What an asinine way to run elections. It would have been far better—simpler, fairer—if he could have contributed directly to the campaign, subject to immediate disclosure. Then, we could have spent the money to convey the message we wanted, without enriching a bunch of campaign consultants at the same time.
That’s how the Texas state system works. A total of eleven states right now (Alabama, Indiana, Iowa, Mississippi, Nebraska, North Dakota, Oregon, Pennsylvania, Texas, Utah, and Virginia) have no limits on individual contributions. And that system works well.
The current federal system benefits incumbents and people with vast personal fortunes. The president is a billionaire. Two of the top Democratic contenders for president were billionaires. Right now, the Democratic governor of Illinois is a billionaire, the Republican governor of Tennessee is a billionaire, the Democratic governor of Minnesota is a billionaire, and the Republican governor of West Virginia is a billionaire. And the following current office-holders are centi-millionaires (personally worth at least $100 million): governor of Colorado (a Democrat), governor of Connecticut (a Democrat), a senator from Georgia (a Republican), a senator from Florida (a Republican), a senator from Utah (a Republican), a senator from Virginia (a Democrat), and Speaker of the House Nancy Pelosi (a Democrat).
That’s no way to run a democracy.
Instead we need more freedom and more transparency. That, in turn, results in more speech. Which is a much better way for our elections to operate.
As a political matter, the assault from elected Democrats on free speech is sure to continue. An abject willingness to strip away the free speech rights of American citizens has become an explicit litmus test for judicial appointments from today’s radicalized Democrats. And, as a constitutional matter, on the Supreme Court, when it comes to either protecting or destroying our fundamental protections for political speech—the very heart and soul of our representative democracy—we are, sadly, only one vote away.
CHAPTER 7
CRIME, LAW AND ORDER, CAPITAL PUNISHMENT, AND KENNEDY V. LOUISIANA
Few issues personalize judicial activism like crime and punishment. Indeed, with the rise of the activist Supreme Court in the 1960s, it was criminal-law issues, in particular, that cut through the noise and outraged the American populace. “Impeach Earl Warren” bumper stickers began to appear in the 1970s, as rising crime followed a string of Supreme Court decisions favoring criminal defendants and mandating, in far too many cases, the release of the guilty based on legal technicalities.
One of the most inglorious criminal-law excesses of the 1960s was the extension of the so-called “exclusionary rule.” Under the exclusionary rule, evidence collected in violation of a criminal defendant’s constitutional rights cannot be used in a court of law. It is a judge-made rule that has no basis in the text of the Fourth Amendment.
Moreover, it is a rule designed only to protect the guilty. Think about it: suppose the police illegally break down your door and search your home. If you’re innocent, they won’t find anything, and so the exclusionary rule does nothing to help you. But, if you’re guilty of a crime—let’s say they find a bloody axe with your fingerprints on it and a map of where you buried the bodies—then the exclusionary rule can spare you from being convicted.
Illegal searches are bad, and we need serious tools to prevent them—I’ve long helped lead the charge in the Senate for greater protection of our civil liberties and legal safeguards of the privacy rights of law-abiding citizens to be free from unreasonable searches. And we also need real remedies for those—especially the innocent—whose rights have been violated by overly aggressive law enforcement. But how is society benefitted from letting an axe murderer go free? Does it help his next victim, if the court turns a blind eye to clear evidence of guilt?
It was not until the landmark 1961 Supreme Court case of Mapp v. Ohio that the exclusionary rule came to apply not merely to federal courts, but also to state courts across the country. Mapp was an activist ruling. Nothing in the Constitution mandates that state courts must follow the exclusionary rule, and the Mapp Court didn’t purport to say otherwise. Instead, the Court just announced the new rule because the justices thought it was good policy (never mind the rising crime rates that followed the announcement of Mapp).
The harmful consequences of Mapp were made much worse five years later when the Court decided the 1966 case of Miranda v. Arizona. Today, Miranda is famous. If you watch Law & Order or any other cop show, you know the Miranda warnings by memory: “You have the right to remain silent. Anything you say can and will be used against you. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you.” What you probably don’t know is that the 5–4 majority in Miranda just made that up.
Nowhere in the Constitution is there any reference to the Miranda warnings. That familiar text isn’t anywhere in the Bill of Rights. It’s true that you have the right to remain silent (that is in the Constitution, the Fifth Amendment), and the right to an attorney (the Sixth Amendment), but for two hundred years police officers didn’t have to affirmatively tell you about those particular rights. Until the Court decided they should. Miranda was, in effect, legislation. The justices decided it would be good policy to mandate these warnings, so they wrote out the text and decreed that every police officer in America must follow their script.
Together, Miranda and Mapp have resulted in a great many violent criminals going
