With the conviction and sentencing of four of the five defendants, the first phase in the Boston conspiracy trial has ended and a good moment has come for some consideration of the significance of the so-called “Spock case,” of what it means for the “peace movement,” and what it tells us about the state of American democracy.
Among anti-war activists there has been much discontent with respect to the conduct of the defense. Many had expected a far-reaching indictment of the government for its criminal behavior in Vietnam. Those who had been hoping for a “confrontation with illegal and immoral authority” are naturally disappointed, since no such confrontation took place. In fact, the defendants themselves did make strong statements about the illegality and barbarism of the American war in Vietnam. With the exception of Michael Ferber, a resister himself, the defendants took their stand, without qualifications, on the “Call to Resist Illegitimate Authority” (see this journal, October 12, 1967), which announced the intention of the signers to support resistance to the Vietnam war, and which insisted that actions taken in support of resistance “are as legal as is the war resistance of the young men themselves.” However, this aspect of the trial was barely reported in the press. Within the framework defined by the government, adopted by the Court, and accepted by the press, the issue of the legality of the war was not pertinent, nor was the question of the right, or even the duty, of resistance to American aggression.
Why should reasonable people have believed that a federal court might serve as an impartial referee in a dispute between the government and its critics, or even as a forum that might contribute to general understanding of the war? Recent history is probably responsible, in part, for the misplaced optimism and current disappointment. Since Brown vs. Board of Education in 1954, a series of decisions favoring civil rights activists and extending civil liberties has accustomed us to think of the federal courts as a branch of government devoted to the defense of human rights and social justice. A broader historical perspective, however, would reveal that only rarely are they willing to assume that responsibility. On the contrary, the courts are more likely to confirm a political consensus set elsewhere, and, in the process, to avoid intruding upon the prerogatives of the other branches of government, particularly with respect to the power to make war. The idea that the courts might uphold or even seriously entertain an argument on the illegality of the war or the abuse of executive power in waging war seems, therefore, rhetorical or naïve. In fact, the case was pursued by the government on grounds so narrow that the war was effectively excluded from consideration.
AS IN ANY DRAFT CASE, the government sought to limit discussion to the violation of a particular section of the Military Selective Service Act. When draft resisters come before the court for refusing induction, they are not permitted to explain their …