libertylawsite.

org

http://www.libertylawsite.org/2014/11/24/on-payback/

On Payback
By Angelo M.
Codevilla

November 24,
2014

Empowered by the elections of 2014, Republicans face the question common to all who have had revolutionary
changes imposed on them: Are we to accept what was done to us so as not to further revolutionize our environment,
hoping our restraint will lead our adversaries to restrain themselves whenever they return to power?
Senator Harry Reid (D-NV), who, as Minority Leader pioneered the filibuster of appellate judicial nominees vide,
Miguel Estradaand then as Majority Leader abolished the rule that allows it, had this to say in the wake of the
midterms: This is not get-even time. Just as understandably, Senator Orrin Hatch (R-UT) argues for teaching these
blunder-heads that they made a big mistake by giving them a taste of their own medicine.
The question of retribution far transcends the rules of the Senate and goes to the central fact of our public life: that
over more than a generation, a ruling class that is largely Democratic but with a substantial Republican element,
backed by about a third of the public, has indulged its sense of entitlement to impose its preferred way of life upon the
rest by executive action, judicial fiat, and other constitutionally suspect means. This classs commitment to the
agenda that embodies its identityabortion, gay rights, green energy, racial politics, pervasive regulation, even the
reshaping of the electorate by admission of immigrant supportersoutweighs any allegiance it might have to the laws
established by a self-governing people. Consequently, more than two-thirds of Americans say that the country is
going in the wrong direction and that, increasingly, they fear its government.

Since our sociopolitical divisions are over essential things, and our system of government is hemorrhaging legitimacy,
America is liable to undergo strife, the end of which no one can foresee. Two and a half millennia of history confirm
that, once such states of tensions are reached, ordinary controversies can spiral into revolutionary acts. Cycles of
payback loose passions and generate the power to slake them.
Hence for a conservative Congress and, eventually, a President, the great desideratum, beyond enacting their own
priorities, is to re-accustom to the rule of law, rulers grown accustomed to treating their own desires as law. But were
conservatives to do what the Democrats of 2009 to 2014 didrule by partisan majorities while stoking their
constituent groups identities and vilifying the other side; or were they to reverse the ruling classs previous revolution
from above by carrying out their own versionthey would be substituting this ruinous practice for the American
Founders legacy.
This argues for avoiding payback.
Nevertheless, with the Democrats having set the rules of modern politics, opponents are obliged to follow them to
some extent. Breaking down the ruling classs lawless presumptions requires imitating the Democrats in some ways,
at least for a while. Whether it is at all possible to show the ruling class the error of its ways, and what it might take to
do it, is less clear than the need to roll back its pretenses.
This argues for paybackwith interest.
Consider that the ruling class denies its opponents legitimacy. Seldom does a Democratic official or member of the
ruling class speak without reiterating his classs claim to authority: those who resist it are uninformed, stupid, racist,
shills for business, haters, violent, religious obscurantist, or all of the above. Chastening these self-aggrandizing
attitudes requires discrediting not just patent policy frauds such as the notion that carbon taxes can control climate
change. A serious effort would seek to discredit the ruling classs fundamental claims to its superior intellect and
morality.
Reintroducing rulers to the rule of law would also mean breaking the ruling classs habit of prosecuting political
opponents, a habit that rots any body politic in which it takes hold. Prosecutions that ruin the lives of government
principals or their aides, and the use of government agencies to harass political opponents, naturally invite retaliation.
Cycles of vengeance spiral in only one direction. Thucydides account of Corcyras self-destruction illustrates the
descent from tit for tat into civil war.
Payback, then, is a horrible idea. But it is not clear there is a better one.
Criminalizing the criminalization of politics, stopping the cycle of retribution, is akin to the wonder performed by
Aeschylus Eumenides, which turned revenge into law statesmanship of a miraculous order. However, one must
begin from the fact that mere self-restraint in the face of a substantial sector of the populations routinely placing its
own desires above the law, especially since that sector holds societys commanding heights, simply enables unilateral
destruction of the rule of law.
And so, to impress upon the ruling class the consequences of the maximalist precedents it has set, a conservative
President might well issue an executive order directing all persons, and functions of the U.S. government, thenceforth
to treat the word person in all U.S. government documents as including unborn children from the moment of
conception. Another order might direct the Internal Revenue Service not to collect taxes beyond a schedule furnished
by said order. Executive orders could, as well, radically reform the functions of the Environmental Protection Agency
or abolish enforcement of the Ethanol Mandate.
Such actions would surely lead to a discussion of the proper limits of presidential power. One may hope that this might
lead to some degree of restoration of mutual restraint.
Alas, nothing but raw fear for their persons is likely to convince todays ruling class of Lincolns lesson that

subordinating the Constitution to ones most heartfelt causes destroys its protections for all. The proverbial lights
might go on if, say, a conservative majority in both Houses of Congress, with a likeminded President, were to put forth
a bill of Attainder to deprive Nancy Pelosi, Barack Obama, et al. of liberty and property for having violated the
following laws and procedures, and were to lard such a constitutional monstrosity as that with an Article III, Section 2
exemption from federal court review.
When the affected persons asked whence came the authority for a law every word of which was contrary to the
Constitution, they could then be confronted, very publicly, with the answer that onetime House Speaker Nancy Pelosi
gave to a question concerning the governments constitutional authority to mandate individuals to purchase
Obamacare: Are you kidding? Are you kidding?
The point having been made, the conservatives could then scuttle the bill, and lead public discussions around the
country on why even the noblest purposes must not be allowed to trump the Constitution.