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WenweiLaiSecondPaper 9 - 13 Jan 2012 - Main.IanSullivan
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| | | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. |
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WenweiLaiSecondPaper 8 - 21 Jul 2010 - Main.WenweiLai
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | |
To verify this viewpoint, we have to compare Brown’s “violent” revolution with a non-violent movement similarly waged by the minority against the establishment. If the non-violent movement is similarly disapproved by those in power (not only politically, but also socially and economically), then we can say that violence or non-violence is not the key. The movement that came to my mind was the movement in the 60s. In 1968, Justice Abe Fortas published a book, Concerning Dissent and Civil Disobedience, arguing that civil disobedience must be limited to laws that are themselves wrong. According to this opinion, almost every form of civil disobedience would become unjustified; when you burn the flag to protest a war, you are not violating the law that is itself wrong.
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< | When was 1968? It was when the anti-war movement was at its height and King was assassinated. Who was Abe Fortas? He was Lyndon Johnson’s close friend who co-wrote Johnson’s State of the Union speech. Fortas’ opinion, to a degree, represented the people in power. As Howard Zinn put it, [[http://books.google.com/books?id=HLgaz5c05XQC&printsec=frontcover&dq=Disobedience+and+Democracy:+Nine+Fallacies+on+Law+and+Order&source=bl&ots=ahyDkFsTVx&sig=8xGbIh5zk2tSYvAMb6WyjrYxrKk&hl=en&ei=MXpFTMXRG8WPOL29oZgE&sa=X&oi=book_result&ct=result&resnum=4&ved=0CBoQ6AEwAw#v=onepage&q=fortas&f=false][“…poverty, racism, war are held sacrosanct against civil disobedience by Fortas’ rule. For exactly those conditions which require the strongest of protests, citizens are deprived of the strongest of weapons. The Fortas rule guarantees that civil disobedience will never touch the most vital beams of our social system, however decayed they may be.”] | >
> | When was 1968? It was when the anti-war movement was at its height and King was assassinated. Who was Abe Fortas? He was Lyndon Johnson’s close friend who co-wrote Johnson’s State of the Union speech. Fortas’ opinion, to a degree, represented the people in power. As Howard Zinn put it, “…poverty, racism, war are held sacrosanct against civil disobedience by Fortas’ rule. For exactly those conditions which require the strongest of protests, citizens are deprived of the strongest of weapons. The Fortas rule guarantees that civil disobedience will never touch the most vital beams of our social system, however decayed they may be.” | | |
Thus, the disapproval of John Brown was not due to the “violent” character of his attack; the non-violent protests were treated in the same way. Rather, such resistance to push for change was out of fear. The people in power were afraid that they might lose the right to exploit the underprivileged and suppress different voices. They should not enjoy the right in the first place. |
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WenweiLaiSecondPaper 7 - 20 Jul 2010 - Main.WenweiLai
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | |
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< | Did Thoreau and John Brown Violate the Law? | >
> | Why was John Brown disapproved by both his contemporaries and people today? | | | -- By WenweiLai - 17 Apr 2010 | |
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< | The Declaration of Independence declared, "All men are created equal." Yet, the early Constitution permitted the importation of slaves for 20 years after its ratification, and the domestic slave trade was not fully barred until the introduction of the 13th Amendment following the Civil War. While the intervening years were largely marked by a moral ambiguity regarding human rights in America, rare individuals like Henry David Thoreau and John Brown took to civil disobedience in protest of slavery. For Thoreau, this meant an 1849 call for tax resistance with the penalty of imprisonment. For Brown, it meant an 1859 armed insurrection with the penalty of death. In Thoreau's words, "[l]aw never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice." Thoreau and Brown knowingly partook in demonstrative violations of the law, yet each did with a zealous belief that illegality, in the context of slavery, was the moral high ground. | >
> | It is not the gospel truth that violence cannot be a justified means | | | | |
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< | One might wonder, if Thoreau and Brown wanted to affect sweeping change, why did they not take their grievances to the courts instead of the streets? Considering the formalistic holding of Dred Scott v. Sanford in 1857, judicial remedy may have proven a dead end for the growing abolitionist cause. If so, were abolitionists not justified in turning to extra-judicial remedies as judicial means were foreclosed? This essay, using a positivist framework, searches for legal justification behind the extra-judicial efforts of Thoreau and Brown to further the abolitionist cause. | >
> | All men are created equal, if you believe in the Declaration of Independence. However, in our class discussion about John Brown, it seemed that most people did not agree with his war against inequality. The reason provided by such people was pretty straightforward: because Brown used violence and caused casualties. A similar argument can be found in a Supreme Court judgment, Dennis v. United States (1951). This judgment upheld the Smith Act, which made it illegal to knowingly be a member of an organization that advocates the violent overthrow of the government: “whatever theoretical merit there may be to the argument, that there is a ‘right’ to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change.” Likewise, some scholars have argued that Americans had legalized revolution, substituting ballots for bullets. Therefore, the people in class might be the majority in the real world. | | | | |
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< | We the People as the rule of recognition | >
> | However, this viewpoint is by no means universally accepted as shown in class. In Scales v. United States (1961), Justice Douglas voiced his opposition in a dissent, citing Jefferson’s December 20, 1787 letter to Madison: “I own, I am not a friend to a very energetic government. It is always oppressive… No country should be so long without one (revolution)….” Douglas concluded that the most indifferent arguments are good when one has a majority of votes. In fact, a similar debate took place more than 200 years ago. Following the Independence, there were several armed rebellions against tax, causing way more casualties than Brown’s attack. There was evidence that a lot of people in that age did accept revolution as a legitimate means of protest, even though it was after the enactment of the Constitution. The above-mentioned letter by Jefferson is a good example. Therefore, the argument that violence should by no means be allowed and the democratic process should always be followed is far from the gospel truth. | | | | |
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< | In his treatise on legal positivism, The Concept of Law, H.L.A. Hart argued the validity of laws regulating human conduct could be identified by a generally accepted "rule of recognition." According to Kent Greenawalt, "in the United States, the rule of recognition is largely rooted in the U.S. Constitution." If the mid-nineteenth century rule of recognition were to afford legality to Thoreau's actions in 1849 or Brown's in 1859, a first step might be to find a mechanism through which to place contemporary notions of equality within the pre-Reconstruction Constitution, beyond the narrow interpretations then provided by the Supreme Court. | >
> | The fact that John Brown failed cannot totally explain the phenomenon either | | | | |
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< | Bruce Ackerman suggests the reference to "We the People" in the preamble of the Constitution provides an implicit means of constitutional amendment preceding the formal processes spelled out in Article V. Ackerman cites "constitutional moments," defined by a sharp rise in political consciousness and mobilization among a normally passive citizenry, as periods where a sea change in the popular will pave the way for formal constitutional amendment. The events leading up to and through the Civil War, in Ackerman's opinion, were the second of three such moments since the Constitution's inception. Thus, if we accept the "We the People" scheme, it is possible that slavery may have been deemed unconstitutional through the preeminent will of the people well before it was recognized by the Reconstruction amendments. | >
> | Then, why is Brown rejected not only his contemporaries but also by people in the twenty-first century, even though his caused was totally legitimate? A possible explanation is that revolutions are justified only when they succeed. The Americans and French people succeeded in 1776 and 1789 respectively, so we just celebrated Independence Day and Bastille Day this month. When a revolution fails, it is called treason. However, Brown’s revolution did not totally fail in a sense: not long after his death, the Fourteenth Amendment was enacted. Therefore, it is a little weird that Brown is still rejected today, even when his cause has more or less prevailed. | | | | |
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< | We the People as the justification for resisting an unjust government | >
> | What’s more, Brown fared particularly badly even among criminals convicted of treason. After the Whiskey rebellion (a rebellion against tax on Whiskey enacted in 1791), only two among the twenty arrested rebels were convicted of treason, and they were all pardoned by President Washington. Fries was also pardoned by President Adams after his conviction of treason for his rebellion in 1799 against the tax for an expected war with France. In conclusion, there must be something other than violence causing people’s rejection and lack of sympathy toward John Brown’s struggle. | | | | |
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< | It seems reasonable to conclude that the popular will regarding slavery did not change overnight; there was, if anything, an escalating public opposition that coalesced in the 1830s and peaked during the Civil War. Notably, the relative calm of Thoreau's call to civil disobedience compared to Brown's more aggressive armed attack ten years later seems to trace a rising arc of anti-slavery sentiment. However, even if one assumes the popular will reached a critical mass for informal amendment at some point prior to the Civil War, how does one justify John Brown's more violent efforts to free slaves? | >
> | The establishment just don’t like people who would threaten their interests | | | | |
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< | The public fallout of Brown's attack on Harpers Ferry eclipsed that of Thoreau's call for tax resistance. Aside from Thoreau's A Plea for Captain John Brown, little editorial sympathy could be found in the press. Brown's attack was largely depicted as a misguided, wild, and apparently insane effort. Perhaps the popular will was aligned with the ends sought by these protests, but could not yet accept the more extreme means chosen. This important distinction between the means and the ends of civil disobedience did not go unrecognized by Martin Luther King Jr. a century later. Inspired by Gandhi's nonviolent approach to dismantling British rule in India, King emphasized that non-violent (though often illegal) protest could tip the popular will in favor of civil rights, which it ultimately did. Thus, it seems that any legality afforded to extra-judicial resistance depends on many factors, not the least of which include the form of the resistance sought, and the seriousness of the oppression met. | >
> | John Brown’s rebellion was unique among all the above-mentioned rebellions in that it was a struggle on behalf of the minority against the majority. I pointed out in the previous version of this essay that because the majority don’t like violence, Brown’s attack may not be justified under the framework of civil disobedience set up by legal scholars. However, there is another possibility: maybe Brown was disapproved by his contemporaries and people in class simply because his deeds were against the interest of the people occupying the positions in the establishment then, and today. | | | | |
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< | Would Thoreau agree with this attempt? | >
> | To verify this viewpoint, we have to compare Brown’s “violent” revolution with a non-violent movement similarly waged by the minority against the establishment. If the non-violent movement is similarly disapproved by those in power (not only politically, but also socially and economically), then we can say that violence or non-violence is not the key. The movement that came to my mind was the movement in the 60s. In 1968, Justice Abe Fortas published a book, Concerning Dissent and Civil Disobedience, arguing that civil disobedience must be limited to laws that are themselves wrong. According to this opinion, almost every form of civil disobedience would become unjustified; when you burn the flag to protest a war, you are not violating the law that is itself wrong. | | | | |
<
< | In order to fully justify Thoreau and Brown, many practical difficulties must be overcome: 1) It must be accepted that "We the People" in the preamble of the Constitution is a part of the rule of recognition, 2) A workable standard to identify the will of the people must be found, and 3) "We the People" must be capable of providing an extra-judicial method to challenge the status quo. In fact, these difficulties all stem from an inherent difficulty of legal positivism: it is based on a formalistic scheme lacking in substantive moral value. The concept of "We the People" may create some room for manipulation, but it has its limits. For one thing, "We the People" is not always right. At least when the rights of a discrete and insular minority are involved, a simple majority rule may not be trustworthy. For another, human rights protection should not be limited to "Constitutional moments." For example, the Supreme Court's most important decision on Equal Protection, Brown v. Board of Education, did not come at any Constitutional moment. | >
> | When was 1968? It was when the anti-war movement was at its height and King was assassinated. Who was Abe Fortas? He was Lyndon Johnson’s close friend who co-wrote Johnson’s State of the Union speech. Fortas’ opinion, to a degree, represented the people in power. As Howard Zinn put it, [[http://books.google.com/books?id=HLgaz5c05XQC&printsec=frontcover&dq=Disobedience+and+Democracy:+Nine+Fallacies+on+Law+and+Order&source=bl&ots=ahyDkFsTVx&sig=8xGbIh5zk2tSYvAMb6WyjrYxrKk&hl=en&ei=MXpFTMXRG8WPOL29oZgE&sa=X&oi=book_result&ct=result&resnum=4&ved=0CBoQ6AEwAw#v=onepage&q=fortas&f=false][“…poverty, racism, war are held sacrosanct against civil disobedience by Fortas’ rule. For exactly those conditions which require the strongest of protests, citizens are deprived of the strongest of weapons. The Fortas rule guarantees that civil disobedience will never touch the most vital beams of our social system, however decayed they may be.”] | | | | |
<
< | Thoreau's main appeal was that people had a moral obligation to reject injustice, which is not an obligation that can be found within the positivist perspective. Rather, for Thoreau, that obligation may come at the cost of legality: "[i]t is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right." If he were alive today, chances are he would tell me to stop writing and do something instead.
Michael-
Your revision made this essay tighter but preserved the main idea of it. Thank you very much!(Hope you are still reading the website and find my thankfulness.)
I agree with you that it is more interesting to discuss the contrast between a positivist approach and a substantive moral value, so I added a few words in the last paragraph about the fact that moral values may not be embodied in the "We the People" scheme. Other than that, I didn't make any major revision because my ideas in the original essay were largely kept by your revision. However, I'd like to share some of my latest thoughts on this topic.
I visited Paris the past weekend and acquired some more knowledge about the French Revolution. Before the insurgents stormed the Bastille, they at first invaded the Hotel des Invalides to gather arms. Wasn't it similar to John Brown's plan? Brown's attack had exactly the same purpose: the 100,000 rifles and muskets in Harpers Ferry. In our class discussion, it can be seen clearly even today some people still think Brown's act could not be justified, because several people got killed in the course; he should have resorted to a more peaceful means. However, many more people died in the storming of the Bastille, and I don't see anyone in France doubting the legitimacy of the French Revolution. Is there any inherent difference between the two struggles for equality? I can only find one: the French revolution was for the equality of the majority, while Brown's attack had a narrower focus to help an exploited minority.
That's exactly the reason why I said in the paragraph added that "We the People" may not be trustworthy. There is no reason why a struggle between an exploited majority and the nobles is acceptable, but one between an exploited minority and the majority is not.
-Wen-Wei | >
> | Thus, the disapproval of John Brown was not due to the “violent” character of his attack; the non-violent protests were treated in the same way. Rather, such resistance to push for change was out of fear. The people in power were afraid that they might lose the right to exploit the underprivileged and suppress different voices. They should not enjoy the right in the first place. | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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WenweiLaiSecondPaper 6 - 01 Jun 2010 - Main.WenweiLai
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | We the People as the rule of recognition | |
<
< | In his treatise on legal positivism, The Concept of Law, H.L.A. Hart argued the validity of laws regulating human conduct could be identified by a generally accepted "rule of recognition." According to Kent Greenawalt, the rule of recognition "expresses society's ultimate criteria for what counts as law." In the United States, this standard is largely rooted in but not limited to the U.S. Constitution. If the mid-nineteenth century rule of recognition were to afford legality to Thoreau's actions in 1849 or Brown's in 1859, a first step might be to find a mechanism through which to place contemporary notions of equality within the pre-Reconstruction Constitution, beyond the narrow interpretations then provided by the Supreme Court. | >
> | In his treatise on legal positivism, The Concept of Law, H.L.A. Hart argued the validity of laws regulating human conduct could be identified by a generally accepted "rule of recognition." According to Kent Greenawalt, "in the United States, the rule of recognition is largely rooted in the U.S. Constitution." If the mid-nineteenth century rule of recognition were to afford legality to Thoreau's actions in 1849 or Brown's in 1859, a first step might be to find a mechanism through which to place contemporary notions of equality within the pre-Reconstruction Constitution, beyond the narrow interpretations then provided by the Supreme Court. | | | | |
<
< | Bruce Ackerman suggests the reference to "We the People" in the preamble of the Constitution provides an implicit means of constitutional amendment preceding the formal processes spelled out in Article V. Ackerman cites "constitutional moments," defined by a sharp rise in political consciousness and mobilization among a normally passive citizenry, as periods where a sea change in the popular will paves the way for formal constitutional amendment. The events leading up to and through the Civil War, in Ackerman's opinion, were the second of three such moments since the Constitution's inception. Thus, if we accept the "We the People" scheme within the Constitution and, thus, the rule of recognition, it is possible that slavery may have been deemed unconstitutional through the preeminent will of the people well before it was recognized by the Reconstruction amendments. | >
> | Bruce Ackerman suggests the reference to "We the People" in the preamble of the Constitution provides an implicit means of constitutional amendment preceding the formal processes spelled out in Article V. Ackerman cites "constitutional moments," defined by a sharp rise in political consciousness and mobilization among a normally passive citizenry, as periods where a sea change in the popular will pave the way for formal constitutional amendment. The events leading up to and through the Civil War, in Ackerman's opinion, were the second of three such moments since the Constitution's inception. Thus, if we accept the "We the People" scheme, it is possible that slavery may have been deemed unconstitutional through the preeminent will of the people well before it was recognized by the Reconstruction amendments. | | | We the People as the justification for resisting an unjust government
It seems reasonable to conclude that the popular will regarding slavery did not change overnight; there was, if anything, an escalating public opposition that coalesced in the 1830s and peaked during the Civil War. Notably, the relative calm of Thoreau's call to civil disobedience compared to Brown's more aggressive armed attack ten years later seems to trace a rising arc of anti-slavery sentiment. However, even if one assumes the popular will reached a critical mass for informal amendment at some point prior to the Civil War, how does one justify John Brown's more violent efforts to free slaves? | |
<
< | The public fallout of Brown's attack on Harper's Ferry eclipsed that of Thoreau's call for tax resistance. Aside from Thoreau's A Plea for Captain John Brown, little editorial sympathy could be found in the press. Brown's attack was largely depicted as a misguided, wild, and apparently insane effort. However, a lack of editorial support for civil disobedience in 1859 does not mean public support was not altogether present. Rather, perhaps the popular will was aligned with the ends sought by these protests, but could not yet accept the more extreme means chosen. This important distinction between the means and the ends of civil disobedience did not go unrecognized by Martin Luther King Jr. a century later. Inspired by Gandhi's nonviolent approach to dismantling British rule in India, King emphasized that non-violent (though often illegal) protest could tip the popular will in favor of civil rights, which it ultimately did. Thus, it seems that any legality afforded to extra-judicial resistance depends on many factors, not the least of which include the form of the resistance sought, and the seriousness of the oppression met. | >
> | The public fallout of Brown's attack on Harpers Ferry eclipsed that of Thoreau's call for tax resistance. Aside from Thoreau's A Plea for Captain John Brown, little editorial sympathy could be found in the press. Brown's attack was largely depicted as a misguided, wild, and apparently insane effort. Perhaps the popular will was aligned with the ends sought by these protests, but could not yet accept the more extreme means chosen. This important distinction between the means and the ends of civil disobedience did not go unrecognized by Martin Luther King Jr. a century later. Inspired by Gandhi's nonviolent approach to dismantling British rule in India, King emphasized that non-violent (though often illegal) protest could tip the popular will in favor of civil rights, which it ultimately did. Thus, it seems that any legality afforded to extra-judicial resistance depends on many factors, not the least of which include the form of the resistance sought, and the seriousness of the oppression met. | | | Would Thoreau agree with this attempt? | |
<
< | In order to fully justify Thoreau and Brown, many practical difficulties must be overcome: 1) It must be accepted that "We the People" in the preamble of the Constitution is a part of the rule of recognition, 2) A workable standard to identify the will of the people must be found, and 3) "We the People" must be capable of providing an extra-judicial method to challenge the status quo. In fact, these difficulties all stem from an inherent difficulty of legal positivism: it is based on a formalistic scheme lacking in substantive moral value. Thoreau's main appeal was that people had an moral obligation to reject injustice, which is not an obligation that can be found within the positivist perspective. Rather, for Thoreau, that obligation may come at the cost of legality: "[i]t is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right." If he were alive today, chances are he would tell me to stop writing and do something instead. | >
> | In order to fully justify Thoreau and Brown, many practical difficulties must be overcome: 1) It must be accepted that "We the People" in the preamble of the Constitution is a part of the rule of recognition, 2) A workable standard to identify the will of the people must be found, and 3) "We the People" must be capable of providing an extra-judicial method to challenge the status quo. In fact, these difficulties all stem from an inherent difficulty of legal positivism: it is based on a formalistic scheme lacking in substantive moral value. The concept of "We the People" may create some room for manipulation, but it has its limits. For one thing, "We the People" is not always right. At least when the rights of a discrete and insular minority are involved, a simple majority rule may not be trustworthy. For another, human rights protection should not be limited to "Constitutional moments." For example, the Supreme Court's most important decision on Equal Protection, Brown v. Board of Education, did not come at any Constitutional moment. | | | | |
>
> | Thoreau's main appeal was that people had a moral obligation to reject injustice, which is not an obligation that can be found within the positivist perspective. Rather, for Thoreau, that obligation may come at the cost of legality: "[i]t is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right." If he were alive today, chances are he would tell me to stop writing and do something instead. | | | | |
<
< | Wenwei- | | | | |
<
< | I liked the ambitious goal of your essay. There are a few key changes I focused on during revisions: | >
> | Michael- | | | | |
<
< | 1) I think the more interesting point of discussion is the contrast between positivist and moral justifications for an act, rather than engineering a positivist justification alone. I tried to provide a groundwork for engaging in that discussion given the context (Thoreau & Brown) provided. | >
> | Your revision made this essay tighter but preserved the main idea of it. Thank you very much!(Hope you are still reading the website and find my thankfulness.) | | | | |
<
< | 2) You argue that it is very difficult to accept extra-judicial protests under the positivist mode of thought, because of the complexity of the assumptions required. But then you conclude by saying none of that really matters because there is an underlying flaw in positivism -- its ignorance of moral value. I imagine you intended to demonstrate the weakness of the positivist argument to show why a moralist conclusion is inevitable. But, I think this technique leaves the reader wondering why they bothered reading the preceding 900 or so words. Instead, I tried to allude to moral bases during the positivist portion of the argument so as to better foreshadow the conclusion you ultimately reached. | >
> | I agree with you that it is more interesting to discuss the contrast between a positivist approach and a substantive moral value, so I added a few words in the last paragraph about the fact that moral values may not be embodied in the "We the People" scheme. Other than that, I didn't make any major revision because my ideas in the original essay were largely kept by your revision. However, I'd like to share some of my latest thoughts on this topic. | | | | |
<
< | 3) Though citations aren't required, I think it is important to provide as many direct links to online resources as you can, so that the reader can refer to the materials you rely on in making your argument. Links make the reading experience more dynamic, and help clarify the complex ideas addressed. Take full advantage of the html medium. | >
> | I visited Paris the past weekend and acquired some more knowledge about the French Revolution. Before the insurgents stormed the Bastille, they at first invaded the Hotel des Invalides to gather arms. Wasn't it similar to John Brown's plan? Brown's attack had exactly the same purpose: the 100,000 rifles and muskets in Harpers Ferry. In our class discussion, it can be seen clearly even today some people still think Brown's act could not be justified, because several people got killed in the course; he should have resorted to a more peaceful means. However, many more people died in the storming of the Bastille, and I don't see anyone in France doubting the legitimacy of the French Revolution. Is there any inherent difference between the two struggles for equality? I can only find one: the French revolution was for the equality of the majority, while Brown's attack had a narrower focus to help an exploited minority. | | | | |
<
< | That all said, you can use the history function to compare this edit to your original copy. I'm happy to answer any questions you may have. | >
> | That's exactly the reason why I said in the paragraph added that "We the People" may not be trustworthy. There is no reason why a struggle between an exploited majority and the nobles is acceptable, but one between an exploited minority and the majority is not. | | | | |
<
< | -Michael | >
> | -Wen-Wei | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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WenweiLaiSecondPaper 5 - 27 Apr 2010 - Main.MichaelDuignan
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | -- By WenweiLai - 17 Apr 2010 | |
<
< | The Declaration of Independence said, "All men are created equal." Yet, the early Constitution permitted slave importation for 20 years after its ratification, and the domestic slave trade was not fully barred until the 13th Amendment passed after the Civil War. While the intervening years were marked by a moral ambiguity regarding the rights of men, rare individuals like Henry David Thoreau and John Brown took to civil disobedience in protest of slavery. For Thoreau, this meant an 1849 call for tax resistance with the penalty of imprisonment. For Brown, it meant an 1859 armed insurrection with the penalty of death. In Thoreau's words, "[l]aw never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice." Thoreau and Brown knowingly partook in demonstrative violations of the law, yet each did so having a zealous and wholehearted belief that his was the moral high ground. The positivist response might be to say, if Thoreau and Brown wanted to affect change, they should have taken their protests to court. However, considering the formalistic holding of Dred Scott v. Sanford in 1857, judicial avenues may have become a dead end for the abolitionist movement. Considering the social context surrounding their transgressions, we look for any legal justification to efforts by Thoreau and Brown in furthering the abolitionist cause. | >
> | The Declaration of Independence declared, "All men are created equal." Yet, the early Constitution permitted the importation of slaves for 20 years after its ratification, and the domestic slave trade was not fully barred until the introduction of the 13th Amendment following the Civil War. While the intervening years were largely marked by a moral ambiguity regarding human rights in America, rare individuals like Henry David Thoreau and John Brown took to civil disobedience in protest of slavery. For Thoreau, this meant an 1849 call for tax resistance with the penalty of imprisonment. For Brown, it meant an 1859 armed insurrection with the penalty of death. In Thoreau's words, "[l]aw never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice." Thoreau and Brown knowingly partook in demonstrative violations of the law, yet each did with a zealous belief that illegality, in the context of slavery, was the moral high ground.
One might wonder, if Thoreau and Brown wanted to affect sweeping change, why did they not take their grievances to the courts instead of the streets? Considering the formalistic holding of Dred Scott v. Sanford in 1857, judicial remedy may have proven a dead end for the growing abolitionist cause. If so, were abolitionists not justified in turning to extra-judicial remedies as judicial means were foreclosed? This essay, using a positivist framework, searches for legal justification behind the extra-judicial efforts of Thoreau and Brown to further the abolitionist cause. | | | We the People as the rule of recognition | |
<
< | In his treatise on legal positivism, The Concept of Law, H.L.A. Hart posited that the validity of laws regulating human conduct can be identified by a generally accepted "rule of recognition." According to Kent Greenawalt, the rule of recognition "expresses society's ultimate criteria for what counts as law." In the United States, this standard is largely rooted in but not limited to the U.S. Constitution. If the mid-nineteenth century "rule of recognition" were to afford legality to Thoreau's actions in 1849 or Brown's in 1859, a first step might be to search out any broader notions of equality contained in the pre-Reconstruction Constitution. | >
> | In his treatise on legal positivism, The Concept of Law, H.L.A. Hart argued the validity of laws regulating human conduct could be identified by a generally accepted "rule of recognition." According to Kent Greenawalt, the rule of recognition "expresses society's ultimate criteria for what counts as law." In the United States, this standard is largely rooted in but not limited to the U.S. Constitution. If the mid-nineteenth century rule of recognition were to afford legality to Thoreau's actions in 1849 or Brown's in 1859, a first step might be to find a mechanism through which to place contemporary notions of equality within the pre-Reconstruction Constitution, beyond the narrow interpretations then provided by the Supreme Court. | | | | |
<
< | Bruce Ackerman suggests the reference to "We the People" in the preamble of the Constitution provides an implicit means of constitutional amendment preceding the formal processes of Article V. Ackerman notes the appearance of "constitutional moments," marked by a rise in political consciousness and mobilization among a normally passive citizenry, as periods where a sea change in popular will lays the foundation for a formal constitutional amendment. The period leading up to and through the Civil War, in Ackerman's opinion, was exactly such a moment. If the "We the People" scheme can be accepted as an element of the Constitution and, thus, the rule of recognition, then, prior to the Reconstruction Amendments, it is possible that slavery may have been deemed unconstitutional through the preeminent will of the people. The crux of this argument, then, boils down to identifying the moment where the will of the people reaches a critical mass sufficient to amend constitutional law. | >
> | Bruce Ackerman suggests the reference to "We the People" in the preamble of the Constitution provides an implicit means of constitutional amendment preceding the formal processes spelled out in Article V. Ackerman cites "constitutional moments," defined by a sharp rise in political consciousness and mobilization among a normally passive citizenry, as periods where a sea change in the popular will paves the way for formal constitutional amendment. The events leading up to and through the Civil War, in Ackerman's opinion, were the second of three such moments since the Constitution's inception. Thus, if we accept the "We the People" scheme within the Constitution and, thus, the rule of recognition, it is possible that slavery may have been deemed unconstitutional through the preeminent will of the people well before it was recognized by the Reconstruction amendments. | | | We the People as the justification for resisting an unjust government | |
<
< | It seems reasonable to conclude that the people's will did not change overnight; there was, if anything, an escalating public opposition to slavery that coalesced in the 1830s and peaked amid the Civil War. Notably, the relative timidity of Thoreau's call to civil disobedience compared to Brown's more aggressive armed attack ten years later seems to track a rising arc of popular anti-slavery sentiment. However, even if one assumes a critical mass in the popular will was reached prior to the Civil War, how might we justify Thoreau's resistance or John Brown's more violent efforts to free slaves? | >
> | It seems reasonable to conclude that the popular will regarding slavery did not change overnight; there was, if anything, an escalating public opposition that coalesced in the 1830s and peaked during the Civil War. Notably, the relative calm of Thoreau's call to civil disobedience compared to Brown's more aggressive armed attack ten years later seems to trace a rising arc of anti-slavery sentiment. However, even if one assumes the popular will reached a critical mass for informal amendment at some point prior to the Civil War, how does one justify John Brown's more violent efforts to free slaves? | | | | |
<
< | Notably, the public fallout of Brown's armed attack on Harper's Ferry greatly eclipsed that of Thoreau's call for indirect civil disobedience. Aside from Thoreau's A Plea for Captain John Brown, little editorial sympathy could be found in the newspapers covering the raid on Harper's Ferry. Brown's attack was largely depicted as a misguided, wild, and apparently insane effort. However, a lack of editorial support for civil disobedience in 1859 does not necessarily mean was not altogether there. Rather, perhaps the popular will was aligned with the ends sought by these protests, but was not fully accepting of the more extreme means chosen to reach these ends. Thus, if "We the People" is taken as part of the rule of recognition, it seems that any degree of legality afforded to resistance depends on many factors, not the least of which include the form of the resistance sought, and the seriousness of the oppression met. | >
> | The public fallout of Brown's attack on Harper's Ferry eclipsed that of Thoreau's call for tax resistance. Aside from Thoreau's A Plea for Captain John Brown, little editorial sympathy could be found in the press. Brown's attack was largely depicted as a misguided, wild, and apparently insane effort. However, a lack of editorial support for civil disobedience in 1859 does not mean public support was not altogether present. Rather, perhaps the popular will was aligned with the ends sought by these protests, but could not yet accept the more extreme means chosen. This important distinction between the means and the ends of civil disobedience did not go unrecognized by Martin Luther King Jr. a century later. Inspired by Gandhi's nonviolent approach to dismantling British rule in India, King emphasized that non-violent (though often illegal) protest could tip the popular will in favor of civil rights, which it ultimately did. Thus, it seems that any legality afforded to extra-judicial resistance depends on many factors, not the least of which include the form of the resistance sought, and the seriousness of the oppression met. | | | Would Thoreau agree with this attempt? | |
<
< | In order to justify Thoreau and Brown, many practical difficulties must be overcome: 1) It must be accepted that "We the People" in the preamble of the Constitution is a part of the rule of recognition, 2) A workable standard to identify the will of the people must be found, and 3) "We the People" must be able to provide an extra-judicial method to challenge the status quo. In fact, these difficulties all stem from an inherent difficulty of legal positivism: it is based on a formalistic scheme lacking in substantive moral value. Thoreau's main appeal was that people had an obligation to reject injustice, which is not an obligation that can be found in my attempt to justify his acts from the positivist perspective. Rather, for Thoreau, that obligation may come at a cost to legality: "[i]t is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right." If he were alive today, chances are he would tell me to stop writing and go do something instead. | >
> | In order to fully justify Thoreau and Brown, many practical difficulties must be overcome: 1) It must be accepted that "We the People" in the preamble of the Constitution is a part of the rule of recognition, 2) A workable standard to identify the will of the people must be found, and 3) "We the People" must be capable of providing an extra-judicial method to challenge the status quo. In fact, these difficulties all stem from an inherent difficulty of legal positivism: it is based on a formalistic scheme lacking in substantive moral value. Thoreau's main appeal was that people had an moral obligation to reject injustice, which is not an obligation that can be found within the positivist perspective. Rather, for Thoreau, that obligation may come at the cost of legality: "[i]t is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right." If he were alive today, chances are he would tell me to stop writing and do something instead.
Wenwei-
I liked the ambitious goal of your essay. There are a few key changes I focused on during revisions:
1) I think the more interesting point of discussion is the contrast between positivist and moral justifications for an act, rather than engineering a positivist justification alone. I tried to provide a groundwork for engaging in that discussion given the context (Thoreau & Brown) provided.
2) You argue that it is very difficult to accept extra-judicial protests under the positivist mode of thought, because of the complexity of the assumptions required. But then you conclude by saying none of that really matters because there is an underlying flaw in positivism -- its ignorance of moral value. I imagine you intended to demonstrate the weakness of the positivist argument to show why a moralist conclusion is inevitable. But, I think this technique leaves the reader wondering why they bothered reading the preceding 900 or so words. Instead, I tried to allude to moral bases during the positivist portion of the argument so as to better foreshadow the conclusion you ultimately reached.
3) Though citations aren't required, I think it is important to provide as many direct links to online resources as you can, so that the reader can refer to the materials you rely on in making your argument. Links make the reading experience more dynamic, and help clarify the complex ideas addressed. Take full advantage of the html medium.
That all said, you can use the history function to compare this edit to your original copy. I'm happy to answer any questions you may have.
-Michael | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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WenweiLaiSecondPaper 4 - 26 Apr 2010 - Main.MichaelDuignan
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| META TOPICPARENT | name="SecondPaper" |
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | -- By WenweiLai - 17 Apr 2010 | |
<
< | The Declaration of Independence unequivocally stated, "All men are created equal." Yet, the early Constitution permitted slave importation for 20 years after its ratification. Further, domestic slave trade did not become a constitutionally barred practice until the 1865 passing of the 13th Amendment. While the intervening years were largely marked by moral ambiguity regarding the rights of men, rare men like Henry David Thoreau and John Brown took to civil disobedience in protest. For Thoreau, it meant tax resistance with the penalty of imprisonment. For Brown, it meant armed insurrection with the penalty of death. In Thoreau’s words, "Law never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice." Thoreau and Brown knowingly partook in demonstrative violations of the law, yet each did so having a zealous and wholehearted belief that his position was the moral high ground. Embracing the views of legal positivism, this essay searches for legal justifications to their transgressions prior to the Reconstruction Amendments engendered by the Civil War. | >
> | The Declaration of Independence said, "All men are created equal." Yet, the early Constitution permitted slave importation for 20 years after its ratification, and the domestic slave trade was not fully barred until the 13th Amendment passed after the Civil War. While the intervening years were marked by a moral ambiguity regarding the rights of men, rare individuals like Henry David Thoreau and John Brown took to civil disobedience in protest of slavery. For Thoreau, this meant an 1849 call for tax resistance with the penalty of imprisonment. For Brown, it meant an 1859 armed insurrection with the penalty of death. In Thoreau's words, "[l]aw never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice." Thoreau and Brown knowingly partook in demonstrative violations of the law, yet each did so having a zealous and wholehearted belief that his was the moral high ground. The positivist response might be to say, if Thoreau and Brown wanted to affect change, they should have taken their protests to court. However, considering the formalistic holding of Dred Scott v. Sanford in 1857, judicial avenues may have become a dead end for the abolitionist movement. Considering the social context surrounding their transgressions, we look for any legal justification to efforts by Thoreau and Brown in furthering the abolitionist cause. | | | We the People as the rule of recognition | |
<
< | In his treatise on legal positivism The Concept of Law, H.L.A. Hart posited that the validity of laws regulating human conduct can be identified by a generally accepted "rule of recognition." According to Kent Greenawalt, the rule of recognition "expresses society's ultimate criteria for what counts as law." In the United States, this standard is largely based on but not limited to the U.S. Constitution. Thus, to find legality in Thoreau's cause in 1849 or Brown's in 1859, a first step might be to foreclose the notion that the Constitution of their day did not embody a broader concept of equality. | >
> | In his treatise on legal positivism, The Concept of Law, H.L.A. Hart posited that the validity of laws regulating human conduct can be identified by a generally accepted "rule of recognition." According to Kent Greenawalt, the rule of recognition "expresses society's ultimate criteria for what counts as law." In the United States, this standard is largely rooted in but not limited to the U.S. Constitution. If the mid-nineteenth century "rule of recognition" were to afford legality to Thoreau's actions in 1849 or Brown's in 1859, a first step might be to search out any broader notions of equality contained in the pre-Reconstruction Constitution. | | | | |
<
< | Bruce Ackerman has suggested that the reference in the preamble of the Constitution to “We the People” provides a means for amendment other than Article V: when a “Constitutional moment” arises, the people are highly mobilized and paying much more attention to the Constitution than usual, and the Constitution can be amended implicitly. The Civil War, in Ackerman’s opinion, was exactly such a moment. Even without the enactment of the Reconstruction Amendments, slavery was declared unconstitutional by the people’s will. If the “We the People” scheme can be accepted as part of the rule of recognition, then positivists may agree there was a possibility that the acts done by Thoreau were legal. (I say “possibility” because it is far from clear that “the People” as a whole in 1849 would accept Thoreau’s civil disobedience.) | >
> | Bruce Ackerman suggests the reference to "We the People" in the preamble of the Constitution provides an implicit means of constitutional amendment preceding the formal processes of Article V. Ackerman notes the appearance of "constitutional moments," marked by a rise in political consciousness and mobilization among a normally passive citizenry, as periods where a sea change in popular will lays the foundation for a formal constitutional amendment. The period leading up to and through the Civil War, in Ackerman's opinion, was exactly such a moment. If the "We the People" scheme can be accepted as an element of the Constitution and, thus, the rule of recognition, then, prior to the Reconstruction Amendments, it is possible that slavery may have been deemed unconstitutional through the preeminent will of the people. The crux of this argument, then, boils down to identifying the moment where the will of the people reaches a critical mass sufficient to amend constitutional law. | | | We the People as the justification for resisting an unjust government | |
<
< | My use of the word “possibility” shows the first problem with this approach: how can we identify the will of “We the People?” According to Hart, the rule of recognition is a legal standard that judges and other government officials can apply. A clear standard to identify the people’s will must be developed before “We the People” can become part of the rule of recognition. Secondly, even when we assume that there was a will outlawing slavery, it did not necessarily mean every act done against slavery was legal. For instance, property rights do not always include the right of self-help. Since Ackerman’s book has plenty of discussion about determining when the mobilized “We the People” warrants implicit amendment, I will focus this essay on the second question: after we recognize the unconstitutionality of slavery even before Civil War, how can we justify Thoreau’s resistance, or even John Brown’s more violent efforts to save slaves? | >
> | It seems reasonable to conclude that the people's will did not change overnight; there was, if anything, an escalating public opposition to slavery that coalesced in the 1830s and peaked amid the Civil War. Notably, the relative timidity of Thoreau's call to civil disobedience compared to Brown's more aggressive armed attack ten years later seems to track a rising arc of popular anti-slavery sentiment. However, even if one assumes a critical mass in the popular will was reached prior to the Civil War, how might we justify Thoreau's resistance or John Brown's more violent efforts to free slaves? | | | | |
<
< | Slavery was not constitutional, and then? The model answer from a positivist would be: they should go to court, which is the route identified by the rule of recognition. Dred Scott v. Sanford (1857) told us, this was not plausible. Since “We the People” can be part of the rule of recognition, it might also recognize some extra-judicial means as legitimate. Did the people in 1849 agree with the extra-judicial means? Probably not. From Thoreau’s plea for John Brown, we see nothing but indifference from the people. Even in the North, where people generally thought there was something wrong about slavery,” not a single expression of sympathy for John Brown could be found in the newspaper.” The idea was, it was a misguided, wild, and apparently insane effort. However, a lack of general support for civil disobedience in 1849 does not necessarily mean it is theoretically impossible. There have been various examples succeeding in mobilizing the people across the world, the most famous of which was the one led by Gandhi. Therefore, “We the People” as the rule of recognition might recognize the legality of resistance, but it depends on many factors, such as the form of the resistance (had Gandhi adopted more violent measures, he would not have so broad a support from all walks of life), and the seriousness of the oppression. | >
> | Notably, the public fallout of Brown's armed attack on Harper's Ferry greatly eclipsed that of Thoreau's call for indirect civil disobedience. Aside from Thoreau's A Plea for Captain John Brown, little editorial sympathy could be found in the newspapers covering the raid on Harper's Ferry. Brown's attack was largely depicted as a misguided, wild, and apparently insane effort. However, a lack of editorial support for civil disobedience in 1859 does not necessarily mean was not altogether there. Rather, perhaps the popular will was aligned with the ends sought by these protests, but was not fully accepting of the more extreme means chosen to reach these ends. Thus, if "We the People" is taken as part of the rule of recognition, it seems that any degree of legality afforded to resistance depends on many factors, not the least of which include the form of the resistance sought, and the seriousness of the oppression met. | | | Would Thoreau agree with this attempt? | |
<
< | It is theoretically possible to justify resistance, but many practical difficulties must be overcome: 1) It must be proved that the three words “We the People” in the preamble of the Constitution can be part of the rule of recognition of the country. 2) A workable standard to identify the will of “We the People” must be found. 3) “We the People” must support the extra-judicial means to change the illegal status quo. In fact, these difficulties all stem from the inherent difficulty of legal positivism: it is based on a formalistic scheme and is lacking in a substantive moral value. Thoreau’s main appeal was that people had an obligation not to give support to injustice, which is not an obligation that can be found in my attempt to justify his acts from the positivist perspective. If he were still alive today, chances are he would tell me to stop writing and start to do something. | >
> | In order to justify Thoreau and Brown, many practical difficulties must be overcome: 1) It must be accepted that "We the People" in the preamble of the Constitution is a part of the rule of recognition, 2) A workable standard to identify the will of the people must be found, and 3) "We the People" must be able to provide an extra-judicial method to challenge the status quo. In fact, these difficulties all stem from an inherent difficulty of legal positivism: it is based on a formalistic scheme lacking in substantive moral value. Thoreau's main appeal was that people had an obligation to reject injustice, which is not an obligation that can be found in my attempt to justify his acts from the positivist perspective. Rather, for Thoreau, that obligation may come at a cost to legality: "[i]t is not desirable to cultivate a respect for the law, so much as for the right. The only obligation which I have a right to assume is to do at any time what I think right." If he were alive today, chances are he would tell me to stop writing and go do something instead. | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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WenweiLaiSecondPaper 3 - 23 Apr 2010 - Main.MichaelDuignan
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| META TOPICPARENT | name="SecondPaper" |
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | -- By WenweiLai - 17 Apr 2010 | |
<
< | The Declaration of Independence said, “Men are created equal,” while the original Constitution added, “Some are more equal than others.” For example, slave trade should not be banned prior to 1812. Article I, section 9. When faced with such an unjust legal regime, Thoreau decided to withdraw his support, refused to continue paying tax, and spent a night in jail. In Thoreau’s words, “Law never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice.” He knew his acts were illegal. However, Thoreau wrote his article in 1849; more than 160 years later, with all the modern tools for interpretation of law, is it possible for us to find a legal justification for his cause? This essay is an attempt to find such a possibility. | >
> | The Declaration of Independence unequivocally stated, "All men are created equal." Yet, the early Constitution permitted slave importation for 20 years after its ratification. Further, domestic slave trade did not become a constitutionally barred practice until the 1865 passing of the 13th Amendment. While the intervening years were largely marked by moral ambiguity regarding the rights of men, rare men like Henry David Thoreau and John Brown took to civil disobedience in protest. For Thoreau, it meant tax resistance with the penalty of imprisonment. For Brown, it meant armed insurrection with the penalty of death. In Thoreau’s words, "Law never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice." Thoreau and Brown knowingly partook in demonstrative violations of the law, yet each did so having a zealous and wholehearted belief that his position was the moral high ground. Embracing the views of legal positivism, this essay searches for legal justifications to their transgressions prior to the Reconstruction Amendments engendered by the Civil War. | | | We the People as the rule of recognition | |
<
< | According to H.L.A. Hart (I have no intention here to take sides in the war between positivism and natural law; my choice to write in positivist rhetoric is simple: we don’t have to persuade Ronald Dworkin to accept civil disobedience.), the validity of rules regulating human conducts should be identified by the generally accepted “rule of recognition.” In America, the rule of recognition is all or at least part of the Constitution. Therefore, to persuade the positivists that our cause was legal in 1849, the primary obstacle is that the original Constitution did not embody the idea of equality. Since the rule of recognition did not recognize the equality between Whites and African Americans, how can we say that efforts by Thoreau and John Brown to resist slavery were legal? | >
> | In his treatise on legal positivism The Concept of Law, H.L.A. Hart posited that the validity of laws regulating human conduct can be identified by a generally accepted "rule of recognition." According to Kent Greenawalt, the rule of recognition "expresses society's ultimate criteria for what counts as law." In the United States, this standard is largely based on but not limited to the U.S. Constitution. Thus, to find legality in Thoreau's cause in 1849 or Brown's in 1859, a first step might be to foreclose the notion that the Constitution of their day did not embody a broader concept of equality. | | | | |
<
< | The Reconstruction Amendments were not existent then. Therefore, we need some other basis to argue that slavery was actually unconstitutional in 1849. Bruce Ackerman has suggested that the reference in the preamble of the Constitution to “We the People” provides a means for amendment other than Article V: when the “Constitutional moment” comes, the people are highly mobilized and paying much more attention to the Constitution than usual, and the Constitution can be amended implicitly. Civil War, in Ackerman’s opinion, was exactly such a moment. Even without the enactment of the Reconstruction Amendments, slavery was declared unconstitutional by the people’s will. If the “We the People” scheme can be accepted as part of the rule of recognition, then the positivists may agree there was a possibility that the acts done by Thoreau were legal. (I say “possibility” because it is far from clear that “the People” as a whole in 1849 would accept Thoreau’s civil disobedience.) | >
> | Bruce Ackerman has suggested that the reference in the preamble of the Constitution to “We the People” provides a means for amendment other than Article V: when a “Constitutional moment” arises, the people are highly mobilized and paying much more attention to the Constitution than usual, and the Constitution can be amended implicitly. The Civil War, in Ackerman’s opinion, was exactly such a moment. Even without the enactment of the Reconstruction Amendments, slavery was declared unconstitutional by the people’s will. If the “We the People” scheme can be accepted as part of the rule of recognition, then positivists may agree there was a possibility that the acts done by Thoreau were legal. (I say “possibility” because it is far from clear that “the People” as a whole in 1849 would accept Thoreau’s civil disobedience.) | | | We the People as the justification for resisting an unjust government | | | Would Thoreau agree with this attempt? | |
<
< | To sum up, it is theoretically possible to justify the resistance, but many practical difficulties must be overcome: 1) It must be proved that the three words “We the People” in the preamble of the Constitution can be part of the rule of recognition of the country. 2) A workable standard to identify the will of “We the People” must be found. 3) “We the People” must support the extra-judicial means to change the illegal status quo. In fact, these difficulties all stem from the inherent difficulty of legal positivism: it is based on a formalistic scheme and is lacking in a substantive moral value. Thoreau’s main appeal was that people had an obligation not to give support to injustice, which is not an obligation that can be found in my attempt to justify his acts from the positivist perspective. If he were still alive today, chances are he would tell me to stop writing and start to do something. | >
> | It is theoretically possible to justify resistance, but many practical difficulties must be overcome: 1) It must be proved that the three words “We the People” in the preamble of the Constitution can be part of the rule of recognition of the country. 2) A workable standard to identify the will of “We the People” must be found. 3) “We the People” must support the extra-judicial means to change the illegal status quo. In fact, these difficulties all stem from the inherent difficulty of legal positivism: it is based on a formalistic scheme and is lacking in a substantive moral value. Thoreau’s main appeal was that people had an obligation not to give support to injustice, which is not an obligation that can be found in my attempt to justify his acts from the positivist perspective. If he were still alive today, chances are he would tell me to stop writing and start to do something. | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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WenweiLaiSecondPaper 2 - 20 Apr 2010 - Main.MichaelDuignan
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| META TOPICPARENT | name="SecondPaper" |
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. |
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WenweiLaiSecondPaper 1 - 17 Apr 2010 - Main.WenweiLai
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>
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| META TOPICPARENT | name="SecondPaper" |
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Did Thoreau and John Brown Violate the Law?
-- By WenweiLai - 17 Apr 2010
The Declaration of Independence said, “Men are created equal,” while the original Constitution added, “Some are more equal than others.” For example, slave trade should not be banned prior to 1812. Article I, section 9. When faced with such an unjust legal regime, Thoreau decided to withdraw his support, refused to continue paying tax, and spent a night in jail. In Thoreau’s words, “Law never made men a whit more just; and, by means of their respect for it, even the well-disposed are daily made the agents of injustice.” He knew his acts were illegal. However, Thoreau wrote his article in 1849; more than 160 years later, with all the modern tools for interpretation of law, is it possible for us to find a legal justification for his cause? This essay is an attempt to find such a possibility.
We the People as the rule of recognition
According to H.L.A. Hart (I have no intention here to take sides in the war between positivism and natural law; my choice to write in positivist rhetoric is simple: we don’t have to persuade Ronald Dworkin to accept civil disobedience.), the validity of rules regulating human conducts should be identified by the generally accepted “rule of recognition.” In America, the rule of recognition is all or at least part of the Constitution. Therefore, to persuade the positivists that our cause was legal in 1849, the primary obstacle is that the original Constitution did not embody the idea of equality. Since the rule of recognition did not recognize the equality between Whites and African Americans, how can we say that efforts by Thoreau and John Brown to resist slavery were legal?
The Reconstruction Amendments were not existent then. Therefore, we need some other basis to argue that slavery was actually unconstitutional in 1849. Bruce Ackerman has suggested that the reference in the preamble of the Constitution to “We the People” provides a means for amendment other than Article V: when the “Constitutional moment” comes, the people are highly mobilized and paying much more attention to the Constitution than usual, and the Constitution can be amended implicitly. Civil War, in Ackerman’s opinion, was exactly such a moment. Even without the enactment of the Reconstruction Amendments, slavery was declared unconstitutional by the people’s will. If the “We the People” scheme can be accepted as part of the rule of recognition, then the positivists may agree there was a possibility that the acts done by Thoreau were legal. (I say “possibility” because it is far from clear that “the People” as a whole in 1849 would accept Thoreau’s civil disobedience.)
We the People as the justification for resisting an unjust government
My use of the word “possibility” shows the first problem with this approach: how can we identify the will of “We the People?” According to Hart, the rule of recognition is a legal standard that judges and other government officials can apply. A clear standard to identify the people’s will must be developed before “We the People” can become part of the rule of recognition. Secondly, even when we assume that there was a will outlawing slavery, it did not necessarily mean every act done against slavery was legal. For instance, property rights do not always include the right of self-help. Since Ackerman’s book has plenty of discussion about determining when the mobilized “We the People” warrants implicit amendment, I will focus this essay on the second question: after we recognize the unconstitutionality of slavery even before Civil War, how can we justify Thoreau’s resistance, or even John Brown’s more violent efforts to save slaves?
Slavery was not constitutional, and then? The model answer from a positivist would be: they should go to court, which is the route identified by the rule of recognition. Dred Scott v. Sanford (1857) told us, this was not plausible. Since “We the People” can be part of the rule of recognition, it might also recognize some extra-judicial means as legitimate. Did the people in 1849 agree with the extra-judicial means? Probably not. From Thoreau’s plea for John Brown, we see nothing but indifference from the people. Even in the North, where people generally thought there was something wrong about slavery,” not a single expression of sympathy for John Brown could be found in the newspaper.” The idea was, it was a misguided, wild, and apparently insane effort. However, a lack of general support for civil disobedience in 1849 does not necessarily mean it is theoretically impossible. There have been various examples succeeding in mobilizing the people across the world, the most famous of which was the one led by Gandhi. Therefore, “We the People” as the rule of recognition might recognize the legality of resistance, but it depends on many factors, such as the form of the resistance (had Gandhi adopted more violent measures, he would not have so broad a support from all walks of life), and the seriousness of the oppression.
Would Thoreau agree with this attempt?
To sum up, it is theoretically possible to justify the resistance, but many practical difficulties must be overcome: 1) It must be proved that the three words “We the People” in the preamble of the Constitution can be part of the rule of recognition of the country. 2) A workable standard to identify the will of “We the People” must be found. 3) “We the People” must support the extra-judicial means to change the illegal status quo. In fact, these difficulties all stem from the inherent difficulty of legal positivism: it is based on a formalistic scheme and is lacking in a substantive moral value. Thoreau’s main appeal was that people had an obligation not to give support to injustice, which is not an obligation that can be found in my attempt to justify his acts from the positivist perspective. If he were still alive today, chances are he would tell me to stop writing and start to do something.
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