In the wake of the unprecedented level of gerrymandering that followed the 2010 elections, as well as the Supreme Court’s gutting of the Voting Rights Act and campaign finance laws, it has become very clear that a constitutional amendment may be required in order to preserve the right to vote in this country. While I have not read Stevens' previous book, I've heard good things about his writing, so I've been looking forward to reading his latest offering. It was announced early on that he would take on the second amendment, which guaranteed that the book would be controversial, but I was more interested in the other five amendments he intended to offer. Although Stevens spent nearly 35 years on the high court, he seems to feel that it has taken on excessive power, and here he advocates returning power to the people’s representatives in Congress.
After a quick review of the successful amendments thus far, Stevens proceeds to a discussion of the Supremacy Clause and whether the federal government can compel state officials to enforce federal law, given that the language specifically calls out judges (“and the judges in every state shall be bound thereby”); he recommends adding the words “and other public officials”, with the reasoning that often state officials are in the best position to enforce federal law. Stevens clearly considers this to be a clarification rather than a change, but one which would overturn past rulings of the court.
The second chapter moves on to what I would consider one of the greatest threats to democracy: political gerrymandering. While few people have much good to say about gerrymandering (indeed, Stephens opens with a quote from Antonin Scalia describing severe partisan gerrymanders as incompatible with democratic principles), thus far the courts have declined to step in other than to prevent racial gerrymanders. Oddly enough, Stevens weakens the impact of his argument by using older examples of gerrymandering that left the minority party with fewer seats than they could reasonably expect have gotten based on their share of the vote, while ignoring the more egregious gerrymandering that happened after the 2010 elections and in some cases allowed the Republican party to capture a supermajority of seats in 2012 while getting a minority of the vote. He argues, and I would agree, that having compact districts is more important than making sure each one has exactly the same number of people (while the numbers should be approximately equal, I would argue that a 1% difference in size does far less damage than the….interesting…shapes of today’s congressional districts).
In chapter three, we move on to campaign finance. Congress has always tried to impose limits on political spending in order to avoid corruption. Most recently, the debate has been over whether Congress can limit the aggregate amount that an individual can donate to political campaigns and whether non-human entities (such as corporations and unions) can spend without restriction. So far the most interesting option I’ve seen (although one not mentioned in this book) is to expand the current prohibition on election spending by people who are not US citizens to say that money spent to promote or oppose a candidate may only come from people who could legally vote for or against that candidate. Of course, any one restriction we put into place may be gamed; Stevens suggests an amendment simply stating that Congress and the states may impose reasonable limits on how much candidates and their supporters may spend in election campaigns. Reasonable, of course, would be defined by the appropriate lawmakers.
Moving on, chapter four covers a somewhat more obscure topic: sovereign immunity. Under common law, the king could not be sued without his consent, and the states have assumed this power to themselves (and solidified it with the 11th amendment, which prohibits federal courts from ruling on suits brought against a state by citizens of another state (or another country). More recently (although this isn’t covered in the chapter, and the court has never given it much credence) we’ve seen claims that states can invalidate federal law under the 10th amendment. The proposed amendment for this chapter clarifies that a state and its agencies and officers are subject to the Constitution and to acts of Congress.
In chapter five, we consider the death penalty. Does it fall under the prohibition against cruel and unusual punishment? Should it be decided at the federal level, rather than state by state? Stevens recommends adding the words “such as the death penalty” to the prohibition in the 8th amendment. I found this to be the weakest chapter in that nothing herein will convince anyone not already opposed to the death penalty that a problem exists.
Chapter six, on gun control, is disappointingly short. As expected, Stevens covers the history of judicial rulings on the second amendment, through the 5-4 votes in 2008 and 2010 (District of Columbia v Heller and McDonald v Chicago, respectively) that expanded the right to keep a handgun and limited the right of the government to outlaw handguns. The topic guaranteed that this would be the most controversial chapter in the book, and I had hoped Stevens would make use of that attention by giving an in-depth treatment of how the second amendment has been interpreted throughout the history of the country, but instead the coverage of the historical record is minimal. The purpose of this chapter is primarily to argue that Congress, not the courts, should be charged with deciding on the proper regulation of guns.
As to my rating, I start out by giving the book four stars for entertainment and education. It’s very easy to read, despite what can be somewhat technical subject matter. However, I deduct a star because the book fails on several counts. Primarily, this is intended as a persuasive book, but while Stevens adequately (if only just) demonstrates the existence of each problem, he devotes no space to convincing the reader that his proposed amendment is the optimal way to deal with that problem. In fact, not enough space is devoted to the book in general; it weighs in at only 168 pages, not particularly lengthy given the subject matter, and only 2/3 of that is the actual book, the remainder being taken up by illustrations, the text of the Constitution, etc. Overall, the book is a disappointment, not only because it fails to accomplish its goal of convincing the reader to support Steven’s preferred solutions to the various problems mentioned, but because of the wasted opportunity that a book by a man in his position had to more fully inform the public.
This review first appeared at Vulcan Ears Book Reviews and on Amazon, where it is currently ranked as the most helpful critical review (somehow being more popular than all the 1-star "Stevens is a socialist!" reviews).