Civil Disobedience and Democracy
Q. Howard, as an American historian, can you tell us about the role of civil disobedience in this country?
MR. BARRY: I object, Your Honor.
THE COURT: I will allow it on the same ground as I did before. We'll handle it later.
A. Well, it is strange to talk about the role of civil disobedience in this country almost as if, well, it's some little thing that plays some little part in American history, because anybody who reads a little history [can see] that we wouldn't exist as a country without civil disobedience. Civil disobedience founded this country. This is what the American Revolution was about.
It was about people breaking laws. And the reason they broke laws was because they had grievances, and these grievances were not being dealt with. And the result of breaking these laws by the colonists — the Boston Tea Party, the Philadelphia Tea Party, the New Jersey Tea Party — you know, there were a number of tea parties. They were having wild times in those days. But they were, you know, if you looked at them, if you wanted to get very sober and very curious, take those people into courts, what did they do? They destroyed tea? Oh, what a terrible thing. They broke the law.
You say, well, oh, tea — tea is not a big deal. But they broke the law. And there is this thing, this mysterious thing that hovers over people. Well, it hovers there because it's put there. It's put there by people who are in power, who want everybody to always obey all the rules, no matter how bad things get.
But the breaking of those laws was not a terrible thing because in the final analysis, it's human beings that count and human freedom that counts. Tea isn't important. Cottons aren't important. Things aren't important. People and freedom and human life are important. And so are the laws that are broken, you might say. Yes, they were. But that had to be done in order to get people together, so they could do away with a tyranny that was over them and that was preventing them from living out their lives the way they wanted to.
So when the Declaration of Independence was written by Thomas Jefferson and his little committee, [they] wrote civil disobedience into it. Sometimes people forget this. That's the most basic fundamental document of our history — also, the most forgotten document of our history — and that document has civil disobedience written into it. And because the spirit and the words of that document are that when governments become too oppressive, when governments take away our lives or our liberties, our right to pursue happiness, then the regular rules may have to be broken. It's not because you want to go around wildly breaking laws.
The point is not chaos or anarchy, all these things that people talk about when they talk about breaking laws. No. The point is that when you do have chaos in the country or in the world or in your soul, chaos being people being oppressed, that then you may have to break the law in order to bring back some better harmony in the situation, in yourself and among people.
The Declaration of Independence said governments are not sacred things. The laws are not sacred things. Governments are set up by people to defend rights, life, liberty and the pursuit of happiness. And when governments become destructive of those ends, it's the right of the people to alter or abolish those governments.
The Declaration of Independence goes even further than breaking laws.
Ite goes even further than overthrowing laws. The Declaration of Independence says you can not only overthrow laws you can overthrow governments if those governments oppress you if those governments take away what governments are set up to do. That's why Thomas Jefferson said, when he was in France and writing back, he said, [we] may need a rebellion in this country every 20 years. Rebellion means breaking laws. If injustices pile up, we may need some of that in order to make things right again. That was the spirit of the American Revolution, and that was the spirit of the founding document of our system [that] we have forgotten. But some people didn't forget.
And when they encountered grievances, they committed civil disobedience all through our history. The Declaration of Independence was there and the Revolution took place, but a lot of people were still not free. And most notably, the black slaves in this country, millions of them who were almost 20 percent of the population at the time of the American Revolution — today, blacks are maybe, 12, 13 percent of the population, but at that time black slaves were 20 percent of the population in the colonies. One out of every five persons was a black slave.
"How are they going to be free?" the people said "Well, we don't like slavery, but you mustn't break the law." Those slaves would not have been freed if people had not broken the laws. If people had not defied the Fugitive Slave Act, if the abolitionists, white and black, had not aroused the conscience of this country by committing civil disobedience.
William Lloyd Garrison, one of the white abolitionists leaders in New England, went out to a meeting in Framingham, Massachusetts, in 1835, and he burned the Constitution of the United States. People burn draft cards today. Everybody gets excited. People burn draft records, and everybody talks as if the world is coming to an end.
William Lloyd Garrison burned the Constitution of the United States and he did it because he wanted to arouse the conscience, yes, irritate people, maybe annoy people, but he wanted to tell people about slavery. He wanted to tell the Constitution, this is the Constitution of a country which has slavery. And it was actions like this that helped mobilize more and more opinions in this country against slavery.
The Fugitive Slave Act was a law that provided for the capture of black slaves wherever they were found and returning them to their owners, and this law was violated again and again by people who did not believe in slavery. And what would you say to these people? If you had to decide what would happen to these people? Say, well, I'm against slavery, but you broke the law, therefore, I think you should go to jail because you helped this slave escape?
I wonder who, making a decision like that, could live with his or her conscience or, making a decision like that, could be said to really be against slavery.
That was an important period of civil disobedience in American history; and, of course, that wasn't the last time that blacks were going to be engaged in civil disobedience. Because every black who ran away from his plantation was committing civil disobedience. And I can just see somebody pointing their finger at one of these blacks who ran away from slavery saying, "You shouldn't have done that. You broke the law. You should go back to your master. You don't want to be a law-breaker, do you?"
No, that's the great advantage of history. Because from a historical viewpoint, you could see things straight. But when you are living in the midst of a situation, the most absurd things can be said to you, and you believe that. Because an atmosphere is created and you go along with the atmosphere. One must admonish the people. They broke the law.
Well, that spirit of disobedience continued. Whenever there was a serious grievance in American history, groups of Americans rose up and broke the law, committed civil disobedience to make their point.
Farmers did it in the 1880s and 1890s because they felt, the farmers felt they were being taken advantage of. The country was being run by the big railroads and the big banks and the big granaries. They were making all this money. The farmers were being squeezed out, and the farmers didn't have any money to pay the debts; and the farms were being foreclosed, were being taken away from them. They couldn't pay their mortgages. The farmers got together and they wouldn't let their places be foreclosed. They just got together and they stood in front of the sheriff and the auctioneer, and they said, "This is it. You are not auctioning off — this is our friend's house. We are all getting together. You're not auctioning off his house."
They were violating a law because they believed that it really was his house, and that money shouldn't determine whose house is whose, and this is what farmers did again and again.
And then the labor movement did it. Strikes were illegal for a long time. So whenever workers went out on strike, they were breaking the law. In fact, they were engaged in conspiracy because for a long time, unions were considered a conspiracy. And in the 1930s, the working men in the auto plants and rubber plants in the Midwest, trying to organize unions because they were being taken advantage of by the big corporate giants, by Ford and General Motors and Good Year Rubber, and all these companies. They needed to get together and raise their wages and get their workweek down from 60 hours to 40 hours, and the company would not recognize their union, [and] fired them for organizing unions.
So what did they do? They committed civil disobedience. They went into work, and then when the bell rang for them to go home, they didn't go home. They stayed there. And they said, "We are not leaving until you recognize our union." That was the sit-down strikes of May 1936, early 1937 in Flint, Michigan, and in other places.
By 1937 there had been close to 500 sit-down strikes all over the country. Workers who sat in — now, that's a violation of law. That's trespassing. That's — you can find five different legal violations there.
But in the course of history, we came to recognize they were right. They were not punished because there was some recognition by the community, I think, that they were right.
Of course, lately, in the last 10 to 15 years, we have seen many more examples of civil disobedience; that tradition carried on. And the Civil Rights Movement, which we talked about before, carried on that tradition. And when my students went into the Rich's Department Store in Atlanta, aptly named for the owner, when they went into Rich's Department Store and they sat down and they refused to move because they wouldn’t be served, because they were black, they were violating the law.
And what would you say to them? What would any of us say to them? That's what civil disobedience is.
We recognize years later [that] those people were right. And if they went to jail, they shouldn't have gone to jail because they were right.
A lot of people in the sit-ins, in fact, did not go to jail because judges found ways of saying — you know, it's something: When people want to find ways of getting people out of jail they get them out — judges found ways; the Supreme Court found ways of saying let's not send these people to jail. Yes, they violated the law, but let's not do that. That can be done. Even though there are always people who [say] you must go to jail, what if we don't send this person to jail. The world will collapse. That's not the way the world goes.
So civil rights movements, an awful lot of civil disobedience — Martin Luther King and lots of others broke the law again and again and again. And then, of course, the entire war movement and many, many more examples of that. And I guess we don't have to go into that because we've all lived through that recently and we know that.
And that's not crime. Civil disobedience is not crime. I know that there are people who want to say it's a crime. People want to say, "Well, look. Let's just look straight ahead at the black and white type, not think about anything else, empty your head." It's always better to have an empty head and straight-looking eyes, and black and white type, and you'll see they broke the law. But the world would not have the little bit of progress that we have made, little bit of progress for black people, little bit of progress for laboring people, little bit of progress for farming people; wouldn't even have this little bit of progress if civil disobedience had not been committed by committed people.
You know, you asked me as an American historian what is the role of civil disobedience in history. All I can say is it's been very healthy, and we will probably need a lot more of it if we are going to become a healthier society.
Q. Howard, what are some of the ideas of civil disobedience in your book "Disobedience and Democracy"?
A. We'll I'll try to do that briefly because maybe more people are getting impatient. But it also is a little book. Little books are always better than big books, I think.
Anyway, I wanted in this little book "Disobedience and Democracy," I wanted to take up this whole question that I just discussed, of a kind of blind obedience to law without thinking of the human consequences and discuss that. And so I discussed that, sort of in the way I was just talking about it until now.
I also wanted to point out that very often people say, now, we know we have grievances, and we know things have to be changed, but still the way to change is not to break the law. The way to change is to go through ordinary channels: Write to your congressman. Write a letter to the newspaper. Vote. Join the League of Women Voters. Go through normal channels. But don't commit civil disobedience, don't break the law if you want to change things.
Now, I wanted to talk about that because it seemed to me there was something wrong with that idea. What was wrong with it was that — look at the ways we have to change things in this country; even though we call ourselves a democracy, the ways that we have to change things are not adequate. Sure, we have elections. Sure, people go through the motions. Sure, we elect representatives and we elect a president every four years. These turn out to be very inadequate for changing important policies.
They did not help the black person in this country. That's why the black person had to turn to the streets in order to begin to get anything. They did not help working people. That's why working people had to do what they did. They could not go through the democratic processes.
And when it comes to war — that's the most critical example.
When it comes to war and peace, we are not a democracy. Even if you think we are a democracy in other respects, when it comes to war and peace, we are not a democracy because war is made by the president of the United States, not even made by the representatives of the United States, not even made by Congress of the United States even though the Constitution gives Congress the right to declare a war.
I say this as a historian, just looking at how we got into wars in history. Few people decide it. It's not democratically decided. Voting didn't matter. People voted for Johnson over Goldwater in 1964 because they thought Johnson was for peace and Goldwater was for war. They voted for peace and they got war.
And so it went, and it turns out that you may have democracy. If you live in a town and your town has a meeting when you are deciding whether to build a new store, that's pretty democratic Put the entire people, town together. Should we have a new store in this area? Should we put a new traffic light here? Should we build a new hospital with our tax money? You get all the people in the city together and you vote on it. That's very democratic.
Where I come from in Massachusetts, there are various things like that town hall meeting. People do that.
It turns out that we have the most democracy when we are dealing with the pettiest of issues, and we have the least democracy when we are dealing with the most important issues. We have the most democracy when we're dealing with sewers. We have the least democracy when we're dealing with life and death, and whether 50,000 Americans are going to be killed in a war or a 100,000 or 200,000. That decision is made by one man or three men or six men. It's not a democratic decision.
And so I was very anxious to make the point in this book that when it comes to war and peace, we cannot depend upon the ordinary democratic channels of voting and representative government. People must directly express themselves to the government. And that's why we have antiwar movements, and protests and marches, sit-ins, civil disobedience, rallies, draft resistance. What this means, you see, is that all of this civil disobedience is not against democracy. All of this civil disobedience is democracy. It's a way of establishing democracy in an area where we don't have democracy. Because democracy means people speaking out their minds and telling the government what they want. And if you have no other way of speaking out your minds and telling the government what you want, you may have to picket, you may have to demonstrate, you may have to carry a sign, you may have to cry out, you might have to break the law, you might have to do all of these things; and that is enhancing democracy. That is enriching democracy. That is not against it.
Just one or two other points. One is that when we think about people committing civil disobedience as breaking the law and, therefore, they must be punished, we must consider that we are then guilty ourselves of us a double standard; and by a double standard, I mean one standard for one group and another standard for another group. And we are supposed to have, if there is anything we say justice is, it's equality before the law. And double standard means we're not treating one group equally with another group.
And by that I mean when ordinary people commit civil disobedience for something that means something to them we want to put them in jail. And furthermore, the power is [such] that we go ahead, they have the courts, they have the prosecutors, they have all the resources: they go ahead, and they use all that money and that energy, and they set out to try and put them in jail.
But when the leaders of our governments commit crime, there is nobody to put them in jail. If the FBI commits a crime, who is going to arrest the FBI when the people who have a right to make arrests are the FBI?
It's like asking one policeman to arrest another policeman or to arrest himself.
So the leaders of the United States, and I think this is true of other governments in the world, [this] is not just picking on the United States, just living here, I am more concerned with the United States. But I think this true of the leaders of governments in general. The leaders of governments are always getting away with committing crimes, always doing that. Their crimes of theft are far greater than this petty crime of theft that we see every day. Their crimes of violence are far greater that the crimes of violence we see every day.
If somebody kidnapped somebody, we would send that person to jail for a long period of time. If the government kidnaps a million young men — I know some people might not call that kidnapping. But when you take somebody by force out of their home and keep them somewhere for a specific period of time against their will and against their family's will, that is something like kidnapping. In fact, it's mass kidnapping, maybe. It's not punishable. Nobody is going to punish them. And nobody's going to punish them for dropping bombs, and nobody is going to punish them for sending men to slaughter.
So here's a strange thing. If somebody commits these crimes because they are officials of the government of the United States, they will go unpunished. They will not spend one day in jail. If somebody is arrested for trespassing, or for destroying property, or for burning papers, or for stealing papers, or for doing something that constitutes a technical violation of the law, they are going to be hauled up before the courts, and people are going to try to send them to jail. That's the double standard.
The point I make in this book is that civil disobedience shows up this double standard very clearly because what's happening is that those citizens who have the nerve — not all of us have the nerve to do it — but those citizens who have the nerve to protest against the great crimes committed by the government are then put in jail for committing petty crimes... People who commit petty technical crimes go to jail. People who commit enormous human crimes remain out.
One other point I make, and that is that there has been developing constitutional theories, among scholars in the field, among lawyers and even among some judges, the idea that maybe if somebody commits civil disobedience of a cause that that person believes in, even though that's a technical violation of law, that person should not be found guilty. That idea has been growing and developing.
There was an article written by a constitutional theorist named Joseph Sar in the Yale Review in 1968 in which he discusses this and he says —
MR. BARRY: Excuse me, Your Honor.
A. — there is no need —
MR. BARRY: Now we are going beyond the work of Professor Zinn into the work of other people.
THE COURT: That's well taken.
MS. RIDOLFI: Excuse me?
THE COURT: I think that's quite well taken. Mr. Zinn was talking about his own book. Now he's talking about somebody's article.
Q. Howard, could you stick to your own —
A. All right. I won't talk about the forbidden article. I'll just talk about the ideas I developed myself. And the basic idea is that the criminal violation of the law has to be weighed against human consequences, against the motive of the breaking of that law, against the social evils that the breaking of that law is against; and anybody who is considering guilt or innocence, punishment or nonpunishment must begin to weigh these things so that we can no longer say, "Well, we like what those people have done or we approve it or maybe we at least sympathize with them. They are good people. They have good motives. They are just trying to stop the war, but still they broke the law and must be punished."
The point I was making is that that way of looking at it is beginning to be attacked and has a lot that is wrong with it. More and more it is beginning to be recognized and we should recognize that if somebody commits civil disobedience, they may have broken the law in some very technical sense, but that must be weighed and it must be measured against what they were trying to do. [Matters of] life and death must be measured, matters of war and peace, ask as you would ask of somebody who broke a speed law in order to take somebody to the hospital why are they doing this? Somebody who broke a window of a house in order to save somebody from the flames. What is this for?
Yes, you are not supposed to break the window of a house. Yes, you are not supposed to exceed the speed limit. Yes, there is a technical violation of law. But there is something very important involved here.
Anyway, this is the point I was trying to make.
Q. Howard, what we want to know is, [is] this concept of a jury's action is a new concept or has this been going on in history?
A. Well —
MR. BARRY: Your Honor, again it seems to me —
THE COURT: The jury will get its instructions from me.
MS. RIDOLFI: I am not asking Howard to instruct the jury, I just think that this is very important, has a close connection to civil disobedience, and I would like Howard to tell us what that connection is and describe how it has grown.
MR. WILLIAMSON: We are asking him to speak him as a historian, not as a legal expert.
THE COURT: I understand that, but we are concerned here with what goes on here in this courtroom, not what other jurors do.
MR. COUMING: In the spring of 1969 when I was on the stand, I talked about being at the trial of the Milwaukee 14. At that trial I met Howard Zinn and we talked. We flew home to Boston together in the same plane. We talked while in Milwaukee and on the plane. We talked about the history of jurors taking power that the courts are [not always] willing to admit into their hands.
I think that is the question that is being asked, to talk about that history. We have talked about it and that is very much — when I talk in my opening statement to the risk, that is the risk I took. The risk wasn't the risk of laws, it was the risk of judgment by my fellow citizens.
MR. BARRY: Your Honor, the evidence in this case —
THE COURT: Objection sustained.
MS. RIDOLFI: We don't have any more questions on direct of Howard. We would to encourage the jury to ask any questions they might have. And thank you, Howard, it was delightful.
MR. BARRY: No, Your Honor, we have no questions.
THE COURT: Any of the jurors have any questions?
MR. GOOD: Could we take a break and maybe come back —
VOICES: No, Bob.
THE COURT: Maybe the jurors have a question. Raise your hands.
THE COURT: Ladies and gentlemen of the jury, we'll pick up on Monday. Come in at 9:30. I don't think it will be giving away any secrets if I do not at least tell you that the hope is that the defendants will be done with their evidence some time next week. How much further this trial will go then, I cannot predict. At least we have that. Have a good weekend.