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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. | | | | |
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< | 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.”] | | | | |
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< | 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. | | |
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