Transcripts For CSPAN2 After Words 20140519 : vimarsana.com

The federal government that used state officials to help get the army drafted, and i think its more important than people realize. Host you said the court misconstrued previous precedents. Guest thats true, although its interesting enough that the majority opinion did not cite either of the two cases that would have been provided better support for its holding than any case they did cite. One was precivil war case that had basically held there was an rule and Justice Marshal in a later opinion overruled that case and said it was the product of an other part of our history that has long gone by. It is precivil war and pre14th pre14th amendment. Host this is a big theme that runs throughout the book in your view the civil war and reconstruction amendments that followed it transformed the relation between federal and state power and gave the federal government broad power to protect minorities and so of national problems. You object in many of these cases that some of your colleagues on the court were adopting a precivil war vision of state sovereignty that is not justified. Guest i think thats right. I dont say this as much in the book, as i learned while reading, 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 doubt on the capacity of grant, and i think he is a much better president than people assume. Host you also think the reconstruction amendments gave much broader powers to congress than the court is currently recognizings. Guest i think thats correct. Host you have in your discussion of so much immunity another topic that sounds technical but has big cob sequences. It also is a states rights issue. You can explain that far better than i can. Led me read the amendment you propose when it comes to sovereign immunity and tell me why you think its important youch say neither the tenth amendment, 11th amendment, nor any other provision of this constitution shall be construed to provide any state, state agency, or state officer, with an immunity from liable for violating any act of congress or any provision of this constitution. Why too you propose that amendment . Guest well, its kind of a long story and really an interesting story. The doctrine that is now in place is, according to the majority holding, kind of implicit in the plan of the convention as part of the constitution. It started out in the which chim against georgia and whether there was a common law immunity. And the court ruled there was no such immune. And the 11th amendment was adopted in response to that decision, and for years, particularly the opinions by John Marshall, the amendment was construed very narrowly to aemploy only to cases in which the state itself was asserting a sovereign immunity, and he basically construed net a way that if relief would be granted against other state officers the amendment would be no obstacle. That was the state of the law until after the 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 an obligation, and then a few years later after thered been a change in administration and the northern troops had been removed from the south, the court took the opposite view and decided a case which is an embaringly inconsistent with marshalls early ruling, and i think its not theres a connection between the reconstruction states rights attitude that developed in those years, and the doctrine of sovereign immunity, which later on became not only protection from paying their debts but it develops over the years it now protects the states from having their no longer relies on the 11th amendment which didnt fit very well anyway. It moved into the area where its implicit in 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 liablity on the state for. 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 in intellectual property area for the most part. Pat patent cases, copyright, traitmark and so forth. And can this was a bipartisan basis the court generally imposed the rules that made a lot of sense. Then later on in, in the indian case, the name escapes me at the moment the court basically held that all the statutes were unconstitutional. And 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 part of an issue and they didnt have much respect for this doctrine that goes back to early times in england when the king presumably could do no wrong. Host you help me understood, basically the 11th amendment was intended to prevent citizens of one state from suing a state for nonpayment of debt but not for not enforcing federal law, and by invoking this doctrine of the dignity of the states, the modern court is doing exactly what John Marshall said they shouldnt do, exalting a precivil war states rights. Guest its interesting. The opinions are really quite they do not explain why this doctrine makes any sense except some of theme the word dignity, which is none one of John Marshalls opinions he specifically rejected dignity as a justification. Host remarkable. You talk about nonpartisanship and neutrality and that has been a theme of your juris prudence, in arguing political jerry map deing should be challenged when not drawn neutrally. Arguing in favor of Campaign Finance refor. You believe the state as a duty to act impartially and a nonpartisan manner. Guest thats the best way to interpret the equal protection clause. It imposed on the states a duty to govern impartially, not to favor one segment of society or one group [overlapping over anof you focus on that central requirement, it makes things awfully easy. At least to me. And its a doctrine that, frankly, struck me at time i was working on a patronage case in 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 loser job, and that was the way that the system worked. And it was just accepted as part of the practice. But we decided in the case i cite in the book, that should not be the rule. Its inconsistent with the duty to govern impartially. And since then, over the years, the court has adopted that view. And originally it was kind of thought, how could we possibly change something that had been in the law as long as past practices, but they have in fact for the moe part gone along with the change, again, over dissents of some in the court. Host you mentioned one area where your colleagues embraced the neutrality rule but other courts rejected it, and you were particularly vigorous on the part of partisan gerrymandering where districts are drawn to Favor One Party over other. I heard below gates who was asked what is the one thing congress can do to reduce political polarization, and he said eliminate partisan gerrymandering and this was a conversation with david brooks. He responded, Congress Wont do that because the incumbents want to protect themselves. You describe that although all of your colleagues agree that extreme partisan gerrymandering violates the constitution, the court tended to hold its notthecourts are not able to entertain the challenges. Why have they held that and what do you propose to do to solve that problem. Guest well, first of all, think its important that no judge, as far as i know, has ever defended the practice. To the basic rule is 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, they will recognize that both parties would be better off by simply getting rid of this practice and let the election contests 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 Legislature 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 National Constitution center where congressman lowen alcohol that who proposed a bill that would Career Congress to create independent commissions to do districting and he is a hero of yours, he read your book. He found that there would be more competition, con state opportunities would be more responsive and also be more moderate bass they have an incentive to actually win general elections rather than having state seates. What other benefits would follow from eliminating partisan gerrymandering . Guest i do think when candidates primarily have to beat the members of the party and theyre not worried about the general election, they tend to become more doctrineaire and tend to avoid compromise, and i 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 a years ago when i worked there. Host when you worked in the u. S. Congress . Guest yes. I worked as an associate counsel, republican counsel for the seller committee, the House Committee on the study of the monopoly, and then there members of the two parties did Work Together on much legislation. There were high visibleity bills where they before more partisan but a Different Congress than today. Host the congress that confirmed you to Supreme Court you had a unanimous vote as well. Guest well, 98. Two didnt vote that day. Host that counts. Hard to imagine that today. Whats what happened . Is partisan gerrymandering partly responsible for the fact that congress is more polarized. I. Guest i think it is. I think bill gates is dead right. Host the trick is coming up with a judicial standard for policing partisan gerrymandering, and youre very sophies fix indicated and specific about how to identify unconstitutional partisan gerrymandering, and you have an amendment proposed; it would say districts represented by members of congress or members of any state legislative body shall be compact and composed of contiguous territory and the state hall have the burden of justifying any departure from this requirement by reference to neutral criteria such as narl, political or historic boundaries or demographic changes, the interest in enhancing or preserving the political power of the party in control of the State Government is not such initial cry criteria. Why choose that language . Guest we also have a few examples of partisan gerrymandering and Potter Stewart would have had the rule plain as could be when he said i can i know it when i see it, how he described obscenity. But it is true that the theres many flairing examples of very odd shaped districts that have no justification whatsoever, it isnt just im a primary reason or anything like that. They have no justification whatsoever except to give the party in power an advantage at the election. And that goodthere must be a duty to govern impartially, that requires the government officials generally and legislatures more specifically, to have some neutral reason for their action. They cant cake Campaign Finances out of the state treasury. They have to finance the actions independently. And similarly, they should not be motivated entirely by political consideration drawing districts. And the standards for determining whether partisan gerrymandering occurred that i recommend are precisely the same as havin place for a good men areas with respect to racial gerrymandering, and if they can tell a racial gerrymandering 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 gerrymaundering. And theres an insane 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 should not police the gerrymandering. If they court would to have the same afford would you be in favor of Judicial Intervention . Guest 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 in tuskegee, california, where the gerrymandering was designed to exclude the blacks from participating from voting in the municipal government, and later on the court applied the same rule to gerrymandering that was designed to give minorities better representation than the victims of discrimination, and i dissented in those cases because i thought that the basic rule of equality should not prevent rules that were designed to equalize the minority voters and the majority. But having made racial gerrymandering, whether pro ryan north or antimind nor a violation of the constitution, seem yo me you apply the same rule and the problem would be solved and i should mention the fight in all of gerrymandering cases has been on whether or not we can develop standards, which we did develop for racial but nobody, no member of the court, has actually said, on the merits, this practice is justified. Even Justice Scalia, 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 side of the spectrum say is the main political problem facing the country and yet the court says theres no judicial solution. Guest in the latest cases thats right. Host you give examples of jerrymandering in at the book with this beautiful illustration and you tell the great story when you insisted on including this illustration in an opinion, chief Justice Burger said it would be too expensive but you had one less law clerk. So what is it about the district that looks so funny and that struck your notice . Guest well, if you look at it closely you can see some districts dont make any sense at all. District five, for example, all around in fact several of the districts are just without any rational justification. If you just look at the shape. Some i tell the story of the particular election that was involved this is another instancy it may benefit one party today but then the elections may change, and that particular map benefited the democrats if i remember correctly, and even though Ronald Reagan was very popular in the following election, the gerrymandering kept the democrats in control. Host great example. During our panel the Constitution Panel i said gerryma dering tell us the store of who gerry was and why it was named after him. Guest the governor of massachusetts at the time they developed the first i guess you should indicate gerry. Host the church latin pronunciation. Guest generally called gerrymandering. But we tell the story of how with less than a majority of the voters he was able to retain control of the state by drawing the very straining shaped districts he did the very strange shaped districts he dimpled he is the originator of the practice and it bears his name. Host the district looked like a sal sal sal salamander. Host explain to us why this is such a serious problem through gerrymandering. You can have a situation where a minority trolls a majority of state seats. Guest i have been told, i believe, that the majority voters in Congressional Election voted democrat but the republicans got a majority of the seats. Host remarkable. I dont someone suggested that might also be a violation of the republican form of government clause, that all states have to have a republican form of government which means majority rules. Guest it is certainly inconsistent with what we think should be the view, the majority should be able to have a majority of representatives in the house. Host this texas this was the one in shaw versus reno and the joke was snakes down and gets big and then thin and big again and the joke was if you drove down the district with both car doors open youd kill everyone in the district. This was the shaw v flint district and it was struck down as unsuspensional racial gerrymandering. Guest the republicans and democrats came up with exactly the same, saying we cant do anything about it. Host 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 sound novembers each of my proposals will become more and more evident and that ultimately each will be adopted. Do you believe the citizens will adopt the antigerrymandering rule once the understand the problem. Guest i dont just know how much time will elapse before they do it. But texas for a long time was a democratic state, and then it became a republican state after the civil rights legislation was adopted, and other states have changed, too, and one of the things that may cause change is dissatisfaction with the abusive power the majorities engaged in. That happened in california and arizona where commissions were bipartisan forums embraillessed by both parties. But its tricky for incumbents to vote for it. Is it possible we could continue to have the situation where theres this big constitutional problem and not congressional or judicial remedy. Guest i think thats right. Host frustrating. Think well take a short break and return in just a moment to continue talking about this wonderful new book sixth amendments how and why we should change the constitution. Host Justice Stevens you are especially passionate about the subject of Campaign Finance reform, and you propose a constitutional amendment that says the following neither the First Amendment nor any other provision of this constitution shall be construed to prohibit the congress or any state from imposing reasonable limits on the amount of money that candidates for Public Office or their supporters may spend in election campaigns. 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 campaigning 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 the representatives. And i think that in the history as 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 special organizations the shareholders support, should send as much money as they do. Actually, as i have 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 citizen 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 what they were really concerned about is money coming from nonmichigan sources, and of course, corporations generally represent interests out of state interests frequently. And it does seem to 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 is critical in my chapter on this issue, is part of the decision in buckley against oleo, decided the year i came on the court, but before i was it was decided when i came on the court but i was not eligible to vote because i had been argued before. In that case, the court said that it violated the First Amendment to try to limit even put reasonable limits on campaign expend did tours, Justice White dissented from the holding and the only justice who did. And the whole the holding had been followed consistently. And the excuse me. In the years following that decision the court has been consistent in holding that Campaign Donations are and enter near campaigns and in order to correct the error in the Citizens United case itself, you basically have to correct the prohibition on use of expenditures which does require a constitutional amendment because the court has been almost unanimous in prior years in its prohibition against limitations on expenditures. Host great power of this chapter is that insight you just shared, that theres a difference between voters contributing in their own election and nonvoters, including both corporations and foreigners, contributing to other peoples elections. That was central to your criticism of the mccutcheon case which the Supreme Court decided recently. The court began this is about the right of individuals to support their own candidates but you told congress thats not rate. They were actually trying to contribute money for other peoples elections. Tell us about your criticism. Guest that is exactly true. The mccutcheon case was decided after i had 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. I think if the limits are placed too low, it could be a valid argument that they are favoring incumbents, but thats why i said they should be the reasonableness requirement. And which i think would solve the problem. I do think that if congress focused on reasonable limits, i dont think theres any danger my former colleagues would actually conclude that any limit whatsoever is unreasonable, after an amendment was adopted to correct, the heart of the problem. Host now, the objection is that reasonableness is not selfdefining and judges have to decide what was reasonable. Adam from the New York Times asked you a good question. He said would the reasonableness requirement allow the restriction you cant come up with an answer to every hypothetical but when you have concrete proposals in front of you can identify what is unreasonable. Host under discussion of president obamas statement at the state of the union that Citizens United would open the flood gate0s of foreign money into the elections and Justice Alito shook his ahead and said, not true. But you say that barack obama was actually correct in his description of the possible extension of Citizens United to strike down restrictions on foreign donations in u. S. Elections. The Supreme Court recently refused to so hold but youre concerned the logic could strike down the limits. Guest 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 was a possibility interpretation, as it developed later in the case that i cited at some length, discuss at some length in the book, threejudge court held that it was permissible to prohibit citizens of canada and israel from making contributions to elections in the United States. They can not just contributions but expenditures. They could not spend their own money in support of a candidate. And the underlying rationale for the decision written by judge cavanaugh of the district of Columbia Court of appeals, basically was that theres a justified interest in the government running the election having the election control of the election and not have outsiders come in and tell americans how to who to elect. The canadians cannot spend anywhere money its precisely the same rationale that would support the decision that we wouldnt let citizens from indiana and wisconsin spend unlimited sums of money trying to influence our elections. Host how would you state the constitutional dimensions of the principle. States have an interest in preserving the integrity of their own elections. Guest theres a powerful state interest in having Fair Election and 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 interests in people running their open show. Host people running their own show, and an interest in Fair Elections. Goes back to this theme of neutrality, nonpartisanship, that government has an obligation to be neutral and fair. You believe that strongly. Guest thats right. And fairness in the conduct of elections should enable the government to adopt rules that give rival candidates an equal opportunity to persuade the voters. Host few, the court in Citizens United and mcchurch touchdown focused on the interest in avoiding corruption and its define corruption to basely 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 well, the basic mistake if the courts view of corruption is really the only justification for regulating Campaign Finances, you should just rely on the bribery laws to take care of it. But there is a more powerful interest, has nothing to do with corruption in having elections fair and giving each candidate an equal opportunity to compete. And its not a question of 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 in 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 cite tieron is fair procedure, fair treatment of adversary contestants. Host you also give the example of president ial debates and say it wouldnt be fair to give the richest candidate more time than guest that dawned on me in one 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 me in the book so many of your principles, rooted in fairness, are also rooted in constitutional history. You talk in your citizen is united consent about the framers concern that government we responsive to all the people and not just the few. Guest thats exactly right. Host i had the privilege of interviewing you years ago and you talked about your experience on the Commission Investigating alleged corruption in chicago of a case where a judge was alleged to have thrown a case in exchange for a bribe, and you to great acclaim said that if dissent had been issued in the 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 involved the appearance of neutrality because it certainly judges should not be buying stocks recommended to themly litigantses, which is what happened to a couple of Supreme Court justices. But the appears on impartiality is very important to the process. 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 fine it here. You say excessive bail shall not be required nor excessive fines imposed nor cruel and unusual punishments such as the Death Penalty, adding such as the Death Penalty to the eighth amendment youre not all of the life the Death Penalty violated the constitution. What makes you feel the constitution should be amended to prohibit the Death Penalty. Guest 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 litigation, anyone who is expose totally gages as long as i was is bound to develop a divests distaste for the whole process. The things that changed my own views particularly, the fact that theres now available to 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 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 the penalty phase hearing, which seems to me tilts the scale in an area of the law in which the scales should tilt the other way. You should use extra precaution to avoid error. And the a third thing that happens is that the the dna evidence has made it clear that there are a number of people have been a number of people on death row who should never have been there, who are innocent. And it is therefore true that every time you sentence somebody to death, you run the risk that you may make a mistake. That you should not the system should not allow the possibility of mistake in a capital case, and the other thing that 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 a 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 is goes through an anesthetic process that makes the pain the penalty painless. So its not a form of retribution that equals the pain the defendant imposed on his victim. But the critical fog their me, frankly, is the more i have thought about it everyone agrees 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 is executed and put to death by the state is in fact independent, fact innocent, that is not an acceptable risk that the Civilized Society should accept but a the gapes do not justify taking that kind of risk. Host you quote Justice Scalia saying the risk infess tess million, 0. 2 or Something Like that. Thats still could too big a risk for you . Guest i think anyone has to be troubled by that possibility, and of course, its you cant be terribly brought of the fact that the United States is ranked with three or four countries with different societies and moats 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 think its not permissible inflict an execution that is deliberately intended to cause pain and you talk about the mix of chemicals used until recently to try to minimize pain, and yet right now were having a dramatic debate about whether the existing available chemical does in facttorture prisoners. Guest the professionals, medical and measuring do not permit their members as matter of ethics they do not participate in the execution itself. So you necessarily are not dealing with most skillful 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. Guest and the chemicals nor longer available because the suppliers wont make them available. Is it the case, if the Current Court were to hear a case involving an execution that clear hisly caused torture, would everyone agree that violates the amendment. Guest if what host row view an execution where the prisoner seemed be to tortured and in obvious pain. Would everyone agree that would be cruel and unusual . Guest im not sure. Either cruel and unusual but im not sure they would conclude that that is 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 it is. 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 terribly expensive litigation, goes on for years, and people down in florida have been the 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 decade the Supreme Court. Was there a case in which you had serious doubts 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. Theres one in pennsylvania, if icorrectly where there was serious doubt about whether the complaining witness or the defendant was really the perpetrator of the crime. Host how did you feel when the execution took place and the court refused to stop it . Guest i thought it was a mistake. Host the final amendment you propose has to do with amendment to the Second Amendment, and this is one of our most hotly contested constitutional questions and you have been at the center of this debate. Under your amendment, you add shed language. 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 ini infringed and thosewardses when serving in the militia you would insert. Why . No the purpose of the language is to. Guest the purpose of the language is to bring to the forethe fact that it was accommodated to a narrow purpose to prevent the states from having the federal government take over their militias and disarm the states, and it was that limited purpose that was the source of the Second Amendment itself. And 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 protect the individuals with to defendant himself. But to defend himself. One of to the consequences of the law as it developed, it has made not the state legislatures but, rather, federal judges to have the final say on what kind of gun control and gun registration the states should adopt. This should not be the providence of federal judges. Should be at the province of state legislatures and thats the central message of the chapter. Host this chapter, although compelling, doesnt fit in that theme of government neutrality and fairness. Sort of dives right into a hotly contested historical debate where people on the other side say, well there, is evidence that either the framers and the post reconstruction people intended to protect an individual right. Why did you decide to include this gun control chapter. Guest theres a good argument for not controlling because i think it may well be that the 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 i think are necessary and leave this one out. Because die think its a terribly important subject. I think in time, if the reason will prevail, but im not optimistic about this chapter accelerating the process to bring it to a conclusion within the next few years. Host Justice Stevens, you are a force of nature. When we last talked you had just celebrated your 94th birthday and you were going to play tennis the next day. Did you play the game and how did 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. My game is nothing to be proud of. Host famously pretty good, and i just think its spectacular youre still playing. It has been a great honor to have this conversation with you, congratulations to you for writing this new book six amendments how and why we should exchange the constitution. On behalf of cspan and the National Constitution center, im jeffy rosen. Guest thank you very minute i really just dug in deep and i didnt know what i would find in. In some cases i had to from the foias, to unearth certain documents for the more recent president s that had not been unearthed. The Reagan Library in california, the archivist really kind of took my project to heart and spent some of her own time really trying to look for documents for me as i was going through the boxes i had. When you do research they bring out carts and boxes and its almost like a race. Youre going through the books and what can i find . And there could be anything in a box. So anything from letters about why did you drop the atomic bomb for hari truman to letters from bankers saying thank you very much for your pouters him writing back saying i couldnt have done this without you. So all sorts of things you find and you get into this mode of being in that time and that president with those people. Going through just this immense amount of documents and then typing everything up while youre there typing it apt night. Editing throughout the process, and then going on to the next location and the next president. Were there any libraries that were that you deemed too be somewhat reluctant to share information . Guest well, a lot of until reagan actually from fdr through the Reagan Library era theres a certain code under which everything is classified. Military information, finance information. Economics, personal relationships and a very clear code with very clear identifications identifications and its almost easy to access the action. In the carter library, i went there shortly after the film oaring came out there had been a team of argo researchers down there looking up information about the iran hostage crisis and what happened, and hey hat this cool rack system where you could look digitally at a lot of documents. Not every library has that. Then in some of the more recent libraries, the clinton library, very little unopened because thats such an immense amount of information and you have email and everything needs to go through security clearances and its in a different code. After reagan came in the code change so it was harder to find information. The reason could i fine it in the Reagan Library is because the archivists worked at the prior library and knew the difference ten the new colds and the old codes. I still heavy to ya outstanding at the clinton library, still heavy to ya outstanding at the George Bush Library in texas, and the george w. Bush library just opened so i didnt have the opportunity to look at anything there in obama is still in office. You can watch this and other programs online at booktv. Org. Duke University Professor Martin Miller spoke with booktv about the foundations of modern terrorism. Which he dates back to french revolution. This 30minute interview part of booktvs College Series was recorded at the Washington Duke inn in durham, north carolina. Host Duke University history professor Martin Miller the author of the book the foundation of terror, the dynamics of political violence. Prefer miller is there a working definition of modern terrorism . Guest well, what i have tried to do is to formulate one which is a perilous path because so many others tried. Theres a book length mono graph on just that, definitions. So, i think that the clearestest way to understand what i tried to do is to refer back to what in fact are two kinds of perspectives. One is the idea that governments and especially dictators exercise terror against their own citizens; the hitlers, extollines, pol pots of the world, and the other is the world of post9 11 that were most familiar with, which is insurgencies from that they are in fact a danger to us. So what i tried to do in this book is to bring together those two strands to understand its an interactive process between governments and their security agencies on the one hand, and insurgencies with their International Networks on the others. Its the interactive process that has fascinated me. Host i want to read two statements from the introduction to your book, and have you explain those also further perhaps because those in power are inherently suspicious of claims challenging the legitimacy of their authority, and because those who are without political power covet it so desperately, all the parties involved in the violence are vulnerable to exaggerating their roles and terrorism is a way of seeing the world, of understanding or in many cases misunderring, the dominant political paradigm of the particular historical moment. Guest right. You picked out some pregnant passages. I think on the one hand were talking about the question of accepting the legitimate si 0s of governments, we talk about failed states, talk about varieties of kinds of government, dictatorships, democratic governments. But what im interested in maybe this might be a way of explaining it a 200yearold story, even more than that. Since the time of the french revolution in brief, we have faced the situation in which we dont really know what legitimate government is anymore. There was a time before the french revolution when monarchies ruled the world and it was clear. And largely unquestioned. Everyone has now an assumption of right with regard to deciding what politics ought to be dominant and which politics ought to be seen as threatening and dangerous. That means you your opinion, my opinion, are as valid as the people who in fact are in power. So, there is that treacherous path of understanding how it is that governments who seem so strong and so convinced of their authority really arent. Thats one side. The other side it that, yes, people who feel that their views are not being paid attention to who feel they have an answer that is more right and more valid and will create 0 more just world than the government in power at the moment, takes upon itself to use various tactics to bring that change about