Vigilante

...He has reduced law to an instrument for redistributing power...

...Achieving greater power is also the only objective that Dworkin considers in his discussion of procedure...

...He would have us believe that his theory rests on indisputable "moral facts...

...They retreat from the task, however, into a bastion of proceduralism...

...even the so-called "subway vigilante," Bernhard Goetz, did not fit the definition: He did not seek out the four youths he shot...

...To what extent have his two landslide elections occasioned a reassessment of issues on the left—the sort of ideological repositioning Democratic politicians have been talking about the past few years...

...But the realism they imagine themselves to be practicing explains very little...

...By contrast, the idea that society knows how to rehabilitate criminals has been thoroughly discredited...

...Vigilante should help stiffen the public's resistance to such moral bullying...

...Whatever their purpose, they come a little closer than their colleagues to viewing Reaganism as conservatives understand it—a triumph of ideas...

...Rather, Reagan's successes are variously attributed to favorable workings of the business cycle, the South's belated embrace of the Republican party, Reagan's performance on television, the Republicans' financial advantage and superior party organization, politicization and centralization of the White House, a Republican bias in the electoral college, and deficit spending...

...One suspects these gentlemen of per-forming the prudential function of turning up the alarm bell as counter-point to the sanguinity of their colleagues...

...Part of the answer can be found in The New Direction in American Politics, a collection of thirteen essays written under the auspices of the Brookings Institution, each dealing with a different aspect of the political landscape left in the wake of the Reagan electoral juggernaut...

...today 30 percent of murders are "stranger" killings...

...To a large extent, the costs have remained hidden...

...In its zeal to curb police abuse, the Warren Court rendered decisions that could not help but impede law enforcement to some degree, even though there seems to have been no systematic evidence of the extent of police misconduct...

...They credit Reagan with already having accomplished significant political realignment...

...Moreover, the nature of crime has changed in such a way as to heighten the public's sense of insecurity: Not only is it more brutal, it seems more senseless and random...

...Chubb, Peterson, et al...

...enabling minorities, who cannot persuade their fellow citizens to agree with them, nevertheless to impose their will...

...He is lucky—the business cycle, for example, happened to be on an upswing in 1984, as D. Roderick Kiewet and Douglas Rivers point out, their thesis being that one need look no further than the business cycle to predict the outcome of presidential elections...

...He has a winning personality...

...Although it peaked in 1980 and has since inched downward, the incidence of violent crime is today twoand-a-half times what it was in 1960, and property crimes have almost tripled...

...These murders usually occur in the course of other crimes, such as armed robbery and rape, that already carry stiff sentences...

...The public, if not the California Supreme Court, seems convinced by the evidence: Approval of the death penalty rose from only 45 percent in 1968 to 75 percent today...

...in the case of rape, they may even exceed those for some degrees of homicide...

...As Tucker points out, there is little evidence that vigilantism is currently either a widespread or a growing phenomenon...

...The prison population decreased and court decisions effectively abolished the death penalty...

...Oc- Reagan is about, as most of the concasionally, Tucker's speculations outstrip the available evidence, as in his Gordon Jackson is an aide to Con-discussion of the effects on future gressman Beau Boulter of Texas THE NEW DIRECTION IN AMERICAN POLITICS Edited by John E. Chubb and Paul E. Peterson Brookings Institution/$26.95...

...tests," and declared, "My role isn't to be popular...

...a more "enlightened" succeeding generation of judges self-righteously declared that it was necessary for the enforcement of constitutional rights.criminal behavior of an absent or uninvolved father...

...he'll go away soon, and we can learn from his methods...

...There is nothing he does that his opponents could not learn to do as well...

...Any real, live issues in there...

...As Tucker points out, in the absence of a death penalty, the additional risks attached to killing one's victim are not that great, and the criminal stands to gain by eliminating a principal witness against him...

...All these elections were about ideas...

...Tucker persuasively argues that the Warren Court's emphasis on the rights of criminal defendants and its disregard for the consequences to law enforcement, and, therefore, to the general public, contributed substantially to the soaring crime rate between 1963 and 1980...

...By making the distribution of power more unequal, censorship of Marxist publications would damage democracy...

...He usefully reminds readers that vigilantism has historically arisen when law enforcement was nonexistent, in-competent, or corrupt, leaving the public little choice but to take the law into its own hands...

...The defensive tack taken by Bird and her supporters is to portray the court's liberal majority as the beleaguered defenders of the Constitution, courageously resisting an opposition motivated by the desire to "politicize" the court...

...Issues aren't what defects of its nonscholarly genre...

...Rehabilitation and treatment came into vogue...

...Well-intentioned liberals overlooked the fact that those most in need of effective law enforcement are the poor, who are disproportionately the victims of crime and can-not afford to hire private security guards...

...Now, it should be mentioned that the introductory essay, by the book's editors, John E. Chubb and Paul E. Peterson, takes a slightly different position...

...William Tucker contends the public has a right to expect courts to reinforce people's sense of right and wrong...

...And this undoubtedly justifies Dworkin's claim that his theory corrects "the majoritarian bias of democracy...

...I call it law...

...The single exception, Jimmy Carter, ran as a social conservative, a virtual walking morality play...

...a justice system that fails to do so encourages those with criminal tendencies and demoralizes the law-abiding majority...

...When the Wallace vote of '68 is added to Nixon's total, it makes four conservative landslides in the five elections...

...It has, of course, been recognized since ancient times that the purpose of constitutions is to distribute power by deciding who is qualified to vote and to hold office...

...They've got Reagan categorized, put into historical perspective, and rendered innocuous...

...She claims she would do so in a "constitutionally proper" case, but the likelihood that such a case will be among the more than 160 death penalty appeals pending seems remote...

...In the 1960s, 90 percent of killers were known to their victims...

...In retrospect, it is the hubris of liberal jurists and social theorists that seems most striking...

...In Dworkin's world that appears to be impossible...

...People vote for or against these ideas...

...Freudian psychotherapists, most notably Karl Menninger, argued that criminals were "ill" and that punishment was therefore a crime...

...No new directions of any substance are discerned...

...It allows, indeed obliges, judges to ignore the law in order to satisfy the wants of minorities...

...Chief Justice Bird is unlikely to reconsider her views as to what justice en-tails, but the much maligned public may gain more confidence in its own judgment...

...Neither the aspirations served by the traditional idea of law nor the rational capacities that have enabled the rule of law to flourish appear to have impressed Dworkin...

...From these broad axioms have flowed a host of issues that have deter-mined every presidential election since 1968...

...Only by making political decisions can the court call "some issues from the battleground of power politics to the forum of principle...

...In short, if Dworkin's rights theory were to triumph over "the rule book," minorities who now fail to get their way by constitutional means would be given the power to do as they please...

...Instead of giving law a moral dimension by repudiating that distinc-tion, the rights theory makes it impossible to tell an authentic legal decision from an arbitrary exercise of power...

...Although most crimes are committed by males between the ages of 15 and 24, the rise in the crime rate between 1963 and 1980, particularly of violent crimes, far outstripped the increase in the population within that VIGILANTE: THE BACKLASH AGAINST CRIME IN AMERICA William Tucker/Stein and Day/$16.95 Mary Mainland 40 THE AMERICAN SPECTATOR JANUARY 1986 age bracket...

...The secrets of his success lie elsewhere...

...In the almost forty capital cases she has considered during her eight years on the court, not once has she voted to affirm the death penalty...

...Perhaps conservatives are just still What do heavyweight intellectuals of the liberal establishment make of Ronald Reagan...

...That decade also saw the discrediting of Keynesianism, and the introduction to Congress by supply-siders of an idea novel to Capitol Hill—wealth has to be created before it can be redistributed...

...9.95 paper Gordon Jackson THE AMERICAN SPECTATOR JANUARY 1986 41...

...Four of the five justices who constitute the court's liberal majority will be on the ballot for reconfirmation and all four are en-countering vigorous opposition...

...Similarly, two-thirds of rapists are completely unknown to their victims, when in 1967 only about half were...

...The Supreme Court cannot take refuge in procedural arguments based on "the intention of the framers...

...While Brookings makes its usual disavowal of partisanship, the conclusions of its writers, nine of whom are staff members and the other six academics (two of the articles are by co-authors), betray that clinical haughtiness toward Reaganism characteristic of liberal academia...

...The wounds of 1980 and 1984 are soothed in the balm of an Elizabeth Drew observation—quoted disapprovingly by Kiewet and Rivers but actually a fair summation of the volume's theme—that Reagan's electoral success was "above all a testimonial to the man as a political phenomenon...

...Sociologically oriented criminologists espoused the view that criminals were sufficiently "different" that they could not be deterred by the threat of punishment...

...Among the Brookings crowd it all gets summed up by the phrase "a highly ideological President"—one small factor among many to be included in the model and fed into the computer...

...They downgraded the importance of punishment and denigrated traditional views of personal responsibility, without having any empirical basis for the belief that they could reduce the incidence of criminal behavior by rehabilitation or psychotherapy...

...As long as judges confine themselves to deciding whether the stipulated procedures have been observed they will merely be maintaining the existing distribution of power...

...Yet Tucker is careful not to overstate the case against the courts, identifying other influences at work in the sixties...

...Most clearly in trouble is Chief Justice Rose Bird, with one poll showing that only 28 percent of the electorate supports her...

...My role is to be just and follow the law...

...Its most important service is to undermine the claims to moral superiority and superior wisdom of liberal intellectual elites...

...tributors see it...

...Supreme Court Justice John Paul Stevens of former Justice Potter Stewart's famous dictum about pornography, "I may not be able to define it, but I know it when I see it...

...This argument demonstrates, Dworkin believes, that questions of procedure cannot be decided without regard to "substantive political questions...

...it is bound to make "important political decisions...

...At the same time, unemployment and the percentage of the population that was poor both declined...

...punishment and individual responsibility fell into disfavor...

...But no one is likely to be troubled by liberty...

...they have been for years, and probably will into the next century...

...But a secret is concealed in the thicket of Dworkin's prose—that "the majoritarian bias" is corrected by Recent polls indicate that in November 1986, for the first time in the state's history, California voters are likely to remove from office a justice of the state Supreme Court...

...Decisions such as Miranda and Mapp, the 1960 case that made the exclusionary rule applicable to state prosecutions, made it more difficult and more costly to convict theguilty...

...No matter how heinous the murder or how blatantly guilty the defendant, Bird has always found some evidentiary error or prejudicial jury instruction to justify reversal of the penalty, if not the conviction...

...they accosted him...

...None of the highly touted rehabilitative methods has proved successful, and one study indicates that psychoanalysis may even increase recidivism...

...Residents of high-crime, low-income neighborhoods tend to suffer the most when "the criminal goes free because the constable has blundered...

...They too take little account of the President's issues, but for his political skills they hold an almost reverential awe...

...And certainly if, as he insists, the principle of equal concern and respect encapsulates all of morality, then human life is nothing but a struggle for power...

...In an earlier era, judges recognized the inequity of such a result...

...Despite overwhelming passage by the voters in 1978 of a death penalty initiative, there have been no executions in the state since 1967, and Bird has become the chief symbol of the court's consistent refusal to permit any...

...Reagan is, simply, an effective tactician—he knows how to play to a TV camera, how to work Congress, how to raise money...

...The neoconservatives signed on to lend the movement a bit of academic respectability and to lead the charge on a host of new issues, such as racial quotas, raised by a liberalism gone berserk...

...In the seventies their arguments were conveyed with superb style by an array of opinion journalists unmatched on the left...

...Giving him more credit for policy victories than conservatives do, they suggest that he has all but dismantled the welfare state, presided over an immense military buildup, and dramatically altered the terms of discussion in Washington...

...need to grapple with the proposition that between about 1964 and 1978 most Americans came to believe certain things about the federal government: that it was under-taking more than it ought to be, claiming too large a share of the nation's resources, eroding the autonomy of individuals, states, and municipalities, principally through the courts, and threatening national security with a feckless reluctance to keep pace militarily with the Soviets...

...Supreme Court under Warren and today by Bird and her liberal colleagues is fundamentally a moral one...

...In a stunning reversal of its steady decline between 1940 and 1960, the crime rate began a spectacular rise in 1963...

...His theory of interpretation presupposes that all human utterances are instruments for obtaining satisfactions or power, what is called the "ideological view of language...

...In a recent interview, Bird accused her opponents of wanting a chief justice "who would pass all their litmus Mary Mainland is a lawyer in Stanford, California...

...Vigilante has both the virtues and Not to speak of...

...In one of his most perceptive chapters, Tucker does much to discredit the notion that the death penalty does not deter crime...

...Ronald Reagan rode into office on this tidal wave of ideas, of words that register with deep, gut-level meaning for voters...

...The volume can, in other words, probably be taken as an effort by Ronald Reagan's critics to pin him down and dissect him...

...For example, relatively few cases are thrown out on search and seizure grounds, but the uncertainty created by the confusing and changing rules enunciated by the courts has increased the plea bargaining of felonies down to lesser charges, carrying lighter sentences...

...Tucker cannot conclusively prove a causal connection between the rise in crime and the judicial and social trends of the sixties, but he offers some compelling evidence...

...Whether the lucky minorities would be rapists, vegetarians, or Communists remains somewhat unclear...

...This, roughly, is the conservative catechism regarding the Reagan phenomenon...

...the focus shifted from the guilt or innocence of the defendant to whether the police had played by the rules...

...About the time Barry Goldwater was going down to a bitter defeat, William Buckley and the early National Review writers, having wed economic libertarianism to Burkean traditionalism, were nailing down the theoretical case for conservatism...

...Written in an anecdotal, journalistic style, its argument against the judicial philosophy exemplified by the U.S...

...The book's title, however, is misleading...

...On the whole, however, the book gives a balanced appraisal of trends in criminal justice during the last two decades, and introduces the general reader to some of the best literature in the field...

...As the price paid by offenders for their conduct diminished, the effects that economic theory would predict appeared...

...Unfortunately, his fundamental moral principle is either empty or highly disputable, and he connects law with morality only by rejecting the Iogical distinction between "is" and "ought...

...Much of it will be familiar to those who have read political scientist James Q. Wilson and the work of economists and legal theorists associated with the University of Chicago school of economics...

...An unspoken message always comes through the jargon: "Rest easy...

...He shows, for example, that such currently popular explanations for the crime rate as demographic changes or poverty are inadequate...

...But the point of such stipulations is to make it possible to translate all future disputes into issues about procedure, that is to say, into disputes about whether the law has been observed...

...And that is where the hope for the future lies, because it promises that the deepest, most fundamental conflicts between individual and society will once, someplace finally become questions of justice...

...Critics are likely to seize on such minor lapses as the mistaken attribution to present U.S...

...Although its deterrent effect is difficult to prove statistically, the drastic increase in "stranger" murders offers strongly suggestive evidence...