The Constitutionality of Civil Disobedience[1] [2]

Harvey Wheeler

Civil Disobedience is as old as our species, as old as war and peace. War lords and priests have always differed over the holy and the profane – City of God and City of Man. Popular protests are chronicled in Homer and Rig-Veda, Bible and Scripture, Talmud and Koran. Establishments have been in constant fear of protesters: Moses, Jesus, Buddha, Mohammed, Gandhi, Martin Luther King, Jr., Father Daniel Berrigan, and Civil Disobedience – Vietnam; WTO. Civil Disobedience has never been easy or safe; but in America it is constitutional: Civil Disobedience is at the heart of both British and American constitutionalism. It is as hallowed as Magna Carta and as powerful as the deposition of President Richard Nixon.

As the Nixon Watergate crisis came to a head it became apparent that many of the worst constitutional abuses of the Nixon Administration were motivated by fear of the protest movements that began in the late 1960's. Erlichman and others appealed to the doctrine of National Security claiming it justified all their constitutional improprieties: the Huston plan to institute a presidential secret police, the break-in to Daniel Ellsberg's psychiatrist; the Watergate operation itself and the attempt to provide it with a CIA cover, and the CoIntelPro FBI surveillance violations of individual rights. The leaders of the Nixon Administration argued that the protest movements had links to Communism. Some of the protests were violent and the excesses of these few tended to discredit all protests and demonstrations, most of which were peaceable applications of Civil Disobedience.

On May 9, 1970 an estimated 25,000 people protested against the Vietnam war and the administration of President Richard Nixon.

The year 2000 opened with the WTO protests in Seattle and the protests against the World Bank and the IMF in Washington D.C.

To the establishment media, Civil Disobedience, has an unsavory reputation. It is portrayed as, and hence calls to mind, riots, mobs, fire bombings, as happened in 1994 in the Crenshaw area of Los Angeles after the acquittal of the police officers who had mauled Rodney King.

Yet Civil Disobedience possesses hallowed status in constitutional history. Magna Carta, the Boston Tea Party and the Declaration of Independence are illustrious Examples. They were master minded by rich and powerful leaders, and were successful. These victories were "republican" instances of Civil Disobedience. Recent Civil Disobedience victories have been by and for the underclass, the students, the Blacks, the ethnics, the disenfranchised; yet they also won! There were arrests but the laws they opposed were declared unconstitutional because of Civil Disobedience.

Civil Disobedience works best for the rich and powerful but during the 1960's it was democratized. Civil Disobedience is rooted in the underlying principles of Anglo-American constitutionalism.

Constitutionalism combines two elements: the rule of law and democracy. The two often appear to be incompatible; constitutionalism unifies them. Popular demand sometimes conflicts with the rule of law. Charles H. McIlwain, the great authority on constitutionalism, gave a formula for the synthesis of the two in the form of a political equation:

Constitutionalism is "the institutionalization of civil disobedience".

Civil Disobedience is constitutional populism; the rule of law is constitutional order.

The English and the Americans balanced this constitutional equation in characteristically different ways but for both, Civil Disobedience is central to constitutionalism.

Civil Disobedience means that the people can nullify tyrannical governmental actions. Constitutionalism requires that the capability for doing so must be protected.

Under the British unwritten constitution this was translated into triggering a cabinet crisis, dismissing the "government of the day" and resolving the crisis through popular processes. However this ability to create and resolve government crises is absent from the American "presidential" form of constitutional democracy. This was the feature of the Watergate crisis that so perplexed Europeans. How, they asked, could an administration that committed so grave a crime be permitted to stay in office? But in the United States, an administration can be deposed only at quadrennial intervals regardless of the fact that one like Richard Nixon's may be found deficient at the start of its term. Impeachment is the only other solution. The threat of impeachment was what prompted Nixon's resignation (with pre-arranged pardon). Impeachment was applied against President Clinton over moral issues and failed.

Initially, federalism and the exercise of States Rights offered some possibility of confronting the central administration with a crisis but that form of institutionalized civil disobedience was eliminated following the Civil War. Watergate revealed the pressing need to find an alternative way to force and resolve administration crises.

The degree of constitutional catastrophe that an impeachment threatens to unleash was sufficient to prevent its utilization against Nixon. But for the quirk of personality that led Richard Nixon to institute his secret tape recordings, doubtless he would have weathered the storm that gathered about himself. Other fortuitous accidents were also required: that particular Judge Sirica rather than some other; Woodward and Bersnstein at that particular newspaper, and that particular "Deep Throat" who provided them with critical leaks at critical junctures. With such accidents necessary to even bring the impeachment crisis to a head, and then to find it too constitutionally disruptive to apply, does not testify very effectively to the health of the institutionalization of Civil Disobedience in American constitutionalism.

This requires a more precise specification of exactly what is meant by the identification of constitutionalism with civil disobedience. For if that identification is sound, it removes the ground underlying the "national security" claim of the Nixon Administration.

As early as the thirteenth and fourteenth centuries England's kings encountered disobedient baronial uprisings. As we look back on them it is hard to know which side had the greater claim on substantive justice. Did the common people fare better when the great barons held the king in check? Or did that check on royal authority merely permit the barons to behave more despotically at home toward their own subordinates? But if we restrict our concern to the relationships between kings and barons alone, the issue is clear. The barons resorted to civil disobedience in resistance to royal despotism. Moreover, the customs of medieval English kingship permitted them to do so. Both sides recognized that there were two distinct realms of royal authority. One dealt with extraordinary situations such as foreign relations and war making; the other deal with the settled law of the land governing domestic feudal relationships. In the first area the king's authority was admittedly absolute. In the second the king was under the law. However it was not always easy to tell whether a given royal act fell under the one or the other. And in the event of a dispute, who was to decide the matter? There was no "constitution" in our sense; and there was no principle of Judicial Review under which a constitutional challenge could be taken to a high court for resolution. On the contrary, the High Court of Parliament was the King's Court. The justices and law clerks were crown appointed and could be counted on to rule in the king's favor. The early disputes were something like those that arise today between labor and management. If a dispute between king and barons could not be settled by negotiation, the only recourse open to the barons was to strike against the king, which they frequently did. But to attack the principle of royalty was hazardous, even when done in the name of the law. For one thing, the authority of the barons toward their own vassals rested upon the same principle of allegiance as did the king's authority over the barons. To threaten the higher jeopardized the lower. Accordingly, it became a maxim among the barons that their disobedience was not a violation of their personal loyalty to the king, nor did they claim that allegiance was more owing to the laws than to the king – a doctrine incompatible with kingship. Instead they developed the doctrine of the king's wicked advisors.

According to this doctrine it was not the king himself who was at fault if wrong was done; rather it was held that the king "could do no wrong" and was the victim of wicked advisors. The barons could then oppose the policies of evil counselors without seeming to challenge the principles of kingly authority itself. Wicked advisors had to be purged, they argued, to insure that the king's proper will could find expression. Gradually over many centuries this form of baronial civil disobedience became institutionalized in Parliament through impeachment proceedings against errant ministers of the crown. This in turn led to the emergence of the working principles of the British constitution: the principle that the king acts only on the advice of ministers; the principle that the ministers of the king's cabinet are responsible to Parliament for acts done in the name of the Crown; and the principle that a Cabinet must resign if it loses the confidence of Parliament. This is what McIlwain referred to in stating that British constitutionalism is little more than the instutionalization of Civil Disobedience.

This is all very well for a monarchy but how does one translate these principles to make sure they will operate in a democratic republic? How can there be wicked advisors in such a democracy? Advisors to whom? To the President? No, because loyalty is not owing to the President, only the nation itself. Our pledge of allegiance is "to the flag and to the republic for which it stands." In a republic the nation itself takes the place once held by monarchs. A republican version of the doctrine of evil counsel can apply only if as in Nazi Germany, a nation's official administration becomes tyrannical and rules as a "second state" contrary to established law - in that case, the constitution of the Third Reich.

Studies of the beginnings of German and Italian Fascism showed that in those countries constitutionalism was first undermined by a 'secret team' and then by the creation of a 'second state' that was anti-constitutionalist and which while leaving the formal structure of the old state standing, subverted it by creating a new totalitarian regime that, when superimposed upon the old state, was able to substitute its anti-constitutionalist decrees for the traditional constitutional law, rendering the latter unable to forestall the spread of Nazi terror. [see Ernest Frankel, The Dual State, E. Shills, E. Lowenstein & K. Knorr trans., 1941; and Fletcher Prouty, The Secret Team, 1973; 1992; Inst for Hist Review; Costa Mesa, CA]

Despotism in a constitutional republic occurs when an errant administration gives evil counsel, so to speak, to the government. But how does one impeach an administration? Our recent history shows that constitutionalism is not safe unless individuals are secure in their right to defend it through acts of Civil Disobedience. The tradition of Civil Disobedience must find vitality through devices for opposing and checking oppressive actions by a ruling administration.

A foundation was laid by the framers of the American Constitution. They themselves had just carried through a successful act of Civil Disobedience. As with their baronial precursors, they had first stated their case in the name of their allegiance to the person of the king, claiming that the English Parliament had taxed them in violation of the British constitution. The historical evidence shows that those ideas were thoroughly discussed in the colonies prior to the outbreak of the War of Independence. Civil Disobedience and the doctrine of the king's wicked advisors were central colonial issues. Had there been a way for England to acknowledge a privileged constitutional status for Colonial Civil Disobedience, the War of Independence might never have occurred. However that was impossible. In certain imperial disputes appeal lay to the law lords – the high justices who sat in the House of Lords – but this concerned only colonial matters such as disputes between colonists and their Governor General. There was no way to appeal a parliamentary enactment even though cases dating from before the victory of the Parliamentary forces in 1688 indicated that enactments of the English Parliament might not have the force of law inside the colonies. This was what the colonists claimed and constitutional historians have not yet resolved the debate.

The colonists, citing the English doctrine that the king can do no wrong (wrongful acts of the Crown being attributed to the king's wicked ministers) justified their opposition in accordance with the English tradition of Civil Disobedience. But this required the ability to impeach errant ministers, which was obviously impossible for colonists to do. It was necessary to find an alternative target as the object of colonial Civil Disobedience, namely the parliamentary decrees themselves: Civil Disobedience as the impeachment of an objectionable law rather than an errant minister. But while it was easy to see how ministers might be in error, how could a law be at fault, especially in England where Parliament was sovereign? This was the constitutional issue of the American Revolution. The Americans, in visualizing a way to institutionalize their own form of Civil Disobedience, had to first hypostatize ("invent") a British constitution so they could put forward the concept of unconstitutionality. Then Civil Disobedience, by analogy with the English past, could be validly directed against "unconstitutional" law. But this doctrine was unintelligible to 18th century English parliamentarians. How could such an issue be adjudicated? Parliament was sovereign. No other body could declare Parliament's acts unconstitutional.

Not so, replied the colonists, for they were doing so and they cited ancient law cases in their behalf. But the English merely replied by stating what the law was. And the law, as Parliament definitively announced it, required colonel compliance. Obviously something more was required and that something was one of three things: capitulation by one of the parties, war, or some institutionalized device for adjudicating such disputes. Both rejected the first, and lacking the third, only war remained. But the dilemma persisted and following the war the Americans returned to its solution: the result was the invention of American Judicial Review. Civil Disobedience could be institutionalized on the level of statutes as well as ministers if a constitutional way could be found to impeach them.

This was how the America revolutionaries contributed a special cluster of concepts to constitutionalism: a sovereign hypostatized Constitution; the doctrine of unconstitutionality; an autonomous Supreme Court, and the Judicial Review of the constitutionality of "impeached" governmental or legislative acts. This inaugurated the institutionalization of Civil Disobedience on an entirely new plane.

Such inventions are rare historical occasions and it is worthwhile to inspect the writings of the creators of that invention. As with all significant social inventions, the tributaries that fed its emergence are numerous and arise from several different sources. But Civil Disobedience was one of the cornerstones of a characteristic new feature of American constitutionalism.

With Watergate, and the suppression of Civil Disobedience it symbolized scarcely behind us, this lesson requires sturdy reenforcement. The passages that follow are taken from the closing paragraphs of James Wilson's "Address Delivered in the Convention of Pennsylvania, January, 1775, which provides the foundation for the constitutionality of American Civil Disobedience. In what follows the term "Crown" should be read as "Constitution." Wilson's argument about 18th century Civil Disobedience against the laws of Parliament applies directly to our contemporary Civil Disobedience under the Constitution and against today's suppression of demonstrations, injustice and police tyranny:

Wilson said:

... let me appeal, I say, whether the principles on which I argue, or the principles on which alone my arguments can be opposed, are those which ought to be adhered to and acted upon – which of them are most consonant to our laws and liberties – which of them have the strongest, and are likely to have the most effectual, tendency to establish and secure the Crown's power and dignity.

Are we deficient in loyalty...? ....Our conduct ...will fully [disprove], the insinuation that we are [disloyal]. Our loyalty has always appeared in the true form of loyalty – in obeying our sovereign according to law. Let those, who would require it in any other form know that we call the persons who execute ... commands ... contrary to [the Constitution] disloyal and traitors.

Are we enemies to the ... Crown? No, sir: we are its best friends: this friendship prompts us to wish, that the power of the ... Crown be firmly established on the most solid basis: but we know, that the Constitution ... will perpetuate the former, and ... uphold the latter. Are our principles irreverent to the Crown? They are quite the reverse: we ascribe to its perfection, almost divine. We say, that the Crown can do no wrong: we say that to do wrong is the property, not of the Crown, but of weakness. We feel oppression; and will oppose it; but we know – for our Constitution tells us - that oppression can never spring from the Crown. We must, therefore, search elsewhere for its source: our infallible guide will direct us to it. Our Constitution tells us, that all oppression springs from the ministers of the Crown. The attributes of perfection, ascribed to the Crown are, neither by the Constitution, nor in fact, communicable to ministers. They may do wrong: they have often done wrong: they have been often punished for doing wrong.

Here we may discern the true cause of all the ... clamor and unsupported accusations of the ministers and of their minions, ... against the conduct of the American colonies. Those ministers and minions are sensible, that [our Civil Disobedience] is directed, not against his Majesty but against them: because they have abused his Majesty's confidence and brought discredit upon his government, and derogated from his justice. They see the public vengeance collected in dark clouds around them: their consciences tell them, that it should be hurled, like a thunder bolt, at their guilty heads..... With guilt and fear they skulk behind the throne. Is it disrespectful to drag them into public view, and make a distinction between them and his Majesty, under whose venerable name they daringly attempt to shelter their crimes? Nothing can more effectually contribute to establish the constitution and to secure him the affections of people, than this distinction. By it we are taught to consider all the blessings of government as flowing from the throne and to consider every instance of oppression as proceeding, which in truth is oftenest the case, from the ministers.

If, now, it is true, that all force employed for the purposes so often mentioned, is force ... unsupported by any principle of the common law; and unauthorized by any commission from the Crown.... it must be for the support of oppression and ministerial tyranny – if all this is true – and I flatter myself it appears to be true – can anyone hesitate to say, that to resist such force is lawful: and that both the letter and the spirit of the ... constitution justify such resistance?

Resistance, both by the letter and the spirit of the British Constitution, may be carried farther, when necessity requires it, than [we] have carried it. Many examples in the English history might be adduced, and many authorities of the greatest weight might be brought, to show, that when the king, forgetting his character and his dignity, has stepped forth, and openly avowed and taken a part in such iniquitous conduct as has been described... the distinction above mentioned, wisely made by the Constitution..., could not be applied because the ministers had unconstitutionally rendered its application impossible....

Wilson appealed to Britain's laws and constitution. Such principles, he said, were consonant with "our laws and liberties," which also "establish and secure ... [authority] and dignity." True loyalty consists of obeying the Constitution and anything else would be disloyal. Oppression must be opposed because oppression "can never spring from the Crown... our constitution tells us that all oppression springs from the ministers..." and they have no immunity.

Evil administrators cannot be permitted to use the law as a shield for wrongdoing. The Constitution requires that they be unveiled. Any force they use to perpetuate evil can be opposed and to do so is constitutional.

Institutionalized Civil Disobedience derived from impeachment. Civil Disobedience against a tyrannical king is constitutionally protected. In order to defend Civil Disobedience carried to such a length, Wilson had to appeal to a Constitution standing above both ministers and king. This new hypostatized Constitution prohibits all unconstitutional governmental acts because at that time, unconstitutional acts by a king could not be punished under the English principle that he king acts only through his ministers who are responsible solely to Parliament. The only form of Civil Disobedience that remained open to the colonists was outright rebellion. And while they heartily adopted this option vis-a-vis England, they tried to forestall the need for its repetition in their own new government.


The colonists constitutionalized a new-world form of Civil Disobedience. This, as was quickly apparent, required the institution of the principle of Judicial Review. Otherwise there would be no reliable way to enforce the supremacy of the Constitution when the head of the government was at fault. Other forces led toward the same end, but the initial role of Civil Disobedience in shaping American constitutionalism cannot be ignored.

Despite differences, the institutionalization of Civil Disobedience in both England and America was stimulated by the historical success of oligarchical forms of Civil Disobedience. Eighteenth century constitutionalism was the institutionalization of elitist, not populist, Civil Disobedience. The American Constitution was designed to prevent the national legislature from adversely affecting the interests of local elites. This was provided for in the grant of legislative power and also through federalism. Initially, federalism was the doctrine that citizens possessed dual citizenship and allegiance. One was to their state and its laws; the other was to the central government. Clearly this was an effort to institutionalize inside the new government protections against the kinds of despotism the English Parliament had visited on the colonies. States rights, interposition and secession were the ultimate guarantors. This constitutional theory of federalism as the institutionalization of Civil Disobedience, was later explained by John C. Calhoun.

Federalism was not the institutionalization of populist Civil Disobedience. It was the device the Founding Fathers used to prevent the recurrence of what they had rebelled against. It was utilized on a minor scale several times but foundered over the slavery issue. Finally, the tie between federalism and Civil Disobedience was eliminated as a result of the Civil War. Seen in that light, the Civil War had a de-constitutionalizing effect.

There were other devices for institutionalizing Civil Disobedience. Each branch of the Federal government was given authority to veto certain acts of the other two. Later, as democratic practices developed, this principle of constitutionalism was expanded to protect more popular forms of Civil Disobedience. Jefferson"s dream was that the populist political party, operating as the people's form of institutionalized Civil Disobedience, had introduced into history a new stage of constitutionalism. In theory, Jefferson's new, broadly based political party would make it possible for the people to repeat at frequent intervals the "political revolution of 1800"[3] whereby Jefferson had expelled the Federalist Party oligarchs from office. This new kind of Civil Disobedience is what he meant by "a revolution every generation."

In addition, there was the all important Bill of Rights and especially the First Amendment. This protected not only freedom of speech but also the right of the people to peaceably assemble and petition their government for a redress of grievances. However, as we have seen, the crucial invention required to institutionalize New World Civil Disobedience was Judicial Review: the Supreme Court empowered to act as an impartial umpire. Without this a citizen protesting against the new government would have found himself in the same position he formerly held as colonist. Judicial Review is the Court's authority to rule upon the constitutionality of the acts of the other branches of the government even though their own constitutional status is co-equal with that of the Court. Time was to see the systematic erosion of all the early constitutional devices for checking and vetoing despotic exercises of authority. Moreover, it was often the Supreme Court itself that presided over the erosion and gave it constitutional sanction.

After the Civil War, federalism ceased to operate as a device permitting the states to check the Federal government as a whole. Long before Watergate the separation of powers had succumbed to the engrossment of authority by the Presidency. By the 1950's the two party system hardened against popular dissent and rendered virtually impossible a repetition of the Jeffersonian and Jacksonian protests that had given it birth. The media of communications, taken overall, functioned in support of the government rather than as the vigilant voice of conscience which had entitled them to their chartered liberties. The result was to undermine the autonomies of previously independent centers of authority. The Federal government, under the hegemony of the Presidency, acquired a monopoly of power. The Supreme Court, subject to influence through presidential appointments, was an unreliable protector of Civil Disobedience.

Not too far back the English doctrine of His Majesty's "Loyal Opposition" was deemed self-contradictory. Closer to home, John Brown's insurrection opened the door to our own doctrines of civil liberties. Two of America's major contributions to political theory, Thoreau's Civil Disobedience and Calhoun's Discourses, were devoted to the philosophical and constitutional foundations of Civil Disobedience. The Constitution of Massachusetts explicitly protects the "right" to revolution. The American Constitution itself is founded on this right and John Locke, whose doctrines were studied carefully by our Founding Fathers, was history's chief theoretician of the right to revolution. Locke argued that civil liberty, in the end, rests upon two rights: to revolt, or to seek refuge from oppression in vacuus locus. Otherwise, Locke argued, no constitution is proof against tyranny.

All this is well known and yet there remains in our minds a seeming contradiction between the government's need to rule and the obvious necessity for citizens to resist tyranny. This of course is the issue that arose in Weimar Germany and ever since we have pondered the proper antidote should a threat similar to that posed by Hitler again arise. Many Americans are convinced that this country is now threatened with a neo-fascist subversion of the principles of the Constitution and that this can be forestalled only through determined acts of Civil Disobedience.

The modern mass political party first appeared in the United States as a result of the innovations of the Jefferson-Jackson period Much later the two party system emerged and in the eyes of many political scientists it became virtually identical with democracy itself. The tendency is to visit this intent upon Jefferson. However, that is far from the case. Jefferson wanted to avoid the parliamentary factional parties of England. Instead he believed the people ought to be the repositories for the authority to control the government; they ought to be rendered capable through advanced education, to understand governmental problems and their solutions, and these two features, political control and higher education, were to find institutionalized effectiveness in Jefferson's conception of the political party. Jefferson did not advocate institutionalized party competition. Rather he thought in terms of what now might be called a one-party, or better, a non-party system. Moreover he was sensible to the force of the contemporary allegation that representative institutions produce political alienation by separating the people from power. Hence his concentration upon grass roots democracy. However, Jefferson did not rest his case upon the raw power of the people. On the contrary his idea of democracy required the presence of an educated populace. For one thing, they had to have a sufficiently high education to detect and understand the forms of corruption that might arise in 19th century political regimes.

In his day this capability might have been produced with relatively low levels of mass education. In our own day a considerably higher level is required. Jefferson held that the institutionalization of Civil Disobedience required the institutionalization of the higher education of the people. His founding of a public university in Virginia was directly related to his conception of constitutionalism. This connection remains valid today.

In the 1960's Francis Wormuth demonstrated that President Johnson's waging of the Vietnam war was an usurpation of authority in violation of the Constitution. Frank Harvey's Vietnam showed that the Vietnam war was waged in violation of the Nuremberg prohibitions of crimes against humanity. Already in the "CoIntelPro" 1960's Paul Jacobs depicted – if more than the morning newspapers were needed – the extent to which the cities have decided to "solve" the problems of their ghettos by storm troop methods. All this has been progressively magnified in the years since. "Presidential Wars" have become the habitual devices used by Presidents whose policies are stalemated by Congressional opponents. The recent "sanitized" air wars have been directed against civilian targets and are "crimes against humanity" by any definition. Metropolitan police in New York, Washington and Los Angeles have officially adopted armored riot squads plus outright assassinations of "profiled" ethnics. The "Ramparts" police scandals of Los Angeles murdered and framed Blacks by the scores.

The radicals and activists of the 1960's and of today did not, before storming into the streets, sit down first and ponder the principles of constitutional theory, although the numerous campus teach-ins did discuss many of the above points. By 1999 Internet announcements and careful activist seminars and training sessions prepared for demonstrations against WTO and World Bank and IMF meetings. Demonstrations, including the Million Moms Against Guns, have become established forms of political action to oppose noxious government policies.

These forms of Civil Disobedience are thoroughly consistent with the principles that have been at issue in our greatest constitutional struggles for over 500 years.

Recall that the American Constitution came prior to the advent of democracy. It institutionalized the Civil Disobedience of social elites but not of the people. This is now being remedied through demonstrations that are bringing constitutionalism up to date. The urgency of this need was proved by Watergate, the Clinton Impeachment, Clinton's AirForce city-destroying, people-starving diplomacy, complemented domestically with the constant specter of National Emergency FEMA suspension of constitutionalism.

What is the remedy when official political institutions as a whole operate despotically? The Constitution's built-in devices for checking tyranny fail to function, the individual citizen is left without a champion, and issues come to depend upon individual acts of resistance in the John Brown tradition.

But under what principle can the needed – the constitutionally required - acts of individual Civil Disobedience be defended? It is clear that constitutional theory supports and defends Civil Disobedience – there would be no such thing as constitutional theory without it. But does it follow that populist Civil Disobedience is protected by constitutional law?

Anything required by constitutional theory ought to find recognition in constitutional law. But if that is the case, what is the principle of constitutional law that protects Civil Disobedience?

In the first place, in constitutional theory all acts of Civil Disobedience have an a priori claim to protection under the First Amendment. Beyond this, however, the principle of Civil Disobedience is also protected under the same doctrine that underlies the exercise of Judicial Review itself.

It is established that any individual who believes an ordinance or a law to be unjustified may break it deliberately for the purpose of testing its validity. This commonly happens in tax cases. However this kind of Civil Disobedience is really little more than an acceptable legal tactic rather than a positively protected constitutional right of Civil Disobedience because the person who adopts such a tactic must pay the penalty for breaking the law in the event his challenge is not upheld by the courts. This is the sort of challenge the ACLU will often defend, hoping thereby to expand the scope of constitutional protections. But what is the constitutional theory upon which such a tactic is used?

Let us take the case of a restaurant sit-in to enforce the right of Blacks to be served in public places. Those who made the challenge in the 1950's knew that the discriminatory restaurant practices were legalized by local ordinances. This meant that a sit-in violated local trespass laws. The prohibition of trespass is not unconstitutional and therefore Civil Disobedience involving trespass is not as such protected by the Constitution unless it can be validated by reference to a higher principle of constitutional law. So at the time of their Civil Disobedience the demonstrators knew their acts were technically punishable even though they calculated and hoped that the courts would later rule in their favor. But how can the courts do so? The law is settled. The Constitution is known. It was in operation before the demonstrators engaged in Civil Disobedience and under the Constitution they merit punishment for trespass. So how can they possibly expect to win their case?

The answer is that they know, and everyone knows, that in theory the Constitution is not settled and static. Rather it is an evolving and 'emergent' Constitution. Only on the basis of this proposition do such acts of Civil Disobedience become rational, for any act of Civil Disobedience grounded in sound constitutional theory, rather than established constitutional law, may later be validated by the courts. That is, the courts may later discover that, the temporal Constitution to the contrary, the 'true' or 'emergent' constitution actually protects behavior previously punishable at law. It follows in constitutional theory that in such a case the so-called acts of Civil Disobedience were never really unlawful at all. They always should have been constitutionally protected even though nobody previously knew this to be so. Those civil disobeyors who made the successful challenge were actually, in theory, behaving constitutionally all along. Moreover, what is most important, constitutional theory holds this to have been the case even if the courts had ruled the other way and upheld the local ordinances and trespass convictions. Again, "strict constructionists" on the Court are trying hard to foreclose this dynamic, populist, aspect of constitutionalism.

Inasmuch as the Supreme Court cannot deliver advisory opinions, stating in advance how they would rule if a case were to be brought, there is no way for citizens to know in advance which acts of Civil Disobedience later will be found to have been legitimate. Therefore it follows in principle that all who engage in such civilly disobedient challenges of existing law, those who 'lose' as well as those who 'win', can be said to be acting under the same general principle of constitutional theory, namely that their allegiance, like the allegiance of all citizens, is to the nation's 'true' or 'emergent' constitution of the future, as well as to the transitory, fallible Constitution of the present. Our allegiance, like that of ante bellum Americans, is dual. On one side it is to the temporal Constitution; on the other side it is to the developing contours of the "higher" law. It is this side of our allegiance that protesters implicitly invoke when they engage in Civil Disobedience.

Demonstrators are not alone in this. All people who live under our Constitution must acknowledge allegiance to the emergent as well as the transitory Constitution.

The constitutionality of Civil Disobedience is essential to the maintenance of an evolving constitutional order revealed through Judicial Review.

Civil Disobedience acquires the presumption of constitutional protection. Non-violent demonstrators acquire the presumption of innocence.

Obviously not all violations of law can claim protection under the Civil Disobedience rule. One cannot commit murder or other acts of violence. It seems proper to insist upon premeditation; there should be evidence of a prior intent to mount a deliberate challenge to a specific governmental law or action. There should be a direct relationship between the act engaged in and the law or practice objected to. The action should have the character of a petition for the redress of wrongs. These criteria involve the courts in "balancing" tests applied in the light of the a priori assumption of the constitutionality of Civil Disobedience.

This is similar to the argument that Jefferson and others made against Hamilton, who opposed making the Bill of Rights a part of the Constitution. Hamilton claimed they were all implicit in the way the provisions in the main body of the Constitution were constructed. The libertarians replied that unless they were explicitly included others might not realize that fact, or might disagree and if so there would be no recourse. The same argument applies to the explicit acknowledgment today of the constitutional right to Civil Disobedience.

Might this undermine law and order and destroy the fabric of society? The imagination conjures up all sorts of nightmarish visions of widespread civil disorder. People, it is feared, would feel released from their normal sense of obligation to obey the law. Like children released from school, they would rush to an orgy of violence 'The specter of anarchy, which preoccupies the conservative as much as does sex the puritan, seems to place an indelible hex on the idea of constitutional protection for Civil Disobedience. But such fears have little substance.

It is not strict application of the law and fear of the police that induces public tranquility. Rather, the entire network of social and cultural mores, more than the formal provisions of the law, is what constrains most people from deviant behavior. This is proved by the failure of the "prison industrial complex".

If deviant and disobedient behavior in actual practice were to become as widespread as this constitutionally protected right theoretically might permit, and thereby truly injure the fabric of society, bringing the maintenance of law and order to an end, that would constitute proof that the society no longer deserved the support of the people. The free and protected exercise of the right to Civil Disobedience furnishes democracy with the best possible index of the consent of the people and the maintenance of the principles of justice.

Recent years have witnessed new forms of grass roots participational democracy as applicable to an urban, multi-ethnic, Web-based civilization as were our previous democratic forms to rural conditions: a new form of participation capable of bringing democracy to our city streets and our Internet E-ways. The establishment of constitutional protection for Civil Disobedience might open the door to just such a new participational democracy of the streets and networks.

Education in a New Key: Liberation Arts as part of Liberal Arts.

Let us put the question differently: if we were to seek new ways of institutionalizing mass Civil Disobedience, what might we do? This is a question that Rolf Dahrendorf addressed in a different way in the 1974 Rieth Lectures., He announced the need for an "agenda for recovering pubic control and individual rights from bureaucracies," while preserving their services as "one of the primary tasks of a search for a new liberty." Dahrendorf lamented the "alienation of enlightenment" which he attributed to the bureaucratic rigidities of contemporary industrial societies: "The idea that man should participate in the social, economic and political process as a citizen.... is," he says, "one of the revolutionary advances of the expanding society."

Dahrendorf in 1965 introduced into German politics the proposition that education is a civil right. He called for "an active policy of full citizenship....For the new liberty," he argues, "will not be won unless every citizen is given access to the varied universe of life-chances in a complex society." This, he suggested, calls for "the revolt of the individual against the ossification of reality." This is not a simple task because representative democracy has compounded the difficulty and produced "a new authoritarianism in the cloak of participation.... The equality party has had its day and the task today is to develop the full potential of a new liberty." Two avenues of institutionalization recommend themselves. The first revives the feature that died with federalism: the second recaptures what Jefferson appears to have had in mind when he laid the foundations of democratic party politics.

Federalism has always meant decentralized organization in which the component units have a territorial base. However there are other ways of utilizing the same principle. One is to base organization on function. Various forms of corporativism have done this, the most familiar being that which once operated in Jugoslavia. Something like this may be necessary to bring the economy under control for it would then be feasible to organize the economy on a political basis with representatives of local economic councils meeting in a national economic parliament capable of taking responsibility for allocating capital investment and insuring the distribution of equitable incomes for all.

Functional federalism would also make it possible to guarantee the autonomy of the basic functional components, giving them a status consonant with the doctrine of subsidiarity. This is a principle of decentralization whereby the component parts of an organization resolve on their own all issues they can. This is something like the appellate jurisdiction of court systems. Nothing is done at the higher levels of organization unless absolutely necessary. On such a basis many of the propositions that John C. Calhoun advocated concerning territorial federalism could be adapted to functional federalism.

Here we would be thinking of functional communities and "publics." Their concerns would be general rather than limited solely to economic issues This implies that such autonomous communities, protected under the constitutional theory of the institutionalization of Civil Disobedience, would function as the primary building blocks of a democratic society. Here Jefferson's conception of democracy acquires new meaning. This doctrine, it will be recalled, was inseparable from his belief that democracy, in order to be both vital and effective, required a highly educated electorate. In his own day perhaps no more than a high school level was needed. In our time, however, the equivalent of a college education is required if people are to be able to exercise their primary profession, that of citizenship, effectively.

This leads to the second proposition, which is that today the institutionalization of Civil Disobedience requires us to institute community agencies in which a new form of universal higher education can be combined with the exercise of civic functions. If such a result could be accomplished we might then remedy the chief defect of our present Constitution: the fact that Civil Disobedience is inadequately institutionalized.

The British and the Americans have always considered theirs to be the only effective forms of constitutionalism. Though sprung from common origins they are quite different: the British is as English as the unwritten common law and the rules of cricket, circa 1940; the American is as formalistic as baseball, circa 1940. The British is Baconian empiricism ("muddling through"); the American is Newtonian mechanics ("if it ain't broke don't fix it"). Today's challenge to both is to introduce systems-theoretic adaptations of constitutionalism; to create a new Boolean[4] constitutionalism appropriate to post-modern times.

British constitutionalism as it matured was the devolutionary product of the extension of aristocratic prerogative, first to the middle and later to the lower classes. This poses a question conservative thinkers have asked since Burke, De Maistre, Ortega, and T.S. Eliot: can any high culture survive its democratization. Mosca is relevant. He described constitutionalism as developing out of the "juridical defenses" of elites who broadened the enjoyment of their prerogatives to include rising lower classes in order to insure the security of their own positions. It is a convenient summary of British constitutional history up to about 1930. The landed gentry thought of their nation as an exclusive club of the rich whose decorous and mannerly traditions were admired by all. Club entry was coveted by nouveau-riche outsiders who gradually forced their way in. Membership was so enlarged that finally the club's rules and customs came to be badly observed by both rich and poor. So goes the conservative view of the corruption democratization brings.

If Americans engage in Civil Disobedience to oppose a law or action as unconstitutional, it is possible in principle for the Supreme Court's exercise of Judicial Review to uphold their claim. Today, it is clear, the Supreme Court itself must be "educated" about the constitutional theory that protects Civil Disobedience. This has been done over and over, most prominently in free speech and taxpayer's cases. Examples:

NOTE: The new Federal system started with a one party state as do most new regimes. Jefferson called for a "political" revolution to introduce a new, more republican opposition party. He christened that victory the "The Political Revolution of 1800.[5]" Jefferson's call for a "revolution every generation" referred to this kind of constitutionally empowered party-based revolution, not armed overthrow as advocated by later Marxists.

NOTE: Calhoun presented the constitutional basis for nullification by the "concurrent majorities" of federal and state governments. It was sound constitutional law before the Civil War and like the earlier colonial claim its constitutional pedigree traced straight back to the dual sovereignty model in Calvin's Case. Slavery is indefensible and so is armed rebellion in its behalf but the dual sovereignty claim of the secessionists was sound constitutional law, as was Lincoln's response.

The 21st century faces four doomsday asymptotes:

All four are racing toward a chaos-theoretic appointment with apocalypse.

Civil Disobedience today must:

1. Copyright © 2000 Harvey Wheeler. Reprinted with permission.

2. For historical and theoretical background see: C.H. McIlwain, Constitutionalism, Ancient and Modern, Cornell Univ. Press, 1940; F. D. Wormuth, Origins of Modern Constitutionalism, Harper, 1940; Harvey Wheeler, "Constitutionalism," vol 5, eds Greenstein & Polssby, Handbook of Political Science, Addison-Wesley, Reading, Mass., 1975; Harvey Wheeler, The Virtual Society, Martha Boaz Foundation, Univ of So. Ca. 1987.

3. Harvey Wheeler, "Preface," Daniel Sisson, The American Revolution of 1800, Alfred A. Knopf, N.Y. 1974.

4. George Boole, English mathematician who's inventions in symbolic logic prepared for the computer. He and John von Neumann symbolize information theory and the distinctive "archival functions" of the Information Age. [Harvey Wheeler, The Virtual Society (1987)]

5. Harvey Wheeler, "Preface," Daniel Sisson, The American Revolution of 1800, Alfred A. Knopf, 1974.

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