here's a look at the current top 10 best selling nonfiction books according to "the new york times."

>> a look at this weeks list of nonfiction bestsellers according to "the new york times." >> next on booktv, "after words" with guest host jeffrey rosen, president and ceo of the national constitution center. this week justice john paul stevens and his latest book "six amendments: how and why we

should change the constitution." the retired u.s. supreme court justice targets gun violence, the death penalty, gerrymandering, and campaign finance in amendments he believes would better protect and empower citizens. the program is about one hour. >> host: welcome, justice stevens. on behalf of the national constitution center it's so great to see you. are you honored the national constitution center a few weeks ago by visiting us. the constitution center israel institutions and in america's congressional charter consuming information about the constitution on a nonpartisan basis. i can think of a better book to discuss in connection with that mission than your wonderful new book "six amendments: how and why we should change the constitution." you have proposed six constitutional amendments on topics ranging from campaign

finance and sovereign immunity and political gerrymandering to gun control and the death penalty and the anti-commandeering principle. all of these are cases where the supreme court ruled differently, and you dissented in many of these cases. tommy why you decided to write the book and why you decided to propose these six constitutional amendments? >> guest: it sort of a project they just kind of grew to tell you the truth. the immediate cause was the killing of the schoolchildren in connecticut, and "the new york times" story about the fact that the anti-commandeering rule places an obstacle in the way of the governments getting total information on background checks to precede the purchase of guns. i had not actually realized before i read "the new york times" story that that rule does, in fact, increase the likelihood that a person will

not be eligible, would be allowed to purchase guns when they shouldn't. that did not cause that particular tragedy but it likely that the cost of other similar tragedies. >> host: this anti-commandeering rule which is your first amendment, and i've dogeared all of them, with these high-tech pieces of paper sounds technical but it's quite important. i'm going to redo the amendment you proposed and you can help explain it. you say that adding just the four words, and other public officials, after the worst judges in 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 you were seeking to remedy? >> guest: i think the supremacy clause properly construed would've already allowed the government to impose mandatory duties on state officials, the police for example. i would've thought they could

have requested a local policeman to help search passengers at an airline terminal or something. but the court has you know has 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, but they are sort of 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 you mentioned involve the gun free school zones act 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 presently objected and said there might be a future terrorist attack and this was before 9/11. you said this would make it hard

to respond to terrorism and other acts of violence. >> guest: that's exactly right. 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 has made import and use of state officials to help get the army drafted. i do think it's more important than people realize. >> host: you said the court misconstrued previous precedents, that before the court refused to endorse this broad states' rights principle and in prince to change the law by exulting state sovereignty did agree that was not justified by history or president. >> guest: that's true, although it's interesting enough the majority opinion in france did not cite either of the two cases -- in prince. would have provided better support in any case they did

site. one of them was a pre-civil war case that basically held, and it wasn't anti-commandeering rule. justice marshall in a later opinion overruled that case and basically said it was the product of another part of our history that has long gone by. it was pre-civil war and pre-14th amendment. >> host: this is a big theme throughout your book. in your view of the civil war and reconstruction amendments that followed veterans from the relation between federal and state power and give the federal government broad powers to protect minorities and to solve national problems. you object in many of these cases some of our colleagues on the court were adopting a pre-civil war vision of state sovereignty that's not justified after the reconstruction amendments. >> guest: i think that's right. i really think, although i don't say as much about this in the book as i learned while reading, trying to put it together, i

think that president grant and some of his immediate successors are not adequately appreciated for the work they did. and i think there was sort of an underlying campaign among some historians who are partial to the south largely to cast doubt on the capacity of the grant. i think is a much better president than people generally assume. >> host: you also think the reconstruction amendments gave much broader powers to congress and the court is currently recognizing. >> guest: i think that's correct. >> host: you have in your discussion of sovereign immunity, another topic that sounds technical but you feel very strongly about and is the consequences. it also is a states' rights issue. you will be able to explain it of course far better than i can. let me read the amendment that you propose we come to sovereign immunity, and you'll tell me why you think it's important to use

a night of the tenth amendment, 11th amendment or any other 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 the amendment? >> guest: it's kind of a long story and an interesting story because the doctrine that is now in place, according to the majority opening, is implicit in the plan of the convention as part of the constitution. it started out in georgia, the question of 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 amendments really was construed very narrowly to

apply only to cases in which the state itself was asserting sovereign immunity. he basically construed in a way that if relief was granted by other state officers, the amendment would be no longer. that was basically the state of the law until after the civil war. during 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. then a few years later after there been a change in administration and the northern troops had been removed from the south, they took the opposite view and decided a case which usually embarrassingly inconsistent with marshall's early ruling. i really think that there's a

connection between the reconstruction of states' rights attitudes that develop in those years and the doctrine of sovereign immunity, which later on became not only protected from paying their debts but it developed over the years. it now protects the states from having their agents being required to open a federal law. it no longer relies on 11th amendment which didn't fit very well. anyway, it moved into the area where it's implicit in the plan, the convention even though four of the five people in the chisholm case didn't understand that. but then it developed to the point where it required strict statements of federal intent to impose liability on state officials.

hospital case basically announced that rule. in response to that rule, congress adopted several statutes expressly requiring the state to obey federal law in intellectual property areas for the most part, patent cases, copyright cases, trademark and so forth. this was on a bipartisan basis that the court, congress generally opposed these rules that said made a lot of sense. later on in the indian case, the name escapes me at the moment, the court basically held all those statutes were unconstitutional. and so that's one of the reasons i say this really should be a nonpartisan issue. 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 to early

times in england when the team presumably could do no wrong. >> host: you help me understood. i could never get into law school but you just said it, basically the 11th the memo was intended to prevent the citizens of one state from suing a state for nonpayment of debt but not for not enforcing federal law. by invoking this doctrine of the dignity of the states, the modern courtesan if that's what john marshall said they shouldn't do, basically exulting a pre-civil war -- >> guest: it's interesting, the opinions are, they do not explain why this doctrine makes any sense. except they wanted some of them to use the word dignity as the basis for which, in one of john marshall's opinion he specifically rejected dignity as a justification. >> host: remarkable. i was struck by that. talk about nonpartisanship, neutrality and has been a theme of your jurisprudence in arguing that political gerrymandering should be able to be challenged

when they are not drawn mutually. in arguing in favor of campaign finance reform. you boys the state has a fundamental duty to act impartially and in a nonpartisan manner to tell me more where that brief came from a. >> guest: i think that's the best way to interpret the equal protection clause. it imposes on the states a duty to govern impartially, not to favor one society or segment or group over another. and issue focus on the essential requirement, it really makes things awfully easy, at least it does to me. it's a doctrine that frankly struck me at the time i was working on a patent 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 by 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. it was just accept it as part of the practice. but we decided in the case i cited in the book that 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 a 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 dissent of some members of the court. >> host: you mentioned one area where your colleagues embrace this neutrality rule that there are others where courts have rejected it. you were particularly vicars on the question of partisan gerrymandering. that is, cases were legislators dropped districts are 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. this was a conversation with a david brooks responded, but congress won't do that because the incumbents want to protect themselves. that means the courts are the only refuge and yet in your book you describe although all of your colleagues agreed extreme partisan jury many pilots the constitution the court has told it's not able to entertain the challenges. why have the health 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 is 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 activities in states like maryland and california and

so forth, and republicans have been guilty of that activity in pennsylvania and texas, for example. but there will be a change of administration in those states eventually. and if the legislature thinks in the long run it will recognize that both parties will be better off in the long run by simply getting rid of this practice, and letting an election contest work on the merits of their respective parties. it may be naïve, of course but i think just as the wisdom of the approach that got rid of patronage practices, largely, i think the states the and their own legislature realize it's in their own best interest in the

long run to have their elections fair in between the two parties. >> host: i was at a panel recently at the national constitution center where congressman has proposed a bill that would allow congress to do redistricting. you are, a hero of yours. is read your book. he found they would be more competition, constituents would be more responsive to the constituents and they would be more moderate because they would have an incentive to win general elections rather than having safe seats but what are some of the benefits? >> guest: i do think when candidates primarily have to be members of their own party and they are not worried about the general election, they tend to become more doctrinaire and tend to avoid compromise. i do think the fact the primaries are the big two 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 the divide in congress today than there had been years ago when i worked there. >> host: when you work in the u.s. congress? >> guest: yes, i worked as an associate counsel, republican counsel for the stellar committee, the house committee, studied monopoly power. and then they were members of the two-party did work together on much legislation. they were a high visibility bills were they tended to be much more partisan but it was a different congress then we have to be. >> host: a congress that confirmed you to the supreme court i think you had a unanimous vote as well. >> guest: well, 98. there were two that didn't go to that day. 98.

>> host: that counts. hard to imagine that today. what happened? is partisan gerrymandering partly responsible? >> guest: i really think it is. i think that bill gates, i hadn't 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 very sophisticated and specific about how to identify unconstitutional partisan gerrymandering but you have an amendment proposed. i will read it again because the text is important. districts represented by members of congress or members of the state legislative body chevy state legislative body shop a comeback and composed of contiguous territory. the staging of the burden of justifying any departure from this requirement by reference to neutral criteria such as natural, political or historic boundaries or demographic changes, the interest in enhancing or preserving the political part of the party in control of the state government is not such an neutral criteria

to tell us why you chose that language. >> guest: we also had in the book a few examples of gerrymandering, and potter stewart would've had the rules plainest as could be when he said i can -- i know one when i see it, is the way he described obscenity. but it is true there are many glaring examples of very odd shaped districts that have no justification whatsoever. it isn't just a primary reason i anything like that. they have no justification whatsoever, except to give the party in power and advantage of the election. 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 take campaign finance is out of the state treasury. they've got to finance the actions independently. and similarly they should not be motivated entirely by political considerations and drawing the district. 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. if they can tell a racial gerrymander by the size and shape of the district, there's no reason in the world why they couldn't apply exactly the same standard to a partisan gerrymandering. you look at it and you see something is fishy. there is the same need to avoid gerrymandering and both racial or partisan terms. >> host: you are very

consistent in that regard. in some of those racial gerrymandering cases you descended into the court shouldn't have police of those gerrymanders. if the court were to apply the same standard, would you be in favor of judicial intervention in those cases? >> guest: yes, i would. the greater benefit would flow from having a simple rule in both cases. the glitch in history was the original gerrymandering case went to tuskegee, alabama, with 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 gerrymanders who were designed to give minorities better representation than the victims of discrimination. i dissented in some of those cases because i thought the basic rule of equality should not prevent rules that were designed to equalize the

minority voters and the majority. but having -- racial gerrymandering, whether pro-minority or anti-minority made a violation of the constitution. it seems to me you should just simply apply the same rule, you applied in these cases to political cases and the problem will easily be solved. i should mention the fight in all our gerrymandering has been on whether that we could develop standards, which we did develop for racial, but nobody, no member of the court has actually said on the merits this practice is justified. even justice scalia who was the strongest proponent of developing a judicial rule against gerrymandering does not defend the practice on the merits of. >> host: this is a practice that all justices they can be unconstitutional, that people like bill gates and other small sites of the spectrum says it's the main political problem

facing the country today and yet the court says there's no judicial solution. you to give examples of gerrymanders in the book with beautiful color illustration a to agree to that when you insist on including this illustration in a judicial opinion, chief justice burger was concerned it was too expensive, it would cost $3000 that he agreed to did because you have one less law clerk and everyone else. you were saving the court money. what is it about this district that looks so funny and that struck your notice? >> guest: if you look at it closely you can see some of these districts just don't make any sense at all. district five, for example, goes all around. in fact, some of the districts are just without any rational justification. if you do look at the shape. i tell the story in a particular election that was involved. this is another instance why it may benefit one party today but then 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, they gerrymandering set the democrats in control. >> host: a great example. i should say to our panel at the constitutions in isa gerrymander and subtracting its it should be pronounced gerrymander because eldridge gerry was the originator of this. tell the story of who he was and why the thing is named after him? >> guest: i guess he was the governor of massachusetts at the time they develop the first -- i guess you should call at gerrymandering. >> host: it's a church pronunciation. >> guest: but it is funny but i think it agenda called gerrymandering but we tell the story of how with less than a majority of the voters he was able to retain control of the state by drawing the very

strange shaped districts that he did. the name, he is the originator of the practice as far as i know, and that bears his name. >> host: the district looked like a salamander so they called it gerrymandering. >> guest: described as -- it did look like a salamander. >> host: explain to us why this is such a service problem through gerrymandering. you can have a situation where a minority of state voters controls the majority. >> guest: that's right. i'm not sure but i have been told i believe that the majority of the voters voting in congressional elections actually were democrats, or voted democrat, but the republicans got 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 be the view, the majority should be able to a majority of representatives in the house. >> host: this texas nephew showed, i think the one in shaw versus rena and the joke was it sort of snakes down, gets big and thin and big again and the joke was if you go down the district with both cars doors open you tell everybody in the district. this was shaw versus rena and the court struck down as unconstitutional racial gerrymandering. >> guest: if the republicans and democrats came up with exactly the same, they say we can't do anything about it. >> so you've expressed inspiring faith when citizens are your argument table of the heck you say in your prologue i'm confident the sounds of each of my proposal will become more and

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

it's right. >> host: frustrating. i think we're going to take a short break and return in just wanjust amoment to continue talt this wonderful new book "six amendments: how and why we should change the constitution." >> 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 for imposing reasonable

limits on the amount of money that candidates for public office or their supporters may spend in election campaigns. in the chapter you say that this is consistent with history of the firsthe first amendment, anu note president teddy roosevelt proposed a bill that was passed the said corporation should be treated differently than individuals when it comes to campaign spending. tell me first about the history of the first amendment of campaign spin 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 their representatives. i think that in the history it 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 reflected on it i don't think it's just a corporate problem, although that's got most of the attention. i think individuals also get involved in election contests, in jurisdictions where they do not have the right to vote. and it does seem to me that one of the key cases that the court overruled and the 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 that what they were really concerned

about is money coming from non-michigan sources. and, of course, corporations generally represent out of state interest frequently. and it does seem to me that there is an important difference between the right to participate and support candidates you have a right to go for and candidates from other jurisdictions. the holding that is critical in my chapter on this issue is part of the decision in buckley v. valeo, 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. and in that case the court said that it violated the first amendment to try to limit, even

reasonable limits on campaign expenditures. justice white dissented from that and he was the only justice to do it. the whole thing has been followed consistently. in the following -- excuse me. in the years following that decision the court has been consistent in holding that limitations on campaign expenditures are impermissible and if you're 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, we basically have to correct the prohibition on the use of expenditures. but which does require in my judgment a constitutional amendment because the court has

been almost unanimous in the prior year's in its prohibition against limitations on expenditures. >> host: the great power of this chapter is that inside you just shared by there's a difference between voters contributing in their own election and nonvoters including corporations and foreigners contributing to other people's elections. that was central to your criticisms in the mccutcheon case which the supreme court decided recently to the court began by saying this is about the right of individuals to support their own candidates budget to congress that is not right, they were trying to contribute money for other people's elections. tell us more about your criticisms of the mccutcheon case. >> guest: that's exactly true. of course, the mccutcheon case was decided after i had written that 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. i don't think justice white discussed that possibility in his dissent. but i think it's a limits are placed too low it could be a valid argument that they are favoring incumbents, and that's why i said there should be that reasonable requirement. which i think would solve the problem. i do think that if congress focus on reasonable limits, and 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 part of the problem. >> host: the objection of

course is the reasonableness is not self defined and judges would have to decide what was reasonable. you asked a good question, with the reasonableness requirement allow restrictions on the yucatán's ability to write an editorial on behalf of any candidate. what was your response? >> guest: my response actually isn't twofold. first of all i don't think such restriction would be reasonable. but it isn't necessary the court that would be defining reasonableness. the court would be reviewing a congressional decision as to what is thought was reasonable. and, of course, there would be a presumption that the choice congress made was permissible because you certainly would just defer to the legislative judgment at least in the first instance. and if it was so obviously if they allow different limits for different candidates, for example, that 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 what, any contribution whatsoever is impermissible. >> host: will be an example of an unreasonable limit? >> guest: as i say, one that -- welcome there are 23 examples -- two or three examples but one that prohibits newspapers from endorsing candidates. one that provided greater latitude for incumbents than for non-incumbents. one that provided a different amount for wealthy candidates than for different financial circumstances should not be justification for allowing different limits. it would not be a reasonable action. >> host: and in your citizens united dissent uk the example of how the press is different and

first amendment press clause itself such as newspaper should be treated different than other for-profit corporations. >> guest: and seems to me the existence of the press might provide an adequate justification for treating press differently from candidates themselves. >> host: is that also you you're into the question was asked of them solicitor general kagan at the citizens united argument could you restrict the circulation of a book? >> guest: i would think so. i think a lot of these problems can theoretically you can come up with an answer to every hypothetical, but when you actually have concrete proposals in front of you, you can really identify what is unreasonable without much difficulty. >> host: one of the many action things i learned from this chapter is your discussion of president obama's statement of the state of union that city

that would open the floodgates of foreign money into u.s. elections. justice alito shook his head and said not true. it went all over youtube. 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 refused to the so-called put your concerns logic could strike down those limits. >> guest: i think at the time immediately after the decision that was a reasonable interpretation of the decision. i certainly in my dissent suggested that wasn't possible interpretation. as it developed later in the case that i cited, 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.

and not just contributions but expenditures. they could not spend their own money in support of a candidate. 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 over the election and not have outsiders come in and tell americans how to -- canadians cannot spend their money but it is precisely the same rationale that would support michigan's decision that wouldn't let citizens from indiana and wisconsin spend unlimited sums of money trying to influence their elections. >> host: how would you state the constitutional dimension of that principle, that states have

an interest in preserving the integrity of their own elections? >> guest: there is a powerful state interest in having fair elections. it's an interest that control the first amendment right in certain situations. the court in its views on this issue have s.o.r.t. treaty first amendment issue as trumping everything else. i think they failed to give adequate weight to the interest in people running their own show host mike people running their own show, interesting their elections, goes back to the theme throughout the book of neutrality, not partisanship that account has obligation to be neutral and fair. you believe that strongly. >> guest: that's right. fairness in the conduct of the election should enable the government to adopt rules that give rival candidates an equal opportunity to persuade the

voters. >> host: the court instead is ignited and more recently in mccutcheon has focused not on the interest of fairness but in the interest of avoiding corruption and it is defined corruption merely to basically say quid pro quo corruption. you vote for me or i will give you a lot of money. is that a broad enough view of corruption or did the framers have a broader view of? >> guest: the basic mistake, if the courts view of corruption is really the only justification for regulating campaign finance is, you just rely on the laws that would take care of it. but there is a more powerful interest, nothing to do with corruption in having elections there and giving each candidate an equal opportunity to compete. it's not a question of -- it really is a question of

identifying reasons other than corruption for imposing requirements of fairness in contest between opposing parties. it's the same interests that justifies limiting speech and litigation. when you have an argument before the green card you can go on and on forever. the court imposes rules that limit your opportunity to persuade and they are fair to both parties. the main criterion is their procedure, fair treatment of adversary contestants. >> host: you get example of presidential debates and say wouldn't be fair to give the richest candidate more time than everyone else. >> guest: that's right. it dawned on me in watching one of the republican debates in the primary before the last election, but certainly the moderator has a duty to treat candidates equally. >> host: one thing that struck in the book is so many of your principles are rooted in fairness are also good in constitutional history.

you talk in your citizens united dissent about the frames concern that government be 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 out the case in exchange for a bride and you claimed, said the dissent have been issued in the case of the whole scandal i've been avoided. is this concern with neutrality and concerned with fair treatment get back to experiences like that? >> guest: i suppose it does. in that case it was also 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 the illinois supreme court justices. but the appearance of impartiality is very important to the process hosts a well, we have two more 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 systems 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 penalty, so you would add the word such as the death penalty of existing words of the eighth amendment. you were not always of the belief that the death penalty violated the constitution. what made you change your mind or feel that the cost of tuition should be amended to prohibit the death penalty?

>> guest: first of all, death cases are a form of litigation. the federal judges, supreme court justices, nobody likes. they are very, very 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. of course, the things that changed my own views particularly are the facts that there is now available for punishment of life imprisonment without parole. so you don't need the death penalty to avoid, to deter future misconduct by people who have been convicted. a second thing that has happened over the years is that the court has adopted a number of procedures which actually strengthened the hand of the prosecuted.

in the penalty phase hearing which seems to me told the scales in an area of the law in which the scales should tilt the other way. you should use extra precaution to avoid error. and a third thing that happened is that 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, who are innocent. it is, therefore, true that every time you sentence someone to death you run the risk that you may make a mistake. the system should not allow the possibility of a mistake in a capital case. and the other thing that has happened over the years is that the court has developed rules that require states to impose

the death penalty in a totally painless manner. originally years and years ago the death penalty, theory and whatever the defendant did to his victim, he should suffer the same consequence. but you can't do that. you cannot impose painful punishment even administering the death penalty, which means that a capital defendant basically goes through and anesthetic process that makes 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 the more i've thought about it because everyone agrees that there is some risk of error, even in the wonderful judicial system we

have, as long as there's a risk of their that an innocent man in fact is to be executed and put to death by the state is, in fact, innocent, that is not acceptable risk that a civilized society should accept. because the gains do not justify taking that kind of risk. >> host: you quote your colleague joseph school evincing the risk is infinitesimal. 's viewpoint to present a something like that. i take it is still too big of a risk for you? >> guest: that is -- i think anyone has to be troubled by that possibility. and, of course, 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, or as most other 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 is deliberate intent to cause pain. and you talk about the mix of chemicals that were used until recently to try to minimize pain and ge yet right now we have a dramatic debate about whether the existing available chemicals do in fact torture prisoners. what is 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. but the -- there's a danger of botched -- botched executions, 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 that the current court were to hear a case involving an execution that clearly cost torture, would everyone agree that violates the eighth amendment? >> guest: if -- >> host: like the one we saw the other day where the presenter seemed to be toward your and in obvious pain. would everyone agree that was cruel and unusual? >> guest: i'm not sure. i agree 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 support for death penalty is going down in the country. >> guest: this may be an amendment, the issue may take care of itself by the states enacting their own legislation. it does seem to me that the more people actually think about the costs involved both in human cost and in financial cost, it's

a terribly expensive litigation goes on for years. people down in fort have been on death row for 20 and 30 years. it doesn't certainly satisfy the public interest in retribution. >> host: you reviewed many death cases doing your many decades on the supreme court. was there a case in which you had his 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 sell them were present with enough of the facts to actually form an opinion on them. there were a few. it was one in pennsylvania if a member correctly where there were serious doubts 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 at? >> guest: i thought it was a mistake. >> host: the final anonymity that you propose has to do with an amendment to the second one, and this is one of our most hotly contested constitutional questions. you've been at the center of this debate. under your amendment you would add some language to the second amendment. he would say a well regulated militia being necessary to the security of the free state. the right of the people to keep and bear arms when serving in the militia shall not be infringed upon. those words serving in the militia you would insert. why would you do that? >> guest: the purpose of that language is to bring to the floor the fact the second amendment was really adopted for a narrow purpose, to prevent the states from having the federal government basically take over their own militias and disarm the states.

it was that limited purpose that was the source of the second amendment itself. it seems to me that our debates about the second amendment are somewhat distorted by the notion that the imminent 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 legislature rather federal judges to have the final say on what kind of gun control or gun registration the state should adopt. basically they should not be the province of federal judges to issue be the province of state legislatures and that is the central message of the chapter. >> host: this chapter, although compelling, doesn't fit

in that theme of government neutrality and fairness. it's sort of diatribe into a hotly contested historical debate where people on the other side say there is evidence. the framers in the post-reconstruction people tended to protect individual rights. why did you decide to include this gun-control chapter? >> guest: there's a good argument for not controlling it because i think it may well be that debate will not resolve itself in the foreseeable future. although even with that i think in time the country will come to the conclusion that other civilized countries have it right where they basically banned 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 subject. i think in time reason will prevail, but i'm not optimistic about this chapter.

>> host: justice stevens, you are a force of nature but when we last talked you just celebrated your 94th birthday and you going to play tennis the next day. did you play the game and how did you do? >> guest: i played again. i was able to remain vertical and i enjoyed it because i have a good friend on the other side of the court. my game is nothing to be proud of. >> host: it was famously argued, and i think it's spectacular you're still playing. justice john paul stevens, it's 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 national constitution center, i am jeffrey rosen. thank you so much. >> guest: thank you.

>> that was "after words," booktv signature program in which authors of the latest nonfiction books are interviewed by journalists, public policymakers and others familiar with the material. "after words" airs every weekend on booktv 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. of the booktv.org and click on transport in the booktv series and topics list on the upper right side of the page. >> the most heavily defended airspace in history was the airspace over north vietnam. they were literally tens of thousands of anti-aircraft guns. there were thousands of surface-to-air missiles and placements, and they also had aircraft at various bases that would come out on occasion but they didn't come out all the time because they could really match up to ours but they were

there, a constant threat. unfortunately, we watched those being offloaded from a russian freighter, taken off and take it up by truck and put in place but we were not allowed to strike them and then they would later fired at us but don't ask me to explain that rationale spent you say into book 50 years later those restrictions still hurt. >> it still makes the mad because we lost so many good men to those surface-to-air missiles which we probably, some of them anyway we could have destroyed before they ever got to place the eyewitness surface-to-air missile sites we have very strong evidence were run by russians and not by the vietnamese. and the pilots, we also found that were most likely russians. so in order to counter these very significant threat of surface-to-air missiles, they had this group called -- they would go in early and try to

track and attack the surface-to-air missile sites in the area where the main attacks were going to come in. they came in before the main body came in the state until afterwards. as long as story, long story short as possible, we came in with his wingman in his wingman was shot down and we had ways of rescuing pilots. aske..