DEMOCRACY DOESN’T DELEGITIMIZE CIVIL DISOBEDIENCE

DEMOCRACY DOESN’T DELEGITIMIZE CIVIL DISOBEDIENCE

1. PROTEST IS NECESSARY WHEN VOTING FAILS TO PROMOTE JUSTICE

Howard Zinn, Professor Emeritus of Political Science at Boston University, DISOBEDIENCE AND DEMOCRACY, 1968, p. 65-66.

We have been naive in America about the efficacy of the ballot box and representative government to rectify injustice. We forget (hence all the emphasis in recent years on voting rights for the Negro) how inadequate is the ballot. We forget what the history of American politics has shown repeatedly: that there is only the vaguest connection between the issues debated in an election campaign and those ultimately decided by the government; that the two-party system is_only slightly less tyrannical than the one-party system, for Michels’ “iron law of oligarchy” operates to keep us at the mercy of powerful politicos in both parties. We forget that the information on which the public depends for judging public issues is in the hands of the wealthiest sections of the (true, we have freedom to speak, but how much of an audience we can speak to depends on how much money we have);,that wealth dominates the electoral process (see Murray Levin’s meticulous study, Kennedy Campaigning); that the moment we have cast our ballots, the representative takes over (as Rousseau, and before him, Victor Considerant pointed out) and we have lost our freedom. The result of all this is that most of us—when we are honest with ourselves—feel utterly helpless to affect public policy by the orthodox channels. The feeling is justified. Historically, we have found it necessary to go out­side “the proper channels” at certain pivotal times in our history. Slavery probably could not he ended with­out either a series of revolts by blacks, or finally, a devastating war waged, ironically, by the very govern­ment that condemned John Brown to death for seeking a less costly means of emancipating the slave. And the rights of even a portion of the laboring population were secured only by extra-legal uprisings in a wave of violent labor struggles from 1877 to 1914, and again during the sit-down strikes of the 1930’s.

Howard Zinn, Professor Emeritus of Political Science at Boston University, “Gray Matters Interviews Howard Zinn,” HOWARD ZINN ONLINE, December 3, 1998, accessed May 12, 2002, http://howardzinn.org/index23.htm

So the Law should not be given the holy deference which we are all taught to give it when we grow up and go to school, and it's a profoundly undemocratic idea to say that you should judge what you do according to what the law says. Undemocratic because it divests you as an individual and the right to make a decision yourself about what is right or wrong and it gives all of that power to that small band of legislators who have decided for themselves what is right and what is wrong. So to me the idea of civil dissobedience is to really enhance democracy.
3. DEMOCRATIC LAW IS NOT SACROSANCT, IT MAY BE VIOLATED ON BEHALF OF JUSTICE

Howard Zinn, Professor Emeritus of Political Science at Boston University, THE ZINN READER: WRITINGS ON DISOBEDIENCE AND DEMOCRACY, 1997, p. 400-401.

Or perhaps we should say “ignore man-made law, the law of the politicians” to obey the higher law—what Reverend Coffin and Father Berrigan would call “the law of God” and what others might call the law of human rights, the principles of peace, freedom, and justice. (Daniel Berrigan’s elderly mother was asked by a reporter, when Dan went under­ground, how she felt about her son defying the law; she responded quiet­ly. “It’s not God’s law.”) The truth is so often the total reverse of what has been told us by our culture that we cannot turn our heads far enough around to see it. Surely, it is obedience to governments, in their appeals to patriotism, their calls for war, that is responsible for the terrible violence of our century. The disobedience of conscientious citizens, for the most part nonviolent, has been directed to stopping the violence of war. The psychologist Erich Fromm, thinking about nuclear war, once referred to the biblical Genesis of the human race and the bite into the forbidden apple: “Human history began with an act of disobedience and it is not unlikely that it will be terminated by an act of obedience.”

CIVIL DISOBEDIENCE IS UNJUSTIFIED

1. GOOD MOTIVATIONS FOR CIVIL DISOBEDIENCE DO NOT MAKE IT JUSTIFIED

Abe Fortas, Associate Justice of the Supreme Court, CONCERNING DISSENT AND CIVIL DISOBEDIENCE, 1968, p. 62-63.

For example, a young man may be advised by counsel that he must refuse to report for induction in order to challenge the constitutionality of the Selective Service Act. This is very different from the kind of civil disobedience which is not engaged in for the purpose of testing the legality of an order within our system of government and laws, but which is practiced as a technique of warfare in a social and political conflict over other issues. Frequently, of course, civil disobedience is prompted by both motives—by both a desire to make propaganda and to challenge the law. This is true in many instances of refusal to submit to induction. It was true in the case of Mrs. Vivian Kellems, who refused to pay withholding taxes because she thought they were unlawful and she wanted to protest the invasion of her freedom as a capitalist and citizen. Let me first be clear about a fundamental proposition. The motive of civil disobedience, whatever its type, does not confer immunity for law violation. Especially if the civil disobedience involves violence or a breach of public order prohibited by statute or ordinance, it is the state’s duty to arrest the dissident. If he is properly arrested, charged, and convicted, he should be punished by fine or imprisonment, or both, in accordance with the provisions of law, unless the law is invalid in general or as applied. He may be motivated by the highest moral principles. He may be passionately inspired. He may, indeed, be right in the eyes of history or morality or philosophy. These are not controlling. It is the state’s duty to arrest and punish those who violate the laws designed to protect private safety and public order.

Abe Fortas, Associate Justice of the Supreme Court, CONCERNING DISSENT AND CIVIL DISOBEDIENCE, 1968, p. 64-65.

We are a government and a people under law. It is not merely government that must live under law. Each of us must live under law. Just as our form of life depends upon the govern­ment’s subordination to law under the Constitution, so it also depends upon the individual’s subservience to the laws duly prescribed. Both of these are essential. Just as we expect the government to be bound by all laws, so each individual is bound by all of the laws under the Constitution. He cannot pick and choose. He cannot substitute his own judgment or passion, however noble, for the rules of law. Thoreau was an inspiring figure and a great writer; but his essay should not be read as a handbook on political science. A citizen cannot demand of his government or of other people obedience to the law, and at the same time claim a right in himself to break it by lawless conduct, free of punishment or penalty.
3. CIVIL DISOBEDIENCE MAY SPIRAL OUT OF CONTROL, JUSTIFYING ITS RESTRAING

Abe Fortas, Associate Justice of the Supreme Court, CONCERNING DISSENT AND CIVIL DISOBEDIENCE, 1968, p. 70-71.

These mass demonstrations, however peacefully intended by their organizers, always involve the danger that they may erupt into violence. But despite this, our Constitution and our traditions, as well as practical wisdom, teach us that city officials, police and citizens must be tolerant of mass demonstrations, however large and inconvenient. No city should be expected to submit to paralysis or to widespread injury to persons and property brought on by violation of law. It must be prepared to prevent this by the use of planning, persuasion, and restrained law enforcement. But at the same time, it is the city’s duty under law, and as a matter of good sense, to make every effort to provide adequate facilities so that the demonstration can be effectively staged, so that it can be conducted without paralyzing the city’s life, and to provide protection for the demonstrators. The city must perform this duty. An enormous degree of self-control and discipline are required on both sides. Police must be trained in tact as well as tactics. Demonstrators must be organized, ordered, and controlled. Agitators and provocateurs, whatever their object, must be identified, and any move that they may make toward violence must be quickly countered. However careful both sides may be, there is always danger that individual, isolated acts of a few persons will overwhelm the restraint of thousands. Law violation or intemperate behavior by one demonstrator may provoke police action. Intemperate or hasty retaliation by a single policeman may provoke disorder, and civil disobedience may turn into riot. This is the dangerous potential of mass demonstrations.