campaign of new state laws and policies to prevent public school desegregation, particularly after the Brown v. Board of Education Supreme Court decision in 1954.[1] Many schools, and even an entire school system, were shut down in 1958 and 1959 in attempts to block integration, before both the Virginia Supreme Court and a special three-judge panel of Federal District judges from the Eastern District of Virginia, sitting at Norfolk, declared those policies unconstitutional.

On February 24, 1956, Byrd declared a campaign which became known as “Massive Resistance” to avoid implementing public school integration in Virginia. Leading the state’s Conservative Democrats, he proclaimed “If we can organize the Southern States for massive resistance to this order I think that in time the rest of the country will realize that racial integration is not going to be accepted in the South.”[7] Within a month, Senator Byrd and 100 other conservative Southern politicians signed what became known as the “Southern Manifesto,” condemning the Supreme Court’s decisions concerning racial integration in public places as violating States’ Rights.

Gideon v. Wainwright, 1963 (9-0 decision)

Criminal defendants have a right to an attorney even if they cannot afford one.

Miranda v. Arizona, 1966 (5-4 decision)

Prisoners must be advised of their rights before being questioned by police.

Loving v. Virginia, 1967 (9-0 decision)

Invalidated state laws prohibiting interracial marriage.

Roe v. Wade, 1973 (7-2 decision)

Women have a constitutional right to an abortion during the first two trimesters.

This ruling continues to be the victim of efforts by politically conservative states to evade the decision.

District of Columbia v. Heller, 2008 (5-4 decision)

Citizens have a right to possess firearms at home for self-defense.

Citizens United v. Federal Election Commission, 2010 (5-4 decision)

Corporations and unions can spend unlimited amounts in elections.

Obergefell v. Hodges, 2015 (5-4 decision)

Same-sex marriage is legalized across all 50 states.

In an article posted on the National Review Senator Ted Cruz (R-Texas) wrote the following:

“This must stop. Liberty is in the balance. Not only are the Court’s opinions untethered to reason and logic, they are also alien to our constitutional system of limited and divided government. By redefining the meaning of common words, and redesigning the most basic human institutions, this Court has crossed from the realm of activism into the arena of oligarchy. This week’s opinions are but the latest in a long line of judicial assaults on our Constitution and the common-sense values that have made America great. During the past 50 years, the Court has condemned millions of innocent unborn children to death, banished God from our schools and public squares, extended constitutional protections to prisoners of war on foreign soil, authorized the confiscation of property from one private owner to transfer it to another, and has now required all Americans to purchase a specific product, and to accept the redefinition of an institution ordained by God and long predating the formation of the Court. Enough is enough.”

“I am proposing an amendment to the United States Constitution that would subject the justices of the Supreme Court to periodic judicial-retention elections. Every justice, beginning with the second national election after his or her appointment, will answer to the American people and the states in a retention election every eight years. Those justices deemed unfit for retention by both a majority of the American people as a whole and by majorities of the electorates in at least half of the 50 states will be removed from office and disqualified from future service on the Court.”

Read his entire article at: http://www.nationalreview.com/article/420409/ted-cruz-supreme-court-constitutional-amendment. Some of what he wrote does make sense. Changes to the constitution with one exception (The Eighteenth Amendment effectively established the prohibition of alcoholic beverages) have been wisely made.