Desperate Times, Desperate Measures: Civil Disobedience and the Rule of Law
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Civil Disobedience : An American Tradition
author: Lewis Perry
publisher: Yale University Press
pub date: 10.22.2013
pp: 424
tags: Law , History

Jessica Pishko on Civil Disobedience : An American Tradition

Desperate Times, Desperate Measures: Civil Disobedience and the Rule of Law

February 11th, 2014 reset - +

ON JULY 8, 2013, inmates at Pelican Bay State Prison in Northern California initiated a hunger strike to protest the conditions and overuse of SHUs (Segregated Housing Units). Inmates confined to the SHU are kept in a windowless room for up to 23 hours a day; some have been in the SHU for decades, despite clear and mounting evidence that solitary confinement causes definitive psychological harm and is tantamount to torture. Within a few weeks, some 30,000 prisoners all over California participated in the hunger strike. The movement issued a list of demands, including such reasonable items like ending long-term solitary confinement, permitting inmates a weekly phone call, and providing adequate food.

Wilbert Rideau, the well known editor of The Angolite and someone who suffered innumerable injustices under racist penal policies — including over a decade in solitary — eloquently defended the Pelican Bay hunger strikers in a New York Times editorial this summer. He writes that prisoners, who have so much to lose and are unlikely to succeed, still protest because they are “made desperate by the lack of options to address their grievances.” For an inmate in solitary, denied access to writing materials and unable to vote, hunger strikes are the only way to bring to light conditions about which people on the outside lack information. Such protests seem like the epitome of civil disobedience, and as Lewis Perry suggests in his book Civil Disobedience: An American Tradition — they demonstrate the link between civil disobedience, citizenship, and the rule of law.

Perry, a history professor who has written well respected books about slavery and American intellectualism, argues that nonviolent protests, like hunger strikes, are a long-standing American tradition, mediating the competing American values of “revolution” and “submission to majority rule.” Perry’s book serves as a useful history of civil disobedience from prerevolutionary days to the present, though it avoids an overarching theme or interpretation. This can make an elusive concept even more slippery: for example, civil disobedience generally refers to breaking laws that are unjust, as in the case of the 1960 lunch counter sit-ins. There, African Americans sat in “white only” areas in order to protest Jim Crow laws; their act was designed specifically to draw attention to racial disparity (their action later legitimized by corrective Supreme Court rulings). Yet, as Perry points out, the term “civil disobedience” was also adopted by a group urging college students to lie about their race on college applications in order to protest affirmative action. Is such lying properly considered civil disobedience?

The term was popularized by Henry David Thoreau’s essay “Resistance to Civil Government,” which was renamed “Civil Disobedience” only years later. Thoreau did not think of himself as practicing civil disobedience, but his emphasis on doing what he, as an individual, thought of as “right” (even if it meant suffering punishment) is a theme that continues to resonate with other groups today. Civil disobedience is perhaps best generalized as intentional lawbreaking with the aim of revealing injustice. Perry traces the beginnings of civil disobedience in religious and moral authority — the idea that individuals should adhere to a higher law than current laws of the land. Over time, the religious overtones gave way to an emphasis on abstract notions of justice, of what it means to live in a just society.

Perry goes on to delineate some of the basic rationales behind civil disobedience as well as the tensions in that reasoning. Perry seems most interested in tracing the fault lines in civil disobedience theory: moral authority versus media coverage? Individual consciousness versus higher power? Righteous law-breaking or general disorder? Civil disobedients, Perry posits, paradoxically respect the law and societal institutions (like courts) while feeling, at the same time, that they cannot acquiesce in perceived immoralities perpetrated by those same institutions. While civil disobedience is not mentioned in the Constitution — indeed, the Founding Fathers were fairly allergic to all forms of law-breaking — some people have taken the incorrect and paradoxical view that the First Amendment protects civil disobedience. But it would also be wrong to say that civil disobedience has no relationship to fundamental rights, because such individual rights are frequently the basis of civil protest movements.

Civil Disobedience points out another important contradiction: if a citizen submits herself to the workings of a democratic government, then she must also submit herself to the punishment which comes from civil disobedience. Influential thinkers like Martin Luther King Jr. and Gandhi instructed their followers to peacefully submit to arrest and punishment. On the other hand, if the laws are unfair, then isn’t the punishment for breaking them also unfair? Perry somewhat frustratingly doesn’t really answer this question; instead he provides examples showing that no one who participates in civil disobedience agrees on what it means.

Perry rightly gives credit to the antislavery and civil rights movements for generating the most discussion about civil disobedience. He takes pains to discuss the role of black abolitionists, who protested laws that denied them the rights of citizenship. For such leaders, the only way to assert humanity was to defy the codified law of slavery. What are the obligations of someone who is not bestowed the rights of full citizenship to submit to the rule of law? In a just world, Perry points out, those individuals should have less to fear in terms of punishment, but it wasn’t a just world. In any case, African-American antislavery activists never gave up their claims of citizenship even as they broke the law.

Perry also points out that civil disobedience hasn’t always been “nonviolent” in the strictest sense of the word, and he seems interested in correcting the notion that civil disobedience is necessarily correlated with peaceful means. African-American antislavery protestors, for example, were willing to tolerate some violence in order to achieve their goals, especially on the grounds of self-defense. Further, what may seem peaceful to some is disruptive to others, such as harassing public figures to force their resignation, blocking college administrative buildings, or camping in Zuccotti Park.

Throughout the student protests of the 1960s, another theme emerged — if lawbreaking becomes commonplace, does it lose its power to shock? Perry cites one student protestor as stating that causing general disorder on campus is a way of protesting against a laundry list of repressive institutions — the draft, capitalism, and campus authority. Some of the student protests at Berkeley during the 1960s seem to simply resist the notion that school authorities had the right to limit student activism. Do those protestors, then, deserve punishment because they are breaking laws unrelated to the government policies at issue?

Today, the idea of nonviolent public protest is central to our notion of democracy. Activist groups as diverse as Occupy Wall Street and the religious right borrow the terminology. Perry discusses more recent forms of civil disobedience, focusing on the antiabortion movement for its well documented use of traditional tactics (sit-ins, blocking) and their justification on the basis on individual freedoms (the “right to life”). He omits hackers like Anonymous who try to evade detection and punishment as contrary to the civil disobedience tradition. In Perry’s view, hackers aren’t participating in civil disobedience if they hide their identity.

Perry is admirably sympathetic to political movements that are hard to justify morally. For example, he includes a discussion of the Southern states’ protests against the ruling in Brown v. Board of Education as a form of civil disobedience; the KKK’s acts were social protest against desegregation. Of course, the KKK was frequently violent, but they and other white supremacists did engage in acts like sit-ins and protests, which more closely align with civil disobedience.

Legally, what is the difference between civil disobedience and acts of lawlessness? Most of the time, the law does not consider intent in lawbreaking. In United States v. Schoon, the Ninth Circuit distinguished between two types of civil disobedience: one that breaks the law it protests (e.g., civil rights protestors deliberately breaking Jim Crow laws) and the other that defies other laws in order to make a public point (like protestors blocking a sidewalk). The protestor is still guilty for the crime committed, not for the law under attack. Legally, neither breaking the law to make a broader social statement nor breaking it to protest the specific law is an adequate defense.

Some civil rights advocates felt that change should always happen not through civil disobedience but through the courts, and this was true throughout the women’s suffrage movement, as well. On the other hand, some leaders felt that change through the courts or Congress was too slow, and sometimes the courts make errors of judgment — witness the retrospectively poor judgment in Dred Scott or Plessy v. Ferguson. On the flip side, sometimes social and political pressure can push the tide toward a test case — the recent Supreme Court case striking down the Defense of Marriage Act comes to mind as an example. The choice to go to court always requires the selection of certain laws to oppose, which means that change must be slow and detailed. This contrast becomes more obvious in Perry’s discussion of the student social protests during the 1960s. Many of their grievances were directed toward oppressive institutions in general, and such objections are not suitable for court action, because they don’t address specific laws.

Does this mean that all civil disobedience that results in lawbreaking should be avoided? Some legal theorists, like the late dean of Harvard Law School Erwin Griswold, argue that lawbreaking should be punished equally, whether the justification is because the law is unjust or not. Griswold argued that those who break the law should be prepared to face the consequences. To do otherwise would demonstrate disrespect for the laws and rule of democracy. He justifies this argument by pointing out that morality does not necessarily equate with legality.

Griswold’s argument, however, as the legal scholar Ronald Dworkin countered, is legally flawed. Not all examples of lawlessness are prosecuted; prosecutors always have discretion when choosing to prosecute crimes. Some laws may be unpopular and rarely enforced; others may be selectively enforced. Consider for example the enforcement of drug laws in poorer urban neighborhood as opposed to more affluent suburban ones. It’s just not true that everyone breaking the law should be punished. Morality and legality aren’t always equivalent.

But the sense that they should be penetrates all of American democratic society. When religious organizations refuse to pay for birth control, as required under the Affordable Care Act, is that civil disobedience? In such cases, objectors usually take refuge in the Constitution, evoking fundamental rights — such as the right to religious freedom — as something that supersedes all other laws. Civil rights advocates made much the same argument, positing that the Constitution made all men equal; therefore, any laws that purported to subjugate on the basis of race were invalid.

Both sides accept the legitimacy of the lawmaking process, and belief in that process is necessary if civil disobedience is to have any meaning. Punishing civil disobedients, however, may not make sense — participants in the civil rights movement who disobeyed racist laws had no incentive to be deterred, whether they were punished or not. When a society deprives a group’s fundamental rights, threats of punishment ring hollow.

As in the Pelican Bay hunger strikes, civil disobedience can be used to bring to light unfair conditions and initiate changes in laws. The California Department of Corrections and Rehabilitation retaliated against the hunger strikers by cutting off their access to television, radio, and other news, restricted other privileges, and sent some people to “administrative segregation” — an even more punishing form of solitary where inmates are deprived of nearly all human contact. The CDCR’s official statement was that the hunger strikes were primarily caused by inordinately powerful prison gang leaders. Most of the inmates’ demands were not met; however, the state has agreed to hold public hearings on the use of solitary.

Perry doesn’t address the use of civil disobedience by incarcerated individuals. Hunger strikers are not really disobeying a law, but they are giving authorities the opportunity to demonstrate the arbitrariness of punishment, which only reinforces the hunger strikers’ cause and draws attention to the inhumaneness of their treatment. Furthermore, as with the case of African-American protestors during the pre–Civil War era: do inmates owe the law the same deference if they are not treated as full citizens of this country? While Perry does an excellent job recasting the US tradition of civil disobedience, he doesn’t really address this question.

Perry sees the predictability of civil disobedience tactics, and their widespread recognition, as good signs. Police at the University of California, Davis recognized the gestures of civil disobedience — protestors linking arms, for example — as defiance and a sign of the students’ refusal to disperse, and this shows that the tradition is alive and well. In a widely publicized incident, those students were doused with pepper spray, which, given the ubiquity of internet video, only served to bolster the cause of the protestors. Perry ends his book with a discussion of how the use of nonviolent protests throughout the world may well enhance this American tradition. Such uses of civil disobedience, as in the Arab Spring uprisings, may begin to provide a more nuanced understanding of the relationship between lawlessness and citizenship.

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Jessica Pishko practiced corporate law and represented death penalty clients and victims of domestic abuse pro bono. Her novel-in-progress is about an unsolved mystery.

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