See. It’s Not Just Me. Hasen Reviews Stevens Book: “overly simplistic and poorly drafted”

April 19th, 2014

I admit, I have been very hard on Justice Stevens since he stepped down from the bench. I find his numerous speeches not only inappropriate, but also largely unpersuasive. I was so unimpressed with the brief portions of his book that I’ve read that I couldn’t bring myself to read the entire thing (it’s a breezy read). I was tempted to write a review of it, but I determined that it was not worth my time. There are so many other more important, pressing topics that warrant my attention.

Now, reviews from others have started to roll in, and have confirmed my intuitions. (In other words–see it’s not just me).

Rick Hasen has a review in The Daily Beast, titled “Change the Constitution in Six Easy Steps? It Won’t Be That Simple, Justice Stevens.” It has a subtitle (which Rick may or may not have written) that captures the essence of the book quite well: “From campaign finance to political gerrymandering, the retired Supreme Court justice skips hard arguments in his new book in favor of unrealistic, poorly drafted solutions.” Here is the opening:

Reading retired Supreme Court Justice John Paul Stevens’s new book, Six Amendments: How and Why We Should Change the Constitution, I was reminded of an old Steve Martin routine from his standup days. “First, get a million dollars,” Martin explains in “You Can Be a Millionaire and Never Pay Taxes.” Then if the tax collector comes to your door asking why you didn’t pay taxes on your million dollars, just say, “I forgot.” Just like Martin, Justice Stevens wants to skip all the tough stuff, using his slim volume to offer overly simplistic solutions to some of the country’s most pressing problems, from political gerrymandering to Second Amendment gun rights and campaign finance. I’m afraid it will take much more to cure our nation’s ills.

And putting aside the 0% chance any of these amendments will be ratified, they just aren’t good! I’ve already commented on why his Second Amendment fix makes no sense. Rick opines on his campaign finance amendment.

But even if we looked past the impossibility of these amendments’ passage, Justice Stevens’s campaign finance proposal is overly simplistic and poorly drafted. It doesn’t let Congress or the states pass whatever campaign finance laws they please, such as laws that impose looser limits on incumbents. Instead, it allows only for “reasonable” limits. The question of reasonableness inevitably would become a judicial one: What makes Justice Stevens think the current Supreme Court, which finds that all of these limits impinge too much on the freedom of speech guaranteed by the First Amendment, would find such limits reasonable under this new (30th?) amendment? Or things could work the other way: Courts in future times could allow any limits on money in politics, even those that might be aimed at, and be successful at, squelching political competition. That could be just as bad, or worse, than what we have now.

Further, this new amendment goes much further than simply overturning Citizens United or McCutcheon. Its provision limiting how much candidates may spend in elections goes directly against the Supreme Court’s 1976 Buckley v. Valeo decision, which held that limits on candidate spending violate the First Amendment. Candidate spending limits implicate different interests; they don’t just prevent corruption. A candidate who raises millions of dollars in tiny donations would be subject to the same limits as a candidate who raises millions of dollars in a couple of donations. It is not clear the law should treat the two cases the same. The change could be defensible, but Justice Stevens does not offer any detailed defense of this change. He also apparently would allow a “limit,” but not a “ban,” on corporate money in elections. That’s not a return to pre-Citizen United days.

Rick closes by noting that Stevens didn’t accomplish much with this tome.

In Steve Martin’s millionaire bit, he ends by talking about what happens when the criminal goes before the judge with the “I forgot” defense. For the judge who is incredulous, Martin again offers two simple words: “Excuuuuuse me!” So excuse me for writing such a critical review of nonagenarian Justice Stevens’s book. I hope I’m still around in my 90s and able to read a book, much less write one. But he has done the cause of progressive constitutional change no favors with Six Amendments, which lacks the nuance necessary to defend these ideals.

I am very grateful that Justice Stevens did not join James Madison in company in 1789 when drafting the Bill of Rights.

Opining on Justice Stephen Breyer’s book, Active Liberty, Judge Richard Posner wrote that “a Supreme Court Justice writing about constitutional theory is like a dog walking on his hind legs; the wonder is not that it is done well but that it is done at all.” Justice Stevens should enjoy his retirement.