IV
Former Justice Abe Fortas offered a new justification
of nonviolent dissent
which does not view violence as
necessarily wrong in all societies but as
unnecessary
in a free society like that in the
United States of
America. There is no need for
disruption and destruc-
tive violence, he
says, when there are constitutional
and rational means of dissent in this
society unparal-
leled in previous history.
Universal suffrage allows the
majority of people to express their dissent
by voting
out of office those officials whose policies and com-
mands are objectionable. Moreover,
individuals and
groups are guaranteed the right to bring pressure to
bear on their government by writing, speaking, orga-
nizing, picketing, and demonstrating, provided only
that laws
governing public safety, etc., are obeyed.
They may also challenge unjust
laws through the
courts, claiming that the laws are unconstitutional
as
well as unjust. And when they sue the state or its
officials, they
are equals with the state in court and
have the protection of elaborate
procedural rights. This
is possible because the courts are totally
independent
of the executive and legislative branches of govern-
ment. This path of legal dissent was
the one taken by
the Negroes in their famous dissent over school segre-
gation in
Brown v.
Board of Education, in which the
Court ruled that state-maintained
segregation of public
schools was unconstitutional.
The nature of civil disobedience endorsed by Fortas
is wholly procedural,
and never violent, and always
directed against specific laws. An unjust law
which is
judged to be unconstitutional is disobeyed so that a
court
test can be made. If the decision of the Court
bears out the judgment of
the dissenter he is justified
and exonerated, but if the decision goes
against him,
he must accept the penalty of disobeying that law with
dignity, the mark of his respect for the overall system
in which he is
operating. Furthermore, it is crucial that
in disobeying a law which he
judges to be unconstitu-
tional the
dissenter not violate laws which are clearly
valid as a way of publicizing
a protest and exerting
pressure on the public.
A good example of this sort of admissible civil diso-
bedience, Fortas thinks, is the work of Martin
Luther
King, Jr., who pledged that Negroes would disobey
“unjust laws”—defined as laws that only a
minority
are compelled to obey—openly and peacefully, and
that they would accept whatever penalties might re-
sult. “This is civil disobedience in a great tradition.
It is peaceful, nonviolent disobedience of laws which
are themselves unjust
and which the protester chal-
lenges as
invalid and unconstitutional” (Fortas [1968],
p. 34). It is part
of the valid framework of dissent and
disobedience provided by the
Constitution and consti-
tutes a workable
alternative to violence. Fortas con-
cludes
that “the experience of these past few years
shows, more vividly
than any other episode in our
history, how effective these alternatives
are.” It has
been “through their use—and
not through the sporadic
incidents of violence—that we have
effected the cur-
rent social
revolution...” (p. 64).
This view of dissent and disobedience has many
merits and is worthy of the
deepest respect. One only
wishes that it were the whole story, but, alas,
it does
not seem to be so. One writer has found as many as
“nine fallacies” in Fortas' view (Zinn [1968],
passim).
There is, unfortunately, grave doubt that the sort of
social
revolution that Justice Fortas has in mind has
in fact taken place, even
though a legal one certainly
has. A vast majority of school-age Negroes
still go to
segregated schools in the South in spite of the 1954
Supreme Court ruling, or attend de facto segregated
and/or inferior schools
in the North. Poverty funds
have been frequently used for political
purposes or,
in any case, for something someone else thought would
be
good for the black population. Title VI of the 1964
Civil Rights Act, which
allows federal withdrawal of
funds in cases of discrimination, has been
ignored in
many cases of unequal treatment such as segregated
hospital facilities and used only sparingly in regard to
schools. Under the 1965 Voting Rights Act only a
pitifully small number of
federal registrars have been
sent to the South. And, most crucially of all,
due to
our computer revolution and the declining need for
unskilled
and semi-skilled workers, the employment
situation of the Negro, in spite
of feeble efforts to aid
him, is worse than it was ten years ago.
Instead of a social revolution, one writer sees “little
more than
federally approved tokenism” and “a con-
tinuation of paper promises and ancient
inequities”
(Duberman [1968], p. 38). And Martin Luther
King,
Jr. in his later work sadly concluded that “there is
a
tragic gulf between civil rights laws passed and civil
rights laws
implemented.” There is “a double standard
in the
enforcement of law and a double standard in
the respect for particular
laws” (King [1967], p. 82).
King still offered universal love
and nonviolence as the
only answer to the new difficulties, but many
black
men found the old answer utterly irrelevant given these
new
revelations. The history of S.N.C.C. from “sit-ins”
to militancy is instructive on this point. For better or
for worse, black
militants of all varieties marched in,
and civil disobedience using various
types and degrees
of pressure is now very much part of the scene. Some
have felt it necessary to go beyond civil disobedience
to terrorism.
But it is not only in the civil rights area that a feeling
of no progress
and double-dealing has led to the fall
of the “great
tradition” in civil disobedience. In pro-
tests against the Vietnam War, the draft laws, poverty,
and the
authoritarian structure of colleges and
universities, the same pattern of
increasing militancy
is exhibited. The common theme in the campaigns
of
the black man, the young man, and the poor man is
that they want
more participation in the decisions
which are always being made for them by
someone
else. They want more “participatory
democracy” be-
cause they feel that
their “representatives” and “public
servants” have produced sham progress and usually
apply double
standards. They ask pointedly: Are not
those who refuse to implement laws
just as civilly
disobedient as those who disobey laws, with the
crucial
exception that there are severe penalties for the one
but none
at all for the other? It is not the American
system and not the American
judiciary that they are
rejecting or have lost faith in, many militants
say, but
rather it is those who have been making their political,
economic, and social decisions for them in whom they
have lost confidence
and now completely reject.
Rejection and alienation are frightening symptoms
in the body politic as
well as in the individual. Some-
times they
are the result of deep understanding, other
times of misunderstanding or
ignorance; sometimes
they are the result of deep injury, other times of fancied
grievances; sometimes they are the result of righteous
anger,
other times of blind and selfish rage. It is most
crucial at this point in
history to distinguish more
carefully than in the past these different
origins and
types of alienation so that they can be differentially
and
more effectively responded to than heretofore. No
doubt, the wisest first
move would be to take the
clear-cut, deep grievances seriously and listen
to what
the oppressed themselves have to say. Not to do so
is to run a
grave risk of producing further “uncivil”
disobedience.
