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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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