James Madison

How John Paul Stevens Would Amend the Constitution

AP Images/Manuel Balce Ceneta

What made John Paul Stevens's contributions in his 35 years on the Supreme Court so invaluable was not just the votes he cast but his fiercely intelligent idiosyncrasies. On issues ranging from the fundamental incoherence of trying to use different categories of scrutiny to apply the equal protection clause to the Establishment Clause, to problems presented by the Religious Freedom Restoration Act, to racial discrimination in the War on Drugs, Stevens carved out unique positions that have generally aged much better than the alternatives. So it's gratifying that Stevens has not retired in silence, instead providing valuable commentary on constitutional controversies including the right to vote and the American criminal justice system. Stevens's new book, Six Amendments: How and Why We Should Change the Constitution, represents another valuable and accessible contribution to the country's constitutional discourse.

The Supreme Court v. Civil RIghts

The disturbing failure to prosecute alleged rapists in Maryville, Missouri, represents an all-too-common failure of American legal systems. In The Nation, Jill Filipovic has a must-read article highlighting another part of the problem: the Supreme Court. The Court's conservative justices have taken a federal remedy away from sexual-assault victims, in a case that represents a pattern in the Republican war on civil-rights enforcement.

A Supreme Court Darkly

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The Supreme Court decision yesterday that gutted the Voting Rights Act is potentially the most profound since Brown v. Board of Education. It’s more important than Roe v. Wade, Bush v. Gore, or the judgment last year that upheld the Affordable Care Act, because it denies the federal government the power, and state governments the obligation, to enforce democracy in any sense that anyone understands the word. In particular yesterday’s decision overturns nearly half a century’s guarantee of democracy for those Americans who had been denied that guarantee since the Republic’s founding.

When Fear Threatens Freedom

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Throughout American history, whenever the United States has felt threatened, our response has been repression. In hindsight we come to realize that the nation was not made any safer from the loss of civil liberties. This is a crucial lesson to be remembered as the country deals with the terrible tragedy of Monday’s bombings in Boston. The impulse to take away constitutional rights to gain security must be resisted because, in reality, complying with the Constitution is not an impediment to safety.

The Gun Debate's Inconvenient Truths

Flickr/Brett Weinstein

The current yelling match about guns is distinguished by two truths disconcerting to each side. As loony as the argument sounds after a history of 224 years, the faction that opposes any oversight or management of gun rights is correct about one thing. The Second Amendment doesn’t exist to protect people’s right to hunt. It doesn’t exist to protect people’s right to shoot a thief or intruder. Derived from a similar stipulation in the English Bill of Rights of the 1600s, the Second Amendment exists for the same reason as the rest of the Bill of Rights—to further define the relationship between individual freedom and state power, and in this case to prohibit the state from unilaterally disarming the citizenry.

Limits of a Libertarian First Amendment

I had a few thoughts I wanted to share in response to Glenn Greenwald’s thoughtful reply to Mike Konczal and Jeremey Kessler’s Bloggingheads discussion re Citizens United.

1) I certainly agree that there’s something distinguishable between right-wing libertarianism and the First Amendment views of Mr. Greenwald, the ACLU, and Eliot Spitzer. The support for public financing is an extremely important difference, and I would be very curious to know what types of public matching or leveling, if any, Mr. Greenwald believes would be consistent with the First Amendment.

27th Amendment or Bust

How the newest amendment to the Constitution was ratified, and why it's so hard to change the law of the land. 

(Flickr/The COM Library)

One afternoon in March 1982, an undergraduate student at the University of Texas named Gregory Watson was poking through the stacks of the Austin Central Library, researching a term paper he was going to write on the Equal Rights Amendment. He happened upon a book published by the Government Printing Office that included a copy of the Constitution, as well as several amendments that had been passed by Congress but not yet ratified by the requisite three-fourths of the states.

Don't Blame "Corporate Personhood"


American politics is in trouble. A tsunami of unaccountable, untraceable political money is overwhelming the Republican race for the presidential nomination and threatens to do the same to the fall election. For many people, especially progressives, the culprit is easy to name: the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, which swept away any limits on election-advocacy ads by corporations, unions, and “independent” political-action committees (PACs) and issue groups. Many progressives believe that Citizens United “made corporations people” and that a constitutional amendment restricting “corporate personhood” will cure this political ill.

Calling for a Convention

Amending the Constitution is our best bet for fixing Congress.

To keep money from corrupting our democratic politics, we need constitutional change. No doubt lots can be done by statute alone—meaningful transparency rules, such as the Disclose Act, and small-dollar public funding, such as the Fair Elections Now Act. The Supreme Court, however, has all but guaranteed that these won’t be enough. Transparency by itself won’t build trust; public funding can only be voluntary; and independent expenditures are all but certain to swamp even the best reforms tolerated by the Court. If we’re ever going to get a Congress “dependent,” as James Madison put it in Federalist Paper No. 52, “upon the People alone,” and not “the Funders,” it is clear that Congress will need new constitutional authority.

The Constitution: A Love Story

It's time for liberals to reclaim our founding document from fanatics who worship its name but not its meaning.

When the 112th House of Representatives opened this past January with a reading of the United States Constitution, the intended political message was clear—the Republican Party was back to rescue the Constitution.

Less clear was what Constitution Republicans were vowing to save. The version they ordered read was, in fact, stripped of language the leadership considered “superseded by amendment,” even though those measures are still in the text. Some are embarrassing. The provisions protecting slavery, for example, call into question the infallibility of the Founding Fathers. Since one of the standard conservative talking points is that the “original intent” of the framers is an infallible guide to wisdom, the fallible parts were better left unmentioned.

Rick Perry Abandons Marriage Equality Federalism

Well that was quick:

"I probably needed to add a few words after that 'it's fine with me' and that it's fine with me that a state is using their sovereign rights to decide an issue," he said. "Obviously gay marriage is not fine with me. My stance hasn't changed."

Perry said he supported changing the Constitution in order to ban gay marriage, a position that he characterized as supportive of states' rights even as it would overrule New York's own decision on the matter.

A Human Touch.

The thrust of E.J Dionne's point is right, though I have a small quibble:

But on reflection, I offer the Republicans two cheers for their fealty to their professed ideals. We badly need a full-scale debate over what the Constitution is, means and allows - and how Americans have argued about these questions since the beginning of the republic. This provision should be the springboard for a discussion all of us should join. [...]

An examination of the Constitution that views it as something other than the books of Genesis or Leviticus would be good for the country.

The Constitution, Radicalism, and the "Mainstream."

Over at Slate, Dahlia Lithwick and Jeff Shesol give us the lowdown on the latest in conservative creativity, a proposed amendment to the Constitution that would allow states to band together to repeal any federal laws they didn't like. So for instance, if legislatures in two-thirds of the states decided that $7.25 is just way too much for people to be paid, they could nullify the federal minimum wage. Sounds like a great idea! What I really love is that the website for the plan wants you to "join the movement to restore the Constitution," by dismantling the rather carefully crafted balance the Constitution strikes between state and federal power.

Re-writing the 14th Amendment.

There's not much to say that I haven't already said about proposals like Arizona State Senator Russell Pearce's attempt to deny citizenship to the children of undocumented immigrants, but his statement here is inadvertently revealing:

Rand Paul vs. The Constitution.

Rand Paul stopped giving interviews to national media last week in an effort to stave off the avalanche of bad press following his attack on the 1964 Civil Rights Act outlawing segregation in businesses of public accommodation. He joined Prince Bandar of Saudi Arabia and Minister Louis Farrakhan in being one of only three people ever to cancel a scheduled interview with Meet the Press. The idea, I suppose, was that by keeping Paul out of the national press the campaign might be able to avoid having to answer questions about some of his more controversial stances.