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Did Thoreau and John Brown Violate the Law?

-- 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.

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.

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

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?

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?

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.

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