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Did Thoreau and John Brown Violate the Law?

-- By WenweiLai - 17 Apr 2010

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 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 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 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. 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.

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

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