- - Wednesday, April 30, 2014

ANALYSIS/OPINION:

SIX AMENDMENTS: HOW AND WHY WE SHOULD CHANGE THE CONSTITUTION
By John Paul Stevens
Little, Brown and Co., $23, 192 pages

Legalize pot. Ban the death penalty. Curb gun ownership. So says former U.S. Supreme CourtJustice John Paul Stevens, who, at 94 years of age, seems to be enjoying in retirement a newfound enthusiasm for punditry.

Mr. Stevens‘ latest media blitz is on account of his new book, “Six Amendments: How and Why We Should Change the Constitution,” in which he offers his suggestions to fix our founding document and correct the course of current jurisprudence. Among Mr. Stevens‘ proposals are amendments to: Require that legislative districts be compact and drawn based on geographic, historic or demographic features in an attempt to end gerrymandering; clarify that the First Amendment does not preclude Congress from enacting “reasonable” campaign-finance laws; bar the death penalty by specifically listing it as “cruel and unusual punishment” under the Eighth Amendment; and revise the Second Amendment to restrict the right to bear arms only to militia, eliminating any individual right to gun ownership.

“Six Amendments” is short — just over 190 pages, with a copy of the Constitution tacked on at the end for good measure — and Mr. Stevens writes plainly and breezily. His command of matters of law, honed in 34 years on the high court, is clear. However, the argument Mr. Stevens makes is not, strictly, a legal one.

The idea for the book, Mr. Stevens essentially admitted to The New Yorker’s Jeffrey Toobin, came when he decided in the wake of the Newtown, Conn., school-shooting massacre that stronger gun-control laws were needed, and that court precedent, specifically 1997’s Printz v. United States, stood in the way. “I thought if that decision might be responsible for a situation like the one in Newtown, they ought to change it,” Mr. Stevens told Mr. Toobin. “That got me to thinking that there had to be other rules that ought to be changed.”

Thus, instead of writing a book about legal interpretation or court history, subjects on which he is an expert, Mr. Stevens has instead produced a tract urging that we amend the Constitution to fit the particular political crotchets of a certain old, bow-tied retiree — himself.

For instance, in the section on the Second Amendment, Mr. Stevens argues that legislators, not judges, should decide what kinds of guns may be bought and sold, and how they may be used, but he admits at the same time that the solutions he seems to favor — expanded background checks and bans on so-called assault weapons — are fully consistent with current precedent. Congress has simply declined to enact them. He impugns “emotional claims” about gun rights, and in the same sentence offers an emotional appeal of his own for laws to “minimize the slaughter caused by the prevalence of guns in private hands.”

As law blogger Josh Blackman has noted, Mr. Stevens seem not to know the difference between automatic weapons and semi-automatic ones. He repeatedly refers to the danger of the former, which have in fact been banned for decades and which were in not used at Newtown as he suggests. (An excerpt of that chapter on The Washington Post’s website was quietly updated to fix the error.)

This is par for the course. In the section on campaign finance, Mr. Stevens argues there are too many commercials already. “I believe most members of the television audience share my opinion that at least 75 percent — perhaps even 90 percent — of the campaign commercials could be omitted without depriving viewers of any useful data,” he writes. Explaining his evolution on the death penalty, Mr. Stevens relates his discomfort at being hectored in Helsinki about its continued use in the United States by mystified Finnish reporters.

Every man is entitled to political opinions, of course, but it’s worth asking what Mr. Stevens should do with his after having spent three-and-a-half decades as the final, seemingly impartial authority on the meaning of the law. When Lady Justice tires and hands off her sword and scales to another, should she tear away the blindfold, clamber down from the pedestal, and give us all a real piece of her mind?

Ex-presidents tend to keep their heads down and avoid criticizing their successors: George H.W. Bush and Bill Clinton raise money for tsunami victims, while George W. Bush paints dogs, still lifes and Vladimir Putins. Pope Emeritus Benedict XVI is no shut-in, but he lives discreetly and spends his time in books and in prayer. The other retired Supreme Court justices, Sandra Day O’Conner and David H. Souter, seem content to advocate civic education and collect honorary degrees.

Mr. Stevens, however, is a man about town, sitting for interviews with PBS and ABC on his new book, telling an NPR host that pot should be legalized because “the distinction between marijuana and alcoholic beverages is really not much,” writing essays critical of the sitting justices — who cannot respond — for The New York Review of Books and replaying his best dissents for legal conferences like an aging rocker jamming the greatest hits at a state fair.

If one retired judicial rabble-rouser is bad, imagine a world, as life spans lengthen, with four or five, a veritable shadow court constantly nitpicking the real one. Imagine if, say, Antonin Scalia retires and becomes an antagonist for Mr. Stevens, and the two begin to bat the latest cases back and forth in the public arena like a tennis ball.

As a political journalist, I tell myself that at least it would be good for business.

Kyle Peterson is managing editor of The American Spectator.

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