Believes would better protect and empower citizens. The program is about an hour. Host welcome, justice stevens. On behalf of the National Constitution center, its 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 the constitution on a nonpartisan basis, and i cant 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. Youve proposed six constitutional amendments on topics ranging from Campaign Finance and sovereign immunity and political gerrymandering to gun control and the Death Penalty. All of these are cases where the Supreme Court ruled differently, and you dissented in many of these cases. Tell me why you decided to write the book and propose these 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 School Children in connecticut. And the New York Times story about the fact that the anticommandeering rule places an obstacle in the way of the governments getting total information on background checks to see the purchase of guns. And i had not actually realized before i read that New York Times story that that rule does, in fact, increase the likelihood that a person will be eligible, will be allowed to purchase guns when he shouldnt have. And that did not, that is not a cause of that particular tragedy, but it likely may have been a cause of other similar tragedies. Host well, this anticommandeering which is your First Amendment and aye dog eared all of them with these pieces of paper sounds technical but is quite important. Im going to read the amendment, and you can help explain it. You say adding just the four words and other Public Officials after the word 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 that youre seeking to remedy . Guest well, i think that the supremacy clause properly construed would already have allowed the government to impose mandatory duties on state officials. At least, for example, i would have thought they could have requested a local policemen to help search a local policeman to help search persons at an airport terminal or Something Like that. I think the potential consequences of the decision are more serious than many people realize. Theyre not the kind of consequences that arise every day, but theyre a time bomb sitting in the back room 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 that you mentioned involved the gunfree school zones act, a federal law congress passed. The Supreme Court, as you suggested, struck it down on the grounds that federal officials cant command state officers to carry out certain duties, and you presciently objected and said there might be a future terrorist attack, and this was before 9 11 guest thats right. Host and you said it would make it hard to respond to other acts of violation. Guest thats exactly right. And i really think the rule in place now would interfere with a draft law, for example, where both in world war ii and in other fire situations the federal government had made important use of state officials to help get the army drafted. And i do think its more important than people realize. Host you also said that the court misconstrued previous precedents. In prince it really changed the law by exalting state sovereignty to a degree that was not justified by history or precedent. Guest well, thats true, although its interesting enough that the majority opinion in prince did not cite either of the two cases that were, would have been provided better support for its holding than any case they did cite. One of them was a precivil war case that had basically held there was an anticommandeering rule. And Justice Marshall in a later opinion overruled that case, and basically what he said, it was the product of an other part of our history that had long gone by. Precivil war and pre14th amendment. Host you know, this is a big theme that runs throughout the book. In your view, the civil war and the reconstruction amendments that followed it transformed the relationship between the federal and state power and gave the federal government broad power to protect minorities and solve national problems, and you object in many of these cases that some of your colleagues on the court were adopting a precivil war vision that is not justified after the reconstruction amendments themselves. Guest i think thats right, and i really think although i dont say as much about this in the book as i learned while reading and trying to put it together, i think that our, the president grant and some of his immediate successors are not adequately appreciated for the work they did. And i think that there was sort of an underlying Campaign Among some historians who are partial to the south largely to cast out on the capacity of grant. And i think hes a much better president than people generally assume. Host you also think that reconstruction amendments gave much broader power to the government than the court is recognizing. Guest i think thats right. Host you have in your discussion of sovereign immunity, thats another topic that sounds technical, but it has big consequence withs. It also has states rights issues. Youre going to be able to explain are it, of course, far better than i can. Let me read the amendment that you propose when it comes to sovereign immunity i, and youll tell me why you say its important. Neither the 10th, 11th amendment nor any other provision of this constitution shall be construed to provide a state agency or state officer with immunity from liability of violating any act of congress or this constitution. Why do you propose that amendment . Guest well, its kind of a long story, and its an interesting story because the doctrine that is now in place is according to the Majority Holdings is kind of implicit in the plan of the convention as part of the constitution. It started out in the chism v. Georgia. The question is whether there was a common law immunity to protect georgia from paying its debts. And the court held by a vote of 41 there was no such immunity. And then the 1 11th amendment ws adopted, and for years particularly by John Marshall the amendment was con i strewed their lowly to apply very narrowly. He basically construed it this a way that if relief could be granted against other state officers, the amendment would be no obstacle. And that was, basically, the state of the law until after the civil or civil war. And during the period of reconstruction, the process of reinterpreting the rule began. And particularly in some cases arising out of louisiana, the court basically they first held that louisiana could not welch on obligation. Then a few years later after thered been a change in administration and northern troops had been removed from the south, the court took the opposite view and decided a case which really is [inaudible] and i really think its not, theres a connection between the reconstruction states rights attitudes that develop in those years and the doctrine of southern immunity which sovereign immunity. It developed over the years that it now protects the states from having their [inaudible] required to obey federal law. Well, anyway, it moved into the area where its implicit in the plan of the Convention Even though four of the five people in the chism case didnt understand that. But then it developed to the point where they required stricter statements of federal intent to impose liability on state officials. The hospital case basically announced that rule. And in response to that rule, congress adopted several statutes expressly requiring the states to obey federal law and intellectual property area for the most part patent cases, trademark and so forth. And this was on a bipartisan basis that the court that the congress generally imposed these rules and said made a lot of sense. But later on in the indian case, the name escapes me at the moment, the court basically held that all those statutes were unconstitutional. So thats 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 didnt have much respect for this doctrine that goes back the early times in england when the king presumably could do no wrong. Host you helped me understand it. I never could get it in law school, but you just said it, basically i the 11th amendment was intended to prevent citizens of one state to sue citizens of another state for not paying a debt. The modern court is basically exalting a precivil war vision of states rights. Host and its interesting, the opinion is really quite they do not explain why this doctrine makes any sense except some of them use the word dignity as a basis. In one of John Marshalls opinions, he specifically rejected dignity as a justification. Host its remarkable. I was really struck by that. You talk about nonpartisanship and neutrality, and that has been a theme of your jurisprudence in arguing that gerrymanders should be able to be challenged when theyre not drawn neutrally, in arguing in favor of Campaign Finance reform. You believe that the state has a fundamental duty to act impartially and in a nonpartisan manner. Tell me where that belief came from. Guest i really think thats the best way to interpret the equal protection laws. It imposed on the states a duty to govern impartially, not to favor one segment of society other another. And if you focus on that central requirement, it really makes things awfully easy. At least it does to me. And its a doctrine that, frankly, struck me at that time i was working on a patronage case back on the court of appeals for the seventh circuit before i came on the court. We had a case involving the discharge of a whole bunch of employees 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 patronage system worked. And it was just accepted as part of practice. But we decided in the case i cite in the book that should not be the rules, its inconsistent with the duty to govern. And since then over the years, the court has adopted that view. Originally, it was kind of thought how could we possibly change something that had been in the law as long as the patronage practices, but they have, in fact, for the most part gone along with that change. Again, other the sense over the sense of some members of the court. Host you just mentioned one area where your chattanoogas emigressed colleagues embraced this neutrality rule, but there are cases where legislatures draw districts in order to Favor One Party over another. I was at a conference recently and heard bill gates who was asked whats the one thing congress can do to really reduce Political Polarization in america, and he said eliminate partisan gerrymandering. And this was a conversation with david brooks who responded, but Congress Wont do that. You describe that all of your colleagues agree that it violates the constitution, the court has tended to hold that its not justiciable, in other words, the courts are not able to entertain the challenges. Why have they held that, and what do you propose to solve the problem . Guest well, first of all, i think its important that no judge as far as i know has ever defended the practice. So the basic rule what is going on now is quite wrong. And its not a partisan issue, because the democrats are guilty of the same activity in states like maryland and california and so forth, and the republicans have been guilty of that activity in pennsylvania and texas, for example. But there will be a change of administration in those states eventually, and if the legislatures and the administrators think in the long run, i think they will recognize that both parties will be better off in the long run by simply getting rid of this practice and letting the election contest work on the merits of the respective parties. So it may be naive, of course, but i think just as the wisdom of the approach that got rid of patronage practices largely, i think that the states and their own legislatures may realize its in their best interests in the long run to have their elections fair and between the two parties. Host i was at a panel recently at the initial Constitution Center where congressman low went that would has proposed a bill that would require congressional patterns, and you are a hero of his, hes read your book. He found there would be more competition, constituents would be more responsive, and itd also be more moderate because have an incentive to to win general elections rather than having safe seats. What are some other benefits that you think would follow from eliminating partisan gerrymandering . Guest well, i do think when candidates primarily have to beat members of their own party and theyre not worried about the general election, they tend to become more doctrinaire, and they tend to avoid compromise. And i do think that the fact the primaries are the big deal in the election does have an adverse effect on their actual performance in office after theyve been elected. And i do think thats one of the explanations for the more partisan divide in Congress Today than there had been years ago when i worked there. Host when you worked in the u. S. Congress . Guest yes. I worked as associate counsel, republican counsel for the cellar committee, House Committee on the study of monopoly power. And there members of the two parties did Work Together on much legislation. There were high visibility bills where they tended to be much more partisan, but it was a Different Congress than we have today. Host and, of course, the congress that confirmed you to the Supreme Court, i think you had a unanimous vote as well. Guest well, 98. Host 98. Guest two didnt vote that day. Host that counts. Hard to imagine that today. Whats happened . Is partisan gerrymandering parly responsible for the fact that congress is more polarized now . Guest i think it is. Bill gate, i hadnt heard about that before, but i think hes deaded right. Host yeah. Well, the trick though is coming up with a judicial standard for policing partisan jerry mapped oring. And youre gerrymandering. And youre very specific, and you have an amendment proposed, so ill read it again because the text is important. Districts represented by members of congress or my members of any state legislative body shall be compact and composed of contiguous territory, the state shall reference neutral criteria such as natural, historical or political boundaries, the interest in enhancing or preserving the political power of the party in control of the State Government is not just criteria. Tell us why you chose that language. Guest we also have in the book an example of partisan gerrymandering, and Potter Stewart had the rules plain as can be when he said i know it when i see it, is the way he described obscenity. But it is true that the there are many glaring examples of very oddshaped districts that have no justification whatsoever. And this is just primary reason or anything like that, but they have no justification whatsoever except to give the party in power an advantage at the election. And that, there must be a duty to govern impartially requires government officials generally and legislatures more specifically to have some neutral reason for their action. They cant pay Campaign Finances out of the state treasury. Theyve got to finance the actions independently. And similarly, they should not be motivated entirely by political consideration in drawing the district. And the standards for determining whether partisan gerrymander has occurred that i recommend are precisely the same as have been in place for a good many years with respect to racial jerry mappedderring. And if gerrymandering. And if they can tell a racial gerrymander by the size and shape of the district, theres no reason in the world why they couldnt apply exactly the same standard to a partisan gerrymander. You just look at it, and you see somethings fishy. And there is the same need to avoid gerrymandering in both racial or partisan grounds. Host you are very consistent in that regard. Now, in some of those racial gerrymandering cases, you dissented and said the court shouldnt have policed those racial gerrymanders. If the court were to apply the same standard, would you be in favor of Judicial Intervention in both cases . Guest yes, i would. I think the greater benefit would flow from having a simple rule in both cases. The glitch in history was that the original gerrymandering case went to the tuskegee, alabama, where the gerrymandering was designed to exclude the blacks from participating in, from voting in the i knew misgovernment. And later on the court applied the same rule to gerrymanders that were designed to give minorities better representation when theyd been the victims of discrimination. And 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 in the majority. But having made racial gerrymandering whether prominority or antiminority a violation of the constitution, it seems to me you should simply apply the same rule that youve applied in race cases to political cases, and the problem would easily be solved. And i should mention the fight in all our gerrymandering cases has been whether or not we can develop standards which we did develop, but nobody, no member of the court has actually said on the merits this practice is justified. Even Justice Scalia who is the strongest opponent of developing a judicial rule against gerrymandering does not defend the practice on the merits. Host so this is a practice that all justices say can be unconstitutional, that people like bill gates and others from all sides of the spectrum say is the main political problem facing the country today, and yet the court says theres no judicial solution. Guest in its latest cases, thats right. Host yeah. You do give examples, and you tell the great story of how when you insisted on including this illustration in a judicial opinion, chief justice bear ger was bear ger was concerned it would too expensive, but he agreed to do it because you had one less law clerk than everyone else, you were saving money. [laughter] guest thats exactly right. Host what struck your notice . Guest well, if you look at it closely, you can see some of these districts just dont make any sense at all. District five, for example. And, in fact, several of the districts are just without any rational justification in terms if you just look at the shape. And i tell the story of the particular election that was involved. This is another instance why it may benefit one party today, but then the elections may change. And that particular map benefited the democrat, if i remember correctly, and even though ronald grain was very popular reagan was very popular in the following election, the gerrymandering kept the democrats in control. Host thats a great example. I should say during our panel at the Constitution Center, i said gerrymander, and someone corrected me and said it should be pronounced garymander. Guest well, i guess he was the golf of massachusetts the governor of massachusetts at the time they developed the first i guess you should call it garymander. [laughter] but it is funny, i think its generally called gerrymander. Host yeah. Guest we tell the story of how with hess than a majority of voters with less than a majority of voters, he was able to retain control of the state by drawing the very strangeshaped districts that he did. And the name hes the originator of the practice as far as i know, and it bears his name. Host and the district looked like a sal manner, so they called it salamander guest oh, thats right. The press described it that the district he drew did look like a salamander. Host but explain to us why this is such a huge problem, you can have a situation where a minority of state voters controls a majority of state seats. Guest oh, thats right. And actually, i think im not sure, but i have been told, i believe, that the majority of the voters in, voting in Congressional Elections actually were democrats or voted democrat, but the republicans had got a majority of the seats. Host remarkable. Guest yeah. Host could that be, someone suggested that might also be a violation of the republican form of government clause that says states have to have a republican form of government which means majority rule. Guest its certainly inconsistent with what we think should be with concern should be the view that the majority should be able to have a majority of representatives in the house. Host this texas, not that you show i think this was the one in shaw v. Reno, and the joke was it stake down, gets big and thin and big again, and the district was if you drove down the district with both car doors open, youd kill everyone in the district. [laughter] political gerrymanders guest thats right. And if the republicans and democrats came up with exactly the same, they say we cant do anything about it. Host yeah. So you express, to me, inspiring faith that when citizens hear your arguments, theyll adopt them. You say in your prologue im confident that the soundness of each of my proposals will become more and more evident and that ultimately each will be adopted. Do you believe that citizens will adopt the antigerrymandering amendment once they come to realize the significance of the problem . Guest well, i dont know just how much time will elapse before they do it, but, you know, texas for a long time was a democratic state, and then it became a republican state after the civil rights legislation was adopted. Other states have changed too. And one of the things that may cause change is dissatisfaction with the abuse of power that the majorities have engaged in. Host i think thats what happened in california and where independent commissions were bipartisan reform embraced by both parties. But it is tricky for incumbents to vote for it. Is it possible we could continue to have a situation at least in the short term where theres this big political or constitutional problem but no congressional or judicial remedy . Guest i think thats right. Host which is frustrating. I think were going to take a short break and return in just a moment to continue talking about this wonderful few 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 youd like to download, and listen to after words while you travel. Host justice stevens, you are especially passionate about the subject of Campaign Finance reform. And you propose a constitutional amendment that says the following neither the First Amendment, nor any other provision of this constitution shall be construed to prohibit the congress or any state from imposing reasonable limits on the amount of money that candidates for Public Office or their supporters may spend in election campaigns. And in the chapter you say this is consistent with the history of the First Amendment, and you note that president Teddy Roosevelt proposed a bill that was passed that said that corporations should be treated differently than individuals when it comes to Campaign Spending. Tell me first about the history of the First Amendment and Campaign Spending and why you think its 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. And i think that in the history has emphasized the fact that corporations dont 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 ive reflected on it, i dont think its just a corporate problem, although thats gotten most of the attention. I think that 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 in Citizens United was michigan against the chamber of commerce or austin against the chamber of commerce in which michigan put a prohibition against corporate contributions. But actually it seems to me what they were really concerned about is money coming from nonmichigan sources. And, of course, corporations generally represent interests, outofstate interests frequently, and it does seem to me there is an important me that there is an important difference between the right to participate and support candidates that you have the right to vote for and candidates from other jurisdictions. And the holding that i, critical in my chapter on this issue is part of the decision in buckley against valeo that was decided the year i came on the court but before i it was decided when i came on the court, but i was not eligible to vote because it had been argued before. And in that case the court saided that it violated said that it violated the First Amendment to try to limit, put even reasonable limits on Campaign Expenditures. Justice white dissented from that holding, and he was the only justice who did. And the whole excuse me. The holding has been followed consistently in the excuse me. In the years following that decision, the court has been consistent in holding that limitations on Campaign Expenditures are impermissible and interfere with the total quantity of speech that is used in campaigns. And i think in order to correct the error in the Citizens United case itself, you basically have to correct the prohibition on the use of expenditures which does require, in my judgment, a constitutional amendment. Because the court has been almost unanimous in the prior years in its prohibition against limitations on expenditures. The great power of this chapter is that insight that you just shared, that theres a difference between voters contributing in their own election and nonvoters including both corpses and Foreign Corporations and foreigners contributing to other peoples elections. That was similar to your criticisms of the mccutcheon case. The court began by saying this is about the right of individuals to support their own candidates, but you told congress that thats not right, they were actually trying to contribute money for other peoples elections. Guest thats correct. Host tell us about your criticism of the mccutcheon case. Guest thats exactly true. And, of course, the mccutcheon case was decided after id written the chapter. But i think ive included the word reasonable in my proposed amendment because i think that the actual limits that were imposed at the time of the buckley decision may well have been designed to protect incumbents. And i dont think Justice White discussed that possibility in his dissent. But i think if the limits are placed too low, it could be a valid argument that they are favoring uncouple bents. But thats incumbents. Thats why i said they there shd be the reasonableness requirement. And, which i think would solve the problem. Because i do think that if congress focused on reasonable limits, i dont think theres any danger that my former colleagues would actually conclude that any limit 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 selfdefining, and judges would have to decide what was reasonable. Adam liptak from the New York Times asked you would the reasonable requirement allow restrictions on the New York Times ability to write an editorial on any candidate . What was your response to that . Guest well, my response actually is twofold. First of all, i dont think such a restriction would be reasonable. But it isnt necessarily the court that would be defining reasonableness. The court would be reviewing a congressional decision as to what it thought was reasonable. And, of course, there would be a presumption that the choice that was 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 allowed 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 whatever any contribution whatsoever would be impermissible. Host what would be an example of an unreasonable limit . Guest well, as i say well, there are two or three examples. One that prohibited newspapers from endorsing candidates. One that provided a greater latitude for incumbents than for nonincumbents. One that provided different amount for wealthy candidates than for different different financial circumstances would seem to not be a justification for allowing different limits. Would not be with a reasonable action. Host is and in your Citizens United dissent, you also gave the example of how the press is different, and the First Amendment press clause itself suggests that newspapers should be treated differently than other forprofit corporations. Guest yeah. And it seems to me it might cause an adequate justification for treating the press different than candidates themselves. Host is that also your answer to the question that was asked of justice, thensolicitor general kagan at the Citizens United argument, could you restrict circulation of a book . Guest i would think so. I suppose you might have trouble defining when its been long enough to be a book. But i think a lot of these theoretically you cant come up with an answer to every hypothetical. But when you actually have concrete proposals in front of you, you can really identify whats unreasonable without much difficulty. Host one of the many interesting things i learned from this chapter is your discussion of president obamas statement at the state of the union, that Citizens United would open the floodgates of foreign money into u. S. Elections. Justice alito famously shook his head and said not true, but you say president obama was actually correct in his description of the possible extension of Citizens United to strike down restrictions on foreign donations in u. S. Elections. The Supreme Court recently refused, but youre concerned that the logic could actually strike down those limits. Guest well, i think at the time immediately after the decision, that was a reasonable interpretation of the decision. And i certainly in my dissent suggested that it was a possible interpretation. As it developed later in the case that i cite at some length, i discuss 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 in the United States. They, and not just contributions, but expenditures. They could not spend their own money in support of a candidate. And the underlying rationale for the threejudge District Court decision written by judge cavanaugh of the district of Columbia Court of appeals, basically was theres a justified interest in the government running the election, having the election control, control of the election and not have outsiders come in and tell americans how to, when to elect. The canadians cannot spend their money. Its precisely the same rationale that would support michigans decision that we wouldnt let the citizens from indiana and wisconsin spend unlimited sums of money trying to influence our elections. Host how would you state the constitutional dimensions of that principle, that states have an interest in preserving the integrity of their own elections . Guest there is a powerful state interest in having fair elections, and its an interest that can trump the First Amendment right in certain situations. And the court in its views on this issue has sort of treated the First Amendment issue as trumping everything else. And i think that they fail to give adequate weight to the interest in people running their own show. People running their own show, an interest in fair elections, it goes back to this theme throughout the book of neutrality, knop partisanship. Nonpartisanship. The government has an obligation to be neutral and fair. You believe that strongly. Guest thats right. And the fairness 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 citizenned united and more recently in mccutcheon has focused on the interest in avoiding corruption. And its defined corruption very narrowly to basically say quid pro quo corruption. You vote for me, or i wont give you a lot of money. Is that a broad enough view of corruption, or did the framers have a broader view in mind . Guest well, the basic mistake, if the courts view of corruption is really the only justification for regulating Campaign Finance, you just rely on the bribery laws to take care of it. But there is a more powerful interest that has nothing to do with corruption in having elections fair and giving each candidate an equal opportunity to compete. And its a its not a question of, it really is a question of identifying reasons other than corruption for imposing requirements of fairness in contests between opposing parties. Its the same interest that justifies limiting speech and litigation. When you have an argument before the Supreme Court, you cant go on and on forever. The Court Imposes rules that limit your opportunity to persuade, and theyre fair to both parties. The main criterion is fair procedure, fair treatment of adversary contestants. Host and you also give the example of president ial debates and say it wouldnt be fair to give the richest candidate more time [laughter] guest no. That dawned on me watching one of the republican debates in the primary before the last election. Certainly, the moderator has a duty to treat candidates equally. Host one thing that struck me in the book is so many of your principles rooted in fairness are also rooted in constitutional history. You talk in your Citizens United dissent than the framers concern that government be responsible to all the people and not just the few. Guest thats exactly right. Host does this have any biographical source . I had the prim of interviewing the privilege of interviewing you years ago, and you talked about your experience on that Commission Investigating alleged corruption in chicago, and you very to great acclaim said that if a dissent had been issued in that case, the whole scandal might have been avoided. Does this concern with neutrality and concern with fair treatment date back to experiences like that . Guest i suppose it does. In that case it was also involving the appearance of neutrality because it certainly, judges should not be buying stock recommended to them by litigants which is what happened to a couple of the illinois Supreme Court justices. But the appearance of impartiality is very important to the process too. Host well, we have two more 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 shall not be required, nor excessive fines imposed, nor cruel and unusual punishment such as the Death Penalty. So you would add the words such as the Death Penalty to the 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 constitution should be amended to prohibit the Death Penalty . Guest well, first of all, death cases are a form of litigation that federal judges, Supreme Court justices, nobody likes. Theyre very, very unpleasant, expensive, time consuming litigations. Anyone who is exposed to capital litigation for as long as i was is bound to develop a distaste for the whole process. And, of course, every the things that changed my own views particularly, the fact that theres now available the punishment of life imprisonment without parole so that you dont need the Death Penalty to avoid, to deter future misconduct by people who have been convicted. A second thing thats happened over years is that the court has adopted a number of procedures which actually strengthen the hand of the prosecutor. In the penalty phase hearing which, seems to me, tilts the scales in an area of the law in which the 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 there, who were innocent. And it is, therefore, true that every time you sentence somebody to death, you run the risk that you may make a mistake. Thats you should not, the system should not allow the possibility of mistake in a capital case. And the other thing thats 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 was the theory that whatever the defendant did to his victim, he should suffer the same consequences. But you cant do that. You cannot impose painful punishment even administering the Death Penalty, which means that the capital defendant basically goes through an anesthetic process that makes 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 ive thought about it because everyone agrees that there is some risk of error even in the wonderful judicial system we have. And as long as theres a risk of error that an innocent man, in fact, could be executed and put to death by the state is, in fact, innocent, that is not an acceptable risk that a Civilized Society should accept. Because the gains do not justify taking that kind of risk. Host you quote your colleague, Justice Scalia, saying the risk is infinitesimal, i think. 02 . I take it thats still too big a risk for you. Guest that is, and i think anyone has to be troubled by that possibility. And, of course, the its 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 thats deliberately intended to cause pain, and you talk about the mix of chemicals that were used until recently to try to minimize pain, and yet right now were having a dramatic debate about whether the existing available chemicals do, in fact, torture prisoners. Whats your view on that . Guest well, one of the reasons why the risk is is 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, cushion it. Is you in the competition itself. So you necessarily are not dealing with the most skilled people to put people to death. And theres a danger of botched executions like we had 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 can is it the case, the Current Court will hear a case involving an execution that clearly caused torture, would everyone agree guest what . Host an execution like the one we saw the other day where the prisoner seemed to be tortured and in obvious pain, would everyone agree that was cruel and unusual . Guest im not sure. They may agree that it was cruel and unusual, but im not sure they would conclude that its going to happen enough to make it permanently cruel and unusual. Host you say that the support for Death Penalty is going down in the country. Guest yes, it is. And this may be an amendment that the issue may take care of itself by the states enacting their own legislation. But it does seem to me that the more people actually think about the costs involved both in human costs and in financial costs, its a terribly expensive litigation, goes on for years, and people down in florida have been on death row for 20 and 30 years. It doesnt certainly satisfy the Public Interest in retribution. Host you reviewed many, many death cases during your many decades on the Supreme Court. Was there a case in which you had serious doubts about whether or not the convict was innocent . Guest yes. There were cases, but most of the time you didnt get into the merits in depth, so you seldom were presented with enough of the facts to actually form an opinion on that. But there were a few. There was one in pennsylvania if i remember correctly where there was serious doubt about whether the complaining witness or the defendant was really the perpetrator of the crime. Host and how did you feel when the execution took place and the court refused to stop it . Guest well, i thought it was a mistake. Host the final amendment that you propose has to do with an amendment to the Second Amendment. And this is one of our most hotly cop tested constitutional questions contested constitutional questions. Under your amendment youd add some language to the Second Amendment. You would say a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms when serving in the militia shall not be infringed, and those words, when serve anything the militia, are the ones that you would uncert. Why would you do that . Guest well, the purpose of that language is to bring to the fore the fact that the Second Amendment was really adopted for a narrow purpose, to prevent the states from having the federal government basically take over their own, their militias and disarm the states. And it was that limited purpose that was the source of the Second Amendment itself. And it seems to me that our debates about the Second Amendment are somewhat distorted by the notion that the amendment was, in fact, motivated by desire to provide the individual to defend himself. And one of the consequences of the law as it developed is it has made not the state legislatures, but rather federal judges to have the final say on what kind of gun control and gun registration the state should adopt. This should not be the providence of federal judgements, it should be the providence of state legislatures, and thats sort of the central message of the chapter. Host this chapter, although compelling, doesnt fit in that theme of government neutral the city and fairness. It sort of dives right into a hotlycontested historical debate where people on the other side say, well, there is evidence that either the framers or postreconstruction people intended to protect an individual right. Why did you decide to include this gun control captainer along with our chapter along with your other six amendments . Guest theres a good argument for gun control because it may well be that debate will not resolve itself in the foreseeable future, although even in that i think in time the country will come to the conclusion that other civilized countries have it right where they basically ban firearms. But i just didnt think i could write a book about amendments that i think are necessary and leave this one out. Because i do think its a terribly important subject. I think in time the reason will prevail, but im not optimistic about this chapter accelerating the process to bring out to a conclusion within the next few years. Host justice stevens, you are a force of nature. When we last talked, you had just celebrated your 94th birthday, and you were going to play tennis the next day. Did you play the game . Howd you do . Guest i played the game, i was able to remain vertical, and i enjoyed it because i have a good friend on the other side of the court, but my game is nothing to be proud of now. Host well, it was famously pretty good, and i just think its spectacular that youre still playing. Justice john paul stevens, it has been a great honor of 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 cspan and the National Constitution center, im jeffrey rosen. Guest thank you very much. Host thank you. That was after words, booktvs Signature Program in which authors of the latest nonfiction books are interviewed by journallests, public policymakers and others familiar with their 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. And 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. Host well, joining us now here on our outdoor and windy set is the founder of the Miami Book Fair, mitch kaplan. Mr. Kaplan, whats with the wind this year . Its nice and warm. Guest its going to be a beautiful day. I spoke to the weather gods. They assure me that the suns going to break, come through the clouds, and well have another great fair day. And i also want to personally thank you for coming. Its hard to believe its been 17 years. Seems like a blink. And your support of what we do has been immeasurably important to the growth of this book fair as well. Host well, you know, were covering that authors, were broadcasting 20 hours, but this is just a small part of what the Miami Book Fair is. Guest this year we have 600 authors coming to the fair, 300 exhibitors, we run for a full week, sunday through sunday, and we have about a quarter of a Million People that come through. Not to mention during the week we provide authors to schools, we bring schools to miamidade community college, to the campus. So we are we have a connection very deep into the community in order to help that next generation of readers find themselves as well. Host when you came up with the idea for this book fair, when was that, and how big was it at the beginning . Guest well, it was a group of us, it wasnt just me, and it was in 1982 that we started talking about it. We had the very first book fair in 1984, so this is our 31st one. And the very first year it was two days. We had probably about 100 authors who came. Right off the beginning, though, right from the beginning it started off as a success. We knew that the rooms were filled, we saw people coming out, they were clamoring for more. So there was never a question of whether wed do a second year. The second year we went to three days, friday, saturday and sunday, and we were doing that for a number of years. When the campus built another building, we decided we would just fill that up with more authors. And i like to say as long as the campus of miamidade builds more buildings, well present more authors in those buildings. Host how do you fund this . Guest its funded numerous different ways. This year we have some incredible support from people like, groups like the knight foundation, lots of different private individuals who have given money, but certainly we could never do it without the support of miamidade column. They provide the back college. They provide the backbone. They provide i always call miamidade colleges gift to the community, the Miami Book Fair. Host well, mitch kaplan, i know youve got a full day ahead of you. We appreciate you stopping by our booktv set prior to your activities. Guest well, we thank you for being here, and i look forward to a busy, busy day for you guys as well. Host mitch kaplan founder, and by the way, hes also the opener of books owner of books and books bookstores down here in the miami area. You can watch this and other programs online at booktv. Org. Youre watching booktv on cspan2 with top nonfiction books and authors every weekend. Booktv, television for serious readers