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On “Payback”

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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-Nev.), who, as Minority Leader pioneered the filibuster of appellate judicial nominees—vide, Miguel Estrada—and 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-Utah) 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 class’s commitment to the agenda that embodies its identity—abortion, gay rights, green energy, racial politics, pervasive regulation, even the reshaping of the electorate by admission of immigrant supporters—outweighs 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 did—rule by partisan majorities while stoking their constituent groups’ identities and vilifying the other side; or were they to reverse the ruling class’s previous “revolution from above” by carrying out their own version—they 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 class’s 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 “payback”—with 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 class’s 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 class’s fundamental claims to its superior intellect and morality.

Reintroducing rulers to the rule of law would also mean breaking the ruling class’s 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 Corcyra’s 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 population’s routinely placing its own desires above the law, especially since that sector holds society’s 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 today’s ruling class of Lincoln’s lesson that subordinating the Constitution to one’s 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 (D-Calif.) gave to a question concerning the government’s 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.

Reader Discussion

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on November 24, 2014 at 11:50:30 am

I don't believe responding in kind is necessary. As an alternative I suggest a political response by the Congress, one that insures that Congressional Democrats bear a substantial portion of the costs from Administration's over-the-top executive actions. When the Republican leadership returns, it should spell out its intentions for next year.

Here's a start.

Begin by making the point that the President's executive decisions have brought on a constitutional crisis. One requiring a response by Congress. If the President intends to run roughshod over established rules, the new Congress will do so as well. Establish that for as long as the President persists in ruling by decree, all procedural matters in both houses--Senate cloture rules, in particular--will be decided by simple majority vote.

Lacking this step, Democrats will stymie any legislation while the President claims the problem is a "do nothing" Congress, all the time blaming Republicans for the inaction. Republicans should then proceed to set records for passing legislation especially legislation that the President will veto. Be very sure to bring all vetoed bills back for a vote. Congressional Democrats will then be seen as the reason for inaction.

This works because it insures that Congressional Democrats bear a large portion of the cost for the Administration's rule by executive actions. It is true that Congress lacks any direct ability to force executive action, but that doesn't mean it lacks an indirect means to force action.

Attacks on the President, impeachment or censure, obtain nothing and waste political capital. As for budget restrictions, this President and President Clinton have both shown this is ineffective. They are ineffective because it is difficult for a caucus to act with unity of purpose. Sooner, not later, caucus members on the margins decide their personal cost too high. Meanwhile the opposing party gains, by doing nothing.

Lastly, make a commitment that once the constitutional crisis is passed, all procedural rules will be returned to normal. This point can be emphasized by stipulating that all cloture decisions will require 60 votes--specifically reversing Senator Reid's invocation of the nuclear option.

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Jim`
on November 24, 2014 at 12:05:38 pm

The notion that using payback against elitists and statists will teach them a lesson is silly; it will only reinforce their notions about "racists, business shills, idiots," etc.

The job that needs to be done -- restoring the rule of law -- can be accomplished by a conservative majority in Congress and a conservative executive. Unfortunately...

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Image of Faceless Commenter
Faceless Commenter
on November 24, 2014 at 12:09:48 pm

[…] What’s up with this? Angelo Codevilla explains. […]

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Dinocrat » Blog Archive » Everything old is new again
on November 24, 2014 at 12:14:34 pm

One wishes such a strategy would work. It assumes a ruling class that has the capacity to re-think its method of ruling and a way to convey the intent of the message you wish to send not only to said ruling class but to the public at large.

As you note: "nothing but raw fear for their persons is likely to convince today’s ruling class of Lincoln’s lesson that subordinating the Constitution to one’s most heartfelt causes destroys its protections for all." Such fear might have the salutary effect you suggest, but it seems more likely to have the opposite effect. Such deep and fundamental divisions that now exist have a historical precedent in how they are resolved. Before it is all over we may all have cause to feel "raw fear for our persons."

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John Radzilowski
on November 24, 2014 at 13:43:50 pm

Professor

How about Article 5 Convention of the States to take power away from the Feds? Certainly that is a better option than unconstitutional payback options

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Brendan
on November 24, 2014 at 13:47:49 pm

I think Jim is right here. Unless the GOP does like Jim outlines here the Dem will blaim a do nothing GOP congress.

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Clifford Bates
on November 24, 2014 at 13:50:03 pm

There are limited payback opportunities within the next two years because of the President's veto. Budgetary limitations, targeted at the most egregious overreaches of the Obama-Pelosi-Reid regime are probably the best bet.

That being said, it is critically important to secure both houses of Congress and the Presidency in 2016, without which nothing of real substance, such as Obamacare, can be rolled back.

However even in these circumstances, we must prepare for a spate of judicial tyranny that we have never before seen in this country. No rollback of the destructive laws and regulations enacted by the far left will be immune from the passions of left-wing judicial appointments who will without a doubt repeatedly decide these steps to be "unconstitutional" because of policy preferences, not rule of law nor constitutional reasons.

Those on the right have to start thinking about ways to overcome this tyranny. Whether it is civil assembly, protests, judicial impeachments, or (if necessary) more assertive (but legal) methods, we must find a way to hold judges personally and directly accountable for their decisions, and strongly encourage those who don't get the message to resign from the bench.

Mark Levin, in his recent book, foresaw this situation but did not address its resolution. For the next two years, we must give very serious thought to tactics necessary to accomplish this objective. All the election victories in the world won't do a bit of good if our progress is stymied by a team of reactionary judges whose heads are firmly in the clouds of left-wing academia, and whose allegiance is to Barack Obama rather than the Constitution.

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Steve
on November 24, 2014 at 15:55:30 pm

The current ruling class consists mostly of will-to-power driven sociopaths. The current occupants of the White House and their minders are will-to-power driven psychopaths. This is a recipe for tyranny and mass murder, as the history of the precious century has so clearly shown.

A ruling class so composed is amenable neither to reason nor the rule of law. History also teaches us that there is only way to stop them.

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Image of Ward Dorrity
Ward Dorrity
on November 24, 2014 at 16:36:26 pm

[…] Read More… […]

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Image of On “Payback” (Why We Must Get Our Revenge on the Libtards) | New York City Guns
On “Payback” (Why We Must Get Our Revenge on the Libtards) | New York City Guns
on November 24, 2014 at 16:37:42 pm

Old Sicilian proverb: "Revenge is a dish best served cold."

Current American street proverb: "Payback is a bi*ch, but a sweet one." Take care that you do not lose control of her.

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Don Vito
on November 24, 2014 at 16:54:50 pm

I'll add one more item for your consideration:

“In keeping silent about evil, in burying it so deep within us that no sign of it appears on the surface, we are implanting it, and it will rise up a thousand fold in the future. When we neither punish nor reproach evildoers, we are not simply protecting their trivial old age, we are thereby ripping the foundations of justice from beneath new generations.”
- Aleksandr Solzhenitsyn, The Gulag Archipelago 1918-1956

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Image of Ward Dorrity
Ward Dorrity
on November 24, 2014 at 16:56:38 pm

Can Obama's amnesty of illegal aliens save America?

The response of conservative experts and politicians to Obama's latest decision was expected - they are outraged, upset and disgusted. While I can understand their emotions, I disagree with their conclusions. In fact, Obama may have inadvertently acted as a savior of the Republic.

This Friday morning I accidently overheard my colleague, who I will call JC in order to preserve his anonymity, talking in his cubicle about the unconstitutionality of Obama's "edict" to amnesty 5 million illegal aliens. In all fairness, by that time I already knew what I wanted to write in this post, but I could not resist jumping right in the middle of this discussion to express me opinion on the subject. I fully sympathize with the argument that Obama's decision is unconstitutional, but that by itself is hardly an argument which can win a lot of supporters among American people. A careful recitation of the Articles of the Governing Law of the Republic will most likely put to sleep a majority of our semi-literate population, while upsetting probably another 20%. And in all honesty, these numbers may well hold true for our Supreme Court. More importantly, the real issue is that our Constitution has been dead since at least the 1930ies and FDR's New Deal, if not even earlier with Woodrow Wilson. No fair person, knowledgeable of the letter and spirit of the Constitution and the history of its adoption would agree that the major building blocks of today's federal government - Social Security, Medicare, Medicaid, welfare, most of labor laws and even environmental laws satisfy the limited role of the government envisioned and codified by the Founding Fathers. In other words, our Constitution is dead and buried, and most of the people do not care, so it's useless to appeal to it.

You can read the whole article

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Hyphenated American
on November 24, 2014 at 16:57:17 pm

I posted the whole article here: http://hyphenatedamericans.blogspot.com/2014/11/can-obamas-amnesty-of-illegal-aliens.html

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Hyphenated American
on November 24, 2014 at 16:58:46 pm

"The notion that using payback against elitists and statists will teach them a lesson is silly; it will only reinforce their notions about “racists, business shills, idiots,” etc."

The point is to make them scared. It's more important to be feared than respected, and we will never be respected by liberals.

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Hyphenated American
on November 24, 2014 at 17:22:55 pm

Here is an interesting take on related issue:

http://nomocracyinpolitics.com/2014/11/20/why-congress-not-obamas-illegality-on-immigration-will-likely-kill-the-madisonian-system-by-peter-haworth/comment-page-1/#comment-15400

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gabe
on November 24, 2014 at 17:53:47 pm

We do need "to impress upon the ruling class the consequences of the maximalist precedents it has set." But we need to do it in a controlled way. Don't leave it to the whim of GOP prez candidates. Decide as a party, in a special caucus, and decide soon. Keep the sin of this in the public mind. I proposed how in the Postmodern Conservative post "For Simplicity's Sake: Pledge Tit-for-Tat GOP Executive Order." http://www.nationalreview.com/postmodern-conservative/392358/simplicitys-sake-pledge-tit-tat-gop-executive-order-carl-eric-scott My proposal allows flexibility for the GOP candidates, but keeps them on a leash. It says the retaliation is for the sake of defending the Constitution, and it does not allow anyone to imply that all presidents now have this power.

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Carl Eric Scott
on November 24, 2014 at 19:16:47 pm

Carl:

As always well thought out - kind of like Don Vito above -" payback -but with *cold* reasoning!

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gabe
on November 24, 2014 at 22:13:32 pm

Actually, one of the suggestions Mark Levin has for an Article 5 Convention is to rip the final say away from the judiciary.

Regretfully, few politicians seem to want to follow this direction. Revenge is a policy that will lead to the final fall of the Republic. I'm shocked that Dr. Codevilla doesn't recognize that.

We can take a vicious pleasure in payback. Nothing good every came from it.

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Brendan
on November 24, 2014 at 22:14:26 pm

Which is why the only recourse is to remove power from Washington by using the Article 5 Convention of States approach.

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Brendan
on November 24, 2014 at 22:15:45 pm

Tyranny is what you are supporting then.

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Brendan
on November 24, 2014 at 22:16:58 pm

Tit for tat never ends. Buckley would be ashamed of you.

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Brendan
on November 24, 2014 at 22:20:01 pm

What is your position on Article 5? Are you one of the Con Con sorts who reject it because you say it would lead to an uncontrolled Constitutional Convention? How? Whatever the group of representatives who come together for the Article 5 Convention decide, it still needs approval by 2/3 of the states.

Or do you reject it as unworkable? Scott, there is already a way that the constitution itself says we can follow. Why doesn't NR get behind the concept, instead of talking about restrained payback?

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Brendan
on November 26, 2014 at 01:23:50 am

I completely concur with Hyphenated American's thesis on the dead and buried Constitution. In retrospect the original American Constitution was murdered by a thousand cuts over the last 2 centuries. In its place,albeit in modified form,are the 10 Planks to the Communist Manifesto. With that said,there really is only one political party in America. It is basically a bird of prey with 2 wings. Maybe around the edges there is some debate but in the end both "major" political parties are in lock step in their fundamental desire to retain the current system. Its all about which gang is in the driver's seat. In addition,the real power in America is not the politicians or the political parties. The real ruling class is what is known as the "Deep State." That is the elitists,globalists and international financiers and central bankers,behind the scenes,that control the politicians,the intelligence community,the military,law enforcement,the judges and the bureaucracies that do their bidding. With few exceptions,the American Political Class,both in and out of government,have been bought and paid for. The end result is the more things change the more they stay the same. The latest election,in reality,changes nothing.

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Image of libertarian jerry
libertarian jerry
on November 26, 2014 at 01:41:09 am

Another bitter lesson from history about civil strife -- and perhaps a bitter pill that is nonetheless necessary to administer -- is purges. In our situation, this would mean identifying and removing from offices large and small all persons who thereby support and profit from the bad regime. This would be a seismic shakeup, and a Herculean labor, especially in the vast galaxy of non-elective federal offices (or worse, "government jobs").

After all, even if a conservative president had the intelligence and will to issue the kind of executive order Prof. Codevilla suggests, how many agency and department heads -- or their minions in "civil service" -- would actually carry it out. Consider the resistance that President Reagan faced in his own departments, e.g., State, HUD, HHS, EPA, when trying to make them hew to his principles.

Carl Eric Scott describes a wise outline for proceeding -- build a majority opinion in favor of the Constitution over the bad regime (in its principles and personages) through a political party and other broad means. Establish or reinvigorate institutions that stand for and promote the Constitution, equal inalienable rights, and governance toward such things. Have a long-term, intergenerational political program -- both to gain office and to govern once in office. A strong person to run for president and be the face of the revival would be useful, although not at the expense of the rule of law, broadly popular government, and the ability to effect the common good -- to *govern* well. Hero worship of visionary leaders may elicit ecstasy (especially for Democrats), but it makes for a shabby political community.

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JQA

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