The Cavalier daily :: Wednesday, September 23 :: University of Virginia Library

On September 10 in the D.C.
Court of General Sessions, six men,
including me, were found guilty of
unlawful entry. The charge and
subsequent verdict arose from an
action taken in June against the
District Selective Service System.

We spent an afternoon in the
Director's office, intending to stay
until the war was over, the draft
ended, he resigned, or we were
removed, Obviously we were
removed (two of us were carried,
the others decided to walk.)

Admittedly the charge of
unlawful entry (potential fine
$100.00, potential imprisonment
six months - likelihood of sentence
- extended probation) is a minor
one. It hardly aroused the interest
of the press at the time;
nevertheless, the trial was not only
representative, but significantly
descriptive of judicial attitudes at
this point in American history.

Judge McIntyre is a good man.
His decisions, on far more serious
cases, reflected a man who was
attempting to administer the laws
with compassion. When he realized
that we were planning to raise
moral, political, and ethical
questions during the trial, despite
the case load he was carrying, he
went out of his way to allow us to
introduce testimony regarded by
many other judges as irrelevant.

We thus spoke to the illegality
and unconstitutionality of the
Selective Service System. We
castigated the war in Vietnam, and
we challenged the legitimacy of the
courts of D.C. where the citizens
lack Congressional representation.
All of these arguments he listened
to and allowed into record, but
when we asked the Court's
permission to raise the
constitutional question of civil
disobedience, and further requested
an instruction to the jury regarding
the same, our motions were denied.

The constitutional question of
civil disobedience rests on the
tradition of Juris right of
nullification (that is, the jury has
historically had the power in this
country to acquit defendants in
spite of and in opposition to the
instructions of the judge). Freedom
of the press, freedom of assembly,
were both protected by the
constitution because the colonial
juries had refused to enforce the
law where the conscience of the
community was at stake.

Perhaps the most famous case is
that of Peter Zenger, a publisher,
who was charged in 1735 with a
violation of the sedition laws. He
had in fact violated the Law, and in
his defense, Andrew Hamilton
argued before the jury that the law
should not be enforced where truth
was involved. The jury acquitted
Zenger and the case later influenced
the authors of the Constitution.

No Lawful Authority

Our defense was built on the
contention that we had committed
no crime. In fact, we still believe we
did not unlawfully enter, or refuse
to leave when the lawful authority
requested. Throughout the trial we
maintained that the draft was
violating the constitution, leaving
the Director of the D.C. boards
without lawful authority. We
maintained that the war in Vietnam
was unconstitutional (not to
mention criminal), leaving the
representatives of the Federal
Government without lawful
authority to remove us; and finally,
because the people of Washington,
D.C., are a colony and not
represented in Congress, the
subsequent violation of the
constitution left the Metro-Police
without any authority.

As we raised each of these issues
the prosecutor would rise and say
"Your Honor, I must strenuously
object, the testimony of the
defendants is irrelevant."

"I'll let them testify to their
motivations. Objection overruled."

As I've said before, the judge is a
good man. While he seemed to
recognize the legitimacy of our
motivations he was unwilling to
rule on the questions we raised. In
fact, he couldn't.

The nature of a democracy is
such that when the government in
power usurps authority the final
test of that usurpation is in the
decision of the jury. Freedom of
the press in 1735 was upheld by a
jury in a technical violation of the
law. During the pre-civil war period,
juries refused to enforce the
Fugitive Slave Laws. Time after
time, juries decided a question
greater than whether or not a
technical violation of the law had
occurred, they decided whether or
not a law was oppressive by
deciding when it should be
enforced.

Judge McIntyre refused to
instruct the jury of their function
as final enforcer of the law. He, like
all the other representatives of the
U.S. government (from President
Nixon to the assorted presidents of
America's colleges) could not allow
a jury to decide questions involving
and exposing usurpation of
constitutionally granted powers.
Further they cannot leave questions
of governmental authority open to
juries' consciences because they
fear the legitimate right of the
citizens to refuse to obey laws
where these laws are instituted to
maintain the government in power
- not the Constitution.

A democracy functions on
minority acquiescence to the
majority when that majority
operates within the limits
prescribed by the Constitution.
When, however, the Constitution is
blatantly flaunted (i.e. Dickie
Nixon statement, I don't need
congressional approval, I'm the
Commander-in-Chief), the
appropriate methods for returning
the government to one of laws are
left moot, from peaceful disruption
of the illegitimate agencies ("if thy
hand offends thee, cut it off") to
revolution.

So we were found guilty.
Indeed, we were in that office and
had every intention of staying so
long as the war was prosecuted and
the draft maintained. But we
committed no crime. The trial was
a sham, not because the judicial
system is, in and of itself, invalid
but because the government
enforcing it is invalid.

Power To Threaten

The government cannot prove
itself legitimate. It readily
recognizes the moral and ethical
motivation of its opponents (but
only as long as those opponents
present no real possibility of
removing the government from
power) but represses them
nevertheless. It allows them to
educate but not alter (i.e. it doesn't
matter how many Congressmen
want to change the Selective
Service system, as long as Mendel
Rivers and John Stennis head those
powerful committees the question
will never come to the floor for
debate.) The government demands
the right to write all the rules,
without realizing that that right
constitutionally belongs to the
citizens.

In the final analysis the present
government has the right to rule
only because it has the power to
threaten and intimidate its
constituents (read General
Hershey's classic pamphlet
"Channeling," then come back and
tell me I'm wrong), and the
willingness to murder them. As long
as the government rules by power
(i.e. behave or I'll kill you) it
remains illegitimate, and sometime
soon we may have to resurrect the
operational definitions our
forefathers found legitimate.