Would These 6 Constitutional Amendments Improve U.S Democracy?

Source: Thinkstock

The authors of the U.S. Constitution ensured that the country’s founding document could be adjusted by subsequent generations. Modifications began even as the last of the original colonies were ratifying it in 1789 and 1790, with the First Congress debating the first 10 amendments, known as the Bill of Rights.

Subsequently, a number of key societal changes pushed other major changes. Slavery was abolished by the 13th Amendment; citizenship was redefined to give African-American men and women the vote by the 15th and 19th Amendments, respectively; prohibition was implemented by the 18th Amendment and then repealed by the 21st. Presidents were limited to two terms by the 22nd; poll taxes were repealed by the 24th Amendment; and the voting age was lowered to 18 by the 26th. But no amendment has been added to the United States since 1992, when the 27th Amendment, prohibiting Congress from increasing its own salaries in the middle of the term, was ratified.

Despite the fact that polls increasingly show that Americans are dissatisfied with how poorly Washington functions, no serious efforts have been made to remedy the perceived failings of the federal government through amendments to the Constitution. Some proposals have been made, most notably by former Justice John Paul Stevens, who sat on the bench of the Supreme Court from 1975 until his retirement in June 2010. As the title of his recently released book — Six Amendments: How and Why We Should Change the Constitution — suggests, he has a plan to refresh the Constitution in order to better “to protect our democracy and the safety and wellbeing of American citizens.”

The changes included in former Supreme Court justice’s reform manifesto can be divided into two broad categories: structural changes to the U.S. government and changes to individual liberties. In the former category are his proposals to require state officials to enforce federal law, to do away with political gerrymandering, and to eliminate state sovereign immunity. He also suggested that the Second Amendment’s protection for the right to bear arms should be excised, that Congress and state legislatures should be allowed to limit the amount of money individuals can spend on election campaigns, and that the death penalty should be outlawed.

The Second Amendment – added to the U.S. Constitution on December 15, 1791 — reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.” For more than a hundred years, the right to bear arms was a subject untouched by the Supreme Court, meaning there was no legal precedent to define the exact scope of the amendment.

During those years, Stevens told Bloomberg Businessweek, “federal judges uniformly understood that the right protected by the text was limited in two ways: first, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms.”

Gradually, the question of gun ownership became a more pressing issue. However, it was not until 2008 that the Supreme Court began to change its stance. In a landmark ruling, that year the justices decided that the Second Amendment protects a civilian’s right to keep a handgun in his or her home for self-defense. The decision defined the Second Amendment’s use of the word “militia” as a group “comprised all males physically capable of acting in concert for the common defense,” and used American history as support.

In 2010, by a second 5-4 vote, the Supreme Court extended its ruling to apply to states and local governments. In both of the Supreme Court’s Heller rulings, Stevens dissented. He said to Bloomberg Businessweek that the authors of the Constitution included the Second Amendment out of concerns that a national standing army could pose a threat to the sovereignty of the states, not to address homeowners’ fears about intruders.

That disparity is his reason for the proposed change; the current interpretation of the right to bear arms does not align with the intentions of the country’s forefathers. He believes the Second Amendment should 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.”

Furthermore, he argued in an April opinion piece that “the Second Amendment provides no obstacle to regulations prohibiting the ownership or use of the sorts of weapons used in the tragic multiple killings in Virginia, Colorado and Arizona in recent years.” Stevens was referring to high-powered automatic weapons.

However, his critics argue that his proposal, which would put the question of the right to bear arms in the hands of state governments, misses the most important part of the debate: that not only were such weapons not used in any of those recent high-profile mass shootings, but they have been essentially illegal in the U.S. since 1934 and nearly impossible to acquire since 1986.

Restructuring the Second Amendment is one of the more controversial of Stevens’s proposals, as is his argument to abolish the death penalty. He suggested a modification of the Eighth Amendment that would make the death penalty a cruel and unusual punishment, and therefore illegal. Because both these issues have the ability to be extremely partisan and divisive, the amendments are highly unlikely to be ratified.

Another two of his proposed changes – revising the sovereign immunity provision and the anti-commandeering rule — are far too legalistic and obscure to appeal to a broad audience. Currently, where the federal government does not exercise authority, it cannot force state or local governments to enforce or implement its laws. Stevens writes:

The ‘Anti-Commandeering Rule’ (Amend the Supremacy Clause of Article VI) 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, anything in the Constitution or laws of any State to the contrary notwithstanding.”

An anti-commandeering amendment would reverse two Supreme Court precedents — New York v. United States (1992) and Printz v. United States (1997) — and give the federal government the power to delegate its power to enforce federal law to state and local officials. In essence, this  would end federalism and require states to adhere to federal law regarding immigration, marijuana, and healthcare reform.

The former Supreme Court justice’s other two suggestions have a much better chance of securing the necessary support of two-thirds of Congress and three-quarters of state legislatures.

Political Gerrymandering – 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 historical 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.”

Ending political gerrymandering would eliminate the practice of maintaining safe Republican and safety Democrat seats in Congress. Stephens believes that states should be required to create more geographically cohesive districts, thus moderating political partisanship. And the last of Stevens’ suggestions:

Campaign Finance – 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.”

Equally important to what Stevens sees as a strengthening of U.S. democracy would be the proposed amendment to end the dominance of corporate money in congressional elections. If this change is implemented,  campaign finance would no longer be a question of First Amendment freedoms, and Congress would be allowed to put limitations on campaign spending. “While money is used to finance speech, money is not speech,” Stevens said in an eight-minute address to the Senate on Wednesday. “After all, campaign funds were used to finance the Watergate burglary.”

The problem is that a more modest campaign finance rule has been rejected by congressional Republicans. Their argument is that such a restriction would not only limit the power of plutocrats but also potentially restrict how much an insurgent candidate could spend to defeat an entrenched politician.

More From Wall St. Cheat Sheet:

Follow Meghan on Twitter @MFoley_WSCS