Justice John Paul Stevens has authored a new book, titled “Six Amendments: How and Why We Should Change the Constitution.” Here is the description of the book from the publisher:

For the first time ever, a retired Supreme Court Justice offers a manifesto on how the Constitution needs to change.

By the time of his retirement in June 2010, John Paul Stevens had become the second longest serving Justice in the history of the Supreme Court. Now he draws upon his more than three decades on the Court, during which he was involved with many of the defining decisions of the modern era, to offer a book like none other. SIX AMENDMENTS is an absolutely unprecedented call to arms, detailing six specific ways in which the Constitution should be amended in order to protect our democracy and the safety and wellbeing of American citizens.

Written with the same precision and elegance that made Stevens’s own Court opinions legendary for their clarity as well as logic, SIX AMENDMENTS is a remarkable work, both because of its unprecedented nature and, in an age of partisan ferocity, its inarguable common sense.

Huh. Where do I even begin.

First, let’s start with the author credit. On the cover of Five Chiefs, his name was listed as just John Paul Stevens.

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But on the cover of Six Amendments, it says “Justice of the Supreme Court of the United States (Ret.).”

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Why would the publisher write that Stevens Justice on the front cover? Of course, to latch onto the gravitas of a Supreme Court Justice offering amendments to the Constitution! That’s the problem Even the summary of the book alludes directly to Stevens writing this book the same way he wrote his opinions–as if he is offering the views of a Judge on the law. I find this troubling.

Written with the same precision and elegance that made Stevens’s own Court opinions legendary for their clarity as well as logic, SIX AMENDMENTS is a remarkable work, both because of its unprecedented nature and, in an age of partisan ferocity, its inarguable common sense.

Well, actually it is not unprecedented for a Justice to write a book about constitutional law and present-day constitutional issues. Justice Story did it a century ago. Of course, it would be unimaginable for a Justice to do so today. Oh wait, Justice Stevens just did.

(In case you are curious, on the covers of Making your Case, Reading Law, A Matter of Interpretation, Active Liberty, and Making our Democracy Work, the names of Justice Scalia and Breyer are printed without any reference to their status as Justice.)

And that brings me to my second point. He is not retired from the Supreme Court. Read his resignation letter. He retired from “active service as an Associate Justice” pursuant to 28 U.S.C. 371(b). There is a difference.

Any justice or judge of the United States appointed to hold office during good behavior may retain the office but retire from regular active service after attaining the age and meeting the service requirements, whether continuous or otherwise, of subsection (c) of this section and shall, during the remainder of his or her lifetime, continue to receive the salary of the office if he or she meets the requirements of subsection (e).

He is still an Article III Judge. He has a chamber at the Supreme Court, and maintains a law clerk. I don’t think he has sat on any cases on the Circuit Court, unlike Justices Souter and O’Connor who routinely sit on Circuit Cases.  That Stevens is not in active service should not make a difference (not that the Justices are bound by the Code of Ethics anyway).

Third, and most strikingly, let’s focus on the content of this book. It is not uncommon for Judges to express a desire to change the law in their opinions. But not in a book. How is it appropriate for a sitting Justice to write a “manifesto” and call for constitutional amendments when they take an oath to uphold the very document. I never even had to think about it, but could a Justice of the United States even vote in a ratifying convention for an amendment?

Also, a point on the word “manifesto.” In my book, I labored over whether to use the pejorative “manifesto” to describe Ken Cucinnelli’s book. This is not a good word. That Stevens’s publisher puts that out there, in an effort to sell books, is troubling.

And what are these six amendments? BusinessWeek suggests that one recommendation is to amend the Second Amendment with five words (shocker).

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.

Stevens elucidates:

“Emotional claims that the right to possess deadly weapons is so important that it is protected by the federal Constitution distort intelligent debate about the wisdom of particular aspects of proposed legislation designed to minimize the slaughter caused by the prevalence of guns in private hands.”

I suspect another one is his recommendation to amend the Supremacy Clause to override Printz v. United States, so it would read:

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.

These proposals have a zero percent chance of success. But that is not the point.

If Justice Stevens wants to transition from a Justice of the United States to an advocate for constitutional change, he should resign his commission under Article III via 28 U.S.C. 371(a). He would keep his salary for life, but no longer be a federal judge. He would be free to write whatever he wants.

As an aside. I suppose “Six Amendments” is a numerical follow-up to “Five Chiefs.” I would recommend he round out the trilogy with “Seventh Circuit from 1970-1975:  The Golden Age of the Courts of Appeals.”

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