J. P. Stevens proposes six new constitutional amendments

[Joe Republic]

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[Antonio the Sixth]

These are all excellent, which is why they have no chance to pass anytime soon.

[MASHED POTATOES. VOTE!]

Amending the 8th Amendment is the only nonjudicial (the SCOTUS declaring it unconstitutional) way to abolish the death penalty in the United States. Individual states may get rid of it under their own codes (and I'm pretty it will never be unanimous), while the Congress can abolish it on federal and military only.

[windjammer]

I guess when the US Supreme Court will be dominated by progressives, they will abolish death penalty!

[True Federalist (진정한 연방 주의자)]

I can't say I agree with any of these right now tho there are a couple I might be able to accept.

I might agree with the Sovereign Immunity one if it also applied to the National government and not just the State governments.  Giving one level of our federal system sovereign immunity while stripping it from the other will only serve to more imbalance the power relationship between the cosovereign levels of our Federal system.

The so-called "Anti-Commandeering Rule" I might if I could understand why he called it that and if I were convinced that really was an anti-commandeering rule.  The reasons the author of that article extolled aren't examples of anti-commandeering since those actions he denigrated aren't what I would call commandeering.  Further, if that proposed amendment were to be interpreted that way I certainly wouldn't support it and the blog author would do well to consider that his interpretation would make unconstitutional the personal liberty laws passed by some northern states in the 1850s as well as the sanctuary laws some cities have in force today to give shelter to illegal immigrants.  The refusal of local governments to do the bidding of the national government has worked to the advantage of all sides of the political spectrum over the years, but forcing local officials to do the bidding of the national government sets up the specter of unfunded mandates and a lack of local discretion over what to give priority to doing with their limited resources.

As for his second proposal, I think Congress already has the clear right to require that for Congressional elections under its Article I Section 4 Clause 1 powers to regulate them.  And while it would be a stretch, a case could be made that Congress has the power to to do that for local elections under Amendment 14, Section 2. In which case his second proposal is not so much an attempt to provide for fairer elections, but yet another effort to give the judiciary more power at the expense of the legislative branch.

As for his third, fifth, and sixth proposals, I don't care for any of them.

[Snowstalker Mk. II]

I support the first five, though we probably need to adopt a new Constitution outright.

[TNF]

I support the first five, though we probably need to adopt a new Constitution outright.

[Southern Senator North Carolina Yankee]

1. I agree with True Federalist, and think it is poorly thought out

2. That is probably the dumbest requiremenmt to fix gerrymandering, worse then Michigan. If you could just write a law saying don't gerrymander, then it would be so much easier, but that isn't the way it works. The process by nature takes advantage of the loopholes to corrupt the system and thus why that would fail.

3. Reasonable limits is certainly subjective and we have seen time and again these limits serve to decrease, not increase competativeness in elections

4. maybe

5. No

6. Hell no

[Blue3]

I don't understand the commandeering or sovereign immunity proposals.

[True Federalist (진정한 연방 주의자)]

I don't understand the commandeering or sovereign immunity proposals.

The sovereign immunity one is easy to explain.  Sovereign governments are considered to be generally immune from lawsuits unless they agree to be sued.  That immunity also covers government officials for acts that are part of their official duties. While the National government and most State governments have passed tort claim acts that waive sovereign immunity in certain circumstances, neither has consented to be generally treated the same as a private individual would be in a tort case.  Note, the Courts have found that the Congress can waive State immunity under the Fourteenth Amendment in certain circumstances.  Also cities and counties are generally considered to not have sovereign immunity, but then they also do not have the full faith and credit of their State behind them and they can file for bankruptcy.  The Federally recognized Indian tribes do have sovereign immunity since in theory they have the status of dependent nations of the United States yet I note that Stevens' proposal would leave their sovereign rights intact even as he seeks to generally strip the States of theirs and thus end our Federal system of governance.

Stevens' proposed amendments are basically saying: the People are dumb, the States are dumb, and so is the Congress, so let's give SCOTUS and the other US courts more power to arrange society the way wise judges think it ought to be.

Not that any of these are ever going to be adopted.  The only one that might is the death penalty ban and by the time it would ever get close to be adopted, I'm fairly certain that SCOTUS will have already discovered that our "evolving standards of decency" have made the death penalty "cruel and unusual".  It truly is sad how SCOTUS has perverted a clause intended to limit the power of judges to decide what punishments to impose for criminal acts into one that limits the power of legislatures to decide what punishments to impose for criminal acts.

[bedstuy]

I don't understand the commandeering or sovereign immunity proposals.

The sovereign immunity one is easy to explain.  Sovereign governments are considered to be generally immune from lawsuits unless they agree to be sued.  That immunity also covers government officials for acts that are part of their official duties. While the National government and most State governments have passed tort claim acts that waive sovereign immunity in certain circumstances, neither has consented to be generally treated the same as a private individual would be in a tort case.  Note, the Courts have found that the Congress can waive State immunity under the Fourteenth Amendment in certain circumstances.  Also cities and counties are generally considered to not have sovereign immunity, but then they also do not have the full faith and credit of their State behind them and they can file for bankruptcy.  The Federally recognized Indian tribes do have sovereign immunity since in theory they have the status of dependent nations of the United States yet I note that Stevens' proposal would leave their sovereign rights intact even as he seeks to generally strip the States of theirs and thus end our Federal system of governance.

Stevens' proposed amendments are basically saying: the People are dumb, the States are dumb, and so is the Congress, so let's give SCOTUS and the other US courts more power to arrange society the way wise judges think it ought to be.

Not that any of these are ever going to be adopted.  The only one that might is the death penalty ban and by the time it would ever get close to be adopted, I'm fairly certain that SCOTUS will have already discovered that our "evolving standards of decency" have made the death penalty "cruel and unusual".  It truly is sad how SCOTUS has perverted a clause intended to limit the power of judges to decide what punishments to impose for criminal acts into one that limits the power of legislatures to decide what punishments to impose for criminal acts.

That's not quite right. 

1.  States do not have sovereign immunity for all lawsuits.  They can be sued by another state or the Federal government. 

2.  The 11th Amendment on its face applies to a very specific situation, where you have a lawsuit in Federal court between a state and an alien or non-state resident.  But, why does that extend to a state  resident vs. their domicile state?  The proper reading in my eyes of the 11th Amendment is that it applies to diversity and alienage jurisdiction and not arising under 1331 jurisdiction.  The reason 1331 jurisdiction isn't mentioned by the 11th Amendment as an exception is that it didn't exist back then to my knowledge. 

In other words, you ought to be able to sue a state in Federal court in that state under 1331 jurisdiction.  That's the plain meaning of the 11th Amendment and JP is fixing the rewriting of the Constitution by conservatives.

[SteveRogers]

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1. Probably not particularly useful or necessary.

2. I'd support this one. Congress has the power to do this already, but that's no reason not to go ahead and make it a requirement.

3. We probably do need some sort of constitutional amendment to fix the campaign finance mess, but I'd want to preserve the right of a candidate to self-finance.

4. I'd support this because the jurisprudence on the 11th amendment is somewhat muddled and has probably expanded the 11th amendment's scope beyond its original intention.

5. Sure.

6. Even if you're anti-gun, this is a weird way to go about fixing the 2nd amendment. Anyway, I wouldn't be comfortable with an amendment that allowed an outright ban on gun ownership.

[True Federalist (진정한 연방 주의자)]

1.  States do not have sovereign immunity for all lawsuits.  They can be sued by another state or the Federal government. 

2.  The 11th Amendment on its face applies to a very specific situation, where you have a lawsuit in Federal court between a state and an alien or non-state resident.  But, why does that extend to a state  resident vs. their domicile state?  The proper reading in my eyes of the 11th Amendment is that it applies to diversity and alienage jurisdiction and not arising under 1331 jurisdiction.  The reason 1331 jurisdiction isn't mentioned by the 11th Amendment as an exception is that it didn't exist back then to my knowledge. 

In other words, you ought to be able to sue a state in Federal court in that state under 1331 jurisdiction.  That's the plain meaning of the 11th Amendment and JP is fixing the rewriting of the Constitution by conservatives.

I said generally immune, not absolutely immune.  But I ask you, if this is such a good idea, why limit it to the State governments and not to the National government?  Just as with the States, the Federal government generally enjoys sovereign immunity except where it waives it.

[bedstuy]

1.  States do not have sovereign immunity for all lawsuits.  They can be sued by another state or the Federal government. 

2.  The 11th Amendment on its face applies to a very specific situation, where you have a lawsuit in Federal court between a state and an alien or non-state resident.  But, why does that extend to a state  resident vs. their domicile state?  The proper reading in my eyes of the 11th Amendment is that it applies to diversity and alienage jurisdiction and not arising under 1331 jurisdiction.  The reason 1331 jurisdiction isn't mentioned by the 11th Amendment as an exception is that it didn't exist back then to my knowledge. 

In other words, you ought to be able to sue a state in Federal court in that state under 1331 jurisdiction.  That's the plain meaning of the 11th Amendment and JP is fixing the rewriting of the Constitution by conservatives.

I said generally immune, not absolutely immune.  But I ask you, if this is such a good idea, why limit it to the State governments and not to the National government?  Just as with the States, the Federal government generally enjoys sovereign immunity except where it waives it.

I guess I see sovereign immunity as a doctrine of statutory construction and the 11th Amendment as a venue rule.  I don't see sovereign immunity as a power in itself of being above the law.

By a doctrine of statutory construction, I mean that if we look at a private right of action in a federal statute, we assume the Federal government made itself immune from suit under its own statute.  It's a default rule that makes sense for the sovereign writing the law.  The same should attach in the case of a state being sued under a state cause of action in state court.   

But, if we're talking about an arising under 1331 case in Federal court, that rationale doesn't apply.  And, this is really necessary to give a forum for Constitutional violations by states.

[badgate]

6. Hell no

Yeah, God forbid the 2nd Amendment's text actually be accurate to its intent, thereby keeping Americans from continuing with the gross misconception that this amendment is their free pass to own a gun.

[True Federalist (진정한 연방 주의자)]

I guess I see sovereign immunity as a doctrine of statutory construction and the 11th Amendment as a venue rule.  I don't see sovereign immunity as a power in itself of being above the law.

By a doctrine of statutory construction, I mean that if we look at a private right of action in a federal statute, we assume the Federal government made itself immune from suit under its own statute.  It's a default rule that makes sense for the sovereign writing the law.  The same should attach in the case of a state being sued under a state cause of action in state court.   

But, if we're talking about an arising under 1331 case in Federal court, that rationale doesn't apply.  And, this is really necessary to give a forum for Constitutional violations by states.

The whole reason the 11th Amendment was quickly proposed and passed was to overturn Chisholm v. Georgia in which the State of Georgia had claimed that because of sovereign immunity that they were immune from lawsuits unless they granted permission for the suit to be brought.  Also, if one goes back to the ratification of the Constitution, one finds that at least some of the framers thought the language of Article III Section 2 that allowed for suits between a State and a citizen of another State to proceed in Federal court would be applicable only for suits by a State against a citizen of another State, because the reverse was prohibited by sovereign immunity.

As for Constitutional violations, the Fourteenth Amendment has already been found to make the States subject to Federal suits for civil rights violations.  The broader language proposed by Stevens would end Federalism in this country. (Federalism is already fairly weak thanks to the use of Federal carrots to make the State do what the Federal government wants in lieu of the general prohibition on Federal sticks.)

[bedstuy]

I guess I see sovereign immunity as a doctrine of statutory construction and the 11th Amendment as a venue rule.  I don't see sovereign immunity as a power in itself of being above the law.

By a doctrine of statutory construction, I mean that if we look at a private right of action in a federal statute, we assume the Federal government made itself immune from suit under its own statute.  It's a default rule that makes sense for the sovereign writing the law.  The same should attach in the case of a state being sued under a state cause of action in state court.   

But, if we're talking about an arising under 1331 case in Federal court, that rationale doesn't apply.  And, this is really necessary to give a forum for Constitutional violations by states.

The whole reason the 11th Amendment was quickly proposed and passed was to overturn Chisholm v. Georgia in which the State of Georgia had claimed that because of sovereign immunity that they were immune from lawsuits unless they granted permission for the suit to be brought.  Also, if one goes back to the ratification of the Constitution, one finds that at least some of the framers thought the language of Article III Section 2 that allowed for suits between a State and a citizen of another State to proceed in Federal court would be applicable only for suits by a State against a citizen of another State, because the reverse was prohibited by sovereign immunity.

As for Constitutional violations, the Fourteenth Amendment has already been found to make the States subject to Federal suits for civil rights violations.  The broader language proposed by Stevens would end Federalism in this country. (Federalism is already fairly weak thanks to the use of Federal carrots to make the State do what the Federal government wants in lieu of the general prohibition on Federal sticks.)

That's sort of true, but not always in practice.  The Supreme Court has really cut this doctrine down during the long conservative period we've experienced.

On the federalism point, if there's a valid provision of the Federal Constitution or Federal statutes, it controls over state law.  That's black letter Constitutional law.  What you're ultimately defending is the state power to break the law.  That's the point of federalism, which is the sharing of legitimate power.  If the Federal law itself takes away state power in an unconstitutional way, states can raise that in court.

[True Federalist (진정한 연방 주의자)]

the Fourteenth Amendment has already been found to make the States subject to Federal suits for civil rights violations.

That's sort of true, but not always in practice.  The Supreme Court has really cut this doctrine down during the long conservative period we've experienced.

How so?  While you likely think Alden v. Maine was wrongly decided, that case involved labor law and not civil rights. (Whatever one's views on what should be considered civil rights, I think it is clear that constitutionally, civil rights consist solely of negative rights that limit government actions and not positive rights that empower or require the government to to undertake certain actions.)

[○∙◄☻¥tπ[╪AV┼cVê└]

I guess when the US Supreme Court will be dominated by progressives, they will abolish death penalty!

Don't hold your breath there. The Supreme court has 0 progressives, 4 moderates, and 5 right-wingers. Stevens was more liberal than everyone currently on the court.

[True Federalist (진정한 연방 주의자)]

There are those who criticize the Martin-Quinn scores.  Here's a paper that presents some criticism of M-Q and a proposed alternative:
http://www9.georgetown.edu/faculty/baileyma/CourtPref_July2012.pdf

I can't speak as to the validity of the proposed alternative, but that M-Q indicates that the Court in 1973, the year of both Roe and Furman, was more conservative that it would be in any year for the next three and a half decades certainly indicates there are some flaws in M-Q that should keep anyone from accepting it as a wholly accurate measure to the court's ideological tilt.

[bedstuy]

the Fourteenth Amendment has already been found to make the States subject to Federal suits for civil rights violations.

That's sort of true, but not always in practice.  The Supreme Court has really cut this doctrine down during the long conservative period we've experienced.

How so?  While you likely think Alden v. Maine was wrongly decided, that case involved labor law and not civil rights. (Whatever one's views on what should be considered civil rights, I think it is clear that constitutionally, civil rights consist solely of negative rights that limit government actions and not positive rights that empower or require the government to to undertake certain actions.)

It's Edelman and a few of the other recent cases.  They interact with some of the standing requirements to really restrict a few types of cases against states.

[True Federalist (진정한 연방 주의자)]

the Fourteenth Amendment has already been found to make the States subject to Federal suits for civil rights violations.

That's sort of true, but not always in practice.  The Supreme Court has really cut this doctrine down during the long conservative period we've experienced.

How so?  While you likely think Alden v. Maine was wrongly decided, that case involved labor law and not civil rights. (Whatever one's views on what should be considered civil rights, I think it is clear that constitutionally, civil rights consist solely of negative rights that limit government actions and not positive rights that empower or require the government to to undertake certain actions.)

It's Edelman and a few of the other recent cases.  They interact with some of the standing requirements to really restrict a few types of cases against states.

Edelman seems to me to be sound and of the three separate dissents, the only one that wasn't ridiculous was Douglas'.  Inferring that Congress had intended to have Illinois' participation in the federal-state program to constitute a waiver of sovereign immunity with respect to torts that arose out of it because it had explicitly done so with other jointly run aid programs wasn't wholly unreasonable, tho finding that Congress needed to explicitly do so in each instance was I think the right decision and not a burden on Congress when it intends that to be the case. (I presume and hope that Congress did add such language to the program after this decision.)

Marshall's idea that civil rights were involved in that case (and thus 42 U.S.C. § 1983 would be applicable) would mean that essentially any tort against a state could be brought in Federal court by citizens of that state in direct contravention of the principle of sovereign immunity. (Civil rights could have been involved if Illinois had discriminated against some aid recipients but not others, but since Illinois treated all recipients in that program equally badly, there was no civil right violation, just an ordinary tort.)

Brennan's dissent goes beyond ridiculous to end up in the land of total idiocy because he wrongly asserts that the States no longer have sovereign immunity.  The whole debate concerning the ratification of the Constitution and the rapid adoption of the Eleventh Amendment clearly indicates there was no intent by the States to surrender sovereign immunity to torts and that the narrow degree to which the court found in Chisholm that they had (in suits brought against a state by citizens of another state) was quickly reversed. The narrow language of the Eleventh Amendment was due to the narrow concern raised by Chisholm.  Tho I disagree with them, I can respect those who hold that it is a bad idea for the states to retain sovereign immunity.  I have no respect for those who assert that the states have not retained sovereign immunity because they are showing no respect for history.

[Southern Senator North Carolina Yankee]

6. Hell no

Yeah, God forbid the 2nd Amendment's text actually be accurate to its intent, thereby keeping Americans from continuing with the gross misconception that this amendment is their free pass to own a gun.

I disagree that such was the original intent of the second amendment. At the time the militia was cumpulsory and there was a long history of such local militias being a check on the power of the national authority. Hell even back in the days of England, they operated as such particularly with the army typically being tiny in comparison to their navy prior to the 1700's. If the national authortiy could disarm them, it would lose such effect and thus considering the circumstances it is hard to believe they anticipated it as being anything other then a means by which to avoid the Feds from doing just that. Its not like such militias organized themselves into what certain folk would label a terrorist cell fully willing to wage war on the nation's own Army not more then two decades prior. I guess I must have dreamed up Lexington, Concord, the ensuing hand to hand fight stretching all the way back to Boston and Bunker Hill (Breeds Hill to be more precise as to where the fight happened).

Somehow I have my doubts that a group of peopel thirteen years later would somehow have forgotten that event or the those meeting just a year or two after the Glorious Revolution would approach it with that view in the light of their own contemporary history.

Ask yourself this. What was the Bill of Rights designed to do in terms of original intent? It did not seek to bestow freedom on people (remember we are talking original intent as you framed it as such) and in fact its applicabliltiy to the state level was not even established until the 20th century in most cases with a few in the 19th. The founders believe god had given such to the people and that it was responsbility of gov't to minimize the infringement of those liberties in the quest of achieving security for their people and their liberty. The Bill of Rights was "intended" by them to protect the people from excesses of the Federal Government.

Ask yourself this, who were they concerned about depriving the militias of the right to bear arms? Why does a gov't empowed to raise and quipt an army under Article I need to protect its units being disarmed with an amendment? Why does a state need to be protected against the same when it can do anything the constitution of such allows (and remember the Bill of Rights did not apply to states back then). What person could possibly disarm the state military and what person or state could possibly disarm the US Army? If not the federal gov't depriving people of their right to arm themselves, what mysterious force is it protecting against from their perspective?

If what you say is true, then the second amendment as intended is the most redundant and pointless amendment ever. It is neither, it was adopted, drawing from a similar vein stemming from English history and in both cases, the state was not preserving the right to arm itself, but for its citizens to not be disarmed by the state.

Edit: And before anyone assumes otherwise I urge you to recall my support for Manchin-Toomey, its disappointment when it failed, general support for background checks and lack of concern about Romney having once supported Brady.

[Bojack Horseman]

SECTION 1: The Tenth Amendment to this Constitution is repealed.
SECTION 2: Only the Congress shall have the power to determine which powers and matters the individual States may set their own policy on, however, no state shall make or enforce any law with the intent to do the following:

Ban or restrict access to abortion in any way
Define marriage as between a man and a woman

SECTION 3: In compliance with the Fifteenth Amendment to this Constitution, no state may require a photo ID to vote, or any other measure designed to lower voter turnout, increase waiting times

[Deus Naturae]

SECTION 1: The Tenth Amendment to this Constitution is repealed.
SECTION 2: Only the Congress shall have the power to determine which powers and matters the individual States may set their own policy on, however, no state shall make or enforce any law with the intent to do the following:

Ban or restrict access to abortion in any way
Define marriage as between a man and a woman

SECTION 3: In compliance with the Fifteenth Amendment to this Constitution, no state may require a photo ID to vote, or any other measure designed to lower voter turnout, increase waiting times

How would the first part of Section 2 work? What method would Congress use to determine the powers of the States? Would a Republican-controlled Congress be able to ban state governments from raising taxes?

The abortion thing and Section 3 are way too unspecific. For example, the thing about wait times could be interpreted to prevent states from expanding suffrage to currently disenfranchised groups (for example, sixteen-year olds).

I realize you probably meant to say "only between a man and a woman" but the marriage thing would prevent opposite-sex couples from receiving any legal recognition.