On Civil Disobedience
by Charles E. Wyzanski, Jr.
“Violent disorder once set in motion may spawn tyranny, not freedom”
DISOBEDIENCE is a long step beyond dissent. In this country, at least in theory, no one denies the right of any person to differ with the government, or his right to express that difference in speech, in the press, by petition, or in an assembly.
But civil disobedience, by definition, involves a deliberate and punishable breach of a legal duty. However much they differ in other respects, both passive and violent resisters intentionally violate the law. So, in general, it is unnecessary in considering the moral qualities of disobedience to spend much time in determining what is the correct construction of the law. By hypothesis the law has been broken, and broken knowingly.
The virtual exclusion of legal topics makes it possible to discuss the morality of resistance to the Vietnam War without answering the question whether the President as Commander in Chief under the Constitution, or as the Chief Executive authorized by the Congress, or otherwise has power to send to Vietnam armed forces regularly enlisted or conscripted, or whether the Constitution gives power to draft men to serve in a conflict not covered by a formal declaration of war, or whether there is any rule of international or domestic law which inhibits the President or the Congress or the armed forces either from conducting in Vietnam any operations whatsoever or any particular operations, or from using any specific methods of fighting or injuring other persons, military or civilian.
There cannot be an issue of civil disobedience unless there is a conscious choice to violate not merely a governmental policy but a technically valid law or order. Only such laws and orders as are ultimately held valid under our Constitution are subject to genuine civil disobedience.
Of course, until the Supreme Court has spoken, a person may not know whether a particular law or order is valid. If because he believes the law is invalid under the Constitution he refuses to obey it until the order has been upheld, he is not in the strictest sense engaged in civil disobedience. Thus many of the recent refusals of Negroes to obey segregation orders of local authorities, though they are popularly referred to as examples of civil disobedience, have been, in fact, nothing more than challenges to laws believed to be and often found to be unconstitutional.
If it turns out that the Supreme Court should hold that the government lacks power to order the induction of men into military training and service for the Vietnam War, then one who had refused to obey the induction order would not have been guilty of civil disobedience. He would merely have been vindicating his constitutional rights.
But if, as I suppose the majority of informed lawyers expect, the Supreme Court, at least during the continuation of hostilities, does not hold an induction order void on the ground of lack of legislative or executive power, then one who continues willfully to disobey is engaged in civil disobedience. The same would be true of one who, on the ground that the funds were used for war, refused to pay taxes, or who in protesting war deliberately injured another’s person or property, or who went beyond argument and persuasion to advocate resistance to lawful orders.
There are many people who have asserted that a man always has an undeniable moral claim to disobey any law to which he is conscientiously opposed. Antigone, Thoreau, and Gandhi are cited. It is contended that resistance to the law is the proper response to the still small voice of conscience.
That extreme position seems untenable. Every time that a law is disobeyed by even a man whose motive is solely ethical, in the sense that it is responsive to a deep moral conviction, there are unfortunate consequences. He himself becomes more prone to disobey laws for which he has no profound repugnance. He sets an example for others who may not have his pure motives. He weakens the fabric of society.
Those disadvantages are so serious that in Principia Ethica G. E. Moore, the English philosopher who set the tone for twentieth-century thought on ethics, concluded that in most instances civil disobedience is immoral. A dramatic precursor of Moore was Socrates. He swallowed hemlock pursuant to an arbitrary Athenian decree rather than refuse obedience to the laws of the city-state which had formed and protected him.
However, it is not here suggested that disobedience is always morally wrong, or that it is never ethically proper for a man to organize opposition to an immoral law even before the state brings its command directly to his door.
There are situations when it seems plainly moral for a man to disobey an evil law promulgated by a government which is entirely lacking in ethical character. If a man has lost confidence in the integrity of his society, or if he fears that unless he acts forthwith there will not come a later day when he can effectively protest, or if (in terms reminiscent of Burke’s metaphor) he seeks to terminate the partnership of the American dead, the American living, and the as yet unborn Americans, then there is much justification for his disobedience.
The gangster state operated by the Nazis presented such a picture to many conscientious men. But no unprejudiced observer is likely to see the American government in its involvement in Vietnam as in a posture comparable with that of the Nazi regime. Nor is there reason to suppose that men must act now or forever be silenced. We are not moving either torrentially or glacially toward despotism.
It is, of course, conceivable that if men resist forthwith, they may forestall grave consequences. It is certain that many, many Americans and Asians will lose their lives if the war continues. It is possible that if fighting is not promptly stopped, the scale will increase dramatically, and at worst, might produce a holocaust of worldwide dimensions.
But what is by no means assured is that resistance would avert those consequences. Historical prediction is clouded by ambiguities. Political developments move to a heterogeneity of ends. No one can tell whether, as the resisters would hope, they, by rallying widespread support, would prove that in a democracy substantial segments of public opinion have the residual power to terminate or veto a war, or, as less implicated observers fear, the resisters, by provoking the responsive passions of tlie belligerent, would set the stage for a revival of a virulent McCarthyism, an administrative system of impressment into the armed forces, and the establishment of a despotic tyranny bent on impairing traditional civil liberties and civic rights.
Most thoughtful men have always been aware how dangerous it is to go beyond persuasion and to defy the law by either peaceful or violent resistance. If the effort is successful, as with the Revolution of the American colonists, then history accepts the claims of the victors that they acted morally. But of the effort not merely fails but produces a horrible reaction, then history is likely to ask whether there were not other courses that could have been more wisely followed.
To illustrate how perplexing is the problem, nothing is more illuminating than the struggle in America in the 1850s and 1860s over the slavery question. Abraham Lincoln thought laws enforcing slavery were immoral. Yet he declared he would endure, and thus aid the enforcement of, slavery in the Southern states if that would preserve the Union. His position was shared by two great jurists of my state who were his contemporaries: Lemuel Shaw, Chief Justice of Massachusetts, and Benjamin Robbins Curtis, Associate Justice of the Supreme Court of the United States, both of whom enforced the Fugitive Slave Law.
But Lincoln’s position was challenged by, among others, two men whom the city of Boston has honored by statues erected after their death — Wendell Phillips and William Lloyd Garrison, each of whom disobeyed the Fugitive Slave Law and wrote approvingly of the murderous violence of John Brown. What should give us even greater pause is that Oliver Wendell Holmes, Jr., the future Justice, in effect adhered to the Abolitionist cause when he joined the small group of Abolitionists who, during the winter of 1860—1861, made themselves responsible for securing the physical safety of Wendell Phillips against the threats of the Boston mobs, a protection which the Boston police seemed unlikely to provide. The details are set forth in Professor Mark Howe’s discriminating biography of Holmes.
If it was morally right to break the laws supporting slavery even when it cost the nation its unity and helped precipitate what, despite W. H. Seward, may not have been an “irrepressible conflict,” one cannot be so certain that it is morally wrong to resist the war in Vietnam if one deeply believes its purposes or methods are wicked.
At any rate the Lincolnian analogy has not the final authority that it may seem to have on cursory inspection. In 1860 and 1861 our country was in immediate grave peril. Lincoln adhered to the ancient Roman maxim that the safety of the people is the highest law. But that maxim has no obvious application today. Even the most ardent supporters of our role in Vietnam would hardly aver that the threat they see in Communism or Asian nationalism is one of such immediacy as existed when the Civil War erupted. Perhaps there are long-term dangers from the Asian and other Communist powers, but one may wonder if Mr. Justice Holmes would have regarded them as either “clear” or “present.” Would not President Lincoln have invoked our recollection not of 1860 or 1861 but rather of 1863 when, the battle of Gettysburg having made a change of policy practical, he issued the Emancipation Proclamation?
In support of the moral right of resistance, another, if cognate, point must be made, however uncongenial it is to me both temperamentally and officially. A man may conscientiously believe that his deepest obligation is to do his utmost to eradicate an evil, to stand athwart a wicked action, forcefully to promote reform, or to establish a new social or legal or religious order. Luther and Lenin serve as archetypes. They share to some degree the view Vanzetti on the eve of his electrocution expressed to his lawyer Thompson: “that, as he read history, every great cause for the benefit of humanity had to fight for its existence against entrenched power and wrong.”
Perceptive observers may support Vanzetti’s social theorem. Anguished souls may yield to its persuasiveness. Effective men may make that vision once again prove its reality.
Yet the fierce passion which moves men to rebel is often, not always, dangerously mixed with vanity, self-righteousness, and blindness to possible, nay probable, consequences far different from those sought. The voice of reason urges, in Cromwellian terms, “I beseech you, in the bowels of Christ, think it possible you may be mistaken.”
Violent disorder once set in motion may spawn tyranny, not freedom. Rebellion may fail to gain its contemplated support, and as surely as in other human relations, result in “the expense of spirit in a waste of shame.”
Or, what is far harder to bear, the rebellion may in form succeed but in substance impose a new oppressive yoke, a nihilistic world regime, or chaos instead of a community of nations. The wager on a finer, purer, more fraternal world order may be disastrously lost. Before one places all one’s strength behind the rebel’s cause, he should have not only naïve faith but that invincible insight which warrants martyrdom.
For men of conscience there remains a less risky but not less worthy moral choice. Each of us may bide his time until he personally is faced with an order requiring him as an individual to do a wrongful act. Such patience, fortitude, and resolution find illustration in the career of Sir Thomas More. He did not rush in to protest the Act of Henry VIII’s Parliament requiring Englishmen to take an oath of supremacy attesting to the King’s, instead of the Pope’s, headship of the English Church. Only when attempt was made to force him to subscribe to the oath did he resist. In present circumstances the parallel to not resisting the Act of Supremacy before it has been personally applied is to await at the very least an induction order before resisting. Indeed, since, when inducted, one does not know if he will be sent to Vietnam, or if sent, will be called upon directly to do what he regards as an immoral act, it may well be that resistance at the moment of induction is premature.
This waiting until an issue is squarely presented to an individual and cannot further be avoided will not be a course appealing to those who have a burning desire to intervene affirmatively to save this nation’s honor and the lives of its citizens and citizens of other lands. It seems at first blush a not very heroic attitude. But heroism sometimes lies in withholding action until it is compelled, and using the interval to discern competing interests, to ascertain their values, and to seek to strike a balance that marshals the claims not only of the accountant and of others in his society, but of men of distant lands and times.
Such restraint will in no way run counter to the rules applied in the judgment of the Nuremberg Tribunal. That judgment recognized that no one may properly be charged with a crime unless he personally participated in it by doing the wrong or by purposefully aiding, abetting, and furthering the wrong. As the Nuremberg verdicts show, merely to fight in an aggressive war is no crime. What is a crime is personally to fight by foul means.
Those who look upon Sir Thomas More as one of the noblest exemplars of the human spirit reflecting the impact of the love of God may find a delayed civil disobedience the response most likely to give peace of mind and to evidence moral courage.