A law-and-order constitutional amendment would speed up the process of justice.
Hans and Emma Kabel laid out two sets of dress clothing on the bed. Then they tied ropes to a doorknob in the South Bronx apartment that had been their home for 40 years. Then they lay down beneath that doorknob and hanged themselves.
The dress clothing was for their funeral. The Kabels had been robbed and tortured, twice, in that apartment. Police advised them to move away, leave home for someplace safer, but they were too old and feeble to move. So they sought to end their misery another way. They left a note saying, “We don’t want to live in fear anymore.”
This long-forgotten couple died on October 6, 1976. It might seem an outrage that in America’s bicentennial year, rampant crime should drive people to suicide. But not only did our leaders not find this story intolerable, they didn’t even find it remarkable. The Kabels’ fate was noted on the inside pages of the New York Times. They never made the national news. Even the crime wave that killed them remains all but invisible to history.
When the Kabels died, that crime wave had been going on for more than a decade. Fifteen more years would pass before it peaked. Between 1960 and 1991, the per capita murder rate doubled. Property crime tripled. Robbery and forcible rape more than quadrupled, and aggravated assault — boosted by the same advances in emergency trauma care that retarded the murder rate — more than quintupled. Even after receding from its crest of the early ’90s, violent crime remains twice what it was two generations ago. And today, the mayhem is resurgent.
In the last half-century, crime has killed more Americans than died in all our country’s wars combined, save the Civil War. Its toll dwarfs that of 9/11 — it even dwarfs that of the terrible Indian Ocean tsunami of 2004.
This crime tsunami didn’t have to happen, nor need it continue. The Great Crime Wave can be crushed. And the party that crushes it will rule American politics for a generation or more, just as the Democrats did, in the wake of the Great Depression, from the reign of Franklin Roosevelt to the rise of Ronald Reagan. Republicans have had this opportunity staring at them for almost 50 years now, and they haven’t seized it yet. Nixon, Ford, Reagan, Bush — the tsunami rolled over them all. Failure to deliver results on crime is a big reason the post-Reagan GOP, at the presidential level, has been treading water
Trump’s Promise
Enter Donald Trump. I was thrilled to hear him pronounce himself “the law-and-order candidate.” Such defiance of the PC gods helped him gain a convincing victory over Hillary Clinton. What remains to be seen is whether Trump will go from talking to thinking about crime, and then to actually doing what is necessary to reach the goal he set forth while accepting the party’s nomination: “The crime and violence that today afflicts our nation will soon — and I mean very soon — come to an end.”
Very soon? How in the world can that happen? “Don’t ask how,” wrote historian Rick Perlstein in a dismissive review of Trump’s acceptance speech. “If you ask how a trick is done, then it loses its magic.” Perlstein, writing for The New Republic, was unimpressed by Trump’s extravagant promises. “The spirit of magic pervaded everything,” he scoffed. “Trump, with his wand, making awesome things happen instantaneously.”
As he undertakes to Make America Great Again™, Trump and his magic wand have their work cut out for them. With regard to law and order, however, Perlstein’s doubts may be misplaced. American history reveals many cases in which rampant lawlessness was abruptly squelched — not by magic but by blood.
My authority for saying so is Richard Maxwell Brown, scholar of the American frontier. When crime first started getting out of hand in the 1960s, Brown contributed a report to the National Commission on the Causes and Prevention of Violence. Its title? “The American Vigilante Tradition.”
Brown wrote that from 1767 until the closing of the frontier around 1900, “vigilante activity was an almost constant factor in American life.” He counted 326 vigilante movements; in all, they killed more than 700 known victims and frightened away countless others. In most cases, he wrote, the vigilantes’ immediate impact was “socially constructive.” By brandishing the hangman’s noose, they overthrew and scattered even powerful outlaw gangs, pacifying large areas with amazing speed.
“Movements that lasted as long as a year were long lived,” Brown wrote. “More commonly they finished their business in a period of months or weeks.” Their effectiveness brought vigilante movements the approval, and in some cases the participation, of prominent Americans including Andrew Jackson, Theodore Roosevelt, and Leland Stanford. Across the frontier, several governors and legislators had vigilante backgrounds.
(President Jackson recommended vigilante action to some people who petitioned him regarding a local crime problem. As a young rancher in South Dakota, Roosevelt sought to join the deadliest such movement on record, Granville Stuart’s vigilantes of Montana. Stanford, founder of Stanford University, was a member of the largest movement, the San Francisco Vigilance Committee of 1856.)
All this notwithstanding, Brown’s assessment of vigilantism is negative, for two reasons. First, the vigilantes’ violent methods sometimes backfired, provoking an anarchy that dwarfed the original disorders. Second, the vigilantes’ example fostered a persistent disrespect for the law. Groups as varied as the KKK and the Black Panthers have shown a taste for mob action that far outlived the chaotic conditions of the frontier.
President Roosevelt, who had wanted to be a vigilante, came to understand this. In a 1903 letter commending the governor of Indiana for fighting the practice of lynching, TR wrote: “All thoughtful men must feel the gravest alarm over the growth of lynching in this country, and especially over the peculiarly hideous forms so often taken by mob violence when colored men are the victims.” He urged Americans to unite against such lynchings. “As a people we claim the right to speak . . . for fair treatment of all men without regard to differences of race, fortune, creed, or color,” he wrote. In tolerating lynchings, “we forfeit the right so to speak.”
But Roosevelt coupled this with some words to which no liberal today would assent:
It certainly ought to be possible by the proper administration of the laws to secure swift vengeance upon the criminal; and the best and immediate efforts of all legislators, judges, and citizens should be addressed to securing such reforms in our legal procedure as to leave no vestige of excuse for those misguided men who undertake to reap vengeance through violent methods.
Men who have been guilty of a crime like rape or murder should be visited with swift and certain punishment, and the just effort made by the courts to protect them in their rights should under no circumstances be perverted into permitting any mere technicality to avert or delay their punishment.
Here, then, is the issue for Trump. If that “law and order” promise of his is to be more than just empty bombast, he needs to find a lawful means of matching the vigilantes’ positive impact.
We are beckoned there by Roosevelt’s words. But whereas TR sought rules for the prosecution of criminals that would “under no circumstances be perverted into permitting any mere technicality to avert or delay their punishment,” the trend since his day has been in the opposite direction.
Justice Delayed
Only a decade after Roosevelt’s call for a curb on justice-thwarting technicalities, the Supreme Court handed down “the exclusionary rule,” by which evidence of a defendant’s guilt must be withheld from the jury if it was obtained improperly. This innovation (which at first affected only federal courts) was derided in 1926 by a disbelieving Benjamin Cardozo as meaning “the criminal is to go free because the constable has blundered.”
Writing for the New York Court of Appeals, Cardozo rejected a bid to impose the exclusionary rule in his state. He complained that “the pettiest peace officer would have it in his power, through overzeal or indiscretion, to confer immunity upon an offender” for even the most villainous crimes. “No doubt the protection [of New York’s law against unreasonable search and seizure] would be greater from the point of view of the individual whose privacy had been invaded if the government were required to ignore what it had learned through the invasion,” Cardozo wrote. “The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society.” New York’s existing rule of evidence “strikes a balance between opposing interests,” he concluded. “We must hold it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that the change has come to pass.”
Cardozo, alas, is another voice that went unheeded. Under Chief Justice Earl Warren, the magnification of technicalities went into overdrive. With Mapp v. Ohio (1961), the Warren Court extended the exclusionary rule to state prosecutions, and with Miranda v. Arizona (1966), it added to the right of a suspect to remain silent a right not to be questioned and a right to receive helpful legal advice from detectives whose true job is to solve crimes. Decided on a 5–4 vote and perhaps the most controversial ruling of Warren’s tenure, Miranda provoked three bitter dissents, which make interesting reading for anyone of Roosevelt’s or Cardozo’s bent of mind.
And then there is the interdiction of the death penalty, a series of rulings starting with Trop v. Dulles (1954) that traduced the original meaning of the Eighth Amendment and, through its multifarious restrictions and requirements, has made the condign punishment of capital crimes virtually impossible.
There’s no room in this article to thrash out the merits of those decisions. Small libraries have been written about them; readers wanting to study the issue might start with Guilty: The Collapse of Criminal Justice, by Judge Harold J. Rothwax, and Death Penalties: The Supreme Court’s Obstacle Course, by Raoul Berger. What can be said in a nutshell is that the rulings fly in the face of Roosevelt’s call for “swift vengeance” upon violent criminals, they disregard Cardozo’s concern that protection of the one be balanced against protection of the many, and they turn on its head Cardozo’s understanding that the people’s representatives are to “give notice to the courts” of a change in public policy, rather than the other way around.
What to do about it? Remember, it must be done quickly, or Trump will fail in his promise to restore public safety “very soon.” So forget what we’ve been doing since Warren’s day, which is to try to appoint enough law-and-order justices to the Supreme Court to bring about a reversal in its policy. That hasn’t worked in 50 years.
The Case for ‘Swift Vengeance’
A constitutional amendment is another matter. The 26th Amendment, which lowered the voting age from 21 to 18, sailed through Congress and was ratified just three months later in 1971. An amendment dealing with law enforcement would take a major effort to push through, but it can be done.
The very idea of such an amendment would send the Left into a frenzy. They’ve been frothing ever since Election Night, of course, but unlike some other parts of Trump’s agenda, the quick restoration of law and order would be eagerly embraced by many of the very people the Left pretends to champion.
Some two-thirds of Americans have told pollsters they favor the death penalty for murder. Yet it’s capital punishment’s opponents who get their way nearly all the time.
Just consider that the voters of California, who backed Obama twice and went for Hillary by almost a 2-to-1 margin over Trump, also rejected (as they had done already in 2012) a proposition to abolish capital punishment, approving instead a ballot measure aimed at speeding up its enforcement.
What arguments could we raise in favor of a law-and-order amendment? Try these three for starters:
‐For decades, some two-thirds of Americans have told pollsters they favor the death penalty for murder. Yet it’s capital punishment’s opponents who get their way nearly all the time. In the past half-century, fewer than 1,500 murderers have been put to death in America; murderers, meanwhile, have killed more than 900,000 of us.
‐How many of those 900,000 innocent lives were lost needlessly? How many could have been saved by a credible and effective deterrent? Studies have repeatedly shown that the death penalty can be such a deterrent when — and only when — it is actually enforced. Those studies have been rebutted but not refuted, and the stakes in the dispute are these: If the deniers of deterrence are mistaken, then their interference with capital punishment is itself a death sentence for future murder victims.
‐Politicians have nonetheless maintained a mystifying silence on deterrence, and what little movement we see on capital punishment is away from its enforcement. Executions are becoming ever rarer; several Democratic-led states in recent years have abolished the death penalty; and, as the late Antonin Scalia warned before he died, the Supreme Court is poised to strike it down nationwide. Justice Scalia’s death makes that even more likely. Whether we do anything about it or not, this issue is coming to a head.
Hang murderers, and every hoodlum in the land will notice. And, like the outlaws who fled the vigilantes, they will change their behavior.
What of the fact that most criminals stop short of murder? After all, the thugs who victimized Hans and Emma Kabel didn’t kill them, though they might as well have done. How do you reach those people? With a rope. That’s because most robbers depend on the threat of murder to secure their victims’ compliance, as do many rapists. And aggravated assault is, in many if not most cases, simply unsuccessful murder. Hang murderers, and every hoodlum in the land will notice. And, like the outlaws who fled the vigilantes, they will change their behavior.
Finally, what words could a law-and-order amendment use? I suggest drawing them from the author of the Bill of Rights, James Madison.
In 1824, Madison wrote:
I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful, exercise of its powers.
In conformity with Madison’s principle, our amendment would read:
The sense in which this Constitution’s eighth article of amendment was accepted and ratified by the nation shall be the guide in expounding it, precedents to the contrary notwithstanding.
In one stroke, this would demolish what Berger called “The Supreme Court’s Obstacle Course” to death penalty enforcement, thereby clearing a path for Roosevelt’s “swift vengeance.” And, lest the justices seek to preserve that obstacle course by shifting its basis from the Eighth Amendment to the “due process” clause of the 14th, we could draw on Roosevelt and Cardozo by adding this:
So that the perpetrators of violent crimes may meet with swift and certain retribution, the courts’ effort to protect them in their rights shall not be perverted into permitting any mere technicality to avert or delay their punishment. Rules governing law enforcement shall be so designed as to protect the individual without imposing a disproportionate loss of protection on society.
The ratification of such an amendment would free the deep-red states to ramp up enforcement of the death penalty until they achieved results even more dramatic and unmistakable than those seen in Texas, where executions increased from zero in 1980 to a record 40 in 2000 — and the murder rate plunged by almost two-thirds, while murder in non-death-penalty states fell only 21 percent. Seeing crime collapse in places where death for murder had become the rule, people elsewhere would clamor for their states to follow suit, and liberals would immolate themselves in a vain attempt to preserve the crime-ridden status quo, with all its injustice, pain, and horror.
Call it the Madison-Roosevelt-Cardozo Amendment. Donald Trump may be fond of boasting, “I alone can fix it,” but if he really wants to restore law and order, “and I mean very soon,” he’ll need all the help he can get.