and political gerrymandering to gun control and the death penalty and the anti-common deering principle. all of these are cases where the supreme court ruled differently, and you dissented in many of these cases. tell me why you decided to write the book and why you decided to propose these six constitutional amendments. >> guest: well, it's sort of a project that just kind of grew, to tell you the truth. the heeled cause was the killing of the school children in connecticut. and "the new york times" story about theéwu.uéñtát(u tñat ther anti-commandeering rule places an obstacle in the way of the government's getting total information on background checks to precede the purchase of guns. and i had not actually realized before i read that new york times story that that rule does, in fact, increase the likelihood that a person will be eligible,

will be allowed to purchase guns when he shouldn't have. and that did not, that is not a cause of that particular tragedy, but it likely may have been a cause of other, similar tragedies. >> host: well, this anti-commandeering amendment which is your first amendment, and i've dog eared all of them with these high-tech pieces of paper, sounds technical, but it's quite important. i'm going to read the amendment that you propose and you can help explain it. you say adding just the four words "and other public officials" after the word "judges" and "the supremacy clause" would allow congress to impose mandatory duties on public officials in every state. what does that mean, and what is the problem that you're seeking to remedy? >> guest: well, i think that the supremacy clause proposerly construed -- properly construed would already have allowed the government to impose mandatory duties on state officials. at least, for example, i would

have thought they could have requested a local policeman to help to search passengers at an airline terminal or something of that kind. but the court, as you know, decided otherwise in the prince case. and i think the potential consequences of the decision are more serious than many people realize. but they're not the kind of consequences that arise every day. but there's a time bomb sitting in the back room as far as i'm concerned where it may, in fact, impede action that could be terribly important in a national situation. >> host: the prince case that you mentioned involved the gun-free school zones act. it was a federal law that congress passed to regulate guns in schools. the supreme court, as you suggested, struck it down on the grounds that federal officials can't command state officers to carry out certain duties, and you presciently objected and said there might be a future terrorist attack -- and this was before 9/11 --

>> guest: that's right. >> host: and you said this would make it hard to respond to terrorism and other acts of violence. >> guest: that's exactly right. and i really think that the rule in place now would interfere with a draft law, for example, where both in world war ii and in other fire situations the federal government had made important use of state officials to help get the army drafted. and i do think it's more important that people realize -- than people realize. >> host: you also said the court misconstrued previous precedents, that before the court had refused to endorse this broad states' rights principle and prince changed the law to a degree that was not justified by history or precedent. >> guest: well, that's true, although it's interesting enough that the majority opinion in prince did not cite either of the two cases that were, would have been provided better support for its holding than any

case they did cite. one of them was a pre-civil war case that had basically held there was an anti-commandeering rule. and justice marshall in a litter opinion overruled -- in a later opinion overruled that case and basically what he said, it was the product of another part of our history that had long gone by. pre-civil war and pre-14th amendment. >> host: you know, this is a big theme that runs throughout the book. in your view, the civil war and the reconstruction amendments that followed it transformed the relation between federal and state power and gave the federal government broad power to protect minorities and to solve national problems. and you object in many of these cases that some of your colleagues on the court were adopting a pre-civil war vision that is not justified after the reconstruction amendments themselves. >> guest: i think that's right. and i really think -- although i don't say as much ant this in the -- about this in the book as i learned while reading, trying

to put it together -- i think that our, the president grant and some of his immediate successors are not adequately appreciated for the work that they did. and i think that there was a sort of a underlying campaign among some historians who were partial to the south largely to cast doubt on the capacity of grant. and i think he's a much better president than people generally assume. >> host: you also think that the reconstruction amendments gave much broader powers to congress than the court has currently recognized. >> guest: i think that's correct. >> host: you have in your discussion of southern immunity, that's another -- sovereign immunity, i though you feel very strongly about it and it has big consequences. it also is a states rights issue. you're going to be able to explain it, of course, far better than i can. let me read the amendment that you propose. when it comes to sovereign immunity, you'll tell me why you

think it's important. you say that neither the 10th amendment, the 11th amendment nor any oh provision of this constitution shall be construed to provide any state, state agency or state officer with an immunity from liability for violating any act of congress or any provision of this constitution. why do you propose that amendment? >> guest: well, it's kind of a long story, and it's really an interesting story because the doctrine that is now in place is, according to the majority holdings, is kind of implicit in the plan of the convention as part of the constitution. it started out in the chism v. georgia. the question whether there was a common law immunity to protect georgia from paying its debts. and the court held by a vote of 4-1 there was no such immunity. and then the 11th amendment was adopted in response to that decision, and for years -- marley with opinion -- particularly with opinions by

john marshall -- the amendment really was construed very narrowly to apply only to cases in which the state itself was asserting sovereign immunity. and he basically construed it in a way that if relief could be granted against other state offices, the amendment would be no obstacle. and that was, basically, the state of the law until after the civil war. and during the period of reconstruction, the process of reinterpreting the rule began. and particularly in some cases arising out of louisiana, the court basically -- they first held that louisiana could not welch on obligation. then a few years later after there'd been a change in administration and the northern troops had been removed from the south, the court took the opposite view and decided a case which really is embarrassingly inconsistent with marshall's early ruling. and i really think that it's

not, there's a connection between the reconstruction states' rights attitude that developed in those years and the doctrine of sovereign immunity which later on became with not only protected from paying their debts, but it developed over the years that it now protects the states from having their -- [inaudible] required to obey federal law. and no longer on the 11th amendment which didn't fit very well anyway, moved into the area where it's implicit in the plan of the convention even though four of the five people in the chism case didn't understand that. but then it developed to the point where they required stricter statements of federal intent to impose liability on the state officials.

the hospital case basically announced that rule. and in response to that rule, congress adopted several statutes expressly requiring the states to obey federal law in intellectual property area for the be most part; patent cases, trademark and so forth. and this was on a bipartisan basis that the court, that the congress generally imposed these rules which made a lot of seasons. but then later on in the indian case, the name of the case escapes me at the moment, the case basically held that a all those statutes were unconstitutional. and so, that's one of the reasons i say this really should be a nonpartisan issue, is because i think the history of the whole development shows that congress did not treat it as a partisan issue, and they didn't have much respect for this doctrine that goes back the early times in england when the

king presumably could do no wrong. >> you helped me understand and i never could get it in law school, but the 11th amendment was preventing citizens of one state from suing another, and the modern court is doing exactly what john marshall said they shouldn't do and, basically, exalting a pre-civil war vision. >> guest: it's interesting that the opinions are really quite, they do not explain why this doctrine makes any sense except they want to, some of them, use the word "dignity" as a basis which is in one of john marshall's opinions he specifically rejected dignity as a justification. >> host: remarkable. i was really struck by that. you talk about nonpartisanship and neutrality, and that has been a theme of sure jurisprudence in arguing that political gerrymanderers should

be able to be challenged when they're not drawn neutrally, in arguing in favor of campaign finance reform. you believe that the state has a fundamental duty to act impartially and in a nonpartisan manner. tell me more about where that buy came from. >> guest: well, i really think that's the way to interpret. not to favor one segment of society or one group over another. and if you focus on that central requirement, it really makes things awfully easy, at least it does to me. and it's a doctrine that, frankly, struck me at the time i was working on a patronage case back on the court of appeals for the seventh circuit before i came on the court. we had a case involving the discharge of a whole bunch of employees of the secretary of state of illinois who, basically, said you either

join -- switch parties or you lose your job. and that was the way that that system worked. and it was just accepted as part of practice. but we decided in the case i cite in the book that should not be the rule, it'sen consistent with the -- it's inconsistent with governing impartially. and since then over the years the court has adopted that view. and originally it was kind of thought how could we possibly change something that had been in the law as long as the patronage practices, but they have, in fact, for the most part gone along with that change. again, over dissents of some members of the court. >> host: you just mentioned one area where your colleagues embraced this neutrality rule, but there are others where courts have rejected it, and you were particularly vigorous on the question of partisan gerrymandering; that is, cases where legislatures draw districts in order to favor one

party over another. i was at a conference recently and heard bill gates who was asked what's the one thing congress can do to really reduce political polarization in america, and he said eliminate partisan gerrymandering. and this was a conversation with david brooks who responded, but congress won't do that because the incumbents want to protect themselves. that means that the courts are the refuge, and yet in your book you describe although all the colleagues -- the court has tended to hold that they're not able to intertape the challenges. -- entertain the challenges. why have they held that, and what do you propose to do to solve that problem? >> guest: well, first of all, i think it's important that no judge as far as i know has ever defended the practice. so the basic rule, what is going on now is quite wrong. and it's not a partisan issue because the democrats are guilty of the same activity in states

like maryland and california and so forth, and the republicans have been guilty of that activity in pennsylvania and texas, for example. but this will be a change of -- there will be a change of administration in those states eventually, and if the legislatures and the administrators think in the long run, i think they will recognize that both parties will be better off in the long run by simply getting rid of this practice and letting the election contests work on the merits of the respective parties. so it may be knew yeah -- naive, of course, but i think just as the wiz -- wisdom of the approach that got rid of patronage practices largely, i think that the states and their own legislatures may realize it's in their best interests in the long run to have their

elections fair and between the two parties. >> host: i was at a panel recently at the national constitution center where congressman lowenthal who's proposed a bill that would require congress to create independent commissions this all states to do redistricting, and you are a hero of his. he's read your book. he found that there would be more competition, constituents would be more responsive to their constituents, and they'd also be more moderate because they'd have an incentive to actually win general elections. what are some ohçtñçjxz benef- other benefits that you think would follow from eliminating partisan gerrymandering? >> guest: well, i do think that when candidates primarily have to beat members of their own party and they're not worried about the general election, they tend to become more doctrinaire and tend to avoid compromise. and i do think that the fact the primaries are the big deal in

the election does have an adverse effect on their actual performance in office after they've been elected. and i do think that's one of the explanations for the more partisan divide in congress today than there had been years ago when i worked there. >> host: yeah, when you worked in the u.s. congress? >> guest: yes. i worked as associate counsel, republican counsel for the house committee and the study of monopoly power. and then there members of the two parties did work together on much legislation. there were high visibility bills where they tended to be much more partisan, but it was a different congress than we have today. >> host: and, of course, the congress that confirmed you to the supreme court, i think you had a unanimous vote as well. >> guest: well, 98. >> host: 98. >> guest: two didn't vote that day.

>> host: that counts. hard to imagine that today. what's happened? is partisan gerrymandering partly responsible for the fact that congress is more polarized now? >> guest: i really think it is. i think bill gates, i hadn't heard about that before, but i think he's dead right. >> host: yeah. well, the trick though is coming up with a judicial standard for policing partisan gerrymandering. and you're very sophisticated and specific about what, how to identify an unconstitutional partisan gerrymandering. and you have an amendment proposed, so i'll read it again because the text is important. your amendment would say districts represented by members of congress or by members of any state legislative body shall be compact and composed of contiguous territory. the state shall have the burden of justifying any i departure from this requirement by reference to neutral criteria such as natural, political or historic boundaries, the interest of enhancing and preserving the political power of the party in the state

government is not such a neutral criteria. tell us why you chose that language. >> guest: well, we also have in the book a few examples of partisan gerrymandering, and potter stewart would have had the rules plain as could be when he'd say i can, i know it when i see it, is the way he described obscenity. [laughter] but it is true that there are many glaring examples of very odd-shaped districts that have no justification whatsoever. it isn't just a primary reason or anything like that, but they have no justification whatsoever except to give the party in power an advantage at the election. and that, there must be a duty to govern impartially requires government officials generally and legislatures more specifically to have some neutral reason for their action.

they can't pay campaign finances out of the state treasury. they've got to finance actions independently. and similarly, they should not be motivated entirely by political consideration this drawing the district. -- in drawing the district. and the standards for determining whether partisan gerrymandering has occurred that i recommend are precisely the same as have been in place for a good many years with respect to racial gerrymandering. and if they can, if they can tell a racial gerrymander by the size and shape, by the shape of the district, there's no reason in the world why they couldn't apply exactly the same standard to a partisan gerrymander, because you just look at it and you see something fishy. and there is the same need to avoid gerrymandering in both racial or partisan grounds.

>> host: you are very consistent in that regard. now, in some of those racial gerrymandering cases, you dissented and said the court shouldn't have policed those racialgerrymanders. if the court were to imply the same standards, would you be in favor of judicial intervention in both cases? >> guest: yes. i would, i think the greater benefit would flow from having a simple rule this both cases. the glitch in history was that the original gerrymandering case was in tuskegee, alabama, where the gerrymandering was designed to exclude the blacks from participating, from voting in the municipal government. and later on the court applied the same rule to gerrymanderers that were designed to give minorities better representation when they'd been the victims of discrimination. and i dissented in some of those cases because i thought that the basic rule of equality should

not prevent rules that were designed to equalize the minority voters in the majority. but having decided -- made racial gerrymandering whether pro-minority or anti-minority a violation of the constitution, it seems to me you should just simply apply the same rule that you've applied in race cases to political cases, and the problem would easily be solved. and i should mention the fight in all our gerrymandering has been whether or not we can develop standards which we did develop -- [inaudible] but nobody, no member of the court has actually said on the merits this practice is justified. even justice scalia who is the strongest opponent of developing a judicial rule against gerrymandering does not defend the practice on the merits. >> host: so this is a practice that all justices say can be unconstitutional, that people like bill gates and others from all sides of the spectrum say is

the main political problem facing the country today, and yet the court says that there's no judicial solution. >> guest: in its latest cases, that's right. >> host: yeah. you do give examples in the book with this beautiful, colored illustration, and you tell the story of how when you insisted on including this illustration in a judicial opinion, chief justice berger was complaining it was too expensive. [laughter] you had one less law clerk than everyone else, so you were saying the court some money. >> guest: exactly. >> host: what is it about this district that looked so funny and that struck your notice? >> guest: well, if you look at it closely, you can see that some of these districts just don't make any sense at all. district five, for example, is all around. and, in fact, several of the districts are just without any rational justification in terms if you just look at the shape. and i tell the story of the particular election that was involved. this is another instance why it may benefit one party today, but

then the elections may change. because that, that particular map benefited the democrats if i remember correctly. and even though ronald reagan was very popular in the following election, the gerrymandering kept the democrats in control. >> host: that's a great example. i should say during our panel at the constitution center, i said gerrymander, and someone corrected me and said it should be pronounceed gerrymander. tell the story of who it was named after. >> guest: well, i guess he was the governor of massachusetts at the time they developed the first, and i guess you should call it gerrymandering -- [laughter] it is funny. i think it's generally called gerrymander. we tell the story of how with less than a majority of voters he was able to retain control of the state by drawing the very

strange-shaped districts that he did. and the name, he is the originator of the practice as far as i know, and it bears his name. >> host: and then the district looked like a sal imaginedder, so they called it -- sal hander. >> host: oh, that's right. it did look like a salamander. explain to us why this is such a serious problem through gerrymandering where you can have a minority of stakeholders holds a majority of state seats. >> guest: that's right. and actually i think -- i'm not sure, but i have been told, i believe, that the majority of the voters voting this congressional elections actually were democrats or voted democrat, but the republicans had a majority of the seats. >> host: remarkable. >> guest: yeah. >> host: could that be, i don't -- someone suggested that might also be a violation of the republican form of government

clause that says states have to have a republican form of government which means majority rule. >> guest: it, it's certainly inconsistent with what we think should be the view that the majority should be able to have a majority of representatives in house. >> host: this texas, i think this was the one in shaw v. reno, and the joke was it sort of snakes down, it gets big and then thin and big again, and the joke was if you drove down the district with both car doors open, you'd kill everyone in the district. [laughter] something like that. the court struck that down as an unconstitutional racial gerrymander. >> guest: that's right. and if the republicans and democrats came up with exactly the same, they'd say we can't do anything about it. >> host: yeah. so you express to me inspiring faith that when citizens hear your arguments, they'll adopt them. you say in your prologue, "i'm confident that the soundness of

each of my proposals will become more and more evident and that, ultimately, each will be adopted." do you belief that citizens will adopt the anti-gerrymandering amendment once they come to realize the significance of the problem? >> guest: well, i don't know just how much time will elapse before they do it, but, you know, texas for a long time was a democratic state and then it became a republican -- and then it became a republican state after the civil rights legislation was adopted. and other states have changed too. and one of the things that may cause change is dissatisfaction with the views of -- the abuse of power that the majorities have engaged in. >> host: i think that's what happened in california and arizona where bipartisan reform was embraced by both parties. >> guest: yeah. >> host: but it is tricky for incumbents to vote for it. is it possible that we could have, we could continue to have a situation at least in the short term where there's this big political or constitutional problem but no congressional or

judicial remedy? >> guest: i think that's right. >> host: which is frustrating. i think we're going to take a short break and return in just a moment to continue talking about this wonderful new book, "six amendments: how and why we should change the constitution." >> on the go? "after words" is available via podcast through itunes and xml. visit booktv.org and click podcast on the upper left side of the page. select which podcast you'd like to download and listen to "after words" while you travel. >> host: justice stevens, you are especially passionate about the subject of campaign finance reform. and you propose a constitutional amendment that says the following: neither the first amendment, nor any other provision of this constitution shall be construed to prohibit the congress or any state from imposing reasonable limits on the amount of money that candidates for public office or

their supporters may spend in election campaigns. and in the chanter you say that this is consistent with the history of the first amendment, and you note that president teddy roosevelt proposed a bill that was passed that said that corporations should be treated differently than individuals when it comes to campaign spending. tell me, first, about the history of the first amendment on campaign spending and why you think it's appropriate to treat corporations and other nonvoters differently than voters in elections. >> guest: well, because the framers decided that the voters should elect -- [laughter] elect their representatives. and i think that in the history as emphasized the fact that corporations don't vote, and they have business purposes that motivate most of their actions. and i think a lot of the debate in the citizens united case and in other cases has been whether

or not corporations should be allowed to spend their general funds or even the special organizations that their shareholders support. should spend as much money as they do. but actually, as i've reflected on it, i don't think it's just a corporate problem, although that's gotten most of the attention. i think that individuals also get involved this election contests in jurisdictions where they do not have the right tovni vote. and it does seem to me that one of the key cases that the court overruled in citizens united was michigan against the chamber of commerce or austin against the chamber of commerce in which michigan put a prohibition against corporate contributions. but actually, it seems to me what they were really concerned

about is money coming from nonmichigan sources -- non-michigan sources. and, of course, corporations generally represent interests, out-of-state interests frequently. and it does seem to me that there is an important difference between the right to participate and support candidates that you have the right to vote for and candidatesho other jurisdictions. and the holding that is critical the decision this buckley against voleo that was decided the year i came on the court but before i was -- it was decided when i came on the court, but i was not eligible to vote because it had been argued before. amendment to try to limit, put

reasonable limits on campaign expenditures. justice white dissented from that holding, and he was the only justice who did. and -- excuse me. the holding has been followed consistently in the -- excuse me. in the years following that decision, the court has been consistent in holding that limitations on campaign expenditures are impermissible and interfere with the total quantity of speech that is used in campaigns. and i think in order to correct the error in the citizens united case itself, you basically have the correct the prohibition on the use of expentures. expenditures. which does require, in my judgment, a constitutional amendment. because the court, it has been

almost unanimous in the prior years in its prohibition against and limitations on expenditures. >> host: the great power of this chapter is that insight that you just shared, that there's a difference between voters contributing in their own election and nonvoters, including both corporations and foreigners, contributing to ore people's elections -- other people's elections. that was central to your criticisms of the mccutcheon case which the supreme court decided recently. the court began by saying this is about the right of individuals to support their own candidates, but you told congress recently that that's not right, that they were actually trying to contribute money for other people's elections. >> guest: that's correct. >> host: tell us more about your criticisms of the mccutcheon case. >> guest: that's exactly true. and, of course, the mccutcheon case was decided after i'd written that, the chapter. but i think i've included the word "reasonable" in my proposed amendment because i think that

the actual limits that were imposed at the time of the buckley decision may well have been designed to protect incumbents. and i don't think justice white discussed that possibility l in his dissent. but i think if the limits are placed too low, it could be a valid argument that they are favoring incumbents. but that's why i said that they should be, there should be the reasonableness requirement. and, which i think would solve the problem because i do think that if congress focused on reasonableness, i don't think there's any danger that my former colleagues would actually conclude that any limit whatsoever is unreasonable after an amendment was adopted to correct the heart of the problem. >> host: now, the objection, of course, is that reasonableness is not self-defining, and judges would have to decide what was

reasonable. someone from "the new york times" recently asked you a good question, he said would the reasonableness requirement restrict the new york items' about the -- times' ability to write on any candidate? >> guest: well, my response is twofold. first of all, i don't think such a restriction would be reasonable. but it isn't necessary the court would be defining reasonableness. the court would be reviewing a congressional decision as to what it thought was reasonable. and, of course, there would be a presumption that the choice congress made was permissible because you certainly would defer to the legislative judgment at least in the first instance. and then if it was so obviously, if they allowed different limits for different candidates, for example, they would clearly be unreasonable. but i really think the amount of discretion that that word would

permit congress to exercise would be far different from the present rule which says any limit -- any contribution whatsoever is impermissible. >> host: what would be an example of an unreasonable limit? >> guest: well, as i say, one that -- well, there are two or tree examples. one that prohibited newspapers from endorsing candidates. one that provided the greater latitude for incumbents than for nonincumbents. one that provided a different amount for wealthy candidates than for different, different financial circumstances seem to be a justification for allowing different limits. be would not be a reasonable action. >> host: and in your dissent, you also gave the example of how the is difference, and the press

clause itself suggests newspapers should be treated differently than other for-profit corporations. >> guest: and it seems to me it might provide an adequate justification for treating press differently from candidate -- >> host: is that also your answer to the question that was asked of then-solicitor general kagan at the citizens united argument, could you restrict the circulation of a book? >> guest: i would think so. i suppose you might have trouble defining whether it's been long enough to be a book. but i, i think a lot of these -- theoretically you can't come up with an answer to every hypothetical. but when you actually have concrete proposals in front of you, you can really identify what's unreasonable without much difficulty. >> host: one of the many interesting things i learned from this chapter is your discussion of president obama's statement at the state of the union, that citizens united

would open the floodgates of foreign money, justice alito famously shook his head and said not true. but you say president obama was actually correct in his description of the possible extension of citizens united to strike down restrictions on foreign donations in u.s. elections. the supreme court recently refused it, but you're concerned that the logic could actually strike down those limits. >> guest: well, i think at the time immediately after the decision, that was a reasonable interpretation of the decision. and i certainly in my dissent suggested that it was a possible interpretation. as it developed later in the case that i cite at some length or discuss at some length in the book, a three-judge court held that it was permissible to prohibit citizens of canada and israel from making contributions to elections in the united states.

they can, and not just contributions, but expenditures. they could not spend their own money in support of a candidate. and the underlying rationale for the three-judge district court decision written by judge kavanaugh of the district of columbia court of appeals basically was there's a justified interest in the government running the election, having the election control, control of the election and not have outsiders come in and tell americans how to, who to elect. the canadians cannot spend their money. it's precisely the same rationale that would support michigan's decision that we wouldn't let citizens from indiana and wisconsin spend unlimited sums of money trying to influence our elections. >> host: how would you state the constitutional dimensions of that principle? that states have an interest in preserving the integrity of their own elections?

>> guest: the, there is a powerful state interest in having fair elections, and it's an interest that can trump the first amendment right in certain situations. and the court in its views on this issue has sort of treated the first amendment issue as trumping everything else. and i think that they failed to give adequate weight to the interest in people running their own show. >> host: people running their own show, an interest in fair elections. it goes back to this theme throughout the book of neutrality, nonpartisanship, that government has an obligation to be neutral and fair. you really believe that strongly. >> guest: that's right. and in the -- in fairness in the conduct of the elections should enable the governments to adopt rules that give rival candidates an equal opportunity to persuade

the voters. >> host: now, the court in citizens united and more recently in mccutcheon has focused not on interest and fairness, but in the interest of avoiding corruption. and it's defined corruption very narrowly to basically said quid pro quo corruption. you vote for me, or i won't give you a lot of money. is that a broad enough view of corruption, or did the framers have a broader view in mind? >> guest: well, the basic mistake if the court's view of corruption is really the only justification for regulating campaign finance, you just rely on the bribery laws to take care of it. but there is a more powerful interest which has nothing to do with corruption in having elections fair and giving each candidate an equal opportunity to compete. and it's a -- it's not a question of, it really is a question of identifying reasons

other than corruption for imposing requirements of fairness in contests between opposing parties. it's the same enter that justifies -- interest that justifies limiting speech in litigation. when you have an argument before the supreme court, you can't go on and on forever. the court imposes rules that limit your opportunity to persuade, and they're fair to both parties. they, the main criterion is fair procedure, fair treatment of adversary contestants. >> host: and you also give the example of presidential debates and said i it wouldn't be fair to give the richest candidate more time -- [laughter] >> guest: no. that dawned on me in watching one of the republican debates in the primary before the last election that, certainly, the moderator has a duty to treat candidates equally. >> host: one thing that struck me in the book so many of your principles are also rooted in constitutional history.

you talk in your citizens united dissent that government be with responsive to all the people and not just a few. >> guest: that's exactly right. >> host: does this have any biographical source? i had the privilege of interviewing you years ago, and you talked about your experience on that commission investigating alleged corruption in chicago of a case where a judge was alleged to have thrown a case in exchange for a bribe, and you very, to great acclaim, said that if a dissent had been issued in that case, the whole scandal might have been avoided. does this concern with neutrality and, you know, concern with fair treatment date back to experiences like that? >> guest: i suppose it does. in that case it was also involving the appearance of neutrality because it certainly, judges should not be buying stock recommended to them by

litigants which is what happened to a couple of the illinois supreme court justices. but the appearance of impartiality is very important to the process too. >> host: well, we have two more pig topics to talk about -- big topics to talk about, and the first one is the death penalty. you propose an amendment on that score as well, and i'm going to use my high-tech filing system to find it here. you say, here we go, excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments such as the death can penalty inflicksed. so you would -- inflicted. you were not always of the belief that the death penalty violated the constitution. what made you change your mind or feel that the constitution should be amended to prohibit the death penalty? >> guest: well, first of all,

death cases are a form of litigation that federal judges, supreme court justices, nobody likes. they're very, very up pleasant, expensive -- unpleasant, expensive, time-consuming litigation. anyone who is exposed to capital litigation for as long as i was is bound to develop a distaste for the whole process. and, of course, every -- the things that changed my own views particularly, the fact that there's now available the punishment and life imprisonment without parole so that you don't need the death penalty to avoid, to deter future misconduct by people who have been convicted. a second thing that's happened over the years is that the court has adopted a number of procedures which actually strengthen the hand of the prosecutor in the penalty phase hearing which seems to me tilts

the scales in an area of the law in which the scale should tilt the other way. you should use extra precaution to avoid error. and a third thing that happened is that the dna ed has made it clear that -- evidence has made it clear that there have been a number of people on death row who should never have been there, who were innocent. esg true that every time you sentence somebody to death, you run the risk that you may make a mistake. that -- you should not, the system should not allow the possibility of mistake in a capital case. and the other thing that's happened over the years is that the court has adopted rules -- developed rules that require states to impose the death

penalty in a totally painless manner. originally, years and years ago the death penalty was the theory that whatever the defendant did to his victim, he should suffer the same consequences. but you can't do that. you cannot impose painful punishment even administering the death penalty which means that the capital defendant basically goes through an anesthetic process that makes it painless. so it is not a form of retribution that does equal the pain that the defendant imposed on his victim. but the critical thing for me, frankly, is that the more i've thought about it -- because be everyone agrees that there is some risk of error even in the wonderful judicial system we have -- and as long as a risk of

error that an innocent man, in fact, a man be executed and put to death by the state is, in fact, innocent, that is not an acceptable risk that a civilized society should accept. because the gains do not justify taking that kind of risk. >> host: you quote your colleague, justice scalia, saying the risk is infinitesimal, i think .02% or something like that. i take it that's still too big a risk for you. >> guest: that is. and i think anyone has to be troubled by that possibility. and, of course, it's -- you can't be terribly proud of the fact that united states is ranked with three or four nations that have a different form of society than we do whereas most of the countries in western europe have long ago abolished the death penalty. >> host: you talk about the fact that all members of the court now think it's not permissible to inflict an execution that's

deliberately intended to cause pain, and you talk about the mix of chemicals that were used until recently to try to minimize pain, and yet right now we're having a dramatic debate about whether the existing, available chemicals do, in fact, torture prisoners. what's your view on that? >> guest: well, one of the reasons why the risk is there is that the professionals like the medical profession, the nursing profession and so forth do not permit their members as a matter of ethics, they do not participate in the execution itself. so you necessarily are not dealing with the most skillful people to put people to death. and there's a danger of botched executions like we had the other day partly because professionals don't think it's a good idea. >> host: and the chemicals are no longer available because the

supply suppliers won't make them available. is it the case where a current course hearing a case that clearly caused torture, would everyone agree that violates the eighth amendment? >> guest: if the court -- >> host: you know, would a review in execution where the prisoner seemed to be tortured and in obvious pain, would everyone agree that that was cruel and unusual? >> guest: i'm not sure. they may agree that it was cruel and unusual, but i'm not sure they would conclude that it's going to happen enough to make it permanently cruel and unusual. >> host: you say that the support for death penalty is going down in the country as a whole as well. >> guest: yes, it is. this may be an amendment that the issue may take care of itself by the states enacting their own legislation, but it does seem to me that the more people actually think about the costs involved both in human costs and in financial costs,

there's terribly expensive litigation that goes on for years. and people down in florida have been on death row for 20 and 30 years. it doesn't certainly satisfy the public interest in retribution. >> host: you reviewed many, many death cases during your many decades on the supreme court. was there a case in which you had serious doubts about whether or not the convict was innocent? >> guest: yes. there were cases, but most of the time you didn't get into the merits in depth. so you seldom were really presented with enough of the facts to actually form an opinion on that. but there were a few. there was one in pennsylvania if i remember correctly where there was serious doubt about whether the complaining witness or the defendant was really the perpetrator of the crime. >> host: and how did you feel when the execution took place and the court refused to stop

it? >> guest: well, i thought it was a mistake. yeah. >> host: the final amendment that you propose has to do with an amendment to the second amendment. and this is one of our most hotly-contested constitutional questions, and you've been at the center of this debate. under your amendment you'd add some language to the second amendment. you would say 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 those words "when serve anything the militia" are the ones you would insert. why would you do that? >> guest: well, the purpose of that language is to bring up, bring to the fore the fact that the second amendment was really adopted for a narrow purpose; to prevent the states from having the federal government basically take other their own -- take over their own militias and disarm the states. and it was that limited purpose

that was the source of the second amendment itself. and it seems to me that our debates about the second amendment are somewhat distorted by the notion that the amendment was, in fact, motivated by desire to provide, protect the individual -- to defend himself. one of the consequences of the law as it developed is it has made not the state legislatures, but rather federal judges to have the final say on what kind of gun control and gun registration the states should adopt. this should not be the province of federal judges, it should be the province of state legislature. ask that's sort of the central central -- and that's sort of the central message of the chapter. >> host: this chapter, although

compelling, doesn't fit this that theme of government neutrality and fairness. it sort of dives right into a hotly cop tested historical -- contested historical debate where people say there is evidence that the post reconstruct people. why did you decide to include this gun control amendment? >> guest: well, there's a good argument for not controlling because i think it may well be that that debate will not resolve itself in the foreseeable future, although even in that i think in time the country will come to the conclusion that other civilized countries have it right where they basically ban firearms. but i just didn't think i could write a book about amendments that i think are necessary and leave this one out. because i do think it's a terribly important summit. subject. i think in time if the reason wl prevail, but i'm not optimistic

about this chapter accelerating the process to bring it to a conclusion within the next few years. >> host: justice stevens, you are a force of nature. when we last talked, you had just celebrated your 94th birthday, and you were going to play tennis the next day. did you play the game, and how did you do? >> guest: i played the game. i was able to remain vertical, and i enjoyed it because i have a good friend on the other side of the court. but my game is nothing to be proud of now. >> host: well, it was famously pretty good, and i just think it's spectacular that you're still playing. justice john paul stevens, it has been a great honor to have this conversation with you. congratulations to you for writing this new book, "six amendments: how and why we should change the constitution," on behalf of c-span and the national constitution center, i'm jeffrey rosen. thank you so much, justice. >> guest: thank you very much. thank you. >> that was "after words,"

booktv's signature program in which authors of the latest nonfiction books are interviewed by journalists, public policy makers, legislators ask others familiar with their material. "after words" airs at 10 p.m. on saturday, 12 and 9 p.m. on sunday and 12 a.m. on monday. you can also watch "after words" online. go to booktv.org and click on "after words" in the booktv series and topics list on the upper right side of the page. >> booktv asked, what are you reading this summer? >> well, i'm hopefully going to get to three books. the zimmerman telegram by barbara tuchman, the 12 tribes of -- [inaudible] and a book that senator levin just sent over to me, the jewish pirates of the caribbean. the first two books, the twelve tribes of hattie and the zimmerman telegram were books

that, i found the zimmerman telegram when i actually was at the l.a. book festival speaking on my book and was just really intrigued by the story. for me as the first jewish woman to represent florida in congress, historical depictions and stories about the jewish experience really just intrigue me, and i think that we have an opportunity to learn from the experiences that jews have been through. and that story is, it's really, you know, the zimmerman telegram specifically is an interesting story because it was sent, it was a telegram that was intercepted by great britain to, essentially, try to get mexico

into the war against the united states. and the story goes through the balancing act that great britain had to do to not reveal that they had cracked the cold, the german code, but at the same time notified the united states of the impending danger. the jewish pirates of the caribbean is really the book that focuses on the, you know, past being prologue for jews and the history that we've been through. there were jewish pirates who were fighting the spanish inquisition and who rode the high seas, and that book senator levin told me tells the story about what they went through and their adventures and antics and the outcome of those. and the twelve tribes of hattie is a story about, you know, black migration throughout

american history, but particularly the great migration from the south of african-americans particularly following slavery and the struggles that african-americans have gone through and the tough life that they, that they've lived. and this is a fictional story that depicts a family and a mother who prepares her children, her nine children, for the difficult challenges that they'll face throughout their life. >> what are you reading this summer? tell us what's on your summer reading list. tweet us @booktv, post it to our facebook page or send us an e-mail, booktv at c-span.org. >> next, an interview from booktv's college series. dr. margaret humphries talked to booktv about the civil war which she says was the greatest

health disaster the u.s. has ever experienced. >> host: and booktv is on location in durham, north carolina, where we're talking with some professors who are also authors. joining us now is dr. margaret humphreys. her book, "marrow of tragedy: the health crisis of the american civil war." you write that the civil war was the greatest health disaster the u.s. has ever experienced. that's your opening line. >> guest: true. >> host: how so? >> guest: how so. well, i mean, if you, you can count the numbers many ways, but one probably conservative estimate is that more than a million people died in those five years that would not have died, as they call premature or unexpected deaths because of that war. and it is useful to think of war as a health crisis, because you think about the women who died, the children who starved, the refugees who died of disease, the people who died this prisoner of war camps.

not just the ones who died from wounds or actually while in the army. >> host: what were some of the health problems faced by the soldiers specifically? we'll start there. >> guest: well, as a lot of people know, twice as many soldiers died of disease as died of wounds or something related to wounds. you take a bunch of farm boys who have not been exposed to much by way of disease, not even chickenpox and measles, cram them together into unsanitary camps, and they start getting the first rounds were all those infectious decides; chickenpox, measles, mumps. and then as night follows day, the contents of their bowels mixed with the contents of their water supply, and dysenteries and diarrheas started happening. not your usual flag-flying glory of the