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On Not Prosecuting Civil Disobedience

How should the government deal with those who disobey the draft laws out of conscience? Many people think the answer is obvious: the government must prosecute the dissenters, and if they are convicted it must punish them. Some people reach this conclusion easily, because they hold the mindless view that conscientious disobedience is the same as lawlessness. They think that the dissenters are anarchists who must be punished before their corruption spreads. Many lawyers and intellectuals come to the same conclusion, however, on what looks like a more sophisticated argument. They recognize that disobedience to law may be morally justified, but they insist that it cannot be legally justified, and they think that it follows from this truism that the law must be enforced. Erwin Griswold, the Solicitor General of the United States, and the former dean of the Harvard Law School, appears to have adopted this view in a recent statement. “[It] is of the essence of law,” he said, “that it is equally applied to all, that it binds all alike, irrespective of personal motive. For this reason, one who contemplates civil disobedience out of moral conviction should not be surprised and must not be bitter if a criminal conviction ensues. And he must accept the fact that organized society cannot endure on any other basis.”

The New York Times applauded that statement. A thousand faculty members of several universities had signed a Times advertisement calling on the Justice Department to quash the indictments of the Rev. William Sloane Coffin, Dr. Benjamin Spock, Marcus Raskin, Mitchell Goodman, and Michael Ferber, for conspiring to counsel various draft offenses. The Times said that the request to quash the indictments “confused moral rights with legal responsibilities.”

But the argument that, because the government believes a man has committed a crime, it must prosecute him is much weaker than it seems. Society “cannot endure” if it tolerates all disobedience; it does not follow, however, nor is there evidence, that it will collapse if it tolerates some. In the United States prosecutors have discretion whether to enforce criminal laws in particular cases. A prosecutor may properly decide not to press charges if the lawbreaker is young, or inexperienced, or the sole support of a family, or is repentant, or turns state’s evidence, or if the law is unpopular or unworkable or generally disobeyed, or if the courts are clogged with more important cases, or for dozens of other reasons. This discretion is not license—we expect prosecutors to have good reasons for exercising it—but there are, at least prima facie, some good reasons for not prosecuting those who disobey the draft laws out of conscience. One is the obvious reason that they act out of better motives than those who break the law out of greed or a desire to subvert government. Another is the practical reason that our society suffers a loss if it punishes a group that includes—as the group of draft dissenters does—some of its most thoughtful and loyal citizens. Jailing such men solidifies their alienation from society, and alienates many like them who are deterred by the threat.

THOSE WHO THINK that conscientious draft offenders should always be punished must show that these are not good reasons for exercising discretion, or they must find contrary reasons that outweigh them What arguments might they produce? There are practical reasons for enforcing the draft laws, and I shall consider some of these later. But Dean Griswold and those who agree with him seem to rely on a fundamental moral argument that it would be unfair, not merely impractical, to let the dissenters go unpunished. They think it would be unfair, I gather, because society could not function if everyone disobeyed laws he disapproved of or found disadvantageous. If the government tolerates those few who will not “play the game,” it allows them to secure the benefits of everyone else’s deference to law, without shouldering the burdens, such as the burden of the draft.

This argument is a serious one. It cannot be answered simply by saying that the dissenters would allow everyone else the privilege of disobeying a law he believed immoral. In fact, few draft dissenters would accept a changed society in which sincere segregationists were free to break civil rights laws they hated. The majority want no such change, in any event, because they think that society would be worse off for it; until they are shown this is wrong, they will expect their officials to punish anyone who assumes a privilege which they, for the general benefit, do not assume.

There is, however, a flaw in the argument. The reasoning contains a hidden assumption that makes it almost entirely irrelevant to the draft cases, and indeed to any serious case of civil disobedience in the United States. The argument assumes that the dissenters know that they are breaking a valid law, and that the privilege they assert is the privilege to do that. Of course, almost everyone who discusses civil disobedience recognizes that in America a law may be invalid because it is unconstitutional. But the critics handle this complexity by arguing on separate hypotheses: If the law is invalid, then no crime is committed, and society may not punish. If the law is valid, then no crime has been committed, and society must punish. This reasoning hides the crucial fact that the validity of the law may be doubtful. The officials and judges may believe that the law is valid, the dissenters may disagree, and both sides may have plausible arguments for their positions. If so, then the issues are different from what they would be if the law were clearly valid or clearly invalid, and the argument of fairness, designed for these alternatives, is irrelevant.

DOUBTFUL LAW is by no means special or exotic in cases of civil disobedience. On the contrary. In the United States, at least, almost any law which a significant number of people would be tempted to disobey on moral grounds would be doubtful—if not clearly invalid—on constitutional grounds as well. The constitution makes our conventional political morality relevant to the question of validity; any statute that appears to compromise that morality raises constitutional questions, and if the compromise is serious, the constitutional doubts are serious also.

The connection between moral and legal issues is especially clear in the current draft cases. Dissent has largely been based on the following moral objections: (a) The United States is using immoral weapons and tactics in Vietnam. (b) The war has never been endorsed by deliberate, considered, and open vote of the peoples’ representatives. (c) The United States has no interest at stake in Vietnam remotely strong enough to justify forcing a segment of its citizens to risk death there. (d) If an army is to be raised to fight that war, it is immoral to raise it by a draft that defers or exempts college students, and thus discriminates against the economically underprivileged. (e) The draft exempts those who object to all wars on religious grounds, but not those who object to particular wars on moral grounds; there is no relevant difference between these positions, and so the draft, by making the distinction, implies that the second group is less worthy of the nation’s respect than the first. (f) The law that makes it a crime to counsel draft resistance stifles those who oppose the war, because it is morally impossible to argue that the war is profoundly immoral, without encouraging and assisting those who refuse to fight it.

Lawyers will recognize that these moral positions, if we accept them, provide the basis for the following constitutional arguments: (a) The constitution makes treaties part of the law of the land, and the United States is a party to international conventions and covenants that make illegal the acts of war the dissenters charge the nation with committing. (b) The constitution provides that Congress must declare war; the legal issue of whether our action in Vietnam is a “war” and whether the Tonkin Bay Resolution was a “declaration” is the heart of the moral issue of whether the government has made a deliberate and open decision. (c) Both the due process clause of the Fifth and Fourteenth Amendments and the equal protection clause of the Fourteenth Amendment condemn special burdens placed on a selected class of citizens when the burden or the classification is not reasonable; the burden is unreasonable when it patently does not serve the public interest, or when it is vastly disproportionate to the interest served. If our military action in Vietnam is frivolous or perverse, as the dissenters claim, then the burden we place on men of draft age is unreasonable and unconstitutional. (d) In any event, the discrimination in favor of college students denies to the poor the equal protection of the law that is guaranteed by the constitution. (e) If there is no pertinent difference between religious objection to all wars and moral objection to some wars, then the classification the draft makes is arbitrary and unreasonable, and unconstitutional on that ground. The “establishment of religion” clause of the First Amendment forbids governmental pressure in favor of organized religion; if the draft’s distinction coerces men in this direction, it is invalid on that count also. (f) The First Amendment also condemns invasions of freedom of speech. If the draft law’s prohibition on counseling does inhibit expression of a range of views on the war, it abridges free speech.

The principal counterargument, supporting the view that the courts ought not to hold the draft unconstitutional, also involves moral issues. Under the so-called “political question” doctrine, the courts deny their own jurisdiction to pass on matters—such as foreign or military policy—whose resolution is best assigned to other branches of the government. The Boston court trying the Coffin, Spock case has already declared, on the basis of this doctrine, that it will not hear arguments about the legality of the war. But the Supreme Court has shown itself (in the reapportionment cases, for example) reluctant to refuse jurisdiction when it believed that the gravest issues of political morality were at stake and that no remedy was available through the political process. If the dissenters are right, and the war and the draft are state crimes of profound injustice to a group of citizens, then the argument that the courts must refuse jurisdiction is considerably weakened.

WE CANNOT CONCLUDE from these arguments that the draft (or any part of it) is unconstitutional. If the Supreme Court is called upon to rule on the question, it will probably reject some of them, and refuse to consider the others on grounds that they are political. The majority of lawyers would probably agree with this result. But the arguments of unconstitutionality are at least plausible, and a reasonable and competent lawyer might well think that they present a stronger case, on balance, than the counterarguments. If he does, he will consider that the draft is not constitutional, and there will be no way of proving that he is wrong.

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