Two Neglected Lessons of Election 2008
By Karl Spence
1. Whatever happened to law and
In the weeks since Americans elected Barack Obama president, conservatives have had a lot to say to one another about the future of our movement and of the Republican Party. While not disparaging the importance of other lessons, I’d like to bring up two points many have missed.
(1) The Democrats’ triumph demonstrates the unwisdom of Republicans trying to win elections without focusing on crime, punishment and the restoration of law and order.
(2) It also shows the inadequacy of the GOP’s strategy of countering liberal judicial activism solely by promising to appoint only “strict constructionists” to the federal bench.
Let’s recall that 20 years ago last summer, George H.W. Bush — a weak candidate with shaky conservative credentials and no political charisma — was way behind Michael Dukakis in the polls. Yet that November, Dukakis lost in a landslide. What had turned it around for Bush? In a word, crime. A focus on prison furloughs, revolving-door justice and the death penalty killed Dukakis’s candidacy.
Unfortunately, no decisive action against crime flowed from that — an omission for which Republicans would soon pay dearly. Bush would be a one-term president; his eviction from the White House was followed by another humiliating GOP defeat in 1996; then came two squeaker wins for son W., and finally last year’s shambles. Does anyone still remember how the Republicans once had an “electoral lock” on the presidency?
Many believe Bush lost his re-election bid because he had broken his “No New Taxes” pledge. Only partly true. Crime had figured much more prominently in Dukakis’s defeat than tax policy did, and no wonder. The great wave of violence that had erupted in the 1960s was surging still. Per-capita rates of major crimes were two, three, four and even five times what they had been within the memory of most voters. Yet after receiving the most emphatic mandate a president has ever had regarding crime and punishment, Bush did next to nothing about it. When he was turned out of office, America’s Great Crime Wave was at its crest. Failure to deliver results on crime, more than anything else, is why Bush lost. Failure even to talk about crime is a big reason the GOP has been treading water ever since.
How would the 2008 race have played out, had Republicans been paying attention to crime?
To start with, they’d have made sure everyone understood that the crime rates we know today are not normal. Even after receding from its crest of the early 1990s, crime remains, per capita, more than twice what it was in 1960. The only major crime that’s anywhere near returning to “normal” is murder, and that’s only because emergency medical teams are better at saving trauma victims’ lives now than they were back then. Each victim saved turns a murder into an aggravated assault; hence, aggravated assault remains more than three times its 1960 rate. Americans continue to suffer murderous attacks far more frequently than we did two generations ago.
Had the GOP been thinking about crime, then when New Jersey’s Democrats abolished that state’s death penalty in December 2007, Republicans nationwide would have pounced. They’d have called it a throwback to Dukakis-era softness on crime, and they’d have made particular mention of the accumulating evidence that capital punishment is a strong deterrent when executions are actually carried out. They’d have hammered home the awful truth: The lives of future murder victims are thrown away each time a convicted murderer’s life is spared, and this adds up to thousands upon thousands of innocent Americans killed in preventable slayings, year after year.
Had the GOP been thinking about crime, then when Obama’s rabid pastor Jeremiah Wright popped up, Republicans would have focused on the parts of the good reverend’s sermons that touched on law enforcement. Wright had bellowed: “The government gives them the drugs, builds bigger prisons, passes a three-strike law and wants them to sing ‘God Bless America.’ No! No! No! Not God bless America! God damn America!” People were so shocked by the last part of that utterance, they neglected to attend to what led up to it. Had Republicans been thinking about crime, they’d have pressed Obama to explain whether he agrees with Wright’s opposition to bigger prisons and three-strike laws.
Likewise, GOP criticism of Obama’s radical colleague Bill Ayers would have emphasized, not the bombings from long ago, but the more recent — and more destructive — activities that brought these two left-wingers together. The Ayers book Obama praised was a soft-on-crime book; the conference on its themes, in which Ayers and Obama joined, was a soft-on-crime exercise; Obama’s work as an Illinois legislator was aimed at thwarting the tough-on-crime efforts of what he derided as the “industrial prison complex.” In short, Obama and Ayers were running interference for the Great Crime Wave. Obama’s rivals should have made him answer for that.
When Chicago’s surging murder rate made the news last summer, Republicans who were thinking about crime would have pointed out that the state of Illinois has not executed anyone since 1999. They’d have noted that in Texas — notorious as the nation’s execution capital — murder has been cut by almost two-thirds. They’d have asked Obama if he prefers the results of his state’s feckless hesitancy on capital punishment to the Texans’ manifest success with it.
When in June the Supreme Court disallowed the death penalty for child rapists, Obama was savvy enough to join his Republican rival John McCain in criticizing the ruling. One notices, however, that McCain's model justices Roberts and Alito voted against that decision and Obama's model justice Ginsburg voted for it. McCain in one speech did point out that little fact. But did he make it a theme of the fall campaign? Not at all.
Even with the election just weeks away, events continued to beg for a renewed focus on crime. In October, a Marine sergeant and his wife were bound, gagged, tortured and shot to death in their California home. Actress Jennifer Hudson’s mother and brother were slain in their home in Obama’s crime-ridden Chicago. A popular TV anchorwoman was beaten to death in her home in Little Rock, Arkansas. From the GOP, not a word.
Had Republicans been pounding the “law and order” drum all along, the Age of Obama would not be dawning now. For one thing, Hillary Clinton surely would have picked up on this most potent of all blue-collar issues. In the major Midwestern primaries — where Hillary was allied with Philadelphia Mayor Michael Nutter, who had declared a “crime emergency” in his city — her trouncing of Obama would have been even more resounding than it was. A “law and order” Hillary very likely would have gained the nomination while her fellow Democrats recoiled from Obama as another soft-on-crime Dukakis.
It then would have fallen to the Republicans to point out that should she become president, Hillary Clinton’s appointments to the Supreme Court — where policy on key law enforcement issues is ultimately decided — would be every bit as soft on crime as Obama’s would have been, as Dukakis’s would have been, and as her own husband’s indeed have been. And that brings us to my second point.
The Supreme Court is not where policy on key law enforcement issues is supposed to be decided. And if the experience of the past several decades teaches us anything, it’s that nominating the “right” justices to that Court is simply not enough to set things right.
2. A better way to counter judicial activism
Thinking about crime would have improved the GOP’s performance last year — enough, I believe, to have turned defeat into victory. Actually doing something about crime, beyond the hugely burdensome and only marginally effective things Americans are doing already, involves something more. It requires that we shake off several decades’ worth of court-imposed constraints: all the crime-coddling rulings dreamed up and laid upon us by liberal judicial activists.
When the GOP lost its congressional majority in 2006, I wrote that “the Republican response to judicial activism has been merely to promise the appointment of right-thinking justices who, it is hoped, will reverse the activist rulings, or maybe qualify them or trim them in some way, or at least not inflict more and more of them on us as time goes by. That approach, it should be obvious by now, is too slow, too passive and too uncertain to do any good.” Now that the GOP has lost the White House too, I should add that the judicial-appointments approach is not only obviously inadequate, it’s no longer available. Now is the time to consider a more effective alternative.
That alternative is to make judicial activism itself unconstitutional.
Yes, I know it’s unconstitutional already. Article I, Section 1, says, “All legislative Powers herein granted shall be vested in a Congress of the United States,” and that’s just one of many clauses being flouted by federal judges who legislate from the bench. Plenty of jurists understand this. Four current Supreme Court justices understand it. Our task is to obtain a declaration of judicial activism’s unconstitutionality from the people themselves. Then all nine justices will have to give it up, whether they want to or not.
Bear in mind that Americans last November did not endorse judicial activism. Though they elected a president who promises them more of it, they also rejected the current No. 1 item on the activist agenda, gay marriage. So even with the Democrats running Washington, Republicans who attack judicial activism directly can expect to gain popular support. And by putting their attack in the form of a constitutional amendment, Republicans can avoid every pitfall of the judicial-appointments approach.
The first pitfall is that it doesn’t work. Not one of the activist rulings that have reordered America over the past 50 years has been reversed as a result of new judicial appointments. Even Miranda v. Arizona still stands. That 5-4 “landmark decision” was bitterly contested in its day. Yet in 2000, Miranda was reaffirmed, 7-2, in a ruling written 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.
Its ineffectiveness means the judicial-appointments approach earns the GOP scant gratitude from a public that has yet to receive any relief from the damage wrought by the activist rulings. More than that, it has us leading with our chin. To the public, it always boils down to a fight over abortion. That’s an issue on which Americans are closely divided, with a powerful elite stridently defending the activist position and most of the rest of us confused and ambivalent. Even on the pro-life side, people may feel guilty for not doing more to stop what pro-lifers must view as a crime against humanity. In short, where opposition to Miranda involves Americans demanding justice, opposition to Roe v. Wade involves Americans facing justice. It’s a tough Roe to hoe.
And in the background stands the landmark that started it all: Brown v. Board of Education. Brown was an activist decision in that it disregarded the segregationist practices of those who wrote and ratified the Fourteenth Amendment, explicitly rejecting any deference to the Amendment’s original meaning as a bid to “turn the clock back.” And though few Americans today would want to bring segregation back, absent judicial activism there’s nothing stopping us if we did. The judicial-appointments approach has no real answer to this. In 1987, Robert Bork tried to argue his way around it by telling his Senate inquisitors that whereas the Fourteenth Amendment’s authors may have assumed segregation was consistent with the legal equality they were writing into the Constitution, we now know it is not, and therefore their written principle must outweigh their unwritten assumptions. But one might just as well argue that whereas the Eighth Amendment’s authors assumed the death penalty was consistent with their ban on “cruel and unusual punishments,” we now know it is not, et cetera. “Evolving standards of decency” can work on one issue as well as another. Anyway, Bork’s argument did him little good. His nomination fell before Ted Kennedy’s recitation of all the evils “strict construction” would make possible in “Robert Bork’s America.”
That leads us to yet another pitfall, one harking back past Earl Warren to the New Deal and even earlier. “Strict constructionists” may be intent on freeing Americans from the interference of judges who base their rulings on their own preferences, rather than on the Constitution as originally understood. But the activist side can rightly argue that while Jim Crow would be constitutional under “strict construction,” a whole array of modern federal programs and departments — from Social Security to national parks, disaster relief and even the Air Force — would be unconstitutional (because they aren’t enumerated powers). If a “strict constructionist” court were to start striking down these popular and in many cases essential federal services, the public would find that sort of judicial interference just as obnoxious as the other. The judicial-appointments approach therefore requires supposedly “strict constructionist” nominees to come up with some side-stepping argument to avoid any suggestion that they might cause such a disturbance. Their motive may be to bow to the popular will rather than flout it (as judicial activists love to do), but it still involves a judicial departure from the Constitution’s original meaning and thus undermines the “strict constructionist” challenge to the activist position.
A few of us would charge ahead with “strict construction” anyway. Professor Walter Williams, for one, is fond of pointing out how low our federal income tax bill would be if the feds were restricted to only those powers enumerated in the Constitution. But most Americans don’t agree. They may like the idea of putting Uncle Sam on a diet, but would they ever vote to amputate his limbs? The beating the GOP took for its role in the 1995 government shutdown gives us the answer to that.
The biggest pitfall of the judicial-appointments approach is that it doesn’t even address the main problem with an activist judiciary. It does not reassert We the People’s authority over the Constitution. It accepts that “the Constitution is what the judges say it is,” and that consequently the Supreme Court has a right to order Americans this way and that, with the people’s only recourse being that occasionally we might have some influence in choosing which new justice is added to the roster of those who give the orders. The Court thus continues to be a law unto itself, its justices free to rule any way they like, and the people are left just wishing and a-hoping that someday it might please the Court to send us in a direction more to our liking.
In contrast to the judicial-appointments approach, a constitutional amendment can immediately restore the people’s authority. It can quickly free us from judicial activism’s ill effects while ratifying those changes the Court made for us that we should have made for ourselves. It can give proper constitutional authority for much of what the federal government is already doing, even as it releases state and local governments from the extraconstitutional constraints the federal courts have imposed on them. Unlike the Human Life Amendment or the Marriage Protection Amendment, it need not prescribe particular policies on particular points; its goal is simply to disable the Court from willfully interfering with the people’s right to set those policies.
Call it the Fair Construction Amendment, after a phrase from John Marshall, and fill it with the words in which Marshall, Madison, Jefferson, Hamilton and Washington decried judicial activism. Then enjoy the fun as debate over the amendment becomes, not a fight between Ted Kennedy and Robert Bork, but a fight between today’s Democrats and the Founding Fathers.
If the Republican Party went so far as to embrace such an amendment, results might be very great indeed. Talk about shaking things up! “Progressives” would be aghast, but ordinary Americans might be delighted by the prospect of suddenly regaining their right of self-government on issues ranging from abortion, pornography and gay marriage to reverse discrimination, school prayer and, most importantly, to crime, punishment and the restoration of law and order. And because the adoption of a constitutional amendment requires action not by President Barack Obama but by Congress and the states, this would affect political races up and down the ballot only a year from now. It would throw a monkey wrench into every Democrat’s campaign, from top to bottom. We could wind up electing more Republicans than ever. And then, change really would come to Washington.
Whether such events materialize or not, my first point bears repeating: Crime is an issue that unites conservatives with the great majority of their countrymen. The Grand Old Party can win again, and win big, if it can offer people a real hope for real change in how we deal with the violent predators who have brought so much injustice, poverty and grief into American life.
Karl Spence is a journalist living in San Antonio, Texas. An earlier version of this essay was published in two parts on the American Thinker web site on December 17 and 18, 2008.