Justice Stevens Proposed Amendments/Corrections to the U.S. Constitution.

Justice Stevens recently wrote a book in which he proposes certain amendments intended to eliminate many contemporary problems in constitutional law. See this DailyKos article. His proposed amendments are in red while my comments  are in black. 


  • 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. "When serving in the Militia" is problematic. What is a militia? Is it in fact the National Guard of a given state? If so, that doesn't go well with the necessity "to the security of a free State" because that's why we have the U.S. Army. If it's not the National Guard, then, what is it? Whatever it is, it is something other than the guard or the army. I submit that it is something created by citizens to protect themselves from a despotic government. We should recall that at the time militias were being considered, we were under British rule with a pre-existing British army.

  • Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death penalty inflicted. "Excessive" is the problem here. The limit could be expressed simply as "that which deprives a person of life's necessities" (rent, food, clothing). You cannot take away the livelihood of a person--everything else is fair game. Of course, my comments pertain to the original language--Justice Stevens added "such as the death penalty," and I am in agreement except that I would add "or torture as presently defined by the United Nations."

  • Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns. I have a problem with "reasonable." This varies too much with the seasons--so to speak. Most importantly, however, why prevent a state or Congress to say, "You must not spend any money on your election. Instead we will give you and your opponents such and such or, alternatively, you must limit your ads to the Internet and public television and/or radio." The price for a modern day campaign keeps going up; today, a reasonable limit might be a billion dollars.

  • Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historic boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion. No issues here but I do wonder why we are not thinking outside the box. For example, with a region having a population x and requiring y number of representatives, there is no reason why every x/y individuals can't be assigned to one representative using an algorithm that takes compaction and contiguity into account. If every state uses the same algorithm, there can't be any issues

  • 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. It was always my understanding that Federal law trumps State law; so why is this even an issue? But why not just replace "judge" with the more inclusive "public official?"

  • Neither the Tenth Amendment, the Eleventh Amendment, nor any other provision of this Constitution, shall be construed to provide any state, state agency, or state officer with an immunity from liability for violating any act of Congress, or any provision of this Constitution. No issue but why not add the phrase "without immunity from liability" to the previous amendment following the word "thereby."



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