Transcripts For CSPAN2 After Words 20140518

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 anticommandeering principle. All of these are cases where the Supreme Court ruled differently and you dissented in many of these cases. Tell me why he decided to write a book and why he decided to propose the six constitutional amendments . Guest well its sort of a project that 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 anticommandeering rule places an obstacle in the way of the governments total information on background checks 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 wont be eligible who would be allowed to purchase guns who shouldnt. That did not cause that particular tragedy but it likely may have been a cause of the similar tragedy. Host this anticommandeering rule which is your First Amendment and i have dogeared all of them. With these hightech pieces of paper. It sounds technical but its quite important and im 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 im 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 cant 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 thats 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 its 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 thats true although its 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 precivil war piece that had basically held that it was an anticommandeering 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 precivil 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 thats right and i really think although i dont 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. Lets go in your discussion of sovereign immunity and thats 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 . Its 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 commonlaw 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 marshalls early ruling. I really think theres 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 its implicit in the plan of the Convention Even though four of the five people in the chisholm case didnt 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 didnt 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 thats 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 shouldnt do and basically resulting in states rights. Guest its 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 Marshalls 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 thats 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. Its 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 thats 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 Wont 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 its 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 its important that no judge as far as i know has ever defended the practice. What is going on now is wrong. Its 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 naive 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 its 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 highvisibility 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 didnt move it forward that day. Host that counts. Its 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 isnt 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 cant 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 theres no reason in the world where they couldnt apply exactly the same standard to partisan gerrymandering. You just look at nec something is fishy. Theres 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 prominority or antiminority 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 theres 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 its 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 its generally called gerrymandering. We tell the story of how with less than a majority of the voters hes able to retain control of state by drawing the shaped districts that he did in the name hes 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 thats 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 im 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 its 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 theyd say we couldnt 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 antigerrymandering once they understand the significance of the problem . Guest i dont 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 thats what happened in california and arizona where commissions were bipartisan of forms embraced by both parties but its tricky for incumbents to vote for it. Is it possible that we could continue to have the situation at least in the shortterm where theres this big blue buckle constitutional problem but no congressional problem . Its 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. Host Justice Stevens you who are specially passionate about the subject of Campaign Finance reform and you propose a constitutional amendment that says the following. Neither the First Amendment or any other provision of this constitution shall be construed to create that the congress or any state from imposing reasonable limits on the amount of money that candidates for Public Office or their supporters may spend in election campaigns. 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 its appropriate for cooperations 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 dont 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 dont think its 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. It does seem to me that one of the key cases the court overruled in Citizens United was michigan against the chamber of commerce or austin against the chamber of commerce in which michigan put a prohibition against corporate contributions. Actually it seems to me that what they were really concerned about was money coming from nonmichigan sources and of course corporations generally represent outofstate interests frequently. It does seem to me that theres 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 even reasonable limits on Campaign Expenditures. Justice white dissented from that and he was the only justice that did. The holding has been followed consistently. Excuse me. In the years following that decision the court has been consistent in holding that limitations on Campaign Expenditures are impermissible and interfere with the quantity of speech that is used in campaigns. 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. Which does require in my judgment the constitutional amendment because the court was almost unanimous in the prior years in his prohibition against limitations of expenditures. Host the great power of this chapter is the insight you to share but theres a difference between voters contributing in their own election and nonvoters including corporations and foreigners computing contributed to other peoples elections. That was central to your criticisms in a case the Supreme Court decide recently. The court began saying this is the right of individuals to support their own candidates that you told congress that they were trying to contribute money for other peoples elections. Tell us more about your criticisms of the mccutcheon case. Guest thats exactly true in the mccutcheon case was decided after i had written that chapter. I have 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 them from those. I dont think Justice White discuss that possibility in his dissent. I think if the limits are placed too low it could be a valid argument that they are favoring incumbents but that is why i said there should be a reasonable requirement. That i think would solve the problem. I do think if congress focused on reasonable limits and i dont think theres any danger that my former colleagues would actually conclude that any is unreasonable after an amendment was adopted to correct the heart of the problem. Guess. Host the objection is reasonable reasonableness is not self defining. With the reasonableness requirement of our structures to write and edit torreo on behalf of a candidate and what was your response to that . Guest my response actually is twofold. First of all i dont think such a restriction would be reasonable. That is isnt necessarily the court finding reasonableness. The court would be reviewing a congressional decision as to what it thought was reasonable and of course there would be a presumption that the choice congress made was permissible because you would certainly defer to the legislative judgment at least in the first instance and it was so obviously if they allow different limits for different candidates for example that would clearly be unreasonable. I really think the amount of discretion that word would permit congress to exercise would be far different from the present rule which says any limit any contribution whatsoever. Host what would be an example of an unreasonable limit . Guest as they say one that that there are two or three examples. One that prohibited newspapers from endorsing candidates. One that provided greater latitude for incumbents than nonincumbents and one that provided a different amount for wealthy candidates and different financial circumstances should not be justification for allowing different amendments. It would not the the reasonable action. Host in your Citizens United to send to give an example of how the press is different and the press clause itself suggests newspaper should be treated differently than forprofit organizatorganizat ions. Guest it seems the existent might provide an adequate justification for treating the press differently from candidates themselves. Host is that all so your answer to the question that was asked of them solicitor general kagan that the citizens argument could you restrict the circulation of a book . Guest i would think so. You might have trouble defining whether its been long enough to be a book but i think theoretically you cant come up with an answer to every hypothetical but when you have concrete proposals in front of you you can identify what is unreasonable. Host one of the many interesting things i found from this chapter was your discussion of president obama state of the state of the Union Address that Citizens United would open foreign money into elections. It went all over youtube if you say president obama was actually correct in his description of the possible extension of Citizens United to the strike down restrictions on foreign donations and u. S. Elections. The Supreme Court refused but youre concerned that the logic could ask her strike down those laws. Guest at the time immediately after the decision that was a reasonable interpretation of the decision and i certainly in my dissents suggested it was a possible interpretation. As it developed later in a case that i cited and discussed at some length in the book a threejudge court held that it was permissible to prohibit citizens of canada and israel from making contributions to elections to the United States. Not just contributions but they could not spend their own money in support of a candidate. The underlying rationale for the threejudge District Court decision written by judge kevin on of the district of Columbia Court of appeals hasek lee was theres a justified interest in the government running the election and having control over the election and not have outsiders, and until americans how to the canadians can spend their money. Its exactly the same now and we wouldnt let citizens from indiana and wisconsin spend money trying to influence elections. Host how would you state the constitutional dimensions of that principle that the states have interest in preserving the integrity of their own elections . Guest there is a powerful state interest in having Fair Elections and its an interest that can trump the First Amendment rights in certain situations. And the court in its views on this issue have treated the First Amendment issue as trumping everything else. I think they failed to give adequate weight to the interests in people running their own show host people running their own show and Fair Elections goes to the theme that the book of neutrality nonpartisanship and the government has an obligation to be neutral and fair. You really believe that strongly. Guest thats right and the fairness and 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 Citizens United and more recently mccutcheon is focused not just on fairness but in the interest of avoiding corruption and it has defined corruption early to say quid pro quo corruption vote for me or i wont give you a lot of money. Is that a broad enough view of corruption or do the framers have a broader view . Guest the basic mistake if the courts view of corruption is the only justification for regulating Campaign Finance is you would just rely on the clause to take care of it. But there is a more powerful interest that has nothing to do with corruption and having elections fair and giving each candidate an equal opportunity to compete. Its not a question it really is a question of identifying reasons other than corruption for imposing requirements of fairness and contests between opposing parties. Its the same interests that justifies limiting speech and litigation. When you have an argument before the Supreme Court you cant can go on and on forever. The court enforces rules that limit your opportunity to persuade and they are fair to both parties. The main criterion is fair procedure fair treatment of contestants. Host you give the example of president ial debates and say wouldnt give fair to give the richest candidate more time than anyone else. Guest thats right. It dawned on me watching one of the republican debates in the primary before the last election that certainly the moderator has the duty to treat candidates equally. Host one thing that struck in the book is so many for principles are rooted in fairness and also constitutional history. You talk and you can dissent about the government being responsible to all the people and not just a few. Guest thats exactly right. Host does this have any biographical source . I had the privilege years ago interviewing you and you talk about your experience on the Commission Investigating alleged corruption in chicago the case where the judge threw out a case in exchange for bribes and you said that the dissent have been issued in the case the whole scandal might have been avoided. This is concerned with neutrality and concerned with the fair treatment date back to experiences like that . Guest i suppose it does. In that case it was also involving the appearance of neutrality because judges should not be lying stock recommended to them by litigants which is what happened to a couple of Supreme Court justices. The appearance of impartiality is very important to the process. Host 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 im going to use my hightech filing system to find it here. You say here we go. Excessive bail should not be required nor excessive fines imposed nor cruel or unusual punishments such as the Death Penalty so you would add the word such as the death of sea to existing words. You are not always of the belief that the Death Penalty violated the constitution . What made you change your mind or feel the constitution should be amended . Guest well first of all death cases are a form of litigation. The federal judges and to dream Court Justices nobody likes them. They are expensive and timeconsuming litigation. Anyone who is exposed to capital litigation for as long as i was is bound to develop a distaste for the whole process. The things that change my own views particularly are the facts that there is now available for punishment of life imprisonment without parole. You dont need the Death Penalty to avoid to deter future misconduct by people who have been convicted. The second thing that has happened over the years is that the court has adopted a number of procedures which actually strengthen the hand of the prosecutor. In and the penalty phase hearing which seems to tilt the scales in the area of the law in which the scales are tilting the other way. Using extra precaution to avoid error. The third thing that happened is the dna evidence that made it clear that there have been a number of people on death row who should never have been there 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. The other thing that has happened over the years is 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 was a theory that whatever the defendant did to his victim he should suffer the same consequence. But you cant do that. You cannot impose painful punishment even administering the Death Penalty which means that capital defendants basically goes through an anesthetic drops us that is painless. Its 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 have thought about it and because everyone agrees that there is some risk of air even in the wonderful judicial system we have and as long as there is a risk of air that an innocent man in fact is to be executed and put to death by the state is in fact innocent that is not an acceptable risk that the Civil Rights Society should accept paid the games do not justify taking that kind of risk. Host you quote your colleague Justice Scalia that saying the risk is infinitesimal. 02 . I take it thats too big a risk for you. Guest i think anyone has to be troubled by the possibility and of course you cant 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 whereas most of the countries in western europe have long ago abolished the Death Penalty. Host you talk about the fact that all members of the court now think its not permissible to inflict an execution deliberately intended to cause pain and to talk about the mix of chemicals that were used until recently to try to minimize pain and yet right now we are having a dramatic debate about whether the existing available chemicals do in fact tortured the prisoners. What is your view on that . Guest well one of the reasons why the risk is there is the medical profession and the nursing profession and so forth do not permit their members is a matter of fact they do not participate in the execution itself. You necessarily are not dealing with the most skillful people to put people to death. There is a danger of a botched execution like we have the other day. Partly because professionals dont think its a good idea. Host and the chemicals are no longer available because the suppliers wont make them available. Is it the case that if the Current Court were to hear a case involving an execution that clearly cause torture would everyone agree that violates the eighth amendment . Wooded review of an execution like the one we saw the other day where the prisoners seem to be tortured and in obvious pain would everyone agree that was cruel and unusual . Guest im not sure. I believe it was cruel and unusual but im not sure that they would include that its 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. Guest this may be an amendment and the issue may take care of itself but the states enact their own legislation. It does seem to me that the more people actually think about the costs involved both in human cost and financial cost is terribly expensive litigation that goes on for years. People in florida have been on death row for 20 or 30 years and it doesnt certainly satisfy the Public Interest in her education. Host you reviewed many death cases during your decades on the Supreme Court. Was there a case in which you had serious doubts about whether not the [inaudible] guest yes, there were cases that most of the time he didnt get into the merits of the death so you seldom were presented with enough of the facts to form an opinion on them. There were a few. There was one in pennsylvania if i remember correctly where there were serious doubts about whether the complaining witness or the defendant was the perpetrator of the crime. Host how did you feel when the execution took place in the court refused to stop the . Guest i thought it was a mistake. Host the final amendment has to do with an amendment to the second one and this is one of our most hotly contested questions. Under your amendment you added language to the Second Amendment. He would say a row regulated militia will be necessary to secure free state. The right of the people to keep and bear arms when surveying in them serving in the militia shall not be imposed. In the militia would be the ones you would insert. Why would she do that . Guest the purpose of that language is to bring to the floor that the 2nd amendment was adopted for the purpose. The state having the federal government taking over their militias and disarming the state senate was that limited purpose that was the source of the Second Amendment itself and it seems to me that debate about the Second Amendment are somewhat distorted by the notion that the amendment was in fact motivated by desire it to protect the individual to defend himself. One of the consequences of the law as it is made not the state legislature but federal judges to have the final say on what kind of gun control registration the state should adopt. It should not be the providencprovidenc e of federal judges. It should be the provenance of the state legislature and that is the central message of the chapter. Host this chapter although compelling doesnt fit into the theme of government neutrality and fairness. Its a hotly contested historical debate where people in the other side say there is evidence intending to protect an individual right. Why did you decide to include the gun control chapter . Guest theres a good idea for not controlling it. It may well be the debate is of 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 the right to basically ban firearms. I just didnt think i could write a book about amendments that i think are necessary and leave this one out. I do think its a terribly important subject. I think in time the reason will prevail but im not optimistic that this chapter. Its already in the process to render a conclusion in the next couple of years. Host Justice Stevens you are for sydney two. When we last talked to you just celebrated her 94th earth day and you are going to play tennis the next day. Did you play the game and how did you do . Guest i played the game and i enjoyed it because i had a good friend on the other side of the court. My game is nothing to be proud of. Host it was famously pretty good and its that you are still playing. Justice John Paul Stevens its been a great honor to have this conversation with you and congratulations for writing this new look six amendments how and why we should change the constitution. On behalf of cspan and the national Constitution Center i am jeffrey rosen. Thank you very much. Guest thank you. s bdu now a lot of times who would say look this is for background. You can attribute it to the white house source or Something Like that. You cant do that with live cameras. You cant say and im just giving you this now for background but you know this is not for publication. Did you brief on background from the podium at the white house . Sure, yeah. Not a whole briefing. Why dont i give you something on background so youll know that its coming. Something like that. Thats quaint. The fatal mistake that i made and this is in the weeds for our audience but interesting to some of you. I did not put the restriction at the state department which was not available for live broadcasts. It was available for use as part of the stories that you would reduce because the briefing is not a news event. It is part of the way in which people gather information but their stories together test other sources get other information put together a conference of reporting delivered to your consumers in the news. I once had to do 56 questions on what is universal health care . Would that be 98 but what about 97 . What about 96. 5 . I think 56 questions in one briefing and Dave Barry Broder column saying she might be a nice person if you could take over beer and ask her question about what his universal Health Coverage main . And 3q. His. [applause] to be here at the national