Beware of change – it’s not always for the better 

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Disgusting is an insufficient word to describe the cruel tyranny that exists in the swathes of Iraq and Syria controlled by the Islamic State.

A report by a Syrian human rights group released Oct. 7 catalogues more than 10,000 executions by ISIS in those two countries over the past year, including hundreds of executions of women and children. Whether beheading and crucifying Christians for refusing to convert to Islam or throwing homosexuals to their deaths from tall buildings, ISIS’s brutality knows no bounds.

From a lawyer’s perspective, the extent to which the organs of “justice” have been perverted to advance ISIS’s violent ideology is particularly galling. ISIS is not a criminal gang lurking in the shadows, striking at its victims and then fleeing from law enforcement. ISIS, in the vast areas under its control, is the law. Those butchered by ISIS lack the solace that police may arrest the murderers to haul them before judges; the murderers are the police, acting on the orders of the judges.

While it would be comforting to think that this legal regime change is the responsibility of a tiny group of madmen, it also would be naïve. Many Iraqi Sunnis welcome ISIS as a bulwark against oppression by an Iranian-backed Shia government in Baghdad. Many Syrians prefer ISIS to Assad’s indiscriminately murderous regime in Damascus; ISIS certainly is a more credible alternative than the half dozen men the Obama administration has trained at a cost of $500 million.

Throughout history, desperate people have not hesitated – or if they have, only briefly – before supporting murderous regimes. Frances’s revolution against monarchical despotism quickly turned into Robespierre’s Reign of Terror.  Hitler’s Nazi party, perpetrators of the Holocaust, was supported by a Germany tired of the mere economic chaos of the Weimer era. The Bolsheviks took the reins of the revolution against the Czar and then killed millions of people in the Soviet Union, while Mao replaced feuding Chinese warlords and then killed tens of millions during the Great Leap Forward. Both were supported by significant segments of the population.

What lessons do these events hold for our nation? After all, it is difficult to conceive of Americans ever supporting a government as brutal as those mentioned above.

But we shouldn’t be completely naïve. President Lincoln suspended habeas corpus during the Civil War. President Wilson clamped down on “sedition” during World War I. The Japanese were interned during World War II. The temptation to restrict individual liberty when the chips are down always lurks beneath the surface of our political subconscious. Who can say what collective evil a true national crisis might unleash.

That there is nothing inherent in our multiethnic DNA immunizing Americans from supporting government oppression has long been understood. James Madison recognized it over 200 years ago in the Federalist Papers, observing that “government itself [is] the greatest of all reflections on human nature,” and unfortunately men are not “angels.” Madison proposed to overcome the dangers inherent in “a government which is to be administered by men over men” through a series of checks and balances. Power was divided up between the federal and state governments, and between the branches of the federal government, all as a hedge against tyranny.

The walls erected by the Framers, however, largely have collapsed. Federalization of nearly every important policy question, coupled with the popular election of Senators, has made the state governments shells of their former selves. Campaign finance laws designed to weaken the influence of political machines and wealthy individuals have contributed to Congress’s subservience to a President of the same party. Individuals in an atomized population stand increasingly naked against the power of the national government.

There is a common view among American legal thinkers that the law, including the Constitution, must “evolve” with the times. But the very purpose of a Constitution with a Bill of Rights is to avoid change, particularly, as history teaches, when the whim of the people so often creates the type of change that quashes freedom and discards human dignity.

It is difficult for armed fanatics to seize and hold the town square unless the conditions for their doing so have been laid well in advance. And, while it might be hard to imagine anything of that nature happening here, Americans should remember that dramatic changes to our constitutional order will produce unforeseen ripples decades from now, maybe not all for the better.

Contributing columnist Kevin P. Martin is a constitutional and regulatory law expert practicing in Boston. The views expressed in this column are his own and not those of his law firm.  

Also by Kevin P. Martin:

Lawyers playing in left field

The forgotten art of self-government

Non-judge, jury, and executioner