How Trump Can Make Good on His 'Law and Order' Promises

I was thrilled to hear our Republican presidential nominee pronounce himself "the law and order candidate."  Talking about crime is something I've been urging on the GOP for a very long time.  What remains to be seen is whether Donald Trump will go from talking to thinking about crime, and thence to actually doing what is necessary to reach his stated goal: "The crime and violence that today afflicts our nation will soon – and I mean very soon – come to an end."

In American history, we find many cases where rampant lawlessness was abruptly squelched.  Unfortunately, they all involve bloodshed.  What is worse, they involve lawbreaking, because they all were wrought by vigilantes.  Since it is highly unlikely that Trump actually contemplates lynch law, we could dismiss his "law and order" promise as just empty bombast.  Or we could look for a lawful means by which the promise might be fulfilled.

We are beckoned there by the words of Theodore Roosevelt, who, in taking a stand against lynch law, held that "it certainly ought to be possible by the proper administration of the laws to secure swift vengeance upon the criminal."  But whereas T.R. called for "the best and immediate efforts of all legislators, judges, and citizens" in devising 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.

Only a decade after Roosevelt's call for a curb on justice-thwarting technicalities, the Supreme Court handed down something called "the exclusionary rule," by which relevant, trustworthy, and even conclusive evidence of a defendant's guilt must be withheld from the jury if it was obtained improperly.  This legal  innovation (which at first applied only to 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, complaining 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 existing statute 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."  He concluded that New York's existing rule of evidence "strikes a balance between opposing interests. 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 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 who want 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 we make a liar out of the man who promised restoration of 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 doesn't work.  As I wrote eight years ago, "in 2000, Miranda was reaffirmed, 7-2, in a ruling by William Rehnquist, a jurist chosen by President Nixon, who was elected in 1968 by voters outraged over the thing Miranda epitomizes: the Warren Court's criminals-first, victims-second inversion of law enforcement priorities."

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 be more controversial and would take a major effort to push through, but it can be done.

What arguments could be raised in favor of such a step?  Try these three:

● 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 more rare; several Democrat-led states in recent years have abolished the death penalty; and, as the late Antonin Scalia warned last October, 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.

Finally, what words could a law-and-order amendment use?  Three years ago, I suggested drawing them from the Father of the Constitution and author of the Bill of Rights, James Madison:

"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.

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.

Karl Spence is author of  Yo! Liberals! You Call This Progress?  His work has appeared in the Chattanooga Free Press, American Thinker, and National Review.

I was thrilled to hear our Republican presidential nominee pronounce himself "the law and order candidate."  Talking about crime is something I've been urging on the GOP for a very long time.  What remains to be seen is whether Donald Trump will go from talking to thinking about crime, and thence to actually doing what is necessary to reach his stated goal: "The crime and violence that today afflicts our nation will soon – and I mean very soon – come to an end."

In American history, we find many cases where rampant lawlessness was abruptly squelched.  Unfortunately, they all involve bloodshed.  What is worse, they involve lawbreaking, because they all were wrought by vigilantes.  Since it is highly unlikely that Trump actually contemplates lynch law, we could dismiss his "law and order" promise as just empty bombast.  Or we could look for a lawful means by which the promise might be fulfilled.

We are beckoned there by the words of Theodore Roosevelt, who, in taking a stand against lynch law, held that "it certainly ought to be possible by the proper administration of the laws to secure swift vengeance upon the criminal."  But whereas T.R. called for "the best and immediate efforts of all legislators, judges, and citizens" in devising 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.

Only a decade after Roosevelt's call for a curb on justice-thwarting technicalities, the Supreme Court handed down something called "the exclusionary rule," by which relevant, trustworthy, and even conclusive evidence of a defendant's guilt must be withheld from the jury if it was obtained improperly.  This legal  innovation (which at first applied only to 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, complaining 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 existing statute 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."  He concluded that New York's existing rule of evidence "strikes a balance between opposing interests. 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 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 who want 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 we make a liar out of the man who promised restoration of 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 doesn't work.  As I wrote eight years ago, "in 2000, Miranda was reaffirmed, 7-2, in a ruling by William Rehnquist, a jurist chosen by President Nixon, who was elected in 1968 by voters outraged over the thing Miranda epitomizes: the Warren Court's criminals-first, victims-second inversion of law enforcement priorities."

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 be more controversial and would take a major effort to push through, but it can be done.

What arguments could be raised in favor of such a step?  Try these three:

● 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 more rare; several Democrat-led states in recent years have abolished the death penalty; and, as the late Antonin Scalia warned last October, 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.

Finally, what words could a law-and-order amendment use?  Three years ago, I suggested drawing them from the Father of the Constitution and author of the Bill of Rights, James Madison:

"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.

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.

Karl Spence is author of  Yo! Liberals! You Call This Progress?  His work has appeared in the Chattanooga Free Press, American Thinker, and National Review.