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 ca