Retired Supreme Court justice John Paul Stevens wants to change the Constitution.

Having failed to expand federal power to the extent he deems necessary through judicial fiat, Stevens wrote a book proposing six amendments to complete the task.

Six Amendments: How and Why We Should Change the Constitution focuses on several issues including limiting the scope of the Second Amendment, abolishing the death penalty, reining in campaign spending and addressing legislative districting. But in a recent USA Today interview, Stevens makes it clear that limiting the states’ ability to resist federal power stands as his first and primary target.

Stevens gets one thing right: amending the Constitution is the legitimate process to expand federal authority in the manner he desires. But it appears he only resorts to the constitutional process because he believes that cases involving these issues, as the USA Today puts it, “have been wrongly decided.” Failing to completely twist the meaning of the Constitution to accommodate his preferred policy positions during his 35 years as a SCOTUS justice, Stevens now hopes to jump-start an amendment movement to drastically expand the scope of federal authority.

Limiting state power serves as the foundation of his proposals. In fact, it appears his frustration with the anti-commandeering doctrine inspired his book. He told the USA Today that the Newtown shootings focused his attention on the principle because it prevented the federal government from forcing states to perform federal duties relating to gun registration.

The anti-commandeering doctrine rests primarily on four SCOTUS cases dating back to 1842. Printz v. US serves as the cornerstone.

We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States’ officers directly. The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program. It matters not whether policy making is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty.

Stevens expressed his frustration with the ruling in his interview with the USA Today. Apparently, his idea for expanding federal power started there and morphed  to other issues.

It’s called the anti-commandeering rule, which turned out to be the first chapter of a book that kind of grew like Topsy,” Stevens said. “I thought that maybe the only way to get rid of the rule is to have a constitutional amendment, and then it occurred to me … that there really are other provisions of the Constitution that should be looked at more closely.

Justice Joseph Story first articulated the principle of anti-commandeering based on the original understanding of the limits of federal authority in an 1842 fugitive slave case, Prigg v. Pennsylvania.

The states cannot, therefore, be compelled to enforce them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or instrusted to them by the Constitution.

Printz built on that foundation, along with several other SCOTUS opinions. But in the first chapter of his book, Stevens asserts that the majority wrongly decided Printz, arguing that it ignored two important cases.

Stevens demonstrated his “living, breathing” view of the Constitution when he acknowledged the state-centric understanding prior to the Civil War, but argues that judicial winds blew things the other direction after.

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.

Writing for the majority in Printz, Justice Scalia didn’t see it that way. He passed over two cases Stevens highlights as key and reverted back to the earlier understanding – the feds cannot compel the states to act.

Ever the obedient federal supremacist, Stevens submits to the current Court view. That leads him to his proposal for amendments.

Steven’s desire to expand federal power at the expense of the states is dangerous. The ability of states to refuse cooperation with unconstitutional actions serves as an important check on federal power. In fact, James Madison included “refusal to cooperate with officers of the union” in his blueprint to stop “unwarrantable” (or even warrantable) federal actions.

Stevens’ amendment would strip that check on federal power away.

But he insists that we don’t need any such check. Members of Congress, he assures us, “represent the interests of the several states.”

Interesting concept, but it seems that relying on Congress to limit the power of the federal government, and to represent you and me might not play out very well.

As it stands, the anti-commandeering doctrine remains the law of the land. Even a advocate for virtually unlimited federal authority like Stevens must admit it and advocate for an amendment to make the change. Anti-commandeering has the SCOTUS seal of approval, and more importantly, it fits within the original meaning of the Constitution. Federal power was always meant to remain limited, and the Constitution delegates no authority to Congress to force state officers to do its bidding.

The Tenth Amendment Center will continue to use this principle to advance legislation at the state level that will serve to limit an expansive federal government.

After all, who wants a federal monopoly on power?

Mike Maharrey

The 10th Amendment

“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.”



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