Law & the Courts

No, We Do Not Need a Constitutional Amendment to Deter Crime

(Photo: Fedecandoniphoto/Dreamstime)
In the face of authoritarians from both parties, we should uphold the time-tested laws already on the books.

Ideological movements rarely find themselves as threatened as when their self-proclaimed champions achieve political power.

Many conservatives find themselves in such a moment now, as free-marketers listen to an inauguration speech promising higher tariffs and small-government hopefuls get sandwiched between a president promising jobs for all and a Congress voting to double the deficit while increasing the debt ceiling by 9 trillion dollars.

Karl Spence contributed to this bizarre new reality last week when he wrote what I would characterize as an authoritarian screed: “How Donald Trump and Friends Can Crush the Great Crime Wave.”

In his long and rambling jeremiad on our court system, Spence maintained that a “crime tsunami” is upon us because the government just doesn’t execute people quickly enough anymore. He said much the same in this column at American Thinker, which is full of the sort of manipulation and sleight-of-hand that conservatives usually expect from progressives.

Consider Spence’s “data” for his graphs.

This graph indeed looks like a wave — a tsunami even! Scary stuff. But now look at its scale. It’s set as a percentage of an earlier per capita rate, not a straightforward per capita rate itself. Why would anyone bother to go through that effort? Because it makes things look worse than they actually are.

If your bank account starts with $1 and ends with $5, you’ve had a 400 percent increase in cash — but you’re still broke. Likewise with Spence’s statistics: His choice for scale artificially inflates something —  “crime” — that is still a generally rare occurrence on a per capita basis.

That scale isn’t the only manipulation, though: Spence chooses to center the scale at 57 years ago, analyzing “per capita crime rates as a percentage of rates in 1960.” Can we agree that artificially picking 1960 — 57 years ago — as the baseline is weird? Why not 60 years ago? Or 50 years ago? Or really any other year on the graph? No doubt he chose 1960 because that is the year with one of the lowest available per capita rates in the FBI Uniform Crime Reporting Statistics. As such, it provides the lowest “base” from which percentages can be made, so the waves based on those percentages look bigger than they would otherwise. Here again he is manipulating data to convince you that something is there — a significant increase in crime — even though it isn’t.

Here’s a chart showing what the “wave” of aggravated assaults looks like if we take 1960, 1970, 1980, and 1990 as our starting points (I set the change as a percentage of an earlier per capita rate, as Spence did):

And here’s a graph showing the waves, with 1967, 1977, 1987, and 1997 as our starting years:

But this is still just a drop in the manipulation bucket– just for this one graph! Consider its title. “Crime” here is a misnomer: Spence is tracking arrests. An arrest is the accusation by a taxpayer-financed government employee that someone has done something wrong. A quick Google search turns up accounts of a California Iraq War veteran wrongfully convicted of murder, two Los Angeles men being paid $24 million dollars for being wrongly convicted, and a North Carolina teen cited for reckless driving that never happened. In other words, there’s ample evidence that simply arresting someone is a poor gauge of whether he or she has committed the crime charged.

Even without all the artificial manipulations, the data present underlying issues to consider. For example, the rise in aggravated assaults identified by Spence largely mirrors a rise in the reported cases of domestic violence after case law on “battered woman syndromerose to prominence in the early 1970s. Criminologists described this syndrome as one in which a woman suffering prolonged domestic abuse would “snap” and kill her husband, often while the husband slept. After studies focused on it in the ’70s, states began to criminalize abusing one’s spouse; this led to a rise in arrests for assaults that previously had been legal.

Our “American experiment” has endured for so long in part because we developed a Constitution and civic institutions that persist in the face of substandard political leadership. Spence would like to change those institutions through what he calls a “Fair Construction Amendment.”

Amending the Constitution shouldn’t be done lightly. And we shouldn’t do it at all when the proposed changes reflect an ignorance of how our institutions already work.

Take Section 1 of Spence’s proposal:

The Judiciary of the United States shall not presume to exercise nonjudicial power.

This Constitution is changed only by an explicit and authentic act of the whole people. The sense in which it was accepted and ratified by the nation shall be the guide in expounding it, precedents to the contrary notwithstanding. Its provisions are neither to be restricted into insignificance nor extended beyond the natural and obvious meaning contemplated by the plain understanding of the people at the time of its adoption. Any faults it may contain are to be corrected by amendment as prescribed in Article V, not by usurpation.

Disregard of these principles is cause for impeachment.

Spence’s proposed amendment is precisely what courts already do, using what’s called the Plain Meaning Rule.

The Plain Meaning Rule has been routinely applied by our courts since right after the Revolution. The first explicit mention of it came in 1785, when the Supreme Court Justices were assessing the meaning of “inhabitant” in a Pennsylvania statute (Lazarus Barnet v. Court of Common Pleas). It is the oldest rule of interpretation. In FDIC v. Meyer (1994), a unanimous Rehnquist Court explained it by saying, “We construe a . . . term in accordance with its ordinary or natural meaning.”

The Plain Meaning Rule is so common that the very first statute in the United States Code is called The Dictionary Act and is used for “determining the meaning of any Act of Congress[.]” And when interpreting the statutes that politicians themselves have written incomprehensibly, the courts follow a long list of “canons of construction” to determine legislative intent.

Spence’s “let’s hang the murderers quickly to deter rapists” clause is little better:

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.

“Any mere technicality” is generally reserved for the guilt-or-innocence phase of a trial. Once convicted, offenders sit in prison even if they appeal the verdict. And to the extent that those appeals themselves prevent “swift and certain retribution,” it’s because states spend money on pork and other pet schemes intended to buy votes rather than on funds to ensure an efficient and functional justice system. Thanks to underfunding, every state has a chronic shortage of judges and clerks, even as states are raising fines and fees associated with the criminal justice system.

Conservatives face an unprecedented threat in the next four years as President Trump and his supporters attempt to carry out their not-necessarily-conservative agenda. If our American experiment is to survive, it will not be by taking Spence’s advice and needlessly amending the Constitution. Instead, our task should be to preserve our institutions as they already exist.

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