John Paul Stevens’ Gilbertian Nonsense


The Lord Chancellor-Stevens

A rather long preface is in order. Bear with me, please…

In the great, underperformed Gilbert and Sullivan operetta “Iolanthe,” W.S. Gilbert, a lawyer by training, devised a satirical judicial solution to a dire turn in the plot. Iolanthe, a fairy, violated Fairy Law by marrying a mortal, who happened to be the Lord Chancellor of England (he never noticed her wings, apparently.) The transgression commands the death penalty, but Iolanthe received a pardon on the condition that she allow her husband to think her dead, which she does for a couple of decades, much of which she spends doing penance at the bottom of a froggy stream, on her head.…but I digress.

When she learns, however, that her husband of yore is about to marry the sweetheart of her half-fairy son, who, though the Lord Chancellor doesn’t know it, is also his son, Iolanthe reveals herself and the paternity to the Lord Chancellor, who is duly stunned. This again triggers the death penalty and just minutes away from the finale, it looks like Iolanthe is going to end up like Carlo in “The Godfather,” as the fairy equivalent of Clemenza waddles on to the stage. (That’s how I would stage it, anyway.) Then this happens:

Leila (Another fairy): Hold!  If lolanthe must die, so must we all, for as  she has sinned, so have we!

Fairy Queen: What?

Celia (Yet another fairy, as the British House of Peers, who the entire fairy troop has wedded en masse, enters. It’s complicated…): We are all fairy duchesses, marchionesses, countesses, viscountesses and baronesses!

Lord Mountararat (one of the Lords): It’s our fault ; they couldn’t help themselves!

Queen. It seems they have helped themselves, and pretty  freely too !  You have all incurred death, but  I can’t slaughter the whole company. And yet (she produces out the official fairy statute document)  the law is clear: “Every fairy must die who marries a mortal.”

Lord  Chancellor: Allow me, as an old equity draftsman, to make a suggestion. The subtleties of the legal mind are equal to the emergency. The thing is really quite simple; the insertion of a single word will do it. Let it stand that every fairy shall die (he writes on the document) who don’t marry a mortal, and there you are, out of your difficulty at once!

So all the Peers and the Lord Chancellor are magically transformed into fairies, they sing the finale, which you can watch below, and off they go to Fairyland!

Funny, but ridiculous. Thus it was something of a shock to see that the esteemed former Supreme Court Justice John Paul Stevens seriously suggests, in his new book, “Six Amendments: How and Why We Should Change the Constitution,” a similarly Gilbertian solution to the problematical (to some) Second Amendment of the Bill of Rights by advocating the addition of not one word, but five. This “old equity draftsman” opines…

“As a result of the rulings in Heller and McDonald, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were “well regulated,” has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arms. That anomalous result can be avoided by adding five words to the text of the Second Amendment to make it unambiguously conform to the original intent of its draftsmen. As so amended, it would read:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when serving in the Militia shall not be infringed.”

And off we fly to…I don’t know what you would call it; I know Mark Levin would call it “Tyrannyland.”

I’m glad Justice Stevens is enjoying his retirement and taking potshots—metaphorically, of course—at all the Second Amendment cases he was on the losing side of while he was on the Court. Surely his book will be gleefully snapped up by gun-phobics, fans of Piers Morgan and Jim Carrey, but Justice Stevens is a smart man.  He has to know that his “solution” to the nation’s argument over firearms has exactly the same chance of becoming reality as Congress has of sprouting wings. What is the point of such a proposal, then? It isn’t serious, because it isn’t realistic or practical. No Constitutional Amendment is, but this one is particularly hopeless, and thus absurd. There is nothing wrong with posing wild hypotheticals or fantastic policy scenarios, as long as one is honest about what they are. Otherwise, every second devoted to public debate about the wisdom of such doomed proposals takes away time that we could be learning about the missing Malaysian airline.

I regard these kinds of manufactured debates counter-productive and a distraction from the task of seeking genuine consensus. For a respected and influential figure like Stevens to start one is irresponsible.

Last week a baseball executive suggested that the sport could solve the problem of long games (young people don’t have the attention span to watch “The Ice Man Cometh,” “Hamlet,” “Schindler’s List” or Game 6 of the 1975 World Series, you see) by shortening the National Pastime from nine innings to only seven. Or, in the alternative, everyone could turn into fairies! Think of how much fun it would be  watching Jacoby Ellsbury fly up in the air to rob Miguel Cabrera of a grand slam! It’s not going to happen, and listing the reasons why would take more time than the issue is worth. Yet there it was being debated on sports talk shows and generating online polls. Gee, thanks, Baseball Executive Who Didn’t Even Have The Guts To Identify Himself!  Thanks for wasting our time, and diverting attention from the many ways games could be speeded up without invalidating a century’s worth of  records and statistics, losing billions in ad revenue, and essentially committing sport hari kari.

I put Stephens in the same category as the executive, though he gets ethics points for at least making his silly suggestion openly. His supposed “fix” is also intellectually dishonest. Why would the Founders, in a set of amendments that are all directed at protecting individual rights, include an amendment that limits individual rights? Why would these brilliant men compose an amendment that is silly on its face, and obviously unnecessary, unless they foresaw Dennis Kucinich, Bruce Lee or Soupy Sales becoming a future opinion leader? What good is a militia in which militiamen have to fight with their bare hands? Who in their right mind would propose infringing on the right of a militia to be armed?

It might make a good operetta though…


Source: Washington Post

19 thoughts on “John Paul Stevens’ Gilbertian Nonsense

  1. Jack, and while we are at it, why don’t we limit the First Amendment to anyone with a printing press. Adding five words should do it. Just as the Founders never conceived of a .50 pistol or an AR-15, they were not talking about the internet when they wrote that.

    Now, go shut down your blog. It’s Un-American, I tells ya!


  2. I read all six – they’re all ridiculous. I instead propose that there be annual mental competence exams for all Federal jurists, with compulsory retirement upon failure of the exam or age 70, whichever comes first.

  3. Look, I can do it for him, and probably get more Lefty consensus:

    “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms when the government says so shall not be infringed”

  4. Since when is the rewriting of the Constitution a judge’s business anyway? (yes, I know he’s a *former* judge, and any ole’ citizen is free to pontificate about legislative matters… but I think it relevant that he speaks from a position of judge).

    Last I checked, that would a legislative function or a state-consensus function requiring a heavy majority to achieve.

  5. It’s a good thing half-baked ideas like Justice Stevens have little to no chance of succeeding. At least, in the first 232 years of the Constitution.

  6. Or, just get rid of the first four words:

    being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed


  7. “A well-regulated judiciary, being necessary for the establishment of justice in a free State, the right of the people to keep, bear and use arms against that judiciary shall not be infringed.”

  8. “A well-regulated judiciary, being necessary for the establishment of justice in a free State, the right of the people to keep, bear and use arms against that judiciary shall not be infringed so long as we think you deserve to have them, peasants.”

  9. Just as an aside. I followed the link and read the whole play. One of the few times I’ve ever read a whole play that wasn’t Shakespeare.

  10. Well, he also believes that Shakespeare’s works were actually written by Edward de Vere, 17th Earl of Oxford. Time to retire Justice Stevens!

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