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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 | |
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< | 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 | |
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< | 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. | | | | |
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< | 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? | |
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< | 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. | | |
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