offices where the defendants had crowded into the corridor and refused to leave. He said,
"The issue is not Nicaragua, not American foreign policy. This is the issue—trespassing."
When he had finished, a woman lawyer for the defendants rose for her summation. She
walked over to the chart of the senator's office and folded it back, to reveal something
underneath—a large map of Central America. She pointed and said, "This is the issue." The jury voted to acquit.
At another trial shortly after, in western Massachusetts, a number of people (including
activist Abbie Hoffman and Amy Carter, daughter of an ex-president) were charged with
blocking recruiters for the Central Intel igence Agency who had shown up at the University
of Massachusetts in Amherst. Witnesses were cal ed, including ex-CIA agents who told the
jury that the CIA had engaged in il egal and murderous activities al around the world. The
jury listened and voted to acquit.
One juror, a hospital worker named Ann Gaffney, said later, "I was not that familiar with the
ClA's activities. I was surprised. I was shocked … . I was kind of proud of the students."
Another juror, Donna Moody, said, "Al the expert testimony against the CIA was alarming.
It was very educational." The county district attorney himself, Michael Ryan, had this
reaction: "If there is a message, it was that this jury was composed of middle America… .
Middle America doesn't want the C.I.A. doing what they are doing."51
In this case the judge al owed the defense of necessity and gave the green light to the jury
in considering human rights more important than a technical violation of law. But the courts
wil continue to remain barricades against change, stiff upholders of the prevailing order,
unless juries defy conservative judges and vote their consciences, commit their own civil
disobedience in the courtroom, and ignore the law to achieve justice.
Or perhaps we should say "ignore manmade law, the law of the politicians" to obey the
higher law—what Reverend Coffin and Father Berrigan would cal "the law of God" and what
others might cal the law of human rights, the principles of peace, freedom, and justice.
(Daniel Berrigan's elderly mother was asked by a reporter, when Dan went underground,
how she felt about her son defying the law; she responded quietly, "It's not God's law.")52
The truth is so often the total reverse of what has been told us by our culture that we
cannot turn our heads far enough around to see it. Surely, it is obedience to governments,
in their appeals to patriotism, their cal s for war, that is responsible for the terrible violence
of our century. The disobedience of conscientious citizens, for the most part nonviolent, has
been directed to stopping the violence of war. The psychologist Erich Fromm, thinking about
nuclear war, once referred to the biblical Genesis of the human race and the bite into the
forbidden apple: "Human history began with an act of disobedience and it is not unlikely
that it wil be terminated by an act of obedience."
Violence
It should be stressed that where protesters, rebels, and radicals have gone outside the law,
they have been, for the most part nonviolent. Where they have been guilty of "violence," it is usual y violence to property and not to human beings.
The issue came up in a 1985 trial in Missouri of a group of people who had gone into a
nuclear missile silo and did some minor damage to (as the judge described it) "the concrete,
the handle of the access hatch, the antenna and transmission boxes." This exchange took
place between Judge Hunter and defendant Martin Hol aday:
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Judge: I don't agree with your definition of nonviolence. Violence includes
injury to property.
Hol aday: The question also is—can a nuclear weapon be considered the same
kind of property as a desk, or a stove? As long as this country sees nuclear
weapons as property to defend and protect, more sacred than the lives they
wil destroy—what is proper property? The gas ovens in Germany?
Hol aday was sentenced to eight years in prison for doing "violence" to the most atrocious instruments of violence ever developed. It is a part of the dominant ideology of our culture
to treat damage to property—especial y certain kinds of property—as terrible crimes of
violence, because they have been committed il egal y by private citizens protesting
government policy, while accepting large-scale murder because it is legal and official.
In 1974 I was asked to write an article on violence for Scribner's Dictionary of American
History. In my six-page article, I began by defining violence as "that which inflicts injury or death on human beings." I said that damage to property "is excluded here as less worthy of concern among people who claim to put supreme value on human life and health." I also
said that violence by individuals and groups in American history had received much
attention, but that "the greatest amount of violence by far has been done by government
itself, through armies and police force, while expanding across the continent, extending
national power overseas, and suppressing rebel ion and protest at home and abroad."
The editors left al that in, despite my unorthodox point of view, but there was one
paragraph in my article that they omitted completely:
It should be kept in mind that our definition omits an enormous amount of
damage—physical and mental—caused by industrial and highway accidents,
by economic exploitation, racial humiliation, and imprisonment, and by those
conditions of poor housing, health and sanitation which cause infant mortality,
malnutrition, sickness, and early death. For instance, "black lung" disease
among miners, and the inhalation of deadly fibers among asbestos workers,
have caused untold death and suffering. Thus, any moral assessment of the
violence caused by race and class rebel ion must weigh that against the
wrongs of everyday life for mil ions of people—conditions which injure and kil
but are not usual y defined as violence.
I had already stretched the editors' tolerance to its limits, I realized. That paragraph was
going too far.
The movement against the Vietnam War reveals the double standard of government,
treating the burning of pieces of paper (draft cards and draft records) as violent acts, while
dropping 7 mil ion tons of bombs on Southeast Asia (twice as many as were dropped in al
theaters of operation in World War II).
It was a remarkably nonviolent movement. There was one instance, so rare that it must be
noted, where antiwar protesters in Madison, Wisconsin, planted a bomb in a military
research building, timed to go off in the middle of the night, when no one would be in the
building. But one man was working there, and he was kil ed.
The movement, while sometimes involving il egal acts of civil disobedience, mostly consisted
of extralegal actions, that is, actions done outside the regular channels of government,
aimed directly at informing and arousing the public. Here is a short list that suggests the
variety of actions.
1. Eight hundred Peace Corps volunteers protested the war to President
Johnson.
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2. Thousands of people refused to pay taxes.
3. Hunger strikes for peace.
4. Three men and two women, cal ing themselves "
The East Coast Conspiracy
to Save Lives," sabotaged rail equipment near a factory making bomb casings
for Vietnam.
5. In the Pacific Ocean, two young seamen hijacked an American munitions
ship carrying bombs into the war zone and diverted it to neutral Cambodia.
6. Various demonstrations at col ege commencements. At Brown University,
two-thirds of the graduates turned their backs on Henry Kissinger during the
1969 commencement ceremony.
7. Fifty writers and publishers, at a National Book Award ceremony, walked
out on a speech by Vice President Hubert Humphrey. One of them, a novelist,
cal ed out, "Mr. Vice President, we are burning children in Vietnam, and you
and we are al responsible."
8. Distinguished writers, invited to the White House, refused to go: the poet
Robert Lowel and the playwright Arthur Mil er. On the other hand, the singer
Eartha Kitt attended a lawn party given by Mrs. Johnson at the White House
and used the occasion to make a public statement against the war.
9. Young Americans in London crashed a party at the American ambassador's
elegant Fourth of July reception, cal ed for everyone's attention, and proposed
a toast: "To the dead and dying of Vietnam."
10. Teenagers cal ed to the White House to accept 4-H Club prizes shook
hands with the president and asked him to stop the war.
Does Protest Matter?
It is not easy to prove that protest changes policy. But in the case of the Vietnam War,
there is powerful evidence. In the government's own top-secret documents, the "Pentagon
Papers," we find anxious government memos about "public opinion … increasing pressure to
stop the bombing … the breadth and intensity of public unrest and dissatisfaction with the
war … especial y with young people, the underprivileged, the intel igentsia and the women …
a limit beyond which many Americans and much of the world wil not permit the United
States to go."
And in the spring of 1968, with over half a mil ion troops in Vietnam and General
Westmoreland asking President Johnson for 200,000 more, he was advised by a smal study
group in the Pentagon not to escalate the war further. There would be more U.S. casualties,
the group said, more taxes needed. And
the growing disaffection accompanied as it certainly wil be, by increased
defiance of the draft and growing unrest in the cities because of the belief
that we are neglecting domestic problems, runs great risks of provoking a
domestic crisis of unprecedented proportions.53
Johnson, right after this report, refused Westmoreland's request, announced a limitation on
the bombing of North Vietnam, and agreed to go to the peace table in Paris to negotiate
with the North Vietnamese.
Even President Nixon, who had said of the growing antiwar activity that "under no
circumstance wil I be affected whatever by it," confessed in his memoirs, nine years later,
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Although publicly I continued to ignore the raging antiwar controversy, … I
knew, however, that after al the protests and the Moratorium [the nationwide
protests of October 1969], American public opinion would be seriously divided
by any military escalation of the war.54
Thoreau, Jefferson, and Tolstoy
The great artists and writers of the world, from Sophocles in the fifth century BC to Tolstoy
in the modern era, have understood the difference between law and justice. They have
known that, just as imagination is necessary to go outside the traditional boundaries to find
and to create beauty and to touch human sensibility, so it is necessary to go outside the
rules and regulations of the state to achieve happiness for oneself and others.
Henry David Thoreau, in his famous essay "Civil Disobedience," wrote,
A common and natural result of an undue respect for law is, that you may see
a file of soldiers, colonels, captains, corporals, privates, powder-monkeys, and
al , marching in admirable order over hil and dale to the wars, against their
wil s, ay, against their common sense and consciences, which makes it very
steep marching indeed, and produces a palpitation of the heart."
When farmers rebel ed in western Massachusetts in 1786 (Shays' Rebel ion), Thomas
Jefferson was not sympathetic to their action. But he hoped the government would pardon
them. He wrote to Abigail Adams:
The spirit of resistance to government is so valuable on certain occasions that
I wish it to be always kept alive. It wil often be exercised when wrong, but
better so than not to be exercised at al . I like a little rebel ion now and then.
It is like a storm in the atmosphere.55
What kind of person can we admire, can we ask young people of the next generation to
emulate—the strict fol ower of law or the dissident who struggles, sometimes within,
sometimes outside, sometimes against the law, but always for justice? What life is best
worth living—the life of the proper, obedient, dutiful fol ower of law and order or the life of
the independent thinker, the rebel?
Leo Tolstoy, in his story "The Death of Ivan Ilyich," tel s of a proper, successful magistrate, who on his deathbed wonders why he suddenly feels that his life has been horrible and
senseless. " 'Maybe I did not live as I ought to have done … . But how can that be, when I
did everything properly?' … and he remembered al the legality, correctitude and propriety
of his life."
1 U.S. v. O'Brien 393 U.S. 900.
2 Some of the material in this chapter is drawn from Howard Zinn, Disobedience and
Democracy (Random House, 1968).
3 Tommy Trantino, Lock the Lock (Knopf, 1974), 6-8.
4 Claudia Koonz, Mothers in the Fatherland (St. Martins, 1987).
5 Eichel, Jost, Luskin, and Neustadt, The Harvard Strike (Houghton Mifflin, 1970), quoted in Nancy Zaroulis and Gerald Sul ivan, Who Spoke Up? (Doubleday, 1984), 241.
6 Some of the material in this chapter is drawn from my essay "The Conspiracy of Law," in a book edited by Robert Paul Wolff, The Rule of Law (Simon & Schuster, 1971).
115
7 Michael Walzer, in his book Obligations (Harvard University Press, 1970) says "there is very little evidence which suggests that careful y limited, moral y serious civil disobedience
undermines the legal system or endangers physical security."
8 Palmer and Colton, A History of the Modem World (Knopf, 1984).
9 It was distinguished historian Charles Beard, in An Economic Interpretation of the
Constitution (Macmil an, 1935), who broke through the romanticization of the Founding
Fathers with his exploration of their economic interests and their political ideas. Other
scholars have claimed to refute him, but I believe his fundamental thesis remains un-
touched: the relationship between wealth and political power.
10 Jerold S. Auerbach, Unequal Justice (Oxford University Press, 1976).
11 Political theorist Michael Walzer writes about "the obligation to disobey." He talks about people having the "obligation to honor the engagements they have explicitly made, to
defend the groups and uphold the ideals to which they have committed themselves, even
against the state, so long as their disobedience of laws or legal y authorized comands does
not threaten the very existence of the larger society or endanger the lives of its citizens.
Sometimes it is obedienc
e to the state, when one has a duty to disobey, that must be
justified." Michael Walzer, Obligations (Harvard University Press, 1970).
12 Euthyphro, Apology, Crito (Bobbs-Merril , 1956).
13 Ibid.
14 Emma Goldman, Anarchism and Other Essays (Dover, 1969), 128-129.
15 Op-ed page, New York Times, July 2, 1989.
16 Carl Cohen, for instance, in his book Civil Disobedience (Columbia University Press,
1971), makes a distinction between "direct disobedience" (disobeying a law that is in itself wrong, like a law drafting you into military service), in which case evading punishment is
justified, and "indirect disobedience," where someone is violating something like a
trespassing law that is not in itself bad, in which case "it is right for him to be punished."
That distinction makes no sense to me, because while the trespass law may be theoretical y
okay, if it is applied unjustly against a political protester, the punishment for disobeying it is
also unjust.
The philosopher Sidney Hook, once a radical, later a supporter of American foreign policy in
Vietnam and other military interventions, dealt with this question in his book The Paradoxes
of Freedom (University of California Press, 1964). He says a democrat (emphasis in the original) can defend an unlawful action "only [emphasis in the original] if he wil ingly accepts the punishment entailed by his defiance of the law." Otherwise, Hook says, "he has in principle embarked upon a policy of revolutionary overthrow." This seems sil y to me.
Sure, a person who evades prison may be a revolutionary, but he also may not. Angela
Davis was a Communist and presumably a revolutionary. Daniel Berrigan was bitterly
opposed to the war, but hardly "embarked upon a policy of revolutionary overthrow." Both
evaded prison.
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17 The legal philosopher Ronald Dworkin, in his book Taking Rights Seriously (Harvard
University Press, 1978), argues that people should not be punished when committing civil
disobedience when "the law is uncertain, in the sense that a plausible case can be made on
both sides." And, he claims, any moral issue can find a plausible basis in the Constitution,
even if the Supreme Court has not yet come to that conclusion. He seems to be straining to