Would King have condemned those black slaves who were tried under the Fugitive Slave Act of 1850 and ordered to return to slavery, but who refused to give themselves up and ran away from their sentence? Would he have criticized Angela Davis, the black militant who, after she had participated in a daring rescue of a black prisoner from a courtroom, refused to stand trial and went underground?
We can imagine another test of King's attitude toward "accepting" punishment. During the Vietnam War, which King powerfully opposed ("The long night of war must be stopped," he said in 1965), the Catholic priest-poet Daniel Berrigan committed an act of civil disobedience. He and other men and women of the "Catonsville Nine," entered a draft board in Catonsville, Maryland, removed draft records, and set them afire in a public "ceremony." Father Berrigan delivered a meditation:
Our apologies, good friends, for the fracture of good order, the burning of paper instead of children.... We could not, so help us God, do otherwise...We say: killing is disorder, life and gentleness and community and unselfishness is the only order we recognize. For the sake of that order we risk our liberty, our good name. The time is past when good men can remain silent, when obedience can segregate men from public risk, when the poor can die without defense.
Although he used the term men, one of the Catonsville Nine was a woman, Mary Moylan. When the Nine were found guilty, sentenced to jail terms, and lost their appeals, she and Daniel Berrigan refused to turn themselves in, going "underground." Berrigan was found after four months, Mary Moylan was never apprehended. She wrote from underground: "I don't want to see people marching off to jail with smiles on their faces. I just don't want them going...I don't want to waste the sisters and brothers we have by marching them off to jail."
Berrigan and Moylan thought the war was wrong and thought their going to jail for opposing it was wrong. If, like King, they felt it would serve some practical use, they probably would have accepted it. Going to jail can make a certain kind of statement to the public: "Yes, I feel so strongly about what is happening in the world that I am willing to risk jail to express my feelings."
Refusing to go to jail makes a different kind of statement: "The system that sentenced me is the same foul system that is carrying on this war. I will defy it to the end. It does not deserve my allegiance." As Daniel Berrigan said, yes, we respect the order of "gentleness and community" but not the "order" of making war on children.
Daniel Berrigan and I had traveled together in early 1968 to Hanoi to pick up three American pilots released from prison by the North Vietnamese. We became good friends, and I was soon in close contact with the extraordinary Catholic resistance movement against the Vietnam War.
In early 1970 his last appeal was turned down; facing several years in prison, he "disappeared," sending the FBI into a frantic effort to find him. They had caught sight of him at a huge student rally in the Cornell University gymnasium, then the lights went out and before they could make their way through the crowd he was spirited away inside a huge puppet, to a nearby farmhouse.
A few days after his disappearance, I received a phone call at my home in Boston. I was being invited to speak at a Catholic church on the Upper West Side of Manhattan, on the issues of the war and the Berrigans. Philip Berrigan, Daniel's brother, a priest and one of the Catonsville Nine, was also living underground and had just been found by the FBI in a tiny apartment of the church's pastor.
The church was packed with perhaps 500 people. FBI agents mingled with the crowd, alerted that Daniel Berrigan might show up. I made a brief speech. Another friend of Daniel's spoke. As the two of us sat on the platform, a note was passed to us, to meet two nuns at a Spanish-Chinese restaurant farther up Broadway, near Columbia University. There we were given directions to New Jersey, to the house where Daniel was hiding out.
The next morning we rented a car, drove to New Jersey, and met him. The house he was staying in was not secure (in fact, an FBI agent lived across the street!). We arranged a trip to Boston, a car, a driver, and a destination. From that point on, for the next four months, he eluded and exasperated the FBI, staying underground, but surfacing from time to time, to deliver a sermon at a church in Philadelphia, to be interviewed on national television, to make public statements about the war, to make a film (The Holy Outlaw) about his actions against the war, both overt and underground.
During those four months, while helping take care of Dan Berrigan, I was teaching my course at Boston University in political theory. My students were reading the Crito, and I asked them to analyze reasons for going underground. They did not know, of course, that Berrigan was right there in Boston, living out his ideas.
I think it is a good guess, despite those often-quoted words of his on "accepting" punishment, that Martin Luther King, Jr., would have supported Berrigans actions. The principle is clear. If it is right to disobey unjust laws, it is right to disobey unjust punishment for breaking those laws.
The idea behind "accept your punishment" (advanced often by "liberals" sympathetic with dissent) is that whatever your disagreement with some specific law or some particular policy, you should not spread disrespect for the law in general, because we need respect for the law to keep society intact.
This is like saying because apples are good for children, we must insist that they not refuse the rotten ones, because that might lead them to reject all apples. Well, good apples are good for your health, and rotten apples are bad. Bad laws and bad policies endanger our lives and our freedoms. Why can't we trust human intelligence to make the proper distinctions—among laws as among apples?
The domino theory is in people's minds: Let one domino fall and they will all go. It is a psychology of absolute control, in which the need for total security brings an end to freedom. Let anyone evade punishment and the whole social structure will come down.
We must ask, however: Can a decent society exist (that is our concern, not the state), if people humbly obey all laws, even those that violate human rights? And when unjust laws and unjust policies become the rule, should not the state (in Plato's words) "be overthrown"?
Most people quickly accept the idea of disobedience in a totalitarian society or in a blatantly undemocratic situation as in the American South with its racial segregation. But they look differently on breaking the law in a liberal society, where parties compete for the votes of citizens, where laws are passed by bodies of elected representatives, and where people have some opportunities for free expression of their ideas.
What this argument misses is that civil disobedience gives an intensity to expression by its dramatic violation of law, which other means—voting, speaking, and writing—do not possess. If we are to avoid majority tyranny over oppressed minorities, we must give a dissident minority a way of expressing the fullness of its grievance.
The fiery editor of the abolitionist newspaper in Boston, William Lloyd Garrison, understood the need. Criticized by another antislavery person for his strong language ("I will not hesitate, I will not equivocate, I will not retreat a single inch, and I will be heard") and his dramatic actions (he set a copy of the United States Constitution afire at a public gathering, to call attention to the Constitution's support of slavery), Garrison replied, "Sir, slavery will not be overthrown without excitement, a most tremendous excitement."
Several of Garrison's contemporaries understood his role. One said that Garrison had roused the country from a sleep so deep "nothing but a rude and almost ruffian-like shake could rouse her." Another said, "he will shake our nation to its center, but he will shake slavery out of it."
Protest beyond the law is not a departure from democracy; it is absolutely essential to it. It is a corrective to the sluggishness of "the proper channels," a way of breaking through passages blocked by tradition and prejudice. It is disruptive and troublesome, but it is a necessary disruption, a healthy troublesomeness.
Disobedience and Foreign Policy
In a little book he wrote in the 1960s, Supreme Court justice Abe Fortas
worried about all the civil disobedience taking place and spoke of "the all-important access to the ballot box."
In later chapters I discuss the insufficiency of the ballot box to deal with racial discrimination or with economic justice. But probably the most clear-cut illustration of the inadequacy of that "all-important access to the ballot box" is in the area of foreign policy.
In foreign policy, access to the ballot box means very little. Foreign policy is made by the president and a small circle of people around him, his appointed advisers. Again and again, Americans have voted for a president to keep them out of a war, only to see the "peace" candidate elected who then brings the nation into war.
Woodrow Wilson was elected in 1916 on a peace platform: "There is such a thing as a nation being too proud to fight." The next year he asked Congress to declare war. Franklin Roosevelt was elected in 1940 with a pledge to keep the United States out of the war, yet his policies were more and more designed to bring the United States into the war.
In 1964, the situation in Vietnam was tense. Lyndon Johnson ran for president on a platform opposing military intervention in Southeast Asia, while his opponent, Barry Goldwater, urged such action. The voters chose Johnson, but they got Goldwater's policy: escalation and intervention.
The Constitution says it is up to Congress to declare war. James Madison, who presided over the Constitutional Convention in 1787, explained the reasoning of the Founding Fathers in a letter to Thomas Jefferson written years later: "The constitution supposes, what the history of all Govts demonstrates, that the Executive is the branch of power most interested in war and most prone to it. It has accordingly with studied care vested the question of war in the legislature."
However, again and again, the president has made the decision to go to war, and Congress has obsequiously gone along. In the two most recent American wars, the Korean War and the Vietnam War, Congress, while ignored, nevertheless appropriated the money asked by the president to carry on the war. When it comes to making war, we might just as well have a monarchy as a constitutional government.
It seems that the closer we get to matters of life and death—war and peace—the most undemocratic is our so-called democratic system. Once the government, ignoring democratic procedures, gets the nation into war, it creates an atmosphere in which criticism of the war may be punished by imprisonment—as happened in the Civil War and in both world wars. Thus democracy gets a double defeat in matters of war and peace.
The Supreme Court itself, which (we were told back in juniorhigh-school civics class) is supposed to interpret the Constitution, presumably in the interests of democracy (checks and balances and all that), has interpreted it in such a way as to eliminate democracy in foreign policy. In a decision it made in 1936 (U.S. v. Curtiss-Wright Export Corp.), the Court gave the president total power over foreign policy, including the right to ignore the Constitution:
The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs.
This is a shocking statement to any American who learned in school that the powers of government are limited to what the Constitution allows. But that decision has never been overturned. And all through the history of the United States we find Congress behaving like a flock of sheep when the president decides on war.
President Polk in 1846 (covering California and other Mexican land) provoked a war with Mexico by sending troops into a disputed area. A battle took place, and when he asked Congress to declare war, they rushed to comply, the Senate spending just one day on debating the war resolution, the House of Representatives allowing two hours.
A century later in the summer of 1964 President Lyndon Johnson reported attacks on U.S. naval vessels off the coast of Vietnam in the Gulf of Tonkin. Congress took the president's account as truth (it turned out to be full of deceptions) and voted overwhelmingly (unanimously in the House, two dissenting votes in the Senate) to give the president blanket power to take whatever military action he wanted.
There was no declaration of war, as the Constitution required, but when citizens challenged this, the Supreme Court acted as timidly as Congress. The court never decided on the constitutionality of the Vietnam War. It would not even agree to discuss the issue.
For instance, in 1972 a man named Ernest Da Costa brought his case to the Supreme Court. He had been conscripted into the U.S. Army, but when ordered to go to Vietnam he refused, arguing that the American war in Vietnam had not been authorized by Congress, and, therefore, Congress could not draft him for overseas service. The Court refused even to hear his case. It takes the assent of four Supreme Court Justices to bring a case before the Court; only two wanted to hear Da Costa's argument. The Supreme Court's claim was that such questions are "political"— meaning that they are too important to be decided by the nonelected Supreme Court and should be decided by the "political" branches of government, those subject to election, namely the president and Congress.
But we have seen that Congress has never had the boldness to challenge a president's call for war. So much for those checks and balances that, we learned in school, would save us from one-man rule. It turns out that the much-praised "proper channels" are not channels at all, but mazes, into which we are invited, like experimental animals, to get lost.
The concentration of dictatorial power in the hands of the president, in regard to military actions, was underlined when Secretary of State Dean Rusk testified before Congress in 1962. He was explaining the attempt to invade Cuba the year before, an action planned secretly by the CIA and the White House without the involvement of Congress. You shouldn't get upset over being ignored on this, Rusk assured Congress, because it's been done lots of times. He then gave them a list compiled by the State Department called "Instances of the Use of United States Armed Forces Abroad 1798-1945," describing 127 military actions by the United States, carried out by presidential order. A small sample of that list includes (in the language of the State Department):
1852-53—Argentine—Marines were landed and maintained in Buenos Aires to protect American interests during a revolution.
1854— Nicaragua—San Juan del Norte [Greytown] was destroyed to avenge an insult to the American Minister to Nicaragua.
1855— Uruguay—U.S. and European naval forces landed to protect American interests during an attempted revolution in Montevideo.
When U.S. troops were finally withdrawn from Vietnam in 1973, over 50,000 American men were dead after a war begun by the president, aided by a submissive Congress and a hands-off Supreme Court. Now Congress, mustering a bit of courage, passed a War Powers Act, intended to limit the power of the president in sending the American military into warlike situations. The act declared, among other provisions, "The President, in every possible instance, shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances."
This War Powers Act has been ignored again and again, by various presidents. President Ford invaded a Cambodian island and bombed a Cambodian town in the spring of 1975 after the crew of an American merchant ship, the Mayaguez, was detained, but not harmed, by Cambodian authorities. According to the War Powers Act, Ford should have consulted with Congress. Senator Mike Mansfield, the Democratic leader of the Senate, said "I was not consulted, but notified after the fact."
President Ronald Reagan in the fall of 1982 sent troops into a dangerous situation in Lebanon, again without following the requirements of the War Powers Act, and soon after that over 200 marines were killed in Lebanon by a bomb that exploded in their barracks. In the spring of 1983, Reagan sent U.S. forces to invade the Caribbean island of Grenada, again only notifying Congress, not consulting them. And in 1986, U.S. planes bombed the capital of Libya, again without consult
ing Congress. In 1989, President Bush launched an invasion of Panama (he called it Operation Just Cause), again without consulting Congress.
We have been speaking of open military actions undertaken by the president, uncontrolled by Congress. But the absence of democracy in foreign policy is even more obvious when you consider how much is done secretly by the president and his advisers, behind the backs of the American public, as well as behind the backs of their elected representatives.
The list of secret actions includes the CIA's overthrow of the government of Iran in 1953, restoring the Shah to the throne; the 1954 invasion of Guatemala and the ousting of its democratically elected president; the invasion of Cuba in 1961; and the wide range of covert operations in Indochina in the 1950s and 1960s, including the secret bombing of Cambodia. More recently, we find the series of attempts to overthrow the Sandinista government in Nicaragua by arming a counterrevolutionary force (the "contras") across the border in Honduras, and mining Nicaragua's harbors, as well as the secret transfer of arms to the contras in violation of a law passed by Congress.
When the "Iran-Contra" scandal became public in 1986-1987, President Reagan feigned innocence—the doctrine of "plausible denial" again. With astounding hypocrisy, Reagan said in his State of the Union Address at the beginning of 1987 (the bicentennial of the Constitution), "In those other constitutions, the government tells the people what they are allowed to do. In our Constitution, we the people tell the government what it can do and that it can do only those things listed in that document and no other."