Declarations of Independence: Cross-Examining American Ideology

  85 Gene Sharp, The Politics of Nonviolent Action (Porter Sargent, 1974).

  86 Reprinted in Seeds of Liberation, Paul Goodman, ed. (George Brazil er, 1965).

  87 Terkel, "The Good War. "

  88 Ibid.

  87

  Six

  Law and Justice

  In 1978 I was teaching a class cal ed "Law and Justice in America," and on the first day I handed out the course outline. At the end of the hour one of the students came up to the

  desk. He was a little older than the others. He said, "I notice in your course outline you wil be discussing the case of U.S. vs. O'Brien. When we come to that I would like to say

  something about it."

  I was a bit surprised, but glad that a student would take such initiative. I said, "Sure.

  What's your name?"

  He said, "O'Brien. David O'Brien."

  It was, indeed, his case. On the morning of March 31, 1966, while American troops were

  pouring into Vietnam and U.S. planes were bombing day and night, David O'Brien and three

  friends climbed the steps of the courthouse in South Boston where they lived—a mostly

  Irish, working-class neighborhood—held up their draft registration cards before a crowd that

  had assembled, and set the cards afire.

  According to Chief Justice Earl Warren, who rendered the Supreme Court decision in the

  case: "Immediately after the burning, members of the crowd began attacking O'Brien," and

  he was ushered to safety by an FBI agent. As O'Brien told the story to my class, FBI agents

  pul ed him into the courthouse, threw him into a closet, and gave him a few blows as they

  arrested him.

  Chief Justice Warren's decision said, "O'Brien stated to FBI agents that he had burned his

  registration certificate because of his beliefs, knowing that he was violating federal law." His intention was clear. He wanted to express to the community his strong feelings about the

  war in Vietnam, trying to cal attention, by a dramatic act, to the mass kil ing our

  government was engaged in there. The burning of his draft card would get special attention

  precisely because it was against the law, and so he would risk imprisonment to make his

  statement.

  O'Brien claimed in court that his act, although in violation of the draft law, was protected by

  the free speech provision of the Constitution. But the Supreme Court decided that the

  government's need to regulate the draft overcame his right to free expression, and he went

  to prison.1

  O'Brien had engaged in an act of civil disobedience—the deliberate violation of a law for a

  social purpose.2 To violate a law for individual gain, for a private purpose, is an ordinary

  criminal act; it is not civil disobedience. Some acts fal in both categories, as in the case of a

  mother stealing bread to feed her children, or neighbors stopping the eviction of a family

  that hadn't been able to pay the rent. Although limited to one family's need, they carry a

  larger message to the society about its failures.

  In either instance, the law is being disobeyed, which sets up strong emotional currents in a

  population that has been taught obedience from childhood.

  Obedience and Disobedience

  "Obey the law." That is a powerful teaching, often powerful enough to overcome deep

  feelings of right and wrong, even to override the fundamental instinct for personal survival.

  We learn very early (it's not in our genes) that we must obey "the law of the land." Tommy Trantino, a poet and artist, sitting on death row in Trenton State Prison, wrote (in his book

  Lock the Lock) a short piece cal ed "The Lore of the Lamb":

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  i was in prison long ago and it was the first grade and i have to take a shit

  and … the law says you must first raise your hand and ask the teacher for

  permission so i obeyer of the lore of the lamb am therefore busy raising my

  hand to the fuhrer who says yes thomas what is it? and i thomas say I have

  to take a i mean may i go to the bathroom please? didn't you go to the

  bathroom yesterday thomas she says and i say yes ma'am mrs parsley sir but

  i have to go again today but she says NO … And I say eh … I GOTTA TAKE A

  SHIT DAMMIT and again she says NO but I go anyway except that it was not

  out but in my pants that is to say right in my corduroy knickers goddamm … .

  i was about six years old at the time and yet i guess that even then i knew

  without cerebration that if one obeys and fol ows orders and adheres to al the

  rules and regulations of the lore of the lamb one is going to shit in one's pants

  and one's mother is going to have to clean up afterwards ya see?3

  Surely not al rules and regulations are wrong. One must have complicated feelings about

  the obligation to obey the law. Obeying the law when it sends you to war seems wrong.

  Obeying the law against murder seems absolutely right. To real y obey that law, you should

  refuse to obey the law that sends you to war.

  But the dominant ideology leaves no room for making intel igent and humane distinctions

  about the obligation to obey the law. It is stern and absolute. It is the unbending rule of

  every government, whether Fascist, Communist, or liberal capitalist. Gertrude Scholtz-Klink,

  chief of the Women's Bureau under Hitler, explained to an interviewer after the war the

  Jewish policy of the Nazis, "We always obeyed the law. Isn't that what you do in America?

  Even if you don't agree with a law personal y, you stil obey it. Otherwise life would be

  chaos."4

  "Life would be chaos." If we al ow disobedience to law we wil have anarchy. That idea is inculcated in the population of every country. The accepted phrase is "law and order." It is a phrase that sends police and the military to break up demonstrations everywhere, whether

  in Moscow or Chicago. It was behind the kil ing of four students at Kent State University in

  1970 by National Guardsmen. It was the reason given by Chinese authorities in 1989 when

  they kil ed hundreds of demonstrating students in Beijing.

  It is a phrase that has appeal for most citizens, who, unless they themselves have a

  powerful grievance against authority, are afraid of disorder. In the 1960s, a student at

  Harvard Law School addressed parents and alumni with these words:

  The streets of our country are in turmoil. The universities are fil ed with

  students rebel ing and rioting. Communists are seeking to destroy our

  country. Russia is threatening us with her might. And the republic is in

  danger. Yes! danger from within and without. We need law and order!

  Without law and order our nation cannot survive.

  There was prolonged applause. When the applause died down, the student quietly told his

  listeners: "These words were spoken in 1932 by Adolf Hitler."5

  Surely, peace, stability, and order are desirable. Chaos and violence are not. But stability

  and order are not the only desirable conditions of social life. There is also justice, meaning the fair treatment of al human beings, the equal right of al people to freedom and

  prosperity. Absolute obedience to law may bring order temporarily, but it may not bring

  justice. And when it does not, those treated unjustly may protest, may rebel, may cause

  disorder, as the American revolutionaries did in the eighteenth century, as antislavery

  people did in the nineteenth century, as Chinese students did in this century, and as

  working people going on strike have done in every country, across the centuries.


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  Are we not more obligated to achieve justice than to obey the law? The law may serve justice, as when it forbids rape and murder or requires a school to admit al students

  regardless of race or nationality. But when it sends young men to war, when it protects the

  rich and punishes the poor, then law and justice are opposed to one another. In that case,

  where is our greater obligation: to law or to justice?6

  The answer is given in democratic theory at its best, in the words of Jefferson and his

  col eagues in the Declaration of Independence. Law is only a means. Government is only a

  means. "Life, Liberty, and the pursuit of Happiness"—these are the ends. And "whenever any Form of Government becomes destructive of these ends, it is the Right of the People to

  alter or to abolish it, and to institute new government."

  True, the disorder itself may become unjust if it involves indiscriminate violence against

  people, as the Cultural Revolution in China in the period 1966-1976 started out with the aim

  of equality but became vengeful and murderous. But that danger should not lead us back to

  the old injustices to have stability. It should only lead us to seek methods of achieving

  justice that, although disorderly and upsetting, avoid massive violence to human rights.

  Should we worry that disobedience to law wil lead to anarchy? The answer is best given by

  historical experience. Did the mass demonstrations of the black movement in the American

  South, in the early sixties, lead to anarchy? True, they disrupted the order of racial

  segregation. They created scenes of disorder in hundreds of towns and cities in the country

  (although it might be argued that the police, responding to nonviolent protest, were the

  chief creators of that disorder). But the result of al that tumult was not general

  lawlessness.7 Rather the result was a healthy reconstitution of the social order toward

  greater justice and a healthy new understanding among Americans (not al , of course) about

  the need for racial equality.

  The orthodox notion is that law and order are inseparable. However, absolute obedience to

  al laws wil violate justice and sooner or later lead to enormous disorder. Hitler, cal ing for

  law and order, threw Europe into the hel ish disorder of war. Every nation uses the power of

  law to keep its population obedient and to mobilize acquiescent armies, threatening

  punishment for those who refuse. Thus the law that inside each nation creates conscript

  armies leads to the unspeakable disorder of war, to the bloody chaos of the battlefield, and

  to international turmoil.

  If law and order are only ways of making injustice legitimate, then the "order" on the.

  surface of everyday life may conceal deep mental and emotional disorder among the victims

  of injustice. This is also true for the powerful beneficiaries of the system, in the way that

  slavery distorts the psyches of both slave and master. In such a case, the order wil only be

  temporary; when it is broken, it may be accompanied by a bloodbath of disorder—as in the

  United States, when the tightly control ed order of slavery ended in civil war and 600,000

  men died in a country of 35 mil ion people.

  The Modem Era of Law

  We take much pride in that phrase of John Adams, second president of the United States,

  when he spoke of the "rule of law" replacing the "rule of men." In ancient societies, in feudal society, there were no clear rules, written in statute books, accompanied by

  constitutions. Everyone was subject to the whims of powerful men, whether the feudal lord,

  the tribal chief, or the king.

  But as societies evolved modern times brought big cities, international trade, widespread

  literacy, and parliamentary government. With al that came the rule of law, no longer

  personal and arbitrary, but written down. It claimed to be impersonal, neutral, apply equal y

  to al , and, therefore, democratic.

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  We profess great reverence for certain symbols of the modern rule of law: the Magna Carta, which set forth what are men's rights as against the king; the American Constitution, which

  is supposed to limit the powers of government and provide a Bil of Rights; the Napoleonic

  Code, which introduced uniformity into the French legal system. But we might get uneasy

  about the connection between law and democracy when we read the comment of two

  historians (Robert Palmer and Joel Colton) on Napoleon: "Man on horseback though he was,

  he believed firmly in the rule of law."8

  I don't want to deny the benefits of the modern era: the advance of science, the

  improvements in health, the spread of literacy and art beyond tiny elites, and the value of

  even an imperfect representative system over a monarchy. But those advantages lead us to

  overlook the fact that the modern era, replacing the arbitrary rule of men with the impartial

  rule of law, has not brought any fundamental change in the facts of unequal wealth and

  unequal power. What was done before—exploiting the poor, sending the young to war, and

  putting troublesome people in dungeons—is stil done, except that this no longer seems to

  be the arbitrary action of the feudal lord or the king; it now has the authority of neutral,

  impersonal law.

  The law appears impersonal. It is on paper, and who can trace it back to what men? And

  because it has the look of neutrality, its injustices are made legitimate. It was not easy to

  hold onto the "divine right" of kings—everyone could see that kings and queens were

  human beings. A code of law is more easily deified than a flesh-and-blood ruler.

  Under the rule of men, the oppressor was identifiable, and so peasant rebels hunted down

  the lords, slaves kil ed plantation owners, and revolutionaries assassinated monarchs. In the

  era of the corporate bureaucracies, representative assemblies, and the rule of law, the

  enemy is elusive and unidentifiable. In John Steinbeck's depression-era novel The Grapes of

  Wrath a farmer having his land taken away from him confronts the tractor driver who is

  knocking down his house. He aims a gun at him, but is confused when the driver tel s him

  that he takes his orders from a banker in Oklahoma City, who takes his orders from a

  banker in New York. The farmer cries out: "Then who can I shoot?"

  The rule of law does not do away with the unequal distribution of wealth and power, but

  reinforces that inequality with the authority of law. It al ocates wealth and poverty (through

  taxes and appropriations) but in such complicated and indirect ways as to leave the victim

  bewildered.

  Exploitation was obvious when the peasant gave half his produce to the lord. It stil exists,

  but inside the complexity of a market society and enforced by a library of statutes. A mine

  owner in Appalachia was asked, some years ago, why the coal companies paid so little taxes

  and kept so much of the wealth from the coal fields, while local people starved. The owner

  replied: "I pay exactly what the law asks me to pay."

  There is a huge interest in the United States in crime and corruption as ways of acquiring

  wealth. But the greatest wealth, the largest fortunes, are acquired legal y, aided by the laws

  of contract and property, enforced in the courts by friendly judges, handled by shrewd

  corporation lawyers, figured out by wel -paid accountants. When our history books get to

  the 1920s, they dwel on th
e Teapot Dome scandals of the Harding administration, while

  ignoring the far greater real ocations of wealth that took place legal y, through the tax laws

  proposed by Secretary of the Treasury Andrew Mel on (a very rich man, through oil and

  aluminum), and passed by Congress in the Coolidge Administration.

  How can this be? Didn't the modern era bring us democracy? Who drew up the Constitution?

  Wasn't it al of us, getting together to draw up the rules by which we would live, a "social

  contract"? Doesn't the Preamble to the Constitution start with the words; "We the People, in order to … etc., etc."?

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  In fact, while the Constitution was certainly an improvement over the royal charters of England, it was stil a document drawn up by rich men, merchants, and slave-owners who

  wanted a bit of political democracy, but had no sympathy for economic democracy. It was

  designed to set up a "rule of law," which would efficiently prevent rebel ion by dissatisfied elements in the population. As the Founding Fathers assembled in Philadelphia, they stil

  had in mind farmers who had recently taken up arms in western Massachusetts (Shays'

  Rebel ion) against unjust treatment by the wealth-control ed legislature.9

  It is a deception of the citizenry to claim that the "rule of law" has replaced the "rule of men." It is stil men (women are mostly kept out of the process) who enact the laws, who

  sit on the bench and interpret them, who occupy the White House or the Governor's

  mansion, and have the job of enforcing them.

  These men have enormous powers of discretion. The legislators decide which laws to put on

  the books. The president and his attorney-general decide which laws to enforce. The judges

  decide who has a right to sue in court, what instructions to give to juries, what rules of law

  apply, and what evidence should not be al owed in the courtroom.

  The lawyers, to whom ordinary people must turn for help in making their way through the

  court system, are trained and selected in such a way as to ensure their conservatism. The

  exceptions, when they appear, are noble and welcome, but too many lawyers are more

  concerned about being "good professionals" than achieving justice. As one student of the

  world of lawyers put it: "It is of the essence of the professionalization process to divorce law from politics, to elevate technique and craft over power, to search for 'neutral principles,'