The Refounding Father Commentary

Markia Harris


1
The American Constitution is important and vital for numerous reasons, primarily
because it is the doctrine that founded our government. It is the basis that formed the
United States, and till this day we still use it to run our country. The constitution outlines
all of our rights as American citizens. It lists all the things we can do, and the rights we
have as people. The constitution also protects us from people, the government, wrongful
prosecution, and incriminating ourselves. It also gives us the right to our speech, to bear
arms, and the freedom of religion. The constitution is one of the most important
documents ever crafted in American history. Being as amazing as the American
constitution is, its hard to amend the United States Constitution. Under Article V, an
amendment can be proposed only with the approval of either two thirds of both houses of
Congress or the legislatures of two thirds of the states. Its difficult enough to obtain that
level of agreement, but there is another obstacle, which is that no proposed amendment
can be ratified without agreement from either three fourths of the state legislatures or
conventions in three fourths of the states (Sunstein 2014). John Stevens respects and
praises the American constitution, but believes that his new six amendments should be
implemented. Stevens wants an amendment that will overturn what he sees as a
wrongheaded decision by the Supreme Court, in each of these cases Stevens protested.
Stevens believes in democratic rule and his general goal is to promote self-government,
which he believes has been badly compromised by recent Supreme Court rulings. He
frequently emphasized that under the American Constitution, the government must be
impartial, and he exemplified impartiality with his own capacity to listen, his unfailing
humility, and his insistence on giving respectful attention to opposing views (Sunstein
2014).
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Markia Harris


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Stevens believes one problem with the American constitution is the second
amendment that states, 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 (Sunstein
2014). For years, federal courts generally interpreted the Second Amendment closely.
The Second Amendment did not create a freestanding individual right to have guns.
Well-organized groups, like National Rifle Association, rejected this interpretation and
insisted that the Second Amendment did in fact create an individual right. For many
years, their view was widely regarded as unpersuasive, a form of ideology masquerading
as constitutional law (Sunstein 2014). Stevens notes that as late as 1991, even retired
Chief Justice Warren Burgera well-known conservative, appointed by President
Richard Nixonsaid 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 (Sunstein 2014). Stevens uses an
example from a 2008 court case, District of Columbia v. Heller; in the court case
majority of the jury accepted what Burger deemed to be fraud. Stevens thinks that in so
ruling, the Court departed from the original understanding of the Second Amendment,
and in the process greatly increased judicial power to oversee what state and federal
governments do to prevent gun violence (Sunstein 2014). Stevens proposes that we
amend the Second Amendment to specify that it apply only to those who keep and bear
arms when serving in the Militia (Sunstein 2014).
Another problem Stevens has with the constitution is the first amendment and the
discussion with campaign financing. Congress cannot limit the ability of corporations to
make independent expenditures on political campaigns. In that case, Stevens wrote an
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Markia Harris


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eighty-six-page dissent, but his most fundamental objection is to a critical part of the
Courts opinion in its first significant campaign finance case, Buckley v. Valeo (1976). In
that case, the Court upheld restrictions on campaign contributions, ruling that such
restrictions could provide legitimate protection against corrupt practices (Sunstein
2014). Stevens knows that some campaign finance restrictions may be too low; he insists
that Congress should be able to act to reduce the risk that wealth will be the deciding
factor in contested elections. In his proposed constitutional amendment, which would
allow Congress and state governments to impose reasonable limits on the amount of
money that candidates for public office, or their supporters, may spend in election
campaigns (Sunstein 2014).
The next problem Stevens has with the constitution is the death penalty; he
believes that because the risk of executing the innocent could not be eliminated, the death
penalty must be abolished. Stevens insists that the ultimate penalty is unlikely to have a
deterrent effect and that its real justification lies in retribution. In his view, that
justification is not sufficient, because execution of innocent people is not tolerable in a
civilized society (Sunstein 2014). He would amend the Constitution to establish that
judgment.
Along with abolishing the death penalty, Stevens would also like to forbid
political gerrymandering. Stevens believes political gerrymandering has made more of
our elected officials rigid and less willing to compromise with members of the opposite
party. Political gerrymandering may well have been the principal cause of the
government shutdown that occurred in October 2013. He would amend the Constitution
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to say that districts shall be compact and composed of contiguous territory, and that
any departures from that requirement cannot be justified by the interest in enhancing or
preserving the political power of the party in control of the state government (Sunstein
2014).
The last problem with the constitution Stevens has is sovereign immunity. Stevens
and many others believe it is as much the duty of Government to render justice against
itself, in favor of its citizens. After the Civil War, the Court began to interpret the
constitution to create difficulties to lawsuits brought by citizens against states as such. In
recent decades, the Court has said that the Constitution does not allow Congress to give
private parties the right to obtain damages against state treasuries when states have acted
inconsistently with the Fair Labor Standards Act, or denied people benefits payments in
violation of federal law. Stevens believes that the Courts decisions, immunizing official
wrongdoing, have not only departed from the constitutional plan but also produced
serious unfairness (Sunstein 2014). He believes that if a hospital is owned by a state, it
should not be given sovereign immunity when an otherwise identical hospital, owned
privately, would have to pay damages. He would amend the Constitution to deprive states
of sovereign immunity for violating federal law.
Concluding Stevens problems with the constitution differ but all have one
common goal, and that is the importance of democratic self-government. Stevens would
free the political process from the control of the courts. It is only in the case of the death
penalty that Stevens would create a new, rights-based safeguard, designed to protect an
individual right, not to promote self-government as such. Considering the one political
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system issues, sovereign immunity. Stevens suggests that if Congress deems it necessary
to require state officials to take certain actions, it is hard to see why the Constitution
should stand as a barrier. If states have violated federal law, and injured people in the
process, the national legislature should be authorized to require them to pay
compensation. On gun control, there is a strong reason to think that constitutional change
is unnecessary, court have recognized an individual right to bare arms. The individual
right remains relatively narrow, and if states or the nation really wants to impose new
limits on gun ownership.