Constitutional Amendment

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Former Justice John Paul Stevens

Let it be, let it be
Let it be, let it be
Whisper words of wisdom, let it be

Paul McCartney, John Lennon. Copyright: Sony/ATV Tunes LLC

 

Should the NYS or the Federal Constitution be amended? The idea has merit as well as dangers. The NYS League of Women Voters neither supports nor opposes amending the NYS Constitution, but does support the following principles:

    • Education and involvement of the public must be an integral part of each phase of the process. 
    • Planning should be given adequate time and sufficient funding. 
    • Nonpartisanship is essential. 

The League believes that specific conditions should be incorporated in the policies and procedures established for constitutional conventions:

  • Pre-Convention Commission: A preparatory commission should be appointed with adequate time to study the issues, establish the agenda and procedures and prepare position papers for the convention. Such a commission should provide ongoing information to the public and solicit its participation. 
  • Convention delegates: A delegate body of workable size should be elected by a fair, nonpartisan process. In accord with League principles, delegates should reflect our society with representation of women, ethnic, racial, socioeconomic minorities. The candidates’ positions on issues and convention goals should be widely publicized to enable voters to cast informed votes at their election. Present office holders should not be eligible to serve as delegates; however, they might be considered as consultants. A constitutional amendment will be necessary to meet some of these criteria.
  • Convention process: Procedures must be put in place to reduce partisanship, by assuring that committees and committee chairmanship are beyond party control. 

Reasonable time limits must be placed on the length of the convention and its costs.

The issues to be considered must be determined in advance by the pre-convention commission and researched by position papers, which are complete and available at the time of the convention. Meetings of the delegates should be open, held at acceptable convenient hours, with full media coverage.

  • Ballot Issues: Widespread public hearings and adequate voter education are necessary prior to the placement of referenda on the ballot. Constitutional amendment. recommended by a convention should be submitted to the voters as separate issues.

As noted, a prior amendment to the NYS Constitution would be necessary for these conditions to be met. But without such safeguards, a convention would likely reflect the interests of political parties and current office holders rather than the people. Even with conditions such as the above, there is a danger that radically different views between segments of the population would make agreement difficult and might lead to the repeal of important provisions in the present NYS Constitution.

Former Supreme Court justice John Paul Stevens would amend the Federal Constitution. His ideas include the following:

    • Removing from First Amendment protection any “reasonable limits” on campaign spending enacted by Congress or the states.
    • Changing the Second Amendment to make clear that only a state’s militia, not its citizens, has a constitutional right to bear arms.
    • Changing the Eighth Amendment’s prohibition against “cruel and unusual punishments” by specifically including the death penalty.
    • Requiring that congressional and state legislative districts be “compact and composed of contiguous territory” to stop both parties from carving out safe seats.
    • Eliminating states’ sovereign immunity from liability for violating the Constitution or an act of Congress.

Another proposal, not explicitly on Stevens’ list, is to amend the Constitution to make clear that the First Amendment applies only to natural persons. While these may be good ideas, it is unlikely that there is a political consensus at present in favor of any of them. It many cases, the antithesis of Stevens’ ideas might prove more popular. I am particularly uneasy with any change to the First Amendment–the problem with “Citizen’s United” isn’t the Constitution but the overzealous interpretation of the First Amendment by the current court.  Better that we live with “Citizen’s United” with the possibility that the Court will someday reverse itself, than chance undermining First Amendment in some harmful way. Similarly with the Second Amendment–better the current ambiguity than a clear statement that might make reasonable control of firearms even more difficult than it is today.

© William Hungerford – April 2014

http://www.lwvny.org/advocacy/impact/issues/government/ConstitutionalConvention.pdf

http://www.usatoday.com/story/news/politics/2014/04/21/justice-stevens-supreme-court-constitution-book/7872695/

 

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About whungerford

* Contributor at NewNY23rd.com where we discuss the politics, economics, and events of the New New York 23rd Congressional District (Allegany, Cattaraugus, Chautauqua, Chemung, (Eastern) Ontario, Schuyler, Seneca, Steuben,Tioga, Tompkins, and Yates Counties) Please visit and comment on whatever strikes your fancy.
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10 Responses to Constitutional Amendment

  1. BOB McGILL says:

    ■Changing the Second Amendment to make clear that only a state’s militia, not its citizens, has a constitutional right to bear arms.
    YEH RIGHT, at a time when hunting wild game was essential to survival, the writers of the 2nd Ammendment, thought only the militia should have guns. Anyone how believes that has no right being a judge.
    Our founding fathers knew that the first step in taking over the country would be to disarm the people. We should be suspicious of anyone who wants to take the guns away from the population.

    • whungerford says:

      In 1991, Warren E. Burger, the conservative chief justice of the Supreme Court, was interviewed on the MacNeil/Lehrer NewsHour about the meaning of the Second Amendment’s “right to keep and bear arms.” Burger answered that the Second Amendment “has been the subject of one of the greatest pieces of fraud—I repeat the word ‘fraud’—on the American public by special interest groups that I have ever seen in my lifetime.” In a speech in 1992, Burger declared that “the Second Amendment doesn’t guarantee the right to have firearms at all.” In his view, the purpose of the Second Amendment was “to ensure that the ‘state armies’—’the militia’—would be maintained for the defense of the state.”

      http://www.newrepublic.com/article/books-and-arts/archive/76368/second-amendment-gun-rights

      • Anne says:

        And don’t forget, it was Scalia who wrote in Heller that 2nd amendment rights are not unlimited.

        • whungerford says:

          Justice Scalia wrote “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” That leaves many possibilities for reasonable regulations without amending the Constitution if Congress can find the will to enact them.
          http://www.law.cornell.edu/supct/html/07-290.ZO.html

  2. BOB McGILL says:

    Well it appears that the word “militia ” needs to be defined. militia; any military force, any army composed of citizens rather than professional soldiers, called out in a time of emergency.——- and of course the founding fathers expected the citizens to show up unarmed, right. For the first 100 years the soldiers showed up with their own guns.

  3. josephurban says:

    Stevens proposals are interesting. While I tend to agree with them in principle they would not have much of an effect, in real life. In the final analysis the Constitution says whatever 5 justices of the Supreme Court decide it says. The same document that gave us Plessy v Ferguson also gave us Brown V Board of Education. And this is good. As times and society changes it is the proper role of the SCOTUS to interpret the Constitution to fit newer times. We have seen cases of the SCOTUS over and over making decisions based on political philosophy. While Justice Stevens might want to suggest otherwise, the SCOTUS is a political body with varying degrees of partisanship among the judges. Always has been. Rather than add to the Constitution, a better approach would be to amend Article 3 to include some kind of term limits on justices. Maybe 16 years.(4 terms of office for the POTUS).

    • BOB McGILL says:

      🙂

    • whungerford says:

      I agree that some ambiguity in the Constitution is a good thing; what we don’t want is narrow, transient political views enshrined there. As Stevens wasn’t often in the majority when he was one of the nine, it does seem unreasonable to suppose his ideas could be enacted somehow now.

      I disagree on term limits. Unlimited terms were intended to insulate the Justices from outside pressure–term limits might cause them to use the revolving door between government and private interests that corrupts the legislative and executive branches and undermine the long-term outlook that balances more rapid turnover in the legislature and the administration. It would be galling indeed, if we knew some Justices planned go to work for Koch when their terms ended.

      • josephurban says:

        I think the key word is “intended” . When I see justices (both liberal and conservative) taking fees to speak at liberal or conservative organizations I question whether the life tenure insulates them from politics or private interests. I wish it did, but I don’t think it does. Remember in 2000, when 2 justices had family members working for one of the candidates (Scalia and Thomas). Their families had direct financial interests in the election of the POTUS.Neither recused himself for the Bush v Gore case.
        I know in theory that the life time tenure is supposed to allow them to “objectively” apply the Constitution, I just don’t think it really works that way. I think we should recognize that and proceed accordingly. A 16-20 year term is pretty long to be making decisions, especially for a non-elected judge. There is also the problem of judges who were appointed by POTUSes who are long gone. They hold tremendous power in some areas, many times having formed their philosophies decades ago. The nation having moved on.
        If every new justice was given a single 18 year term (staggered, of course) each POTUS could appoint two judges (one every 2 years). The change in the SCOTUS would be gradual but better reflect changing times.

        • whungerford says:

          The Supreme Court, like all human institutions, has its problems, no doubt. But fixed terms fail to address the problems mentioned: bias, speaking for money, families involved in elections. Nor would fixed terms insure that judges remained competent and responsible throughout their term. A better solution, were it possible, would be for an enlightened electorate to elect Senators and Presidents committed to appointing and confirming responsible, civic minded jurists as the authors of the Constitution intended.

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