Against civil disobedience

Eugene Volokh points out, with reference to the “Nuremberg Files” case, that some of the tactics of some elements of the civil rights movement were similar to some of the tactics of some elements of the anti-abortion movement: at least similar enough to be legally indistinguishable. (There’s a substantive difference between threats of violence backed by occasional window-breaking and threats of violence backed by systematic property destruction and occasional murder, but it’s not obviously a legally cognizable difference.) He draws the conclusion that the bounds of free speech should be drawn broadly enough to protect the Nuremberg Files operators. The same conclusion is often drawn about various forms of “civil disobedience”: since the civil rights movement was justified in using them, then it would be unreasonable to deny them to other groups.

In general, I endorse, and practice, the intellectual strategy of considering the limits on legitimate political tactics without reference to the purposes for which they are to be used: bracketing, arguments from symmetry, geese and ganders, whatever your favorite metaphor is. You can’t say “Vote stealing is OK if Democrats do it but should be forbidden to Republicans.”

But it’s also true that desperate circumstances call for desperate measures, and it’s wrong to then try to re-import the standards of desperation into ordinary activity. Michael Walzer once said that “You can prove anything using Hitler”: i.e., since virtually any tactic would have been justified to defeat Hitler, it’s possible to argue that no tactic should be ruled out absolutely. But, as Walzer said, that proves too much: unless we’re actually confronting Hitler, arguments about what would be justified if we did confront Hitler lose their force. The same applies to arguments from things Lincoln did — such as arresting the successionist majority of the Maryland Legislature — to win the Civil War.

The system of racial subjugation that prevailed in the American South between the end of the First Reconstruction in the great sellout of 1876 and the Second Reconstruction that started in the late 1940s was truly a desperate circumstance. It was maintained both by law and in defiance of law (both the ordinary criminal laws and the Constitution). Since it involved the illegal denial of the right to vote, recourse was not available through the ballot box. Since the local judiciary was largely complicit, recourse was not available through the courts. There was no reason to think that the white majority could be persuaded to give up its caste privileges.

It was a circumstance that, by the standards enunciated by Locke and Paine, would have fully justified armed revolution. But armed revolution, too, was infeasible, even if it had been desirable. (Which, because of the other virtues of the American Republic, it would not have been.) So the civil rights movement mounted an unarmed, predominantly non-violent, revolution, which was largely successful. Its goal was not to overthrow governments, but to overthrow the system of subjugation. In the course of that revolution, many things were done that would have been intolerable in the context of ordinary democratic politics and ordinary civil life. Violence was threatened, and sometimes used (though of course the violence on the other side was incomparably more pervasive and more deadly). Property was destroyed, and property-owners intimidated. Parts of the Federal judiciary, including the Supreme Court, became “result-oriented,” and stretched the judicial function, and various other statutory and Constitutional provisions, to or beyond the tearing point in trying to finally put the Reconstruction Amendments into practice.

I’m glad that happened: not glad that otherwise improper means were required, but glad that, given their necessity, they were used, and used successfully, by an interracial coalition. But, now that the revolutionary phase of the struggle is behind us, I see no reason to pretend that those means were, in themselves, other than improper. Everything William F. Buckley said about the tactics of the civil rights movement and about how lawbreaking for political ends sets a bad precedent was true. All the falsehood was in what he and his friends didn’t say: what Mark Twain, writing about slavery, called “the silent lie.”

So I see no reason to extend any license to use such tactics to anti-abortionists, animal rightsers, deep ecologists, or opponents of the coming war with Iraq. There is no general right of civil disobedience, and no general legitimacy to its use as a political tactic. If Operation Rescue and Earth First! want to act like racketeers, punish them as racketeers. (Though I’d be open to the argument that the RICO statute, passed in the face of the war waged by the Mafia against the wider society, was another measure of temporary necessity that should now be abandoned.)

But, I hear you say, the people who believe that abortion is murder face a situation quite as desperate as the one that confronted the civil rights movement. That’s right. If you really, truly believe that abortion is murder, then you have good reason, from your perspective, to threaten or use violence to stop it, or to mount a revolution if you can. (That’s why no one should say it who hasn’t calmly reflected on the implications should say “Abortion is murder.”) Since I don’t believe that abortion is murder, I have no good reason, from my perspective, to tolerate such actions. Bracketing can only carry you so far; eventually you’re forced to take a stand on the substantive moral questions.

Take, for example, People for the Ethical Treatment of Animals. As it happens, I agree with them that lots of what goes on in factory farms is needlessly cruel, and ought to be stopped. But since I don’t agree with them that doing bad things to animals is as bad as doing bad things to human beings, I don’t think they’re justified in using extreme tactics in a cause that might very well prevail — at least as much as it deserves to prevail — through persuasion. Similarly, I oppose cutting old-growth forests, but insofar as that fight can’t be won in the legislatures and the courts I don’t concede the legitimacy of winning it through tree-sitting, let alone tree-spiking.

You can prove anything with the civil rights movement. But not everything so proved is true. Put me down as an advocate of law and order.


[Sam Heldman wrestles with the same question and finds a different answer.]

Jane Galt thinks I’m just saying that anyone I agree with gets to break the law. (She also comes up with the perfect name for the fallacy I was trying to criticize: Argumentum ad Crowium. I intend to steal that line.) But her post makes it clear that I succeed in making myself misunderstood. My bad.

I’m not saying that what the civil rights people did was all right as a matter of law. It wasn’t. I’m not saying that it “deserved a pass” as a matter of law. It didn’t. I think Claiborne Hardware was wrongly decided, as a matter of law.

But there are (very rare) times when it’s morally legitimate to break the law, and maybe even (if you’re a judge) to twist the law, and the Second Reconstruction was one of them.

It is simply not the case that the white majority in the South was “persuaded” to give up its caste privileges, unless you call what a bank robber does “persuading” the teller to hand over the money. Equality, or some approach to equality, was imposed on the white South by Federal law — some made by the Congress and some made by the courts — and in some cases at the point of Federal bayonets. Once that was done, most white Southerners came to accept it, and blacks had enough power through the ballot box and the courts to protect their new-won rights.

If you think — as a considered moral judgment, not as a slogan — that abortion is murder, then now is another time when breaking the law is justified. If such is your considered view, we disagree about that. Not disagree as in “agree to disagree,” but really disagree. You may see it as your clear duty to break the law, to threaten violence, even to inflict violence. And I will see it as my clear duty to try to have you punished to the full extent of the law.

That’s part of the reason the abortion issue is a litmus test for both sides of the debate: the pro-choice forces suspect, not without cause, that some — not all — “pro-life” judges will feel justified in twisting the law (as in the case of the judge Michael McConnell defended in his First Things article).

As I thought I’d made clear, I do not think that the moral justification for breaking the law extends to every cause I support. It doesn’t extend, for example, to environmental protection or the prevention of cruelty to animals. It’s a once-a-century thing.

I’m not going to pretend that I regret that the civil rights movement did what had to be done to drive a stake through Jim Crow’s heart. But I’m also not going to make that a license to break the law every time the democratic process produces a result you sincerely think is wrong.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: