gerrymandering and campaign finance in amendments he believes would better protect and empower citizens. the program is about an hour. >> host: welcome, justice stevens. on behalf of the national constitution center, it's so great to see you. you honored the national constitution center a few weeks ago by visiting us. the constitution center, as you know, is the only institution in america that has a congressional charter to disseminate information about theing constitution on a nonpartisan basis. and i can't think of a better i book to discuss in connection with that mission than your wonderful new book, "six amendments: how and why wets" should change the constitution." you've proposed six constitutional amendments on topics ranging from campaign finance and sovereign immunityfa and political gerrymandering to gun control and the death penalty and the anti-commandeering principle.oma

all of these are cases where the ruled differently, and you dissented in many of these cases. tell me why you decided to writh the book and why you decided to propose these six constitutionai amendments. >>ing with el,itu it's sort.proj >> guest: well, it's sort of att project that just kind of grew, to tell you the truth. the immediate cause was the killing of the school childrenii in connecticut. and "the new york times"' story about the fact that the anticommandeering rule places an obstacle in the way of the government's getting total to precede the purchase of guns. . i had not actually realize before i read that "new york times" story that rule does in fact increase the likelihood that a person won't be eligible who would be allowed to purchase guns who shouldn't. that did not cause that

particular tragedy but it likely may have been a cause of the similar tragedy. >> host: this anti-commandeering rule which is your first amendment and i have dogeared all of them. with these high-tech pieces of paper. it sounds technical but it's quite important and i'm going to read the amendment you proposed and you can help explain it. you say that banning the four words and other public officials after they were judges and supremacy clause would allow congress to impose mandatory duties on public officials in every state. what does that mean and what is the problem you are seeking to remedy? >> guest: well i think the supremacy clause properly construed would have already allow the government to impose mandatory duties on state officials. the police for example i would have thought they could have requested a local policeman to

help search passengers in airline terminal or something but the court issued no decided otherwise. i think the potential consequences of the decision are more serious than many people realized. they are not the kind of consequences that arise every day. they are sort of a time bomb sitting in the backroom 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 you mentioned involve the gun free school zones act the federal law that congress passed. the supreme court as you suggested struck it down on the grounds of federal officials can't command state officers to carry out certain duties and you presciently rejected it and said there might be a future terrorist attack of this was before 9/11. he said this would make it hard to respond to terrorism and other acts of violence. >> guest: that's exactly right

and i really think the rule in place now would interfere with the draft law for example where both in world war ii and in other prior situations the federal government had made important use of state officials that helped get the army draft and i do think it's more important than people realize. >> host: you also said the court misconstrued previous precedence that before the court refused to endorse this broad states rights principle and prints change the law by exulting state sovereignty to a degree that was not justified. >> guest: that's true although it's interesting to note that the majority opinion in prints did not say either of the two cases would have provided better support than any case they did cite. one of them was a pre-civil war

piece that had basically held that it was an anti-commandeering rule and justice marshall in a later opinion overruled the case and basically what he said was it was the product of another part of our history that had gone by the pre-civil war. >> host: in your view the civil war and the reconstruction that followed it to transform the relation between federal and state power and give the federal government the broad power to protect minorities and solve eventual problems and you objected to many of these cases that some of your colleaguecolleague s on the court were adopting a vision of state sovereignty that is not justified after the reconstruction. >> i think that's right and i really think although i don't say as much about this in the book as i learned while reading when trying to put it together, i think president granted some

of his immediate successors are not adequately appreciated for the work they did and i think there were sort of an underlying campaign among some historians who are partial to the south to cast doubt on the capacity of grants and i think he is a much better president than people generally assumed. >> you also think of the reconstruction amendments gave much broader powers to congress and the court is currently recognizing. >> guest: in this case, right. let's go in your discussion of sovereign immunity and that's another topic that sounds technical but i know you feel strongly about it has big consequences that also is a states rights issue. you would be able to explain it of course far better than i would. i will read the amendment you propose when it comes to sovereign immunity and you can tell me why you think is important. you say neither the 10th amendment the 11th amendment or any other provision of this

constitution shall provide any state agency or state officer with immunity from liability for violating any act of congress or any provision of the constitution. why do you propose that amendment? >> it's kind of a long story and an interesting story because the doctrine is now in place according to the holdings is found implicit in the plan of the convention as part of the constitution. it started out in georgia to question whether there was a common-law immunity to protect georgia from paying its debts. there was no such immunity and then the 11th amendment was adopted in response to that decision and for years particularly opinions by john marshall the amendment really was construed very narrowly to apply only to cases in which the state itself is asserting its

sovereign immunity. he basically construed in a way that if it was granted against other state officers the amendment would be and that was the state of the law until after the civil war. during the period of reconstruction the process of reinterpreting the rule began and particularly in the cases arising out of louisiana. the court first held that louisiana could not welch on an obligation. a few years later after there had been a change in administration and the northern troops have been removed from the south they took the opposite view and decided the case which was embarrassingly inconsistent with marshall's early ruling. i really think there's a connection between the

reconstruction of states rights attitudes that developed in those years and the document of sovereign immunity which later on became not only protected from paying debts but it developed over the years and it now protects the states from having their agents being required to follow federal law and the 11th amendment anyway it moved into the area where it's implicit in the plan of the convention even though four of the five people in the chisholm case didn't understand it. then it developed to the point where they required strict or statements of federal intends to impose liability on state officials. the agacio tarot hospital case basically announced that rule and in response to that rule

congress adopted several statutes expressly requiring states to obey federal law and intellectual property areas for the most part patent cases, copyright cases trademark and so forth and this was on a bipartisan basis that the court could make congress impose these rules that made a lot of sense but then later on in that case that the name escapes me at the moment held all the statues constitutional. that is one of the reasons i say this really should be a nonpartisan issue. i think the history of the whole development shows congress did not treated as a mission and didn't have much respect for the doctrine that goes back to early times in england when the king presumably could do no wrong.

>> host: you help me understand them and never could get it in law school but you just said basically the 11th amendment was intended to prevent citizens of one state from suing a state for nonpayment of that's but not for not enforcing federal law. i invoking this doctrine of the dignity of the states the modern court is doing exactly what john marshall said it shouldn't do and basically resulting in states rights. >> guest: it's interesting the opinions do not explain why this doctrine makes any sense. they want some of them to use the word dignity as the basis which is in john marshall's opinion he specifically rejected dignity as a justification. >> i was really struck by that. you talk about nonpartisanship and neutrality and that has been a theme of your jurisprudence in arguing that clinical gerrymandering should be able to be challenged when they are not drawn neutrally 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 where that brief came from. >> guest: i really think that's the best way to interpret the equal protection law. it imposes on the state of duty to govern impartially not to favor one society or segment or group over another. an issue focused on that central requirement really makes things awfully easy at least it does to me. the doctrine struck me at the time i was working on a patent case back in the appeals for the 7th circuit before i came on the court. we had a case involving the discharge of a whole bunch of employees by the secretary of state of illinois who basically said you either switch parties or you lose your job. that was the way that the system worked.

it's just accepted as part of the practice. we decided in the case i cited in the book it should not be the rule consistent with the duty to govern impartially and since then over the years the court has adopted that view. originally it was thought how could it possibly change something that's been in the law as long as these practices but they have in fact for the most part gone along with that change again over the sense of the court. >> host: you just mention one area where your colleagues embrace this neutrality rule but there are others courts that have rejected it and you are particularly figures 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 delegates to us asked was the one thing congress can

do to really reduce political polarization in america and he said it eliminated partisan gerrymandering. this was a conversation with david brooks who responded but congress won't do that because the incumbentincumbent s want to protect themselves. that means the courts are the only refuge in it in your book you describe although all of your colleagues agree that extreme gerrymandering violates the constitution the court has tended to hold that it's not -- the courts are not able to entertain the challenges. why have they held back in what used propose to do to solve the problem? >> guest: first of all i think it's important that no judge as far as i know has ever defended the practice. what is going on now is wrong. it's not a partisan issue because the democrats were given the same activities in maryland and california and so forth and the republicans have been guilty

of that in pennsylvania and texas for example. but there will be a change of administration in those states eventually. if the legislature thinks in the long run it will recognize those parties will be better off in the long run by simply getting rid of this practice and in the election contest working on the merits of their respective parties. it may be naïve of course and just as the wisdom of the approach they got rid of patronage practices largely i think the states and their own legislature may realize that did their best interest in the long run to keep it there in between the two parties. >> host: i was at a panel

recently that the constitution center where the congressman proposed a bill that would require congress to create independent commissions in all states to do redistricting. you are a hero -- he is a hero of yours initiative that. he found there would be more competition and physicians would be more responsive to their constituents and the more moderate because they do an incentive to win general elections rather than having safe seats. what are some benefits you could find from eliminating partisan gerrymandering? >> guest: i do think when candidates primarily have to beat members of their own party and not worried about the general election they become more doctrinaire and tend to avoid compromise. the primaries in the election do have an adverse effect on actual

performance in office after they have been elected. and i do think it's one of the explanations for the more partisan divide in congress today than they have been years ago when i worked in the circuit. >> host: when you worked in the u.s. congress? >> guest: yes i worked as an associate republican counsel for the house committee and their members of the two parties did work on legislation. there were high-visibility bills where they tended to be much more partisan that it was a different congress than we have today. >> host: the congress confirmed you to the supreme court did i think you have a unanimous vote as well. >> guest: well 98 and there were two that didn't move it forward that day. >> host: that counts. it's hard to imagine that today.

is partisan gerrymandering partly responsible? >> guest: i really think it is. bill gates had heard about that before but i think he got it right. >> host: the trick though is coming up with a judicial standard for policing partisan gerrymandering and you are supposed -- sophisticated about how to identify unconstitutional parties. you have an amendment and i will read it again because the text is important. districts represented by members of congress are members of any state legislative body shall be composed of continuous tariff -- contiguous territory justifying any departure from this by mutual criteria such as natural political or historic vendors are demographic changes and the interest in enhancing or observing the political power and control of state government is not paid tell us why you chose that language.

>> guest: we also had in the book a few examples of partisan gerrymandering and potter stewart would have had the rules plainest could be when he said i know it when i see it is the way he described obscenity. it is true that there are many glaring examples of very odd shaped districts that have no justification whatsoever. it isn't just the primary reason or anything like that. they have no justification whatsoever except to give the party in power and advantage in the election. there must be a duty to govern impartially requires government officials and legislatures more specifically to have some neutral reason for their action. they can't pay campaign finances

out of the state treasury. they have to finance their actions independently. similarly they should not be motivated entirely by political consideration and the standards for determining whether partisan gerrymandering has occurred i recommend are precisely the same as the bin in place for a good many years with respect to racial gerrymandering. and if they can tell a racial gerrymander why the size and shape of the district there's no reason in the world where they couldn't apply exactly the same standard to partisan gerrymandering. you just look at nec something is fishy. there's the same need to avoid gerrymandering and both racial or partisan terms. >> host: you are consistent in that regard. and some of those cases you dissented in said the court

should not have police those gerrymanders. if the court were to apply the same standards to core gerrymanders would you be in favor of judicial interaction both cases? >> guest: yes i would. the greater benefit would fall from having a simple rule in both cases. the glitch in history was the original gerrymandering case went to tuskegee alabama where the gerrymandering was designed to exclude the blacks from participating from voting in the municipal government. later on the court applied the same rule to gerrymanders who were designed to give minorities a better representation than the victims of discrimindiscrimin ation. i dissented in some of those because i thought the basic rule of equality should not prevent rules that were designed to equalize the minority voters and the majority.

having decided racial gerrymandering whether pro-minority or anti-minority is a violation of the constitution. it seems to me you should simply apply the same rules that you have applied and race cases to political cases in the problem would easily be solved. as you mentioned the fight in our gerrymandering has been whether or not we could develop standards which we did develop that nobody no member of the court has actually set on the merits this practice is justified. 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 delegates and other sites of the spectrum saves the main political problem facing the country today and get the court says there's no judicial solution.

you do give examples of gerrymanders in the book with his beautiful color illustration and usual great story of how when you insisted on including this illustratillustrat ion in the judicial opinion chief justice burger was concerned it was too expensive. it will cost $3000 but he agreed to do it because you have one less law clerk than anyone else. so what is it about this district that looks so funny and struck your notice? >> guest: well if you look at it closely you can see the districts just omit any sense at all. district 5 for example and several of the districts are without any ration of justification. if you just look at the shape. i tell the story in a particular election that was involved. this is an instant where it may benefit one party today that the elections may change. that particular map benefited

the democrats if i remember correctly even though ronald reagan was very popular in the following election. the gerrymandering set the democrats in control. >> host: it's a great example. at the constitutional centers as a gerrymandering someone corrected me and said it should be gerrymander eke as eldridge gary was the originator of this. tell a story of who he was. >> guest: he was against the governor of massachusetts at the time they developed. i guess it should be called gerrymandering. but it is funny. i think it's generally called gerrymandering. we tell the story of how with less than a majority of the voters he's able to retain control of state by drawing the shaped districts that he did in the name -- he's the originator

of the practice as far as i know and that bears his name. >> host: the district look like a salamander so they called it the gerrymandering. >> guest: that's right. it did look like a salamander. >> host: explain to us why it was such a serious problem through gerrymandering. did they have a situation where he minority of state voters protects a majority of state seats? >> guest: i'm not sure what i have been told that the majority of voters voting in congressional elections actually were democrats or voted democratic but the republicans have the majority of the seats. >> host: remarkable. someone suggested that might also be a violation of the republican form of government clause that says all states have to have a republican form of government which means majority rule. >> guest: it's certainly

inconsistent. with what we think should he if you that the majority should be able to have a majority of representatives in the house. >> host: this texas maffei show i think was the one in shah versus reno and its snakes down and gets big and thinner and big again and if you drove down the district of both quarters opened you would kill everyone in the district. this was the shah v. reno and the court struck it down as unconstitutional racial gerrymandering. >> guest: if the republicans and democrats came up with exactly the same they'd say we couldn't do anything about it. >> host: you expressed to me inspiring faith that when citizens are your arguments they will adopt them. you say in your prologue the soundness of each of my proposals have become more evidence and ultimately each will be adopted.

do you believe citizens will adopt the anti-gerrymandering once they understand the significance of the problem? >> guest: i don't know how much time will elapse before they do it that you now texas for a long time was a democratic state and then it became a republican state after the civil rights legislation was adopted in other states have changed to it. one of the things that may cause change is dissatisfaction with the abuse of power that the majority engaged in. >> host: i think that's what happened in california and arizona where commissions were bipartisan of forms embraced by both parties but it's tricky for incumbents to vote for it. is it possible that we could continue to have the situation at least in the short-term where there's this big blue buckle constitutional problem but no congressional problem? it's just frustrating. i think we are going to take a

short break and return in a moment to continue to talk 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. justice stevens, you arece s especially passionate about the subject of campaign finance reform, and you propose aam 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 republican limits on the amount of money thaton candidates for public office or their supporters may spend in election campaigns. in the chapter you say this is

consistent with the history of the first amendment and you know that president teddy roosevelt proposed a bill that was passed that said corporation should be treated differently than individuals when it comes to campaign spending. tell me first about the history of the first amendment and campaign spending and in why you think it's appropriate for cooperation's and none boaters differently and elections? >> guest: well because the framers decided the voters should elect their representatives. i think that in the history it emphasizeemphasize s the fact that corporations don't vote and they have is this purpose is that most -- motivates most of their reactions 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

the special organizations that their shareholder support. and to spend as much money as they do. actually as i have reflected on it i don't think it's just a corporate problem although that has gotten most of the attention. i think individuals also get involved in election contests in jurisdictions where they do not have the right to vote. .. 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. actually it seems to me that what they were really concerned about was money coming from nonmichigan sources and of

course corporations generally represent out-of-state interests frequently. it does seem to me that there's an important difference between the right to participate and support candidates you have a right to vote for in candidates from other jurisdictions. the holding that is critical in my chapter on this issue is part of the decision in buckley against vallejo decided the year i came on the court but before it was decided when i came on the court that i was not eligible to vote because it had been argued before. in that case the court said it violated the first amendment to try to limit justice white dissented from that holding and he was only justice who did.

and the whole, excuse me. the holding has been followed consistently in the, in the, excuse me. in the years following that decision the court has been consistent in holding that limitationso 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 to correct the prohibition of the uses of expenditures which does require in my judgment and constitutional amendment because the court, has been almost unanimous in the prior years in its prohibition against limitations on expenditures.

>> host: great power of this chapter insight you just shared there is a difference between voters contributing in their own election and non-voters, including both corporations andv foreigners contributing toot otr people'son elections. that was central to your criticisms of the mccutcheon case which the supreme court decided recently the court said this is right of individuals to support their own candidates you told congress that's not right. they were trying to contribute money for other people's elections. >> guest: that's correct. >> host: tell us yourbu criticis of the mccutcheon case. >> guest: that is exactly true. the mccutcheon case was written after the chapter. i included the word reasonable in my proposed amendment because i think the actual limits that were imposed at the time of the buckley decisionh may well have been designed to protect incumbents and i don't think

justice whiteha discussed that possibility in his dissent but i think if the limits are placedil too low itit could be a valid argument that they are favoring incumbents. that's why i said that they should be, they should be reasonableness requirement. and, which i think would solve the problem because i, i do think that if congress focused on reasonable limits and i don't think there is any danger that my c former colleagues would actually conclude that any limin whatsoever is unreasonable after the 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. adam liptak from "the new york times" asked you a good question. would reasonable requirement allow restrictions on

"new york times" ability to write editorial on behalf of any candidate.it what was your response? >> guest: my response actually isat 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 what it thought was reasonable. and of course there would be a presumptionwh that the choice congress made was permissible because you certainly would just defer to the legislative judgment at least in the first instance. then if it was so obviously, if they, if they allowed different limits for different candidates, for example, that would clearly be unreasonable but i really think the amount of discretion that word. would permit congress to exercisen would be fart different from the present rule which says any limit whatsoever, any contribution whatsoever is

impermissible. >> host: what would be an example of an unreasonable limit? >> guest: as i say, one would set, there are two or three examples.gu one that prohibited newspapers from endorsing candidates. one that provided a greater latitude for incumbents than for non-incumbents. onete thatr provided different amount for wealthy candidatesn for, different candidates, different financial circumstances seem to be not, be a justification allowing different limits. be it, would not be reasonable action. >> host: in your citizen united dissented you gave example how the press is different and press clause itself that newspapers should be treated differently than other for-profit corporations. >> guest: the existence of press would, might allow adequatems

justification treating t press differently from candidates themselves. >> host: is that also to your answer to the question that was askeder by justice, then solicir general kagan of citizen united argument, could you restrict circulation of a book? >> guest: i would think so. i suppose you would have trouble defining what is long enough to be a book. but i think, theoretically you can't come up with an answer to every hypothetical but what you have actually 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 citizen united would open floodgates of foreign money into u.s. elections. justice alito famously shook his head not true, it went all over youtube. 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 to so hold but you're concerned the logic could actually strike down those limits? >> guest: i think at the time immediately afterha the decision that was a reasonable interpretation of the decision and i certainly have, in my dissent suggested that there was a possible interpretation. as it developed later in the case that i cited at some length, discussed 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, they can, not just contributions but expenditures. they could not spend their own money in support of a candidate. and that, the, the underlying

rationale for the three-judge district court decision written by judge cavanagh of the district of columbia court f of appeals basically was that we have, there is a justified interest in the government running the election, having the election, control of the election and not have outsiders come in and tell americans how to, who to elect and canadians can not spend their money. it is precisely the same rationale that would support michigan's decision we wouldn't leto -- citizens from indiana ad wisconsin spend unlimited sums of money trying to influence our elections.in >> 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: there is arv powerful state interest in having fair elections and an interest that

can trump the first amendment right in certain situations and, and to, the court in its views on this issue has sort of treated the first amendment issue as trumping everything else andi i think they failed to give adequate weight to the interests in people running their own show. >> host: people running their own show, interest in fair elections, it goes back to this theme throughout the book, neutrality, non-partisanship, the government has an obligation to be neutral and fair, you really believe that strongly? >> guest: that's right, and fairness in the conduct of the elections, should enable the government to adopt rules that give rival candidates an equal opportunity to persuade the voters. >> host: now the court in citizens united and more recently inl mcchuf shun has not focused on that interest in fairness but the interest in avoiding corruption and defined

corruption very narrowly to say, quid pro quo corruption, you vote for me or i won't give a lot of money? is that broad enough view of core are shun or did the framers have a broader view? guest guest the basic mistake,st if the court's review of corruption is only basis to t regulate campaignhe finances you rely on the bribery laws would take care of it but there is an, a more powerful interest, has nothing to do with corruption it having elections fair and giving each candidate an opportunity to compete. and e it's a, it is not a questn of, it really is a question of identifying reasons other than corruption for imposing requirements of fairness in contests between disopposing parties. it isrn the same 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 opportunity to persuade and they're fair to both parties. the, the main criterion is fair procedure, fair treatment of adversary contestants.r >> host: you also give the example of presidential debates. you said it wouldn't be fair to give the richest candidate more time. >> guest: dawned on me watching one of the republican debates in the primary before the last election that o certainly the moderator has a duty to treat candidates equally. >> host: one thing that struckor me in the book, so many of yourn principles are rooted in constitutional history. you talk inny your citizens unid dissent about the framers concern that governmentt be responsive to all the people and not just the few. >> guest: that is exactly right.

>> host: does this have any biographical source? i had had privilege of interviewing you years ago and you talked about your experienc on that commission investigating alleged corruption in chicago of a case where a judge was alleged to have a thrown a case in exchange for a bribe and you to very great acclaim said if dissent had been issued in that case the whole scandal might have been y avoided. does this concern with neutrality and concern with fair treatment date back to experiences like that? >> guest: i suppose it does. in that case it was also, was involving 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 illinois supreme court justices but the appearance of impartiality is very important to the process

too. >> host: we have two more big top picks 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 punishment such as the death penalty inflicted. so you would have words such as death penalty to the existing words of the agent amendment. d -- 8th amendment. you were not always of the belief the death penalty violated constitution. what made you change your mind or constitution should be amended to prohibit the death penalty? >> guest: first of all a death cases are a form of litigation, federal judges, supreme court

judges are cases nobody likes. they're very expensive, time-consuming litigation. anyone exposed to capital litigation as long as i was, is bound to develop a distaste for the whole process. of course every, the things that changed my own views, particularly the fact that there is now available to the punishment of, life imprisonment without parole so you don't need the death pen malt to avoid, to deter future misconduct by people who have been convicted. second thing that is happened over the years is that the court has h 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 a area of the which the scales should tilt the other way. you should use extra precaution

to avoid error. and, the third thing that happened is that the, the dna evidence has made it clear that there are a number of people, have been a number of people on death row who should never have been there or who are innocent and, it is therefore true that, that every time you sentence somebody to death, you run the risk that you may make a mistake. that y is, you should not, the system should not allow the possibility of mistakes in a capital case.ho and the other thing that's happened over the years is that the court has developed rules that require states to impose the death penalty in a totally painness 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, same consequences but you can't do that. you can not impose painful punishment, even administering the death penalty which means that the capital defendant basically is, goes through anesthetic process and makes it the pain, the penalty 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 have thought about it because everyone agrees there is some risk of error, even in the wonderful judicial system wea have andn as long as there's a risk of error that an innocent man in fact, to 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 thec gains do not justify taking that kind of risk. >> host: you quote your colleague, justice scalia saying the risk is infinitesimal, .02%. i take it that is still too big of a risk to you? >> guest: 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 the united states is ranked with three or four nations that have a different form of society than we do and whereas most of the countries in western europe have long ago abolished the death penalty. >> host: you talk about the fact that alle members of the court now think it is not permissible to inflict an execution that is deliberately intended to cause pain. 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 whether theri

existingly available chemicals do inm fact torture prisoners. what's your view on that? >> guest: one of the reasons why the risk is there that the professionals like the medical profession and 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, to put people to death. and as the 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 suppliers won't make them available. is it the case, if the current court were to hear a case involving an execution that clearly caused torture, would everyone agree that violates thw

8thou amendment? >> guest: if court were to dod what? >> host: like the execution where we the prisoner seemed to suffer torture and would everyone agree it was cruel and unusual. >> guest: i'm not sure they would conclude that it is going to happen enough to make it permanently cruel and unusual. >> host: you say the support for the death penalty is going down in the country as well? >> guest: it is. this may be an amendment may be issue take care of itself where the states enacted their own legislation. seems more people actually think about the costs involved, both human costs and financial costs. it is terribly expensive litigation. goes on for years and people down in florida have been on death row for 20 ard 30 years. certainly doesn't 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 which you had serious doubts whether or not the conduct was -- convict was innocent? >> guest: there were cases but most of the time you didn't get into the merits in depth. you seldom were really presented with enough of the facts to actually form an opinion on that buten there were a few. there was one in pennsylvania if i remember correctly where there were serious doubt about whether the complaining witness or the defendant was really the perpetrator of the crime. >> host: how did you feel when the execution took place and the court refused to stop it? >> guest: i thought it was a mistake, yes.p >> host: the final amendment propose has to do with an amendment to the second amendment and this is one of our

most hotly constitutional questions. you've been at the center of this debate. under your amendment you would add 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. those wordsey serving in the militia are ones you would insert. why would you do that? >> guest: the purpose of that language is to bring out, bring to the forethe fact the second accept was adopted for a narrow purpose. to prevent the states from having the federal government basically take overme their ownr their t 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 our debates about the second amendment are

someone, somewhat distorted by the notion the amendment was in fact motivated by the desire to provide, protect the the individual, to defend himself. one of the consequences of theto 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 of the basically this should not be the province of federal judges. it should be the province of state legislatures. that is sort of the central message of the chapter. >> host: this chapter, although compelling, doesn'tth fit in tht theme of government neutralityh and fairness. it sort of dives right into a hotly-contested historical debate where people on the other side to say, well there is evidence that the framers and

post-reconstruction peopleh intended to protect an individual right. why didhe you decide to include that gun control chapter along with your other -- >> guest: there is good argument for not controlling because there may well be that debateg will not i 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 dok think it is a terribly importane subject. i think in time if the reason will prevail but i'm not optimistic about this chapter accelerating the n 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 just

celebrated your 94th birthday and you were going to play birthday you were going to play tennis the next day. how did you do?u >> guest: i played the game and i remained vertical and enjoyed it because i have a good friend on other side of the court but my game s is not famously to be proud of. >> host: i think it is pretty good and spectacular you are still playing. justice john paul stevens, it has been a great honor to have this conversation with you. congratulating to write this neh book. quote six amendments, how and why we should change the constitution." on behalf of c-span and constitutional center i'm jeffrey rosen. thank you very much. >> guest: thank you very much. >> that was after the words, booktv signature program which authors of latest non-fiction books a are interviewed by journalists, public policymakers

and legislators familiar with their material. 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. zimmerman telegram by barbara tuck man, and a book that senator levin just sent over to me, the jewish "pirates of the caribbean" by edward krisler the first two books were books that i saw the zimmerman telegram when i was at the l.a. book festival speaking on my book and was just really intrigued by the

story. for me, the first jewish woman to represent florida in congress. historical depick shuns and stories about the, the jewish experience. really just intrigued me and i think that past is prologue and we had an opportunity to learn from the experiences that jews have been through in that story is really, really the zimmerman telegram specifically is, is an interesting story because it was sent, it was a telegram that was intercepted by, by great britain to essentially try to get mexico into the war defense the -- against the united states. the story goes through the balancing act that great britain

had to do to not reveal that they had cracked the code, the german code but at the same time notified the united states of the impending danger. the jewish "pirates of the caribbean" the past being prologue for jews. there why jewish pirates fighting the spanish inquisition and rode the high seas and that book, senator levin told me tell as story about what they went through and their adventures and antics and outcome of those and, the 12 tribes of patty is a story about 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 have lived and this is a fictional story that depict as family and a mother who prepares her children, her nine children for the difficulty challenges that they will 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 email. booktv@c-span.org. up next on booktv, afterwards with -- after words with juan williams, syndicated column on "the hill." next cal thomas and his book, what works. would worked in the past, discarding politics and

listening to voters. this program is about an hour. >> host: we're joined by cal thomas, his new book, what works, common sense solutions for a strong america. forward by sean hannity. that tells you a lot about this book, cal. >> guest: sean is a good friend and harpercollins publishing the book thought he would be a very good person to write the forward. i was happy he did so. nancy pelosi was not available. so i was glad to have his forward. he did a good job. >> host: this is intended for a conservative audience? >> guest: not necessarily. i think solving problems in america are not conservative, liberal, republican or democrat. we have severe challenges, juan, faces everybody regardless of their political background or persuasion. >> host: if you have sean hannity, i believe sean is quite popular figure among