at al . He remains in jail not for philosophical or moral reasons, but for a practical purpose,
to continue his struggle "to arouse the conscience of the community over its injustice."
Knowing King's life and thought, we can safely say that if the circumstances had been
different, he might wel have agreed (unlike Socrates) to escape from jail. What if he had
been sentenced, not to six months in a Georgia prison, but to death? Would he have
"accepted" this?
Would King have condemned those black slaves who were tried under the Fugitive Slave Act
of 1850 and ordered to return to slavery, but who refused to give themselves up? Would he
have criticized Angela Davis, the black militant who, accused of abetting the escape of a
black prisoner from a courtroom, and fearing a police attempt on her life, refused to stand
trial and went underground?
We can imagine another test of King's attitude toward "accepting" punishment. During the
Vietnam War, which King powerful y opposed ("The long night of war must be stopped," he
said in 1965), the Catholic priest-poet Daniel Berrigan committed an act of civil
disobedience. He and other men and women of the "Catonsvil e Nine," entered a draft board in Catonsvil e, Maryland, removed draft records, and set them afire in a public "ceremony."
Father Berrigan delivered a meditation:
Our apologies, good friends, for the fracture of good order, the burning of
paper instead of children… . We could not, so help us God, do otherwise… .
We say: kil ing is disorder, life and gentleness and community and
unselfishness is the only order we recognize. For the sake of that order we
risk our liberty, our good name. The time is past when good men can remain
silent, when obedience can segregate men from public risk, when the poor
can die without defense.19
Although he used the term men, one of the Catonsvil e Nine was a woman, Mary Moylan.
When the Nine were found guilty, sentenced to jail terms, and lost their appeals, she and
Daniel Berrigan refused to turn themselves in, going "underground." Berrigan was found
after four months, Mary Moylan was never apprehended. She wrote from underground: "I
don't want to see people marching off to jail with smiles on their faces. I just don't want
them going … . I don't want to waste the sisters and brothers we have by marching them off
to jail."
Berrigan and Moylan thought the war was wrong and thought their going to jail for opposing
it was wrong. If, like King, they felt it would serve some practical use, they probably would
have "accepted it." Going to jail can make a certain kind of statement to the public: "Yes, I feel so strongly about what is happening in the world that I am wil ing to risk jail to express
my feelings."
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Refusing to go to jail makes a different kind of statement: "The system that sentenced me is the same foul system that is carrying on this war. I wil defy it to the end. It does not
deserve my al egiance." As Daniel Berrigan said, yes, we respect the order of "gentleness and community" but not the "order" of making war on children.
Daniel Berrigan and I had traveled together in early 1968 to Hanoi to pick up three
American pilots released from prison by the North Vietnamese. We became good friends,
and I was soon in close contact with the extraordinary Catholic resistance movement
against the Vietnam War.
In early 1970 his last appeal was turned down; facing several years in prison, he
"disappeared," sending the FBI into a frantic effort to find him. They had caught sight of him at a huge student ral y in the Cornel University gymnasium, then the lights went out and
before they could make their way through the crowd he was spirited away inside a huge
puppet, to a nearby farmhouse.
A few days after his disappearance, I received a phone cal at my home in Boston. I was
being invited to speak at a Catholic church on the Upper West Side of Manhattan, on the
issues of the war and the Berrigans. Philip Berrigan, Daniel's brother, a priest and one of the
Catonsvil e Nine, was also living underground and had just been found by the FBI in the tiny
apartment of the church's pastor.
The church was packed with perhaps 500 people. FBI agents mingled with the crowd,
alerted that Daniel Berrigan might show up. I made a brief speech. Another friend of
Daniel's spoke. As the two of us sat on the platform, a note was passed to us, to meet two
nuns at a Spanish-Chinese restaurant farther up Broadway, near Columbia University. There
we were given directions to New Jersey, to the house where Daniel was hiding out.
The next morning we rented a car, drove to New Jersey, and met him. The house he was
staying in was not secure (in fact, an FBI agent lived across the street!). We arranged a trip
to Boston, a car, a driver, and a destination. From that point on, for the next four months,
he eluded and exasperated the FBI, staying underground, but surfacing from time to time,
to deliver a sermon at a church in Philadelphia, to be interviewed on national television, to
make public statements about the war, to make a film (The Holy Outlaw) about his actions
against the war, both overt and underground.20
During those four months, while helping take care of Dan Berrigan, I was teaching my
course at Boston University in political theory. My students were reading the Crito, and I asked them to analyze reasons for not escaping punishment and also to consider Daniel
Berrigan's reasons for going underground. They did not know, of course, that Berrigan was
right there in Boston, living out his ideas.
I think it is a good guess, despite those often-quoted words of his on "accepting"
punishment, that Martin Luther King, Jr., would have supported Berrigan's actions. The
principle is clear. If it is right to disobey unjust laws, it is right to disobey unjust punishment for breaking those laws.
The idea behind "accept your punishment" (advanced often by "liberals" sympathetic with dissent) is that whatever your disagreement with some specific law or some particular
policy, you should not spread disrespect for the law in general, because we need respect for the law to keep society intact.21
This is like saying because apples are good for children, we must insist that they not refuse
the rotten ones, because that might lead them to reject al apples. Wel , good apples are
good for your health, and rotten apples are bad. Bad laws and bad policies endanger our
lives and our freedoms. Why can't we trust human intel igence to make the proper
distinctions—among laws as among apples?
99
The domino theory is in people's minds: Let one domino fal and they wil al go. It is a psychology of absolute control, in which the need for total security brings an end to
freedom. Let anyone evade punishment and the whole social structure wil come down.
We must ask, however: Can a decent society exist {that is our concern, not the state), if people humbly obey al laws, even those that violate human rights? And when unjust laws
and unjust policies become the rule, should not the state (in Plato's words) "be
overthrown"?
Most people quickly accept the idea of disobedience in a totalitarian society or in a blatantly
undemocratic situation as in the American South with its racial segregation. But they look
differently on breaking the law in a liberal society, where parties compete for the votes of
citizens, whe
re laws are passed by bodies of elected representatives, and where people
have some opportunities for free expression of their ideas.22
What this argument misses is that civil disobedience gives an intensity to expression by its dramatic violation of law, which other means—voting, speaking, and writing—do not
possess. If we are to avoid majority tyranny over oppressed minorities, we must give a
dissident minority a way of expressing the ful ness of its grievance.
The fiery editor of the abolitionist newspaper in Boston, Wil iam Lloyd Garrison, understood
the need. Criticized by another antislavery person for his strong language ("I wil not
hesitate, I wil not equivocate, I wil not retreat a single inch, and I wil be heard") and his dramatic actions (he set a copy of the United States Constitution afire at a public gathering,
to cal attention to the Constitution's support of slavery), Garrison replied, "Sir, slavery wil not be overthrown without excitement, a most tremendous excitement."
Several of Garrison's contemporaries understood his role. One said that Garrison had roused
the country from a sleep so deep "nothing but a rude and almost ruffian-like shake could
rouse her."23 Another said, "he wil shake our nation to its center, but he wil shake slavery out of it."24
Protest beyond the law is not a departure from democracy; it is absolutely essential to it. It
is a corrective to the sluggishness of "the proper channels," a way of breaking through
passages blocked by tradition and prejudice. It is disruptive and troublesome, but it is a
necessary disruption, a healthy troublesomeness.
Disobedience and Foreign Policy
In a little book he wrote in the 1960s, Supreme Court justice Abe Fortas worried about al
the civil disobedience taking place and spoke of "the al -important access to the bal ot
box."25
In later chapters I discuss the insufficiency of the bal ot box to deal with racial
discrimination or with economic justice. But probably the most clear-cut il ustration of the
inadequacy of that "al -important access to the bal ot box" is in the area of foreign policy.
In foreign policy access to the bal ot box means very little. Foreign policy is made by the
president and a smal circle of people around him, his appointed advisers. Again and again,
Americans have voted for a president to keep them out of a war, only to see the "peace"
candidate elected who then brings the nation into war.
Woodrow Wilson was elected in 1916 on a peace platform: "There is such a thing as a
nation being too proud to fight." The next year he asked Congress to declare war. Franklin
Roosevelt was elected in 1940 with a pledge to keep the United States out of the war, yet
his policies were more and more designed to bring the United States into the war.
100
In 1964 the situation in Vietnam was tense. Lyndon Johnson ran for president on a platform opposing military intervention in Southeast Asia, while his opponent, Barry Goldwater,
urged such action. The voters chose Johnson, but they got Goldwater's policy: escalation
and intervention.
The Constitution says it is up to Congress to declare war. James Madison, who presided over
the Constitutional Convention in 1787, explained the reasoning of the Founding Fathers in a
letter to Thomas Jefferson written years later: "The constitution supposes, what the history
of al Govts demonstrates, that the Executive is the branch of power most interested in war
and most prone to it. It has accordingly with studied care vested the question of war in the
legislature."26
However, again and again, the president has made the decision to go to war, and Congress
has obsequiously gone along. In the two most recent American wars, the Korean War and
the Vietnam War, Congress, while ignored, nevertheless appropriated the money asked by
the president to carry on the war. When it comes to making war, we might just as wel have
a monarchy as a constitutional government.
It seems that the closer we get to matters of life and death—war and peace—the more
undemocratic is our so-cal ed democratic system.27 Once the government, ignoring
democratic procedures, gets the nation into war, it creates an atmosphere in which criticism
of the war may be punished by imprisonment—as happened in the Civil War and in both
world wars. Thus democracy gets a double defeat in matters of war and peace.
The Supreme Court itself, which (we were told back in junior-high-school civics class) is
supposed to interpret the Constitution, presumably in the interests of democracy (checks
and balances and al that) has interpreted it in such a way as to eliminate democracy in
foreign policy. In a decision it made in 1936 {U.S. v. Curtiss-Wright Export Corp. ), the
Court gave the president total power over foreign policy, including the right to ignore the
Constitution:
The broad statement that the federal government can exercise no powers
except those specifical y enumerated in the Constitution, and such implied
powers as are necessary and proper to carry into effect the enumerated
powers, is categorical y true only in respect of our internal affairs.28
This is a shocking statement to any American who learned in school that the powers of
government are limited to what the Constitution al ows. But that decision has never been
overturned.29 And al through the history of the United States we find Congress behaving
like a flock of sheep when the president decides on war.
President Polk in 1846 (coveting California and other Mexican land) provoked a war with
Congress to declare war, they rushed to comply, the Senate spending just one day on
debating the war resolution, the House of Representatives al owing two hours.
A century later in the summer of 1964 President Lyndon Johnson reported attacks on U.S.
naval vessels off the coast of Vietnam in the Gulf of Tonkin. Congress took the president's
account as truth (it turned out to be ful of deceptions) and voted overwhelmingly
(unanimously in the House, two dissenting votes in the Senate) to give the president
blanket power to take whatever military action he wanted.
There was no declaration of war, as the Constitution required, but when citizens chal enged
this, the Supreme Court acted as timidly as Congress. The court never decided on the
constitutionality of the Vietnam War. It would not even agree to discuss the issue.
101
For instance, in 1972 a man named Ernest Da Costa brought his case to the Supreme Court.
He had been conscripted into the U.S. Army, but when ordered to go to Vietnam he refused,
arguing that the American war in Vietnam had not been authorized by Congress, and,
therefore, Congress could not draft him for overseas service. The Court refused even to
hear his case. It takes the assent of four Supreme Court Justices to bring a case before the
Court; only two wanted to hear Da Costa's argument.30 The Supreme Court's claim was that
such questions are "political"—meaning that they are too important to be decided by the
nonelected Supreme Court and should be decided by the "political" branches of government, those subject to election, namely the president and Congress.
But we have seen that Congress has never had the boldness to chal enge a president's cal
for war. So much for those checks and b
alances that, we learned in school, would save us
from one-man rule. It turns out that the much-praised "proper channels" are not channels
at al , but mazes, into which we are invited, like experimental animals, to get lost.
The concentration of dictatorial power in the hands of the president, in regard to military
actions, was underlined when Secretary of State Dean Rusk testified before Congress in
1962. He was explaining the attempt to invade Cuba the year before, an action planned
secretly by the CIA and the White House without the involvement of Congress. You
shouldn't get upset over being ignored on this, Rusk assured Congress, because it's been
done lots of times. He then gave them a list compiled by the State Department cal ed
"Instances of the Use of United States Armed Forces Abroad 1798-1945," describing 127
military actions by the United States, carried out by presidential order.31 A smal sample of
that list includes (in the language of the State Department):
1852-53—Argentina—Marines were landed and maintained in Buenos Aires to
protect American interests during a revolution.
1854—Nicaragua—San Juan del Norte [Greytown was destroyed to avenge an
insult to the American Minister to Nicaragua].
1855—Uruguay—U.S. and European naval forces landed to protect American
interests during an attempted revolution in Montevideo.
When U.S. troops were final y withdrawn from Vietnam in 1973, over 50,000 American men
were dead after a war begun by the president, aided by a submissive Congress and a
hands-off Supreme Court. Now Congress, mustering a bit of courage, passed a War Powers
Act, intended to limit the power of the president in sending the American military into
warlike situations. The act declared, among other provisions, "The President, in every
possible instance, shal consult with Congress before introducing United States Armed
Forces into hostilities or into situations where imminent involvement in hostilities is clearly
indicated by the circumstances."
This War Powers Act has been ignored again and again, by various presidents. President
Ford invaded a Cambodian island and bombed a Cambodian town in the spring of 1975 after