Want your Constitution back? Start here.
"While liberals pursue their impossible dream of eliminating murder weapons, we should be setting about the very practical, effectual, and constitutional task of eliminating murderers." So I wrote in AT on Monday. And every day's news reinforces the urgency of that task.
Unlike the left's new favorite cop-killer Christopher Dorner -- sorry, Mumia! -- the vast majority of murderers are not so irrational as to have lost their instinct for self-preservation. They seek to avoid detection, capture, and prosecution, and, if convicted, they use every means society places at their disposal to avoid execution. The swift and certain enforcement of capital punishment could reach these people. As for the suicidal maniacs who slaughter their victims and then themselves, it's not unreasonable to suppose that they too have been tempted and inspired by an atmosphere of rampant violence and impunity.
From Dorner to George Hennard in Luby's Cafeteria to Adam Lanza in Sandy Hook Elementary School, there is probably not one of them who did not see himself as a triumphant figure laying waste to his enemies, like Schwarzenegger striding through the police station in The Terminator. That image, which sociopaths find so awesome and alluring, is drawn from popular culture and cannot be erased without doing as much damage to the First Amendment as gun confiscation would do to the Second. But that image can be superseded by another, more repellent one, drawn from grim reality: the murderer as a pathetic, detestable loser, hanging by his neck from the end of a rope.
The reality we face today is grimmer still. Thousands upon thousands of innocent Americans are being cruelly murdered, year after year, while their government fails to protect them with the full force of the law. The question remains, however: How do we exchange that reality for one in which victims, rather than those who would be their murderers, survive?
Even after conservatives come alive to our duty to put the lives of future murder victims before the lives of convicted murderers, even after we beat the liberals, once again, in the court of public opinion on this issue, there still is the court system to deal with. A long string of Supreme Court precedents prevents enforcement of the death penalty with anything approaching swiftness and certainty. Unless we focus on changing that, any talk from us about eliminating murderers will be, as is the liberals' talk of eliminating guns, mere posturing.
I've long believed that it's useless to hope for the Court to reverse itself on any of the great "landmark" decisions to which conservatives object. Our progressive legal thinkers have their own version of the Brezhnev Doctrine, by which the Soviet Union once told the Free World, "What's ours is ours; what's yours is negotiable." Supreme Court precedents conforming to the Constitution's original meaning have a short shelf life -- the opinion that recognized the constitutionality of laws against homosexual sodomy lasted a mere 17 years -- but those advancing the left's agenda are untouchable. Not one of them has been overturned. Indeed, the Court is much more likely to reverse itself and eviscerate the Second Amendment than it is to ever undo any of its mischievous handiwork regarding enforcement of the law against murder.
But the solution I've long advocated -- an omnibus constitutional amendment ordering the justices to adhere to originalism, to what John Marshall called a " fair construction" of the Constitution -- has problems of its own. On some points, the Constitution's original meaning is unclear or unknowable; on others, its original meaning, while clear enough, is something few Americans would want to return to today. To gain the supermajority support required for success, therefore, a Fair Construction Amendment would need special sections to obviate such problems, a complication which makes the project unattractive, I'm told, to "movement conservatives."
On the Eighth Amendment by itself, those problems don't exist. Its original meaning is not even in dispute, and most Americans, especially once apprised of the facts about the death penalty and deterrence, would prefer that meaning to the deterrence-impairing "obstacle course" the Court has substituted for it. No other issue finds elite opinion and public opinion so far apart.
Not that the elite would sit quietly by and allow the Eighth Amendment's original meaning to be restored. Liberals would fight such a move hysterically, but it's a fight they cannot win, if only conservatives will bring it on.
Step 1 would be for conservatives to realize that the battle over capital punishment, which many of us seem to think we won long ago, has not been won and is in danger of being lost. Then tie the left's relentless campaigns for gun control and against the death penalty together as twin threats to both the liberty and the safety of the American people. Then fight on both fronts simultaneously. Argue not only that gun control is worse than useless in solving the problem of criminal violence, but that capital punishment can be exactly the "commonsense solution" to that problem that people are searching for, if it is deployed as the original meaning of the Eighth Amendment clearly allows.
Then put forward a measure to restore that original meaning -- a simple, one-sentence constitutional amendment drawn from the very words of the Father 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."
The ratification of that 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. Then, with liberalism's power broken for good and all by this little Eighth Amendment pilot project, we might see about using the same technique to restore the rest of our Constitution, so that We the People would again be its owners, and the elite group of lawyers and judges who today presume to lay down the law to us would find themselves put back in their place, reduced to what John Marshall called them: " the mere instruments of the law."
 For more about the Texas experience, go here at Note 11. More about the death penalty's deterrent effect and its potential value to those conservatives with heart enough to pursue it may be found here and here.