Under a government which imprisons any unjustly, the true place for a just man is also in prison.
—Henry David Thoreau
For almost two decades America has been buffeted by two simultaneous political upheavals: a widespread and impassioned resistance to the war in Indochina and a seemingly endless revolution in the relationship between races. Either of these might have shredded less resilient political systems; there has been resultant repression, but there has been less during this period than in some other, less turbulent, eras.
Despite the repression, and despite occasional outbreaks of insurrectionary violence, this country is far from coming apart at the seams. Does this considerable success of our political and legal institutions mean that civil disobedience is never called for? Let us not forget that much of the credit for our movement forward belongs to yesterday’s civil disobedients—citizens passionately opposed to what seemed to be intolerable moral and political evils. They abjured revolutionary violence against the state, but nevertheless violated the law in order to make their protest effective.
Civil disobedience is as much a part of the American system, as much responsible for its successes, as trial by jury and presidential elections every four years. At the pivotal points in our history, marking virtually every important step forward, politically motivated lawbreaking provided a significant push.
Dr. Martin Luther King spoke for an important American tradition when he said that he never felt more a partner in the making of American law than when he was in jail for breaking the law. What I find remarkable is that after two hundred years of this sort of partnership, we have not made room for civil disobedience in our conventional political and legal theory. Our institutions are consequently out of touch with reality in important and dangerous respects.
A citizen has the raw power to choose whether or not to obey the law, whether to comply or risk punishment. Ordinarily, his approval of the law or his fear of punishment will secure his obedience. But what is there to guide his discretion if he believes that a law is unjust, or that only disobedience can influence the political process?
Sometimes politically motivated lawbreaking serves our long-term interests, sometimes it is a dangerously destabilizing influence, and nothing more. Civil disobedience must be recognized, however, as an integral part of our system of government. We should seek a role in guiding its impact and in keeping it within bounds likely to serve, rather than destroy, our deepest values. We must develop principles by which to gauge our response to its regular reappearance.
Since there is nothing comparable to the Bill of Rights which tells us when political disobedience is justified, we must look for guidance to various types of civil disobedience: how they have actually functioned in the political process, and what are the arguments advanced by supporters and detractors of the method.
Civil disobedience is a deliberate violation of law by an individual, in his political capacity as a citizen, to express his objection and opposition to some governmental activity. It may be intended to provoke major changes of law, policy, or social structure, but it is “civil” only if it seeks to do so within the general constitutional framework. An individual who tries to solve his financial problems by theft acts as a criminal. One who, by sitting-in at a construction site, tries to eliminate the job discrimination that keeps him impoverished, acts as a citizen. He openly violates the letter of the law in an attempt to preserve the spirit of social justice which should inform all laws.
The civil disobedient acknowledges his ordinary duty to obey law. He disobeys because he believes that the particular law or a particular political policy contradicts in a fundamental way the ethical basis of his citizenship obligations. His violation of law is conscientious, motivated by the obligations imposed on him by his conscience to pursue right and avoid wrong.
Direct Civil Disobedience
Whatever the moral standards by which a citizen of a democracy concludes that his obedience to a particular law would work an injustice, he is faced with a dilemma. Henry David Thoreau, who coined the phrase “civil disobedience,” in his famous essay, put it this way:
Unjust laws exist: shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once?
Many citizens with a strong sense of right and wrong have agreed with Thoreau that “What I have to do is see, at any rate, that I do not lend myself to the wrong which I condemn.” He counseled direct disobedience of any law that “is of such a nature that it requires you to be the agent of injustice to another.”
A major provocation of this sort of disobedience has been laws which work as an injustice to racial minorities. When Ralph Waldo Emerson read the Fugitive Slave Law of 1850, the immediate reflex of his conscience was: “By God, I will not obey it.” Martin Luther King, in “Letter From Birmingham City Jail,” wrote that “segregation is not only politically, economically and sociologically unsound, but it is morally wrong and sinful.”
An equally persistent motive for direct civil disobedience has been the conflict between the general moral obligation not to take the life of another, and the laws by which the government conscripts manpower for the “legal” killing of war. “Conscientious objectors” are not civil disobedients; they are granted an exemption from combat under the draft laws which defer to the scruples of their consciences.*
* In 1863, the first federal draft law made no mention of “conscientious objectors,” but it did permit an individual to procure a substitute or to pay the War Department $300 to do this for him. This obvious injustice led, in part, to the Draft Riots in New York and elsewhere and to a new Draft Act in 1864. The steady pressure of disobedient protest directed at the provisions of successive conscription laws has provoked increasingly generous attempts to accommodate the obligations of conscience with the obligations of citizenship. The new law in 1864, for example, exempted persons “conscientiously opposed” to bearing arms because of the prohibitions of their “religious denominations.” Those exempted were required either to perform hospital duty or to pay $300 for the benefit of sick and wounded soldiers.
Although it permitted a much more equitable accommodation of conscience, the 1864 law introduced a concept quite alien to our political system by conditioning conscientious exemption on religious affiliation. As a secular state, America is committed to the principle that religious beliefs should not affect the distribution of privileges and burdens among her citizens. In 1940, the concept of conscientious objection expanded, but it still legitimized only those pacifist scruples rooted in “religious training and belief.” The provision remained an oddity in our law until the Supreme Court, in the face of mounting protest, struck it out in 1965. United States v. Seeger, 380 U.S. 163 (1965).
Obviously, a great many potential conscientious objectors became direct civil disobedients because, through the world wars and a good part of the Vietnam conflict, our law recognized an individual’s conscientious opposition to participation in war only when it was grounded in beliefs, about a Supreme Being, programmed into him by a religious sect.
But in all our wars, and particularly during the Vietnam war, a significant number of persons who would have qualified as conscientious objectors under the law at the time, chose to disobey even the provisions of the draft law by which they might secure exemption. For these absolutists, any cooperation with the government’s institution for organizing men to kill others is morally repugnant. Even registering for the draft as conscientious objectors, they feel, would lend them to the wrong they condemn.
War produces other kinds of direct civil disobedience. There are those conscientiously opposed, not to war in general, but to some particular piece of killing. This group, too, has been particularly large in recent years. Many Americans, ultimately a majority, were simply not persuaded that our national security was sufficiently threatened by the “enemy” in Indochina to override our ordinary abhorrence of inflicting death and destruction on fellow men.
Others chose to disobey directly when the dictates of conscience could not countenance a particular military order. Captain Howard Levy refused to train Green Berets because he felt, as a doctor, that he could not lend himself to the atrocities of which he believed the Special Forces culpable. Less well known is the case of Staff Sergeant Herschel Poplin. He was assigned to the army’s Psychological Operations Unit in Okinawa where his duty was to write material for use in the army’s “psy-war” effort. The order Poplin refused to obey is classified, its exact nature unknown; but we do know that in November 1970, he refused to prepare a pamphlet to be dropped over North Korea for the edification of survivors in the event that our country dropped a weapon of mass destruction there. It was only “contingency planning,” but Poplin was horrified at the possibility that to obey would, if the contingency arose, make him responsible for aiding and abetting a war crime.1
When a citizen goes to prison to point to the gap he perceives between legal duty and morality, the rest of us are forced to reexamine the accuracy with which our law reflects our own values. When an act of direct disobedience touches upon a common chord of conscience in the nation, it can work a shift in political attitudes which makes possible a degree of social change beyond the power of mere law reform to evoke. Segregation ordinances have disappeared and the draft law has changed under the pressure of direct civil disobedience, but more remarkable is the quickening of the American conscience regarding racism and war.
Direct civil disobedience may, however, involve more than an appeal to the national conscience; it may be an appeal to the Constitution itself. Some 86 federal laws, and over 700 state and municipal enactments have been declared unconstitutional by the United States Supreme Court.2 In many cases the process of conforming law to the Constitution has depended on some citizen’s deliberate disobedience; in some cases it is the only way, in our system, to get a ruling. We are accustomed to acknowledging this when a protest is provoked by laws restricting freedom of speech or by laws designed to preserve racial discrimination. But the law-testing function of direct civil disobedience goes well beyond such familiar ground. In 1961, for instance, Planned Parenthood made birth-control information and contraceptive devices available in New Haven in a deliberate attempt to test the constitutionality of Connecticut’s law prohibiting it. The case reached the Supreme Court in 1965, and the law was struck down.3
Of course, appeals to the Constitution by civil disobedients are not always successful. A number of the draft resisters and soldiers who disobeyed orders to report for induction or to report to Vietnam hoped that their protest would be the occasion for the Supreme Court to rule the war unconstitutional. But the Supreme Court, in at least a dozen cases since 1967, has refused even to consider the issue, treating it as a “political question.” In lower court cases where it was considered, the constitutionality of the war was upheld.
Indirect Civil Disobedience
Political consequences become a central consideration of civil disobedience when it is indirect, when there is a violation of a morally neutral law in order to protest some related evil.4 The indirect civil disobedient may be protesting the absence of a law where a need for one is felt. The targets of indirect civil disobedience are in fact unlimited; the means are potentially as many as there are laws to break.
An indirect civil disobedient may, like the direct civil disobedient, seek his political goal for reasons of morality, but the disobedient form of his protest is usually a matter of political calculation, and he must look for his vindication to the political consequences of his conduct as well as to his conscience.
His political purposes may be to gain publicity for his views, or to provoke a confrontation through the inconvenience and embarrassment his law breaking causes others. The draft-board raids of the Catholic Left were not carried out to question the morality of laws against breaking and entering, trespass, or destruction of government property: they were attempts to communicate a political protest indirectly but in as dramatic a way as possible.
Blacks who have unsuccessfully petitioned their city hall for installation of traffic lights at a dangerous intersection in the ghetto have sharpened bureaucratic awareness of their demand by organizing groups to block the intersection with their bodies. Here too the political pressure is clear and limited; it can be weighed against the consequences, good and bad, by protester and critic alike. But traffic law violations have been chosen as the vehicle for much more ambitious protests. In the Mayday demonstrations which disrupted Washington in the spring of 1971, protesters who believed that no political business was more urgent than bringing an immediate end to the war immobilized traffic to protest government “business as usual.” Here the purpose of the conduct was less clear, the message was harder to hear through the disorder, and the consequences, good and bad, harder to weigh.
At the furthest edge, indirect civil disobedience merges into revolution. The Whisky Rebels had a powerful argument that the Federalist liquor excise tax was unjust, but in their protest they interfered with the federal mail, fired on troops, tarred and feathered excise collectors, and set fire to the home of the man charged with executing the obnoxious law. Today, antiwar elements have been frustrated by the continuing carnage in Indochina, but in their search for peace some have moved from dissent through protest and civil disobedience to indiscriminate criminality. Indiscriminate lawbreaking may be political in motivation, but by denying completely the authority of civil government, it is not civil disobedience whatever its results.
Thoreau believed that the rule, “Let your life be a counter friction to stop the machine,” applied only when the law directly “requires you to be the agent of injustice to another.” Mario Savio was speaking for a more militant view when he attempted to update Thoreau for the 1960s:
There’s a time when the operation of the machine becomes so odious, makes you so sick at heart, that you can’t take part. And you’ve got to put your bodies upon the gears and upon the wheels, upon the levers, upon all the apparatus, and you’ve got to make it stop.
By the end of the sixties, civil disobedience was frequently so indirect that it seemed to aim, not at the reform of some mechanism of government, but at incapacitating and discrediting the power of the people behind it. “Shut it down!” tended to replace “Freedom Now!” as the rallying cry of the civil disobedients.
Because indirect civil disobedience is a thoroughly political art, negative reactions in the body politic serve as a kind of corrective to irrational excesses. In the last two years we have seen, I think, a return to more discriminating and politically sensitive uses of the tactic. The crewmen who jumped into the Pacific from the carrier Constellation as it sailed for Vietnam in October 1971, and the veterans who seized one of the nation’s dearest symbols—the Statue of Liberty—in New York’s harbor in December of that year were indirect civil disobedients who understood the political limits and potentials of the device.5
How can we know when civil disobedience is politically creative and when it is merely disruptive? In a way, if a man breaks the law for a cause vindicated years later, he may be said to have been justified. But the problem is infinitely more complex. A saint may go to jail for a lost cause. An individual with a fanatical commitment to some genuinely good end might employ extreme and reprehensible means. Does the historical judgment that slavery is immoral vindicate both the underground railroaders and John Brown?
Our insensitivity to these problems is getting us into trouble. The war in Vietnam evoked such resentment, disgust, and political frustration that civil disobedience became almost the norm. Yet we have no way to distinguish between the personal affirmations of conscience by draft resisters, the symbolic disobedience of the Catonsville Nine, the limited trespass of a sit-in at the Capitol, the mayhem of the Mayday Tribe, and dangerous disruption such as the burning of ROTC buildings and the bombing of the Capitol. In our system, they are all simply criminal.
As a result, some of the best men of our time, men of conscience and intelligence committed to serving right and opposing evil, are imprisoned as common criminals. Muggers, rapists, and murderers, jailed for unprincipled lawlessness committed in the course of some heinous pursuit, inevitably claim equal moral status as political prisoners. By his deliberate blindness to the difference, Vice-President Agnew demonstrated a lack of intelligent discrimination dangerous in a leader of public opinion when he castigated “the whole damn zoo” of “deserters, malcontents, radicals, incendiaries, the civil and uncivil disobedients.”
This is no more proper or helpful than the rhetoric of the far left that views every trial as a political contest and every law as an instrument of repression. By ignoring the obvious distinctions between a Berrigan and a bomber, between a Martin Luther King and a mugger, political leaders encourage a kind of romanticism about unprincipled lawbreaking which has already infected our youth and the editorial columns of some of our leading newspapers.
Ordinary crime may be politically motivated in a sort of psycho-sociological sense; like the ghetto riots of the 1960s, it may be the unthinking reflex of individuals frustrated beyond endurance by the failure of the political system to deliver on the American dream. Such lawbreaking is likely to have political consequences, but it is obviously different, both morally and politically, from self-sacrificing disobedience compelled by conscience or chosen carefully for a limited political purpose.
One reason for these confusions is that while disobedients may attempt to offer a justifying rationale, only some justifications are actually respectful and preserving of the rule of law. Perhaps we can find, in the debates over justification which have flared up around each civil disobedience protest movement, some rules to guide us.
Notes
In Part III, all quotations from Dr. Martin Luther King, Jr. are from his “Letter from Birmingham City Jail,” reprinted in Hugo Adam Bedau, ed., Civil Disobedience: Theory and Practice, pp. 72–89; all quotations from Henry David Thoreau are from his essay, “Civil Disobedience,” reprinted in Bedau, pp. 27–48; and all quotations from Mohandas Gandhi are from his Non-Violent Resistance (Kumarappa ed. 1961).
- Poplin was not court-martialed for refusing to obey the order to write the pamphlet. Instead, he was harassed with petty orders and charged with nit-picking infractions until he went AWOL for eleven days. The ordinary sentence for such an unauthorized absence is two weeks in the stockade, but Poplin’s special court-martial punished him by restricting him to his unit and busting him to private. He requested the court, in vain, to order him imprisoned rather than returned to “PsyOps” duty, for he felt he could no longer conscientiously participate in the unit’s psychological warfare operations. Once back in his unit, he refused to obey further orders, and he finally refused to don his uniform or salute his superior officers. A general court martial on fifteen charges for such offenses ended with a compromise sentence of nine months in the stockade. His appeals were exhausted in November 1972. The Poplin case received a great deal of attention in the Japanese press but, strangely, very little attention in the United States. Peter Weiss and Mark Amsterdam of the Center for Constitutional Rights, who handled his general court-martial and appeals, related the history of the case to me.
- Leon Friedman, The Wise Minority (New York: Dial, 1971), p. 152.
- Griswold v. Connecticut, 381 U.S. 479 (1965).
- For the useful distinction between direct and indirect civil disobedience, and for much of the analytic basis of this part of the discussion, I am indebted to Carl Cohen, Civil Disobedience: Conscience, Tactics and the Law (New York: Columbia University Press, 1971), pp. 51–75.
- See Steven R. Weisman, “How Are We Doing On the Networks?” The New York Times, January 2, 1972; Vin McLellan, “The Statue of Liberty: Captive or Compatriot?” The Village Voice, January 6, 1972.
Editor's note: This chapter was written by Charles E. Goodell and originally published in Political Prisoners in America (Random House, 1973), Chapter 18, pp. 299–309. Reproduced by permission.
