Excerpted from: SIX AMENDMENTS: HOW AND WHY WE SHOULD CHANGE THE CONSTITUTION by John Paul Stevens. Copyright © 2014 by John Paul Stevens. Used by permission of Little, Brown and Company Hachette Book Group. All Rights Reserved.
According to its preamble, the Constitution of the United States was established by “the People” — not by the states — “in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity . . .” As Abraham Lincoln perceptively observed, it created a government “of the people, by the people, and for the people.” The Union created by the Constitution was unquestionably “more perfect” than the one formed by the states when they signed the Articles of Confederation. Under the Articles there was no central government authorized to resolve disputes among individual citizens, to tax or to impose any direct obligations on individuals, or to regulate commerce between or among the separate states. Like a treaty among multiple sovereigns, the Articles defined obligations that the former colonies assumed in their dealings with one another.
Despite the fact that the Constitution was far “more perfect” than its predecessor, important imperfections in its text were the product of compromises that were certain to require that changes be made in the future. Differing interests of large states and smaller states, as one example, and of slave states and free states, as another, required that the framers make significant concessions to secure agreement. Best known is the compromise that led to a bicameral legislature, with the Senate providing equal representation for all states and the House providing greater representation for the larger states. Less well known is the compromise that granted slave states two special benefits. Evidence of the importance of both of those compromises is found in Article V, which describes how the Constitution may be amended.
That article authorizes two methods of proposing new amendments — by two-thirds of both houses of Congress or by a convention for proposing amendments called by the legislatures of two-thirds of the states; and two methods of ratifying amendments — by the legislatures of three-fourths of the states, or by conventions in three-fourths of the states (this latter method has never been successfully used). Article V also prohibited two kinds of amendments. One of those prohibitions — the total ban on any amendment that would deprive any state, without its consent, “of its equal Suffrage in the Senate” — reveals that the framers viewed that body, rather than the executive or the judiciary, as the primary guardian of the sovereignty of the smaller states.
The second limitation on the power to amend the Constitution highlights the importance of the compromise that appeased the slave states. That limitation prohibited any amendment prior to 1808 that would allow Congress to regulate the importation of slaves. Article V did not, however, mention the bonus provided to the slave states in Article I’s formula for granting them representation in Congress. Even though slaves were not allowed to vote in any state in the South, three-fifths of them were counted for the purpose of determining the size of a state’s congressional delegation and the number of its votes in the Electoral College. In 1800 that slave bonus gave Thomas Jefferson more than the eight votes that provided his margin of victory over John Adams in the Electoral College. Not only did that bonus determine the outcome of that presidential election, but it also affected the work of Congress in the ensuing years when the interests of slave states and free states differed.
The procedures for amending the Constitution set forth in Article V have been successfully employed only eighteen times during the nation’s history. On the first occasion, the ten amendments, often described as the Bill of Rights, were all adopted at once; they placed specific limits on the powers of the new central government. Thus, the First Amendment begins with the command that “Congress shall make no law respecting an establishment of religion,” the preamble to the Second Amendment states that a “well regulated Militia [is] necessary to the security of a free State,” and the Third Amendment protects homeowners from the quartering of soldiers in time of peace. The Fourth Amendment protects individuals from unreasonable searches and seizures. The Fifth Amendment, appropriately, includes five separate guarantees: (1) the right to indictment by a grand jury in felony or capital cases; (2) protection against self-incrimination or (3) double jeopardy; (4) the right not to be deprived of life, liberty, or property without due process of law; and (5) the right to just compensation when property is taken for public use. The Sixth Amendment protects the right to a prompt and public trial, the right to confront hostile witnesses, and the right to a lawyer. The Seventh Amendment protects the right to a jury trial in civil cases, and the Eighth Amendment prohibits excessive fines and cruel and unusual punishments. The Ninth Amendment provides that the enumeration of specific rights in the Constitution “shall not be construed to deny or disparage others retained by the people.” And the Tenth Amendment provides that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” It is undisputed that when they were adopted, the first ten amendments applied only to the federal government and placed no limits on the powers of the states.
Only two additional amendments were adopted prior to the Civil War. The Eleventh Amendment was a response to the Court’s decision in February of 1793 to accept jurisdiction of an action against the state of Georgia brought by a citizen of South Carolina named Chisholm to recover the price of military supplies sold to the state during the Revolutionary War. The amendment precludes federal jurisdiction over cases against a state brought by citizens of another state. Some critics of the Chisholm decision, who believed that the common-law doctrine of sovereign immunity should have foreclosed the suit, have argued that the fact that the amendment was adopted so promptly proves that the Court’s decision came as a “shock” to the nation, which believed that the framers had left intact the sovereign immunity of the states for these types of suits. In fact, however, the amendment that was ultimately adopted was not proposed until March 4, 1794, more than a year after the Chisholm case was decided, and more than eleven additional months elapsed before it was ratified. In contrast to that two-year deliberative process, the interval between the proposal on December 9, 1803, of the Twelfth Amendment — which significantly revised the Electoral College procedures used to elect the president — and its ratification on June 15, 1804, was just a few days more than six months.
President Abraham Lincoln played a major role in persuading Congress to propose the Thirteenth Amendment on January 31, 1865. That amendment, which abolished slavery, was not ratified by the states until December 6, well after his assassination on Good Friday in 1865. The Fourteenth Amendment, which awarded citizenship to the former slaves, was opposed by President Andrew Johnson and not ratified until July 9, 1868. That amendment was immensely important, not only because it granted African Americans citizenship, but also because it imposed on the states a federal duty to govern impartially. It provided that no state may “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Ulysses S. Grant was president on February 3, 1870, when the Fifteenth Amendment, which granted the former slaves the right to vote, was ratified. By maintaining federal troops in the Southern states, Grant made it possible for the new class of voters to affect the results of a number of state elections. At the end of his second term, in 1877, however, presumably as a result of the compromise that settled the dispute over the outcome of the presidential election of 1876 by awarding the victory to Rutherford B. Hayes, the federal troops were withdrawn and white supremacist groups like the Ku Klux Klan effectively put an end to African American voting in the South for the next eighty years. During that period, while the three-fifths slave bonus had been eliminated by Section 2 of the Fourteenth Amendment, the Southern states’ congressional delegations were enlarged by counting 100 percent of their African American populations, even though the discriminatory administration of local election laws combined with the terrorist tactics of the Klan prevented all but a few of them from actually voting. Thus, one could argue, the Southern states went from having a three-fifths bonus before the Civil War to having a five-fifths bonus during this period.
In 1913 two amendments to the Constitution were adopted. The Sixteenth Amendment overruled the five-to-four decision of the Supreme Court in Pollock v. Farmers Loan and Trust Co.,1 which had held that a federal statute imposing a tax on income violated the constitutional prohibition against unapportioned “direct taxes”; that amendment is the source of the federal power to impose an income tax. The Seventeenth Amendment replaced the practice of having United States senators chosen by state legislatures with direct elections by the people.
The Eighteenth Amendment, prohibiting the manufacture, sale, or transportation of intoxicating liquors, became effective in 1919; it was repealed by Section 1 of the Twenty-first Amendment in 1933. Section 2 of that amendment prohibited the transportation of intoxicating liquors into any state that prohibited their use. While nationwide prohibition was in effect, the Nineteenth Amendment gave women the right to vote, and the Twentieth Amendment advanced the commencement of the president’s term in office from March 4 to January 20.
The Twenty-second Amendment, adopted in 1951, when Harry Truman was president, formally endorsed George Washington’s decision that two terms as president were sufficient and rejected the possibility that a candidate as popular as Truman’s predecessor, Franklin Delano Roosevelt (who had been elected four times), might be elected more than twice. The Twenty-third Amendment gave the District of Columbia representation in the Congress and in the Electoral College. The ratification of the Twenty-fourth Amendment in 1964 finally abolished the poll tax in federal elections. The Twenty-fifth Amendment, which became effective in 1967, specified for the first time the procedures to be followed to fill a vacancy in the office of vice president and to respond to the temporary or permanent incapacity of the president. Those procedures were followed by Richard Nixon when he nominated Gerald Ford to become vice president after Spiro Agnew resigned. That amendment also provided that Ford should become president when Nixon resigned. In 1971, the Twenty-sixth Amendment gave citizens who are eighteen years or older the right to vote in both federal and state elections.
In the past forty years only one amendment has been adopted: the Twenty-seventh, prohibiting Congress from changing its salary between elections. It was first submitted to the states in 1789 but was not ratified until two centuries later, in 1992. In those forty years, however, rules crafted by a slim majority of the members of the Supreme Court have had such a profound and unfortunate impact on our basic law that resort to the process of amendment is warranted. One of those rules has changed the character and increased the cost of campaigns for public office, a second has changed the composition of the Congress as well as that of many state legislatures, and two others have unwisely curtailed the powers of Congress. Moreover, the Court’s death penalty jurisprudence, while improperly enhancing the risk of executing an innocent defendant, has simultaneously removed the principal justification for retaining that penalty. And the Court’s interpretation of the Second Amendment has given federal judges, rather than the people’s elected representatives, the final authority to define the permissible scope of civilian regulation of firearms.
In the following pages I propose six amendments to the Constitution; the first four would nullify judge-made rules, the fifth would expedite the demise of the death penalty, and the sixth would confine the coverage of the Second Amendment to the area intended by its authors. The importance of reexamining some of these rules is already the subject of widespread public debate, but others have not received either the attention or the criticism that is warranted. For that reason, I shall begin with a discussion of the “anti-commandeering rule,” which prevents the federal government from utilizing critical state resources, thus impairing the federal government’s ability to respond to problems with a national dimension, and explain why it would be prudent to eliminate the rule before a preventable catastrophe occurs. Chapter II argues that an amendment prohibiting political gerrymanders would make the House of Representatives and several state legislatures more representative and more democratic. In Chapter III, which discusses some of the predictable consequences of the controversial Citizens United decision, I suggest that the Court’s most serious error may well have been attributable to a portion of the 1976 opinion in Buckley v. Valeo,2 the case in which the Court extensively reviewed the constitutionality of the numerous statutory provisions regulating political campaigns that were enacted by Congress following Richard Nixon’s reelection in 1974. Chapter IV explains how the Court’s increasingly aggressive reliance on the doctrine of sovereign immunity, an ancient rule that has been expanded to protect states and their agents from liability even though they violate the law, has resulted in the wholesale invalidation of acts of Congress. In Chapter V, I shall explain why the death penalty should be banned throughout the country. And finally, in Chapter VI, I propose adding five words to the text of the Second Amendment to return it to the intent of its authors.
As time passes, I am confident that the soundness of each of my proposals will become more and more evident, and that ultimately each will be adopted. The purpose of this book is to expedite that process and to avoid future crises before they occur.
1 158 U.S. 429 (1895). (This citation means that the opinion may be found at page 429 of volume 158 of the United States Reports, the official publication of the opinions of the United States Supreme Court. The parenthetical at the end indicates that the opinion was published in 1895.)
2 424 U.S. 1 (1976).
The “Anti-Commandeering” Rule
The second paragraph of Article VI of the Constitution — the “Supremacy Clause” — provides: “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 in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” In a decision from which four justices dissented, the Court recognized that this clause permits Congress to enact laws that impose federal duties on state judges, but concluded that it does not allow the federal government to require any other state officials to enforce federal rules of law. The ruling in that case unnecessarily and unwisely curtails the power of Congress to make use of state officials in the enforcement or administration of federal law. It creates a serious risk that the federal response to national catastrophes or acts of terrorism will be inadequate; it also impairs the efficient administration of ordinary federal programs. The potentially harmful consequences of this “anti-commandeering” rule are clearly sufficient to justify an amendment to the Constitution repudiating it.
In the aftermath of the murder of twenty first graders and six adults at the Sandy Hook Elementary School in New-town, Connecticut, on December 14, 2012, the New York Times published an article describing serious omissions in the database used by the federal government in making background checks of prospective gun purchasers:
The gaps exist because the system is voluntary; the Supreme Court ruled in 1997 that the federal government cannot force state officials to participate in the federal background check system. As a result, when a gun dealer asks the F.B.I. to check a buyer’s history, the bureau sometimes allows the sale to proceed even though the purchaser should have been prohibited from acquiring a weapon, because its database is missing the relevant records. While the database flaws do not appear to have been a factor in the Newtown, Conn., school massacre, they have been linked to other attacks, including the Virginia Tech mass murder in 2007.
The 1997 case to which the article referred was the Court’s five-to-four decision in Printz v. United States,1 in which the Court announced what has come to be known as the anti-commandeering rule — a rule that prohibits Congress from requiring state officials to perform federal duties.
In the Printz case the Court considered the constitutionality of a provision in Congress’s ultimate response to the attempted assassination of President Ronald Reagan in 1981. His assailant, John Hinckley, who almost succeeded in killing the president and who seriously wounded Jim Brady, the president’s press secretary, was found not guilty by reason of insanity. After prolonged hearings and over seven years of debates, in 1993 Congress finally enacted the Brady Handgun Violence Protection Act as an amendment to the Gun Control Act of 1968. The 1968 act had established a detailed federal scheme governing the distribution of firearms. The amendments to that scheme were described in the legislative history as a response to an “epidemic of gun violence,” noting that 15,377 Americans had been murdered with firearms in 1992.
The new statute, known as the Brady Act, required the attorney general to establish a national instant-background check system to prevent felons and persons with mental problems from buying guns. The act authorized $200 million in federal grants to the states to compensate them for their assistance in developing the national system. Congress directed the attorney general to have the new system in place by November 30, 1998. In the interim, the amendment provided that a firearms dealer, before making a sale, must give notice to the local chief law enforcement officer (“CLEO”), who was then required to make a “reasonable effort” to determine whether the proposed sale would be lawful.
Congress obviously expected local law enforcement officers to welcome the opportunity to participate in the interim background-check program. A “friend of the court” brief filed in the Supreme Court on behalf of groups representing “hundreds of thousands” of police officers, including the Fraternal Order of Police and the National Association of Police Organizations, expressed unqualified support for the act and explained why the burden imposed on local officials was trivial, while the benefits of the background checks were significant. (Between 1994 and 1996 background checks had prevented approximately 6,600 firearms sales each month to potentially dangerous persons.) Nevertheless, Jay Printz, the CLEO for Ravalli County, Montana, and Richard Mack, the CLEO for Graham County, Arizona, filed two separate actions challenging the constitutionality of the interim provisions of the Brady Act. Printz and Mack were both represented by Stephen A. Hal-brook, a well-respected Virginia lawyer and author who had written at length about the right to bear arms protected by the Second Amendment. Halbrook persuaded both district judges that a federal mandate requiring local sheriffs to perform background checks, even on a temporary basis, was prohibited by the Supreme Court’s ruling in the then-recent decision in New York v. United States. In that case (over the dissent of Justices Byron White, Harry Blackmun, and myself ) the Court had invalidated a federal statute that required states either to enact legislation providing for the disposal of radioactive waste within their borders or to take title to the waste.
The Court of Appeals for the Ninth Circuit reversed the district court decisions and upheld the constitutionality of the Brady Act. In its opinion the appellate court pointed out that the reasoning in the Supreme Court’s opinion in New York applied to federal statutes commanding state legislatures to enact specific laws, but not to the Brady Act’s direction to CLEOs. It wrote:
Although we concede that there is language in New York that lends support to the view of Mack and Printz, that language must be interpreted in the context in which it was offered. New York was concerned with a federal intrusion on the States of a different kind and much greater magnitude than any involved in the Brady Act. The constitutional evil that New York addressed was one recognized by several of the cases already cited: the federal government was attempting to direct the States to enact their own legislation or regulations according to a federal formula.
After their loss in the Court of Appeals, Printz and Mack successfully sought review in the Supreme Court, arguing that the distinction between forced legislation and requiring other action by state officials was not valid. In a five-to-four decision, the Court agreed with that argument and ruled in their favor. That majority opinion is the source of what is now known as the anti-commandeering rule.
It was an unusual opinion because the Court failed to cite either of the two earlier opinions that — had they not been overruled — would have provided more support for its position than those it did cite. The two uncited cases were the 1861 opinion by Chief Justice Roger Taney in Kentucky v. Dennison,2 and the 1976 opinion by then-Justice William H. Rehnquist in National League of Cities v. Usery.3
In the former case the state of Kentucky had requested the Court to issue an order compelling the governor of Ohio to comply with Kentucky’s attempt to extradite Willis Lago, who had been charged in Kentucky with assisting a slave to run away from his master. In his opinion for the Court refusing to order Ohio to comply with Kentucky’s extradition request, Chief Justice Taney wrote:
[W]e think it clear that the Federal government, under the Constitution, has no power to impose on a state officer, as such, any duty whatsoever, and compel him to perform it; for if it possessed this power, it might overload the officer with duties which would fill up all his time, and disable him from performing his obligations to the state, and might impose on him duties of a character incompatible with the rank and dignity to which he was elevated by the state (pp. 107-108).
While Taney’s reasoning in that case would have provided direct support for the outcome in Printz, in a 1987 case involving a request by Puerto Rico to the governor of Iowa for the extradition of a fugitive who had been accused of murder in Puerto Rico, the Court reconsidered its holding in Kentucky v. Dennison and overruled the case. In his opinion for the Court in Puerto Rico v. Branstad,4 Justice Thurgood Marshall wrote that:
Kentucky v. Dennison rests upon a foundation with which time and the currents of constitutional change have dealt much less favorably. If it seemed clear to the Court in 1861, facing the looming shadow of a Civil War, that “the Federal Government, under the Constitution, has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it,” . . . basic constitutional principles now point as clearly the other way. . . . It would be superfluous to restate all the occasions on which this Court has imposed upon state officials a duty to obey the requirements of the Constitution, or compelled the performance of such duties; it may suffice to refer to Brown v. Board of Education, and Cooper v. Aaron. The fundamental premise of the holding in Dennison — “that the States and the Federal Government in all circumstances must be viewed as coequal sovereigns” — is not representative of the law today. . . .
Kentucky v. Dennison is the product of another time. The conception of the relation between the States and the Federal Government there announced is fundamentally incompatible with more than a century of constitutional development. Yet this decision has stood while the world of which it was a part has passed away.5
Justice Rehnquist’s opinion for a narrow majority in National League of Cities v. Usery (the Secretary of Labor)6 would also have provided support for the anti-commandeering rule if the case had not been overruled. In that case the Court invalidated an act of Congress that required the states to comply with the Fair Labor Standards Act, reasoning that the federal statute impermissibly impaired the states’ ability to act as sovereigns. What that opinion described as an “undoubted attribute of sovereignty” was the states’ power to determine the wages and hours of their employees. Because the Rehnquist majority viewed those determinations as “functions essential to separate and independent existence,” it held that “Congress may not abrogate the States’ otherwise plenary authority to make them.”7
Less than a decade after the decision in National League of Cities, Justice Harry Blackmun had second thoughts about the case and decided that it should be overruled. In Garcia v. San Antonio Metropolitan Transit Authority8 — a case that involved the application of the Fair Labor Standards Act to the employees of a public agency — he did just that. Joined by the four justices who had dissented in National League of Cities (William J. Brennan, White, Marshall, and myself), he issued an opinion expressly overruling National League of Cities. In that opinion Justice Blackmun correctly explained that the states’ sovereign interests “are more properly protected by procedural safeguards inherent in the structure of the federal system than by judicially created limitations on federal power.”9 Those procedural safeguards ensure that any decision to impose a federal duty on states or state officers, or the chief law enforcement officers of a county, is made by the Congress, all of whose members represent the interests of the several states.
Justice Blackmun’s belief that the framers of the Constitution relied primarily on Congress rather than the judiciary to protect the states’ sovereign interests is buttressed by the provision in Article V of the Constitution that permanently prohibits any amendment that would deprive any state of its equal suffrage in the Senate. While he did not cite Article V in his Garcia opinion, his decision to defer to the congressional judgment expressed in the amendment to the Fair Labor Standards Act provides a dramatic contrast with the bold lawmaking approach followed by the majority in Printz.
That majority also failed to consider whether the rule it announced was really just “the product of another time,” or whether deference was due to a decision made by the elected representatives of the states. Moreover, the opinion had little to say about the practical consequences of a decision limiting the power of the federal government to respond to problems with a national dimension. Instead, after stating that “there is no constitutional text speaking” to the question whether Congress can compel state officers to execute federal laws (a statement that simply ignores the text of the Supremacy Clause), the majority based its answer on (1) its understanding of relevant historical events, (2) what it described as “the structure of the Constitution,” and (3) the Court’s prior jurisprudence. While the debates between the majority and the four dissenters over those three matters occupy more than seventy pages in the official reports of the Court’s decisions, a few words here will identify the nature of that debate.
The earliest historical events relevant to the Printz case were laws enacted by Congress in the 1790s; they required state judges to perform duties related to the registration of aliens, the naturalization of new citizens, and the arbitration of disputes about the seaworthiness of vessels. Under the majority’s view those laws were authorized by the Supremacy Clause of the Constitution only because they imposed duties on state judges rather than on other state officers or agents. In my judgment that is not a fair reading of the text, which provides that “the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby” (Article VI, Cl. 2). Moreover, there were later historical events in which the federal government relied on state officials to carry out federal programs.
The World War I selective draft law was just such an event. The statute expressly authorized the president to utilize the services of “any or all departments and any or all agents of the United States and of the several States,” and made it a misdemeanor for any person to refuse to comply with the president’s directions. The statute provides an example of how reliance on state officials can provide an integral part of an important federal program. Whether it is also evidence of a belief shared by both the Congress and President Wilson that the federal government could command state participation — as opposed to merely making a request for voluntary assistance — was the subject of debate among the justices in the Printz case. The Court discounted the significance of this statute because, when President Wilson called upon the state governors to implement it, he “requested” them to act instead of issuing “commands.” It seemed to me that the imposition of criminal sanctions for refusing to comply with a presidential request made it as mandatory as an express command. Moreover, it is unrealistic to assume that Congress would have enacted a national draft law — or that the president would have signed a law — that gave the separate states an option to refuse to participate, or to curtail their respective participation, in the nation’s war effort. I think it also quite wrong to assume that a failure by Congress or the president to issue direct commands to state officers is evidence of a lack of power to do so. But even if we assume that the Printz majority correctly divined the actual intent of either President Wilson or the World War I Congress, that assumption sheds no light whatsoever on the wisdom of a rule that gives state and county officials a constitutional right to refuse to obey federal commands. The selective service law, which imposes a duty on ordinary citizens to engage in combat with our foreign enemies when ordered to do so, does, however, highlight the unusual character of a rule that gives county law enforcement officers a constitutional right to refuse to participate in a federal program designed to curb domestic violence.
The structure of the government created under the Constitution differed from that created by the Articles of Confederation in several ways. Most relevant to the issue presented by Printz, under the Articles the national government had no direct power over individual citizens; its commands were all directed to the states, which in turn imposed duties on their citizenry. Under the Constitution both the states and the federal government exercise direct authority over citizens. The Printz majority made the illogical assumption that the Constitution’s grant of additional authority to the national government must have been accompanied by a surrender of the preexisting authority to issue commands to states. It is more logical, however, to assume that an effective remedy for weakness would include not only the new authority but also the preservation of the existing authority. The fact that throughout our history the federal government has required the states to play a critical role in providing the manpower to fight our wars demonstrates that the anti-commandeering rule was invented by the Printz majority.
In addition to increasing the risk of a national catastrophe and hampering the federal government’s ability to make a prompt and effective response to disasters, the anti-commandeering rule also limits the government’s options in the routine administration of its programs. Federal programs involving the protection of the environment, the distribution of electric power, and the regulation of interstate transportation, as examples, may be implemented more efficiently by the reliance, in part, on state personnel instead of enlarging the federal bureaucracy. An article in the 1998 edition of the Supreme Court Review published by University of Chicago professors Matthew Adler and Seth Kreimer had this to say: “Like the federalism jurisprudence set forth a generation ago, in National League of Cities v. Usery, the new jurisprudence of commandeering purports to define an area of total state (and local) immunity from federal intervention. Neither the magnitude of the federal interest nor the degree of interference with state prerogatives is relevant. Rather, the doctrinal boundaries constitute what Justice Anthony Kennedy calls ‘the etiquette of federalism,’ and federal trespass across those boundaries is per se invalid.”
After noting that other scholars had already shown that neither history nor constitutional text supported the new doctrine, their own analysis “emboldened” Professors Adler and Kreimer to make “the positive prediction that the doctrine will soon be abandoned, as was National League of Cities a generation ago. A jurisprudence that consists of nothing more than some arbitrary rules of ‘etiquette’ ought to be, and we hope soon will be, outgrown.”
Rather than waiting for a jurisprudence consisting of nothing more than an arbitrary rule of etiquette to be outgrown, I have come to the conclusion that the potential hazards associated with the rule are sufficiently serious to justify amending the Constitution to eliminate the rule. Even though each such hazard may be remote, the magnitude of the potentially harmful consequences is sufficiently serious to justify such action. Adding just four words — “and other public officials” — immediately after the word “Judges” in the Supremacy Clause would, under the Court’s reasoning, expressly confirm the power of Congress to impose mandatory duties on public officials in every state.
I have already mentioned the fact that the voluntary character of state participation in the development of a database for making background checks of prospective gun purchasers enhances the risk that another mass murder will occur. Although the attack on the World Trade Center that occurred on September 11, 2001, was not foreseen when the Printz case was decided, I had this to say in my dissent:
[S]ince the ultimate issue is one of power, we must consider its implications in times of national emergency. Matters such as the enlistment of air raid wardens, the administration of a military draft, the mass inoculation of children to forestall an epidemic, or perhaps the threat of an international terrorist, may require a national response before federal personnel can be made available to respond.10
As Justice Breyer pointed out in his own dissent in the Printz case:
I would add to the reasons Justice Stevens sets forth the fact that the United States is not the only nation that seeks to reconcile the practical need for a central authority with the democratic virtues of more local control. At least some other countries, facing the same basic problem, have found that local control is better maintained through application of a principle that is the direct opposite of the principle the majority derives from the silence of our Constitution. The federal systems of Switzerland, Germany, and the European Union, for example, all provide that constituent states, not federal bureaucracies, will themselves implement many of the laws, rules, regulations, or decrees enacted by the central “federal” body.11
Perhaps Congress would seldom elect to pattern an American program after a foreign model, but our elected representatives, rather than judges, should decide whether it is wise to do so. They should take prompt action to minimize the risk of another tragedy like the massacre that occurred at the Sandy Hook Elementary School and to maximize the federal government’s ability to respond effectively to natural disasters that recur with distressing frequency. The Constitution should be amended by adding the four words “and other public officials” to the Supremacy Clause in Article VI.
1 521 U.S. 898 (1997).
2 65 U.S. (24 How.) 66 (1860).
3 426 U.S. 833 (1976).
4 483 U.S. 219 (1987).
5 Id. at 227-230.
6 426 U.S. 833 (1976).
7 Id. at 845-846.
8 469 U.S. 528 (1985).
9 Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 552 (1985).
10 521 U.S. at 940.
11 521 U.S., at 976.
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