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A Lawyer Looks at Civil Disobedience Lewis F Washington and Lee Law Review Volume 23 | Issue 2 Article 2 Fall 9-1-1966 A Lawyer Looks At Civil Disobedience Lewis F. Powell, Jr. Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Civil Rights and Discrimination Commons Recommended Citation Lewis F. Powell, Jr., A Lawyer Looks At Civil Disobedience, 23 Wash. & Lee L. Rev. 205 (1966), https://scholarlycommons.law.wlu.edu/wlulr/vol23/iss2/2 This Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. Washington and Lee Law Review Member of the National and Southern Law Review Conferences Volume XXIII Fall, 1966 Number 2 A LAWYER LOOKS AT CIVIL DISOBEDIENCE* Lxwis F. POWELL, JR.t We have witnessed, over the past decade, the rise of a heresy which could weaken the foundations of our system of government, and make impossible the existence of the human freedoms it strives to protect. This is known as the doctrine of civil disobedience. Its basic ap- proach is that the ancient justification for revolt against tyranny can somehow be transmuted into a rule for day to day life under a system of government under law. Putting the old wine of revolution into the new wineskin of constitutional government, it argues appealingly that: some laws are "just" and others "unjust"; that each person may determine for himself, in accordance with his own conscience, which laws are "unjust"; and that each is free to violate the "unjust" laws- provided he does so peacefully. The doctrine of civil disobedience has been associated with the civil rights movement, and for this reason it has gained a wide and respectable following. One would have supposed that lawyers, trained in logic, and the guardians of our legal system, would have rallied promptly to denounce civil disobedience as fundamentally inconsistent with the rule of law. Yet most lawyers have remained silent, and of the few who have expressed opinions a surprising number have written in justification.' This remarkable surface consensus-among social scientists; the- ologians, politicians and even many lawyers-is understandable only in the context of the deep emotions engendered by the civil rights move- ment. But lawyers, of all people, must retain a wholesome degree of rational detachment in face of emotional causes, however appealing. Our profession has a heavy responsibility for the preservation of the *This is the John Randolph Tucker Lecture delivered at the School of Law, Washington and Lee University, on April 16, 1966. t B.S. 1929, LL.B. 1931, Washington and Lee University, LL.M. 1932, Harvard University. President, American Bar Association 1964-65. ISee, for example, Black, The Problem of the Compatibility of Civil Disobedience witb American Institutions of Government, 43 Texas L. Rev. 492 (1965); Wofford, 206 WASHINGTON AND LEE LAW REVIEW [Vol. XXIII rule of law.2 It is our duty to examine critically and test against proven principles any doctrine affecting the law which is as far reaching as civil disobedience.3 Most of what has been said and written on this subject has related to civil rights. This has inevitably clouded perspective and prevented dispassionate analysis. If it were possible I would like, for the purpose of this paper, to disassociate civil disobedience from civil rights and consider the doctrine solely on its merits. Despite the fashion to the contrary, one may understand and condemn-as I certainly do-the injustices which initially provoked civil disobedience without condon- ing or approving a concept which in the end could produce even greater injustice. It is true that the Negro has had, until recent years, little reason to respect the law. The entire legal process, from the police and sheriff to the citizens who serve on juries, has too often applied a double standard of justice. Even some of the courts at lower levels have failed to administer equal justice. Although by no means confined to the southern states, these conditions-because of the history, economic and social structure of that region, and its population mix-have been a way of life in some parts of the South. Many lawyers, conforming to the mores of their communities, have generally tolerated all of this, often with little consciousness of their duty as officers of the courts. And when lawyers have been needed to represent defendants in civil rights cases, far too few have responded. There were also the discriminatory state and local laws, the denial of voting rights, and the absence of economic and educational oppor- The Law and Civil Disobedience, The Presbyterian Outlook, Sept. 26, 1960, p. 5; Bickel, After a Civil Rights Act, The New Republic, May 9, 1964, p. 11; O'Con- nell, Is Civil Disobedience to be Regarded as a Paralegal Right, Trial, December/ January 1965, p. 11; Dean C. Willard Heckel of Rutgers Law School, as quoted by Gunter David in 'Defiance of Law: Pros and Cons," Newark Sunday Times, March 13, 1966. 2Former Justice Charles E. Whittaker has spoken out strongly against civil dis- obedience. See Whittaker, Law and Order, address delivered before and published by Tenn. Bar Association, June 17, 1965; and Whittaker, Will Civil Disobedience Lead to Chaos in Our Society, Trial, December/January 1965, p. 10. For other articles by nationally known lawyers critical of civil disobedience see Leibman, Civil Disobedience: A Threat to Our Law Society, Vital Speeches, Oct. 1, 1964, Vol. 30, No. 24, at 766; Waldman, Civil Rights-Yes; Civil Disobedience-No, 37 N.Y. State Bar Journal 331 (1965); and Fuchsberg, Editorial in Trial, December/ January 1965, p. 8. aBurke Marshall has done this incisively as to the relationship of civil dis- obedience to the civil rights movement. Marshall, The Protest Movement and the Law, 51 Va. L. Rev. 785 (1965). 1966] CIVIL DISOBEDIENCE tunity for the Negro. Finally, there was the small and depraved minority which resorted to physical violence and intimidation. These conditions, which have sullied our proud boast of equal justice under law, set the stage for the civil rights movement. En- grafted thereon-both as a slogan and a justification of tactics-was the concept of civil disobedience. Articulated by Martin Luther King in his much publicized Letter from a Birmingham Jail, this quickly gained nationwide attention and support outside of the South. It met the needs of intellectuals and theologians for a moral and philosophical justification of conduct which, by all previous standards, was often lawless and indefensible. Civil disobedience was thus enthroned as a doctrine, proclaimed from pulpits4 and acclaimed in many of the media. While these conditions go far to explain the wide acceptance of civil disobedience, they shed no light upon its soundness as a doctrine, the legality of its tactics or its significance for the future. Let us now examine these questions, both as they relate to the civil rights movement and to civil disobedience as a concept of general applicability. THE HISTORICAL ANTECEDENTS It may be asked at the outset whether the doctrine has, as it is claimed, respectable historical antecedents. Dr. King and others have cited an imaginative list of precedents ranging from revolt against Nebuchadnezzar to the Boston Tea Party and the American Revolu- tion. There have been many situations in history where the tyranny of a regime has justified revolution. Indeed, we need look only to the contemporary world for numerous examples of totalitarian rule- whether Fascist style or Communist-where fundamental human rights do not exist. As these rights cannot be asserted in the courts, nor re- form accomplished through political institutions, revolution is often the only recourse. The chance of success may be remote-as the Free- dom Fighters found in Hungary-but few would deny the moral right of a people to overthrow tyrannical rule where no other means of redress are available. The American colonists were in that position, 4 "Nearly every Protestant denomination has officially endorsed non-violent di- rect action for racial equality, and the National Council of Churches has en- gaged in a series of projects to aid the movement." Miller, Nonviolence in the Racial Crisis, The Christian Century, July 22, 1964, p. 927. 208 WASHINGTON AND LEE LAW REVIEW [Vol. XXIII and the product of their courage is our present system of govern- ment. But the irrelevance of this type of revolution as a precedent or moral justification for civil disobedience must be apparent, even to most of those who rely on it. There is no parallel situation in America today where, despite some conditions of injustice, wrongs can be and ultimately are redressed in the courts, the legislatures and through other established political institutions. It must be remembered that revolution, conceptually and in fact, is outside of and designed to supplant the existing governmental system. Only the most reck- less extremists would wish, by the tactics of revolution, to weaken or destroy our representative democracy to meet their personal views of immediacy. Henry David Thoreau and Gandhi are relied upon as the modern inspiration and authority for civil disobedience. One may wonder how many of those who cite Thoreau have actually read him. His basic premise was "that government is best which governs not at all," and he argued for a utopia in which there would be no government. Thoreau did indeed assert that each man should determine which laws were just and obey only those so classified.
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