Now that the conventions are over, it's time to ponder which of the major-party candidates has taken the lead in proposing the worst ideas affecting the legal system and civil liberties.
Both President Bill Clinton and challenger Bob Dole have gone to great lengths to pander to various voter groups in this area.
BAD CLINTON IDEAS
• Banning gun sales to persons with records of domestic violence or abuse.
This is typical of the many tiny initiatives with which Clinton has salted his campaign to target carefully selected groups-especially feminists and other women.
This particular proposal trivializes gun control because it would have so little impact on domestic violence, which typically involves beatings and stabbings, not shootings. It makes little more sense than, say, barring spouse-abusers from buying beer or kitchen knives. If the president has no more muscular ideas than this for curbing gun violence, he can't be very serious.
• Reflexive opposition to all efforts to curb excessive litigation.
While the costs and benefits of various litigation reforms arc debatable, and while some Republican proposals go too far, President Clinton and his party are so dependent on trial-lawyer money that they fight every proposal to attack the problem of was and abusive litigation.
The president opposed both a well-balanced bill (which Congress enacted over his veto) to curb those securities class actions in which the prime movers and beneficiaries are contingent-fee lawyers and, more recently, a modest tort reform bill quite similar to one that Clinton had endorsed in the 1980s.
• Stripping protections from defendants.
The Democratic platform boasts that "[w]e established the death penalty for nearly 60 violent crimes,... and we signed a law to limit appeals." In the process, they abandoned the traditional Democratic concern that proliferating death penalties and excessive curbs on habeas corpus appeals will lead to executions of innocent defendants and of others who don't deserve the ultimate sanction.
• Censoring the Internet.
In pursuit of the worthy goal of shielding kids from cybersmut, the president has resorted to the dangerous expedient of wholesale censorship. As part of the omnibus telecommunications law, he signed the Communications Decency Act, which would ban much traditionally protected "indecent" speech, and which the U.S. Court of Appeals for the 3rd Circuit property struck clown in June.
• Amending the Constitution to give crime victims such rights as a say in plea negotiations, sentencing, and parole proceedings.
This idea-which the president hastily embraced in June to pre-empt Dole from owning the issue- would sow confusion, and perhaps real mischief, by cluttering the Constitution with new, vaguely defined "rights" for people whose interests can be protected by ordinary state and federal legislation.
The push for an amendment is almost pure symbolism, based on the notion that, since the Constitution has rights for defendants, it should have some for victims too. But it is the defendant whose liberty (or even life) is at stake. And the very purpose of a Bill of Rights is to protect people unlikely to get sympathy from voters and elected officials. Crime victims enjoy great public sympathy and real political clout, having pushed through victims' rights measures in more than 20 states.
An amendment could do harm by compromising both fairness to defendants and the flexibility that prosecutors need to make the system work (through plea bargaining and the like). No wonder most prosecutors, as well as defense lawyers, are opposed. And no wonder the Clinton administration has been unable to settle on specific language.
BAD DOLE IDEAS
• Giving the National Guard a major role in the drug war, and perhaps even (in Dole's words) "giving the U.S. military lead responsibility for stopping the flow of illegal drugs across our borders."
What's good in this is not new, and what's new is not good. The military has long played a carefully limited support role in helping civilian agencies combat drug smuggling across our borders. Now Dole advocates using the National Guard for tasks ranging from radar-tracking of smugglers (not new) to "thermal imaging to detect indoor marijuana growing" and going after "every kind of money laundering" (not good). What's next? Sending combat-equipped Guardsmen into cities to do house-to-house searches?
Military and civilian experts alike have long opposed use of military or National Guard units in domestic law enforcement activities for which they are not trained. Dole's proposals threaten civil liberties and could dilute military preparedness.
• The crudest-ever political litmus test for judges.
"When I am president, only conservative judges need apply," Dole proclaimed on May 28. Note the change from past Republican candidates, who at least spoke in terms of judicial philosophy rather than raw political orientation: Richard Nixon advocated "strict construction" of the Constitution, and Ronald Reagan preached "judicial restraint." No such lawyerly distinctions for Dole. Rather, he seems implicitly to promise judges who would be activist in pushing conservative political and social agendas.
The Republican platform also attacks the (two-thirds Republican) federal judiciary with unprecedented ferocity: "The American people have lost faith in their courts, and with good reason. Some members of the federal judiciary threaten the safety, the values, and the freedom of law-abiding citizens. They make up laws and invent new rights as they go along, arrogating to themselves powers King George III never dared to exercise. They free vicious criminals, pamper felons in prison, frivolously overturn State laws enacted by citizen referenda." It's fair game to criticize judicial rulings. But such savage rhetoric wantonly foments disrespect for the rule of law.
• Excluding children of illegal immigrants from public schools.
This may be the worst idea in the entire Republican arsenal, so bad that it is opposed by Republican stalwarts like the two Judiciary Committee chairmen, Rep. Henry Hyde (R-III.) and Sen. Orrin Hatch (R-Utah)-and like Jack Kemp, until his ambition eclipsed his integrity.
A policy of excluding these children from schools would be ineffectual, cruel, and self-defeating: ineffectual because it would do little to cut down the number of illegal immigrants, most of whom are drawn by the hope for jobs, not educational opportunities for their kids; cruel because it would consign a whole class of innocent children to lives of ignorance aid penury; self-defeating because it would harm the rest of us.
Most of these children would not leave, but would spend their lives in America, programmed for dependency, begging, or crime. Any short-term savings in educational spending in places like California?where such a policy was adopted by ballot initiative in 1994 but has been stalled by litigation-would be dwarfed by the long-term costs.
While the Supreme Court in 1982 divided 5-4 in ruling (in Plyler v. Doe) that the Constitution barred Texas from excluding illegal immigrant children from public schools, all nine justices agreed with Chief Justice Warren Burger's assertion, in the dissent, that as a matter of policy, "[i]t is senseless for an enlightened society to deprive any children?including illegal aliens-of an elementary education ... [and] to tolerate creation of a segment of society made up of illiterate persons."
The Republican platform veers further into immigrant bashing by seeking to amend the 14th Amendment to deny citizenship to children born in the United States to illegal immigrants and others "who are not long-term residents." This proposal would brand millions of American-born children as a legally inferior caste. It is so repugnant that even Dole has washed his hands of it.
• More bad constitutional amendments.
Far outstripping the Democrats in Constitution desecration, the Republicans have also called for amendments (and, in some cases, legislation) to remove First Amendment protection from flag-desecrating protesters; to require a balanced budget (while proposing tax cuts that would make deficits soar); to ban all abortions (even when necessary to save the life of the woman); to limit congressional terms; and to allow state-sponsored school prayer.
AND THE WINNER IS.....
Bob Dole. His bad ideas affecting the legal system are more numerous, dangerous, and mean-spirited than his opponent's. And while former law professor Clinton's willingness to sacrifice civil liberties for votes is especially disappointing, his worst ideas come down to jumping aboard a tough-on-crime bandwagon driven by Republicans.
The greater cause for alarm is what it tells us about the state of the electorate, when two men so practiced at telling voters what they want to hear are vying for our highest office by spouting such drivel.