To the Editor:
“Vietnam and the Law” by Beverly Woodward [November 1968] quite properly makes a case for deliberate violation of the law in our society for the purpose of achieving reform. But the author’s ingenious construction of the new category “civil challenge,” which she distinguishes from civil disobedience, is wholly artificial and unnecessarily confusing, resting as it does on a misconception of what civil disobedience is.
Miss Woodward evidently believes that civil disobedience entails the passive acceptance of consequences for law violation, that it is impermissible for the civil disobedient to raise technical defenses, and to use the legal system to his advantage—perhaps to his eventual acquittal. Acceptance of the consequences is certainly a philosophical tenet of civil disobedience but there is no reason to believe that establishing a defense is inconsistent with the disobedient’s ultimate willingness to be punished. In fact, the civil disobedience is more effective if there is a lengthy legal proceeding during which the issue is ventilated and, hopefully, the sympathy of the public is enlisted. Reforming zeal rather than personal martyrdom is the animating force of civil disobedience.
Secondly, Miss Woodward asserts that civil disobedience seeks change through legislative or executive action, while civil challenge seeks change via the judiciary. What the basis for this division is, since the result of civil disobedience is arrest and trial, I cannot fathom. Moreover we are told that civil disobedience appeals to moral laws while civil challenge appeals to “the highest laws of the polity.” Many civil disobedients have based their disobedience on the belief that the law they violated was inconsistent with “the highest laws of the polity,” as did the sit-in demonstrators. Anyone who protests may eventually invoke morals or natural law, but it is unfair to portray civil disobedience as a quixotic quest while civil challenge is a hard-nosed, practical tactic.
Fundamentally, Miss Woodward is in confusion about what law is. She seems to find meekness in civil disobedience, since its practitioners “recognize” the validity of the law, while civil challenge is directed only at law “without legal validity.” But Miss Woodward herself admits that it is the courts which must pass on the validity of laws, and this can happen only after disobedience has taken place. Therefore it is mistaken to maintain that civil disobedients by their protest recognize the validity of the law. . . . And since any legal system requires that enacted law be presumed valid so that the system can operate, one can usually talk only about laws that seem out of tune with our national philosophy and purpose, not laws that are clearly without legal validity. That is why the laws violated by the sit-in demonstrators were examples of true civil disobedience. Although these laws appeared inconsistent with the broad liberties guaranteed by the Constitution, we know that the Supreme Court has only slowly made the Bill of Rights binding upon the states. Therefore the laws violated were, at the moment of the violation, the products of duly constituted (though I recognize that their representative nature is open to question) governments and thus presumably valid. It took the Civil Rights Act of 1964 and not a Supreme Court order to consolidate the progress made through the sit-ins.
Miss Woodward’s appeal to the courts to work change is largely visionary, as she must know from her study of American history. Courts, although there has been a loosening, are not adventitious legislatures no matter what we may think of the beneficent results of enlightened judicial thinking. I am at a loss to understand how the Supreme Court could bring about, as Miss Woodward suggests, a radically new understanding of the fundamental law (undefined by her) without destroying its authority in the process. Law is the great mediating force between the opposing eddies of past orthodoxies and present felt necessities, and neither society nor law would be served by wholesale rewriting of the U.S. Reports. Such a project might be Orwellian rather than Hitlerian, but it is not how we achieve progress.
In the nature of our governmental scheme the courts serve as stabilizers, not policy makers. Few today would deny that the courts, and especially the Supreme Court, make policy and work change, but we must remember that if the change is to be accepted in the country it must be interstitial, not fundamental. Moreover, the fundamental law does not, as Miss Woodward implies, need reinterpretation. The broad charters of rights and liberties are there, coupled with a conception of higher or natural law placing limits on the authority of the state which far antedates American history. What is needed, and here the courts should play a major role, is that our statutory and decisional law be brought into closer congruence with this higher law.
As a lawyer who has spent considerable time trying to mark out the uses of civil disobedience in our society . . . I find Miss Woodward’s article too heavy on abstractions and too light on getting down to cases. Devising new categories may be a beguiling intellectual game, but it does not help our society work itself pure.
Nicholas W. Puner
Ossining, New York
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Miss Woodward writes:
I do not want to quibble over names. But sometimes what something is called does make a difference (as any man who has been convicted of manslaughter instead of murder would be quick to acknowledge). One devises new categories in order to point to distinctions which exist, but which are not reflected in our language. But that is not enough. The distinction must seem for some reason important and deserving of attention.
In the case at hand the distinction (between civil disobedience and civil challenge) seems to me important for several reasons.
- We live in a period of widespread apprehension and anxiety concerning what is viewed as the breakdown of “law and order.” Public figures ranging from Spiro Agnew to Justice Fortas have made negative remarks about “civil disobedience.” In these circumstances I think it worthwhile to point out that many so-called cases of civil disobedience are carried out by individuals who do not consider themselves lawbreakers, but rather law upholders. To call their actions “disobedient” not only seems a considerable misnomer, but in itself may contribute to the public fears which feed and encourage repression.
- Although Mr. Puner does not himself believe that civil disobedience entails “passive acceptance of [the] consequences,” there are many individuals who do believe this. And at the time of the trial of the Boston Five there was a great deal of criticism of the defendants (some of it quite harsh) for having chosen to fight the charges brought against them. (Some of the defendants have indicated to me that at the beginning it was not so clear even to them that resistance in the courts was a perfectly proper course of action.) Now if actions such as those of the Boston Five are to have a positive impact on the public, it is necessary that the public-view those actions as honorable and justifiable. Therefore I thought it important to point out that actions such as theirs are part of a respected tradition in this country and that such actions are indispensable if the words of the Constitution are to be brought to bear on the problems of the times.
- I believe it would be by far preferable if the constitutionality of certain statutes or governmental actions could be tested without incurring the risk of a jail sentence or fine. The recognition of the right to such risk-free challenges would, I think, have many beneficial practical effects. But, as I explain in my article, I do not advocate the right to risk-free civil disobedience (i.e., I do not see an acceptable way to eliminate the risk in those cases where the validity of a law or an official action is not being put in question). Therefore, I must have some way to distinguish between these two sorts of action. I could perhaps call them “civil disobedience 1” and “civil disobedience 2.” However, not only do I find this terminology misleading (for reasons indicated above), but it seems to me hardly the sort of nomenclature that will stick in anyone’s mind.
In addition, although I do not wish to rest my case on an appeal to authority, I would like to point out that not everyone defines civil disobedience as does Mr. Puner. For example, I referred in my article to an essay by Richard Wasserstrom (a law professor and former Department of Justice attorney in Selma, Alabama). In that essay he states: “If an act is performed under a claim of ultimately legal, that is, constitutional, right, it is simply not an act of civil disobedience, although it may be a protest against a serious wrong and may be conducted in a fashion otherwise identical to that of an act of civil disobedience.” And Judge Charles E. Wyzanski makes a similar point in an article in the February 1968 issue of the Atlantic Monthly. So the idea is not entirely my own. All I did was to devise a name for this kind of action and then try to explore some of the ramifications of the concept.
One of the principal reasons Mr. Puner is perturbed by my article, I believe, is that he thinks I have characterized civil disobedients as meek and mild, whereas he has known and defended many individuals who thought they were engaged in civil disobedience and yet who were not meek and mild. He seems to believe that I have maligned his clients. Yet this conclusion is based on several misunderstandings. A careful reading of the beginning of my article should make it clear that I by no means believe the civil disobedient is necessarily characterized by meekness. (I never use the word.) I do say that some civil disobedients are apolitical, but that is another matter. Moreover, I nowhere say that civil challenge is necessarily more effective than civil disobedience. It depends on the circumstances. (See the final paragraph of Section I of my article.) Where the law involved seems quite clearly to be constitutional, civil challenge would in fact be a misdirected approach, I think. Also, I explicitly state that many cases of what I call civil challenge have been called civil disobedience in the past. Mr. Puner has evidently been closely involved with a number of cases of this sort. I cannot, of course, impose my terminology. Mr. Puner is free to go on considering those cases to be instances of civil disobedience. But since I choose to define civil disobedience differently (for reasons that I try to make clear), he can only misunderstand me if he applies what I say about civil disobedience to cases I would put in a different category.
By “fundamental law” I meant the Constitution plus the body of law known as “constitutional law.” This is a body of law which is constantly evolving and changing. The Constitution is a document which is constantly being interpreted. It is not a document which automatically applies itself. I grant that any radically new interpretation of the Constitution does put the authority of the Court in question. But I also think that “stabilizing” efforts can backfire. As in the case of the man who has stood on one foot for too long, sometimes the only way to achieve stability is through change.
Whether the Constitution as it stands is “enough” was not the topic of my article. I was discussing there the possibilities of bringing about important change in policy given the document that we have. There are some who believe that important rights are not included in the Constitution, e.g., the right to selective conscientious objection, the right to employment at a decent wage. But, as I say, that’s another topic.
Finally, it is important to note that I do not distinguish civil challenge from civil disobedience on the basis of whether the law involved is or is not in fact a valid law. (Here I differ with Judge Wyzanski.) Rather, I distinguish the two kinds of action in terms of the claims made by the individuals involved. There are cases where a law (or “law”) is transgressed on the grounds that it is no law and with the intention of creating a test case, and there are cases where the law (or “law”) is transgressed on the grounds that it is immoral or unjust, but not on the grounds that it is invalid. Obviously, as Mr. Puner points out, both cases may result in arrest and trial. But in cases of civil disobedience, the appeal is to the general public to get the law changed, not to the judge (or judges) to declare the law without validity. I simply wanted to show that if we want to understand these two kinds of action and respond appropriately, then we must understand the different kinds of claims that are being made.
As for not getting down to cases—I think Mr. Puner would like me to have written a different article than the one I set out to write. There is no answer to that.