December 10, 2002
From the desk of Jane Galt:Arguendo Ad Crowium
Mark Kleiman says that you shouldn't apply legal protections developed for Civil Rights to anti-abortion protestors, specifically the Nuremberg Files. Call me a first-amendment purist, but I strongly disagree, both on principal and on the substance of his arguments.
He tries to draw a distinction that I believe is factually in error:
(There's a substantive difference between threats of violence backed by occasional window-breaking and threats of violence backed by systematic property destruction and occasional murder, but it's not obviously a legally congnizable difference.)
As I recall, the Claiborne Hardware case involved credible threats of death and physical harm to boycott violators, not property damage. The court ruled that this was protected.
But it's his main argument -- that Civil Rights is a special case -- with which I most disagree.
But it's also true that desperate circumstances call for desperate measures, and it's wrong to then try to re-import the standards of desperation into ordinary activity. Michael Walzer once said that "You can prove anything using Hitler": i.e., since virtually any tactic would have been justified to defeat Hitler, it's possible to argue that no tactic should be ruled out absolutely. But, as Walzer said, that proves too much: unless we're actually confronting Hitler, arguments about what would be justified if we did confront Hitler lose their force. The same applies to arguments from things Lincoln did -- such as arresting the majority of the Maryland Legislature -- to win the Civil War.The system of racial subjugation that prevailed in the American South between the end of the First Reconstruction in the great sellout of 1876 and the Second Reconstruction that started in the late 1940s was truly a desperate circumstance. It was maintained both by law and in defiance of law (both the ordinary criminal laws and the Constitution). Since it involved the illegal denial of the right to vote, recourse was not available through the ballot box. Since the local judiciary was largely complicit, recourse was not available through the courts. There was no reason to think that the white majority could be persuaded to give up its caste privileges.
It was a circumstance that, by the standards enunciated by Locke and Paine, would have fully justified armed revolution. But armed revolution, too, was infeasible, even if it had been desirable. (Which, because of the other virtues of the American Republic, it would not have been.) So the civil rights movement mounted an unarmed, predominantly non-violent, revolution, which was largely successful. Its goal was not to overthrow governments, but to overthrow the system of subjugation. In the course of that revolution, many things were done that would have been intolerable in the context of ordinary democratic politics and ordinary civil life. Violence was threatened, and sometimes used (though of course the violence on the other side was incomparably more pervasive and more deadly). Property was destroyed, and property-owners intimidated. Parts of the Federal judiciary, including the Supreme Court, became "result-oriented," and stretched the judicial function, and various other statutory and Constitutional provisions, to or beyond the tearing point in trying to finally put the Reconstruction Amendments into practice.
I'm glad that happened: not glad that otherwise improper means were required, but glad that, given their necessity, they were used, and used successfully, by an interracial coalition. But, now that the revolutionary phase of the struggle is behind us, I see no reason to pretend that those means were, in themselves, other than improper. Everything William F. Buckley said about the tactics of the civil rights movement, how lawbreaking for political ends sets a bad precedent, was true. All the falsehood was in what he and his friends didn't say: what Mark Twain, writing about slavery, called "the silent lie."
So I see no reason to extend any license to use such tactics to anti-abortionists, animal rightsers, deep ecologists, or opponents of the coming war with Iraq. There is no general right of civil disobedience, and no general legitimacy to its use as a political tactic. If Operation Rescue and Earth First! want to act like racketeers, punish them as racketeers. (Though I'd be open to the argument that the RICO statute, passed in the face of the war waged by the Mafia against the wider society, was another a measure of temporary necessity that should now be abandoned.)
But, I hear you say, the people who believe that abortion is murder face a situation quite as desperate as the one that confronted the civil rights movement. That.s right. If you really, truly believe that abortion is murder, then you have good reason, from your perspective, to threaten or use violence to stop it, or to mount a revolution if you can. Since I don't believe that abortion is murder, I have no good reason, from my perspective, to tolerate such actions. Bracketing can only carry you so far; eventually you're forced to take a stand on the substantive moral questions.
There are 1.5 million abortions every year -- more people than were born to slavery, or (doing some quick arithmetic in my head) to Jim Crow. If you accept the premise that this is the murder of innocent babies, this is not merely comparable to Jim Crow -- it dwarfs it. It is the systematic extermination of one class of people (the fetuses) for the convenience of another (the mothers).
I am not going to comment on my beliefs, because I lack the emotional strength for that argument. But it simply won't wash to say "Well, I think they're wrong, so screw 'em."
Kleiman goes on to say
You can prove anything with the civil rights movement. But not everything so proved is true. Put me down as an advocate of law and order.
We're all prone to be advocates of law and order when doing so calls the law down on the opposing side. This says nothing except that he is willing for the law to enforce restrictions on causes he doesn't believe in that he would not accept on causes he considers worthy. While hardly an uncommon opinion, it is not a very useful framework for formulating the law, or a legal principal. Accepting this as a legal philosophy would mean accepting the politics of raw power -- if I can get enough people to say that your cause is sufficiently important, I can violate your civil rights. This is neither worthy, nor in the tradition of the Civil Rights movement.
But, you say, he's not really advocating that. Except that by accepting the philosophical principal that it should be legally all right, in certain cases, to have special exceptions granted (or special restrictions applied), you are advocating this. The legal process becomes less a matter of principal than of arguing how special your particular pet cause is. Such a framework offers us little guidance for the resolution of important disputes like abortion, or race, or animal rights, other than how much power you can accrue through elections, lobbying, or packing the courts.
If you want to be practical, think of the impact of such a decision. Like the special RICO exception for abortion clinic protesters, telling them that their speech is less protected than that of favored groups sends the message to the pro-life folks that they can't hope to resolve their issue peacefully, since the equal protection of the legal system is denied them. Sounds to me like a recipe not merely for ethical issues and feelings of government illegitimacy, but for increasing violence as protesters increasingly turn from recourse to the law, or even to threats. As appalling as they may be, threats are better than the violence that might ensue when the threats stop.
The Nuremberg case should be decided on principal: does the site constitute protected speech? If it is time to revisit Claiborne Hardware, then so be it. But unless we make the system for resolving such issues as content-neutral as possible, we will spin further into particularism and conflict, and the ideals of the Republic that still hold us together to a surprising extent will be done grievous harm.
Posted by Jane Galt at December 10, 2002 10:51 PM | TrackBack | Technorati inbound linksOne of Kleiman's distinctions is that civil rights violence should be protected because Blacks couldn't vote.
There are lots of folks who can't vote. Some of the disqualifications include:
(1) too young
(2) non-citizens
(3) convicted felons (in many states)
Are all of disenfranchised groups entitled to protected violence? If not all, which ones are? Why?
Or, was that a one-time only situation?
Surely Kleiman's rule isn't "folks that I agree with get a pass".
>> There was no reason to think that the white majority could be persuaded to give up its caste privileges.
Yet, that's what actually happened.
>> Since I don't believe that abortion is murder, I have no good reason, from my perspective, to tolerate such actions.
In other words, Kleiman's political allies get a pass, others don't.
Posted by: Andy Freeman on December 11, 2002 02:47 AMI was with him until he said, in effect, since I disagree with them they don't get a pass.
Klieman is right when he argues that there may arise circumstances that warrant breaking the law. Our country was born out of such a case. The civil rights movement of the 60's MIGHT have been another. The Vietnam war was not. Neither are global warming, Gay Rights, the Estate Tax, gun control, or any other ill in our society.
How to distinguish between societal ills that might justify breaking the law and those that do not? It seems to me that you can't just look to the magnitude of the problem, you also have to question whether there are lawful means to bring about the appropriate change. If so, breaking the law is unjustified. No matter how long or frustrating the process, we have a moral obligation to work within the system to bring about change. (Which is why I think the civil rights movement of the 60's did not justify extraordinary means -- change could have been brought about by lawful means.)
Abortion is an interesting case. The courts have usurped the power of the people to decide this issue through their elected representatives. In so doing, they have made it all but impossible to make the desired change (assuming you desire the change) through lawful means (and more likely people will resort to unlawful means). But, in my formula, "all but" does not meet the test. It may take decades, but until the right to life folks can convince the overwhelming majority of us that abortion should not be allowed, the law should permit abortions.
Finally, I am reminded of a political slogan I saw in Italy in the late 70's. Roughly translated it captures the view of much of the political left: "We have the right to obey every just law, the obligation to disobey every unjust law." (Of course, the question is who gets to decided which laws are unjust?) The political party? Communist.
Posted by: David Walser on December 11, 2002 09:45 AMclayton hardware was bad law, plain and simple.
ANY threat of violence should be treated as the act itself, and punished accordingly (perhaps even including the chair for uttering death threats)
threatening or encouraging violence is simply uncivil and is inconsistent with personal liberty. saying thatsomeone should be pursued for a crime and should be punished severely is different from encouraging lynching, and anyone that is inciting lynching or any violence that is not immediate self defense (courses and such) or mutually agreed to (boxing football etc) should be treated very roughly.
the nuremberg files owner should be put away, permanently. As should any activist that advocates murder or destruction (naomi klein, pretty much the entire nation of islam, etc). We need harsh but limited rules. This speech is criminal and advocates violence, and should be punished severely. The current case law should be overturned, either by law or amendment to the constitution, so as to vigorously discourage threats and the attempt of individuals to use force against their fellows.
Posted by: Libertarian Uber Alles on December 11, 2002 01:52 PMIt seems to me that we're applying logic in a place where emotion rules the day.
The civil rights movement didn't "get a pass" on obeying certain laws because a well-meaning, thoughtful group of people sat down, reviewed the case, and decided that it was important enough to warrant it. It "got a pass" because so many people felt so strongly about the cause that the crimes eventually became justified in the eyes of the public which, in turn, brought about social change and caused the crimes to subside.
For all of the talk on both sides of the abortion argument, it has not yet become "acceptable" to bomb an abortion clinic, harass a doctor, etc. I don't know if this means that emotions on this issue don't rise to the level of the civil rights movement, or if it just means that the emotions are so evenly balanced that no one side prevails. Either way, there doesn't seem to be a "revolution" in the works.
Posted by: Brian Greenberg on December 11, 2002 01:58 PM>> It "got a pass" because so many people felt so strongly about the cause
In other words, it got a pass because the violence was in service of a "correct" cause.
So much for content-neutrality.
>> that the crimes eventually became justified in the eyes of the public which, in turn, brought about social change and caused the crimes to subside.
The court made the decision BEFORE "eventually" had occurred so it is absurd to claim that "became justified in the eyes of the public" had any role.
In fact, when "eventually" occurred, there was no justification for the violence.
David posts.. "The courts have usurped the power of the people to decide this issue through their elected representatives" Huh? I thought that our elected representatives choose who fills the supreme court seats. Seems to me you have all the power you need to make the changes you desire. Don't blame the courts, blame the folks who placed the judges on the courts.
Posted by: Greg Bassett on December 11, 2002 02:49 PMWow! Did I ever succeed in making myself misunderstood! My bad.
I'm not saying that what the civil rights people did was all right as a matter of law. It wasn't. I'm not saying that it "deserved a pass" as a matter of law. It didn't. I think Clayton Hardware was wrongly decided, as a matter of law.
But there are (very rare) times when it's morally legitimate to break the law, and (if you're a judge) to twist the law, and the Jim Crow era was one of them.
It is simply not the case that the white majority in the South was "persuaded" to give up its caste privileges, unless you call what bank robber does "persuading" the teller to hand over the money. Equality, or some approach to equality, was imposed on the white South by Federal law, and in some cases at the point of Federal bayonets. Once that was done, most white Southerers came to accept it, and blacks had enough power through the ballot box and the courts to protect their new-won rights.
If you think -- as a considered moral judgment, not as a slogan -- that abortion is murder, then this is another time when breaking the law is justified. We disagree about that. Not disagree as in "agree to disagree," but really disagree. You may see it as your clear duty to break the law, to threaten violence, even to inflict violence. And I will see it as my clear duty to try to have you punished to the full extent of the law.
That's part of the reason the abortion issue is a litmus test for both sides of the debate: the pro-choice forces suspect, not without cause, that some -- not all -- "pro-life" judges will feel justified in twisting the law (as in the case of the judge Michael McConnell defended in his First Things article).
As I thought I'd made clear, I do not think that the moral justification for breaking the law extends to every cause I support. It doesn't extend, for example, to environmental protection or the prevention of cruelty to animals. It's a once-a-century thing.
I'm not going to pretend that I regret that the civil rights movement did what had to be done to drive a stake through Jim Crow's heart. But I'm also not going to make that a license to break the law every time the democratic process produces a result you sincerely think is wrong.
Posted by: Mark Kleiman on December 11, 2002 03:12 PMMark - I think we agree on the basic question: Are there times when one is morally justified in breaking the law? We both answer that question in the affirmative.
My concern is with how you define when its OK to break the law. In sum, your formulation appears to be: "If an individual feels strongly enough about something, then its OK (from that person's perspective) to break the law. On the other hand, if society disagrees, then we're going to work hard to be sure the person breaking the law is punished." That's hardly a guide to moral action. It's a prescription for anarchy.
I prefer the formulation that law breaking is only justified (if at all) once all legal methods of change have been exhausted. This is a question of fact about which reasonable people may disagree. In the 1960's, had civil rights advocates exhausted all legal options before taking the law into their own hands? No. True, blacks could not vote, but they and their allies could (and did) persuade the federal government to change things in the South. Contrast this with the obstacles those fighting against abortion face. To change things they need to persuade their fellow citizens to amend the constitution. Not impossible, but it may as well be.
Still, the right-to-lifers have not exhausted all legal means to bring about change, so breaking the law is not justified. Neither were the civil rights activists justified in breaking the law.
Greg: Those judges once appointed are lifetime positions, and may outlive several congresses. Furthermore an elected representative cannot be so prescient as to see what cases will eventually be brought before that judge, and how he/she will respond to them. I think David's point stands.
Posted by: anony-mouse on December 11, 2002 05:45 PM>> As I thought I'd made clear, I do not think that the moral justification for breaking the law extends to every cause I support.
It was clear that the moral justification extends to SOME causes that Kleiman supports. How are those causes special?
>> But there are (very rare) times when it's morally legitimate to break the law, and (if you're a judge) to twist the law, and the Jim Crow era was one of them.
The two cases seem separable and it's pretty clear that the Clayton Hardware twisting was not necessary, as Kleiman (inadvertently?) shows.
In fact, separating them seems to produce the right result; people should have broken the law and judges shouldn't have twisted it.
However, in both cases, we're left with a question - how do we know when? Surely the rule is something other than "ask Kleiman"....
And, as a matter of law, Clayton Hardware is the law. It's "interesting" that its error didn't become a problem until "the wrong people" relied on it.
FWIW, I'm actually pro-abortion. However, my "co-believers" have a horrible tendency to cheat and the pro-life folks have, for the most part, been better people. (One side demonstrates that dispicable isn't the same as wrong while the other demonstrates that good isn't necessarily right. And, in other news, truth is not beauty.)
>> That's part of the reason the abortion issue is a litmus test for both sides of the debate: the pro-choice forces suspect, not without cause, that some -- not all -- "pro-life" judges will feel justified in twisting the law
Yup, they might do what "good people" (from Kleiman's point of view) have done, or, as Kleiman put it "I'm not going to pretend that I regret that the ... movement did what had to be done to drive a stake through ... heart."
The means produce the ends, and the means hang around, waiting to be used again.
>> It is simply not the case that the white majority in the South was "persuaded" to give up its caste privileges, unless you call what bank robber does "persuading" the teller to hand over the money.
While that's wrong, both it and what actually happened are inconsistent with the "necessity" of Clayton Hardware....
There is a far more legitimate route to overturning Roe vs Wade than either packing the Supreme Court or harassing the abortion clinics. Amend the Constitution. Oh, but you can't put together the super-majorities necessary for this? Then you can publicly agitate and argue to try to convert more people to your side. But as far as I can see, the "protesters" around the abortion clinics are not trying to do this - instead, they are trying to directly close the clinics, that is, trying to privately enforce the law as they want it to be, rather than trying to change the law.
The civil rights movement of the 50's and early 60's was, by contrast, mostly aimed at publicizing the issue and drawing votes towards fully enforcing the 14th Amendment. If they felt that blocking traffic was necessary to get the media attention, then this was legitimate civil disobedience. Of course, the hard part of legitimate civil disobedience is going to jail for the laws you broke, and these protesters should have received whatever the normal penalty for blocking traffic was in that locality. (I doubt that getting the hell beat out of you by the police was normal, though, and it appeared that often the southern police were interfering with perfectly legal activities.)
Asking people to boycott discriminatory businesses was a legitimate tactic. Threatening violence or property damages to those who didn't follow the boycott was neither legal nor civil disobedience - and if Claiborne Hardware let them off easy, it certainly was a bad decision.
Posted by: markm on December 12, 2002 09:13 AMThe constant attempt to make anti-abortion activists somehow equivalent to civil rights activists puzzles me. It was not the civil rights activists who bombed places belonging to those who disagreed with them, they did not perform lynchings, they did not have their opponents murdered by those who were supposed to enforce the law.
I worked in the offices of a Planned Parenthood affiliate for two years. I saw the morning after cleanup from windows that were shot out, I saw the people who were trying to "inform" the women coming in scream at them through a bullhorn from only a foot away, I filed out of the building when we got bomb threats, helped the CFO re-calculate the budget after a clinic that had nothing to do with abortions was fire-bombed (and please note that it was in a strip mall guaranteeing damage to small businesses surrounding it), listened to them lie as they proclaimed how sad it was to have seen a woman entering with her baby out to here (indicating an abdomen that would seem about 6 months pregnant) and leaving empty in her womb and eyes when the clinic only performed abortions up to 12 weeks and heard them scream "baby-killer" and other pleasantries at me since they couldn't seem to figure out that it was possible for a man to work there without being a doctor. My wife was singularly unamused when she came by to get something from my car and heard them screaming at passing cars to run me over so I couldn't kill any more babies.
My solution is to forcibly convert them to Islam and export them to Iran where they can glorify in their theocracy and always vote for God's Own Party. Oh, sorry. They vote for God's Own Pary here, don't they?
Posted by: Jim on December 16, 2002 01:30 AMOh, BTW, the ones who attempt to claim that the motivation behind their opponents is the massive amounts of money that the "abortion industry" makes for them? I worked directly for the CFO as the computer coordinator/programmer and saw every aspect of the budget. Sorry, it's just another claim that doesn't wash.
Posted by: Jim on December 16, 2002 01:33 AMComments are Closed.