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Dictionary of the History of Ideas

Studies of Selected Pivotal Ideas
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7 occurrences of Dictionary_of_the_History_of_Ideas
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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


440

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


441

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.