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 w