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On Not Prosecuting Civil Disobedience

Therefore we cannot assume, in judging what to do with the draft dissenters, that they are asserting a privilege to disobey valid laws. We cannot decide that fairness demands their punishment until we try to answer the further question: What should a citizen do when the law is unclear, and when he thinks it allows what others think it does not? I do not mean to ask, of course, what it is legally proper for him to do, or what his legal rights are—that would be begging the question, because it depends upon whether he is right or they are right. I mean to ask what his proper course is as a citizen, what in other words, we would consider to be “playing the game.” That is a crucial question, because it cannot be wrong not to punish him if he is acting as, given his opinions, we think he should.1

There is no obvious answer on which most citizens would readily agree, and that is itself significant. If we examine our legal institutions and practices, however, we shall discover some relevant underlying principles and policies. I shall set out three possible answers to the question, and then try to show which of these best fits our practices and expectations. The three possibilities I want to consider are these:

(1) If the law is doubtful, and it is therefore unclear whether it permits someone to do what he wants, he should assume the worst, and act on the assumption that it does not. He should obey the executive authorities who command him, even though he thinks they are wrong, while using the political process, if he can, to change the law.

(2) If the law is doubtful, he may follow his own judgment, that is, he may do what he wants if he believes that the case that the law permits this is stronger than the case that it does not. But he may follow his own judgment only until an authoritative institution, like a court, decides the other way in a case involving him or someone else. Once an institutional decision has been reached, he must abide by that decision, even though he thinks that it was wrong. (There are, in theory many subdivisions of this second possibility. We may say that the individual’s choice is foreclosed by the contrary decision of any court, including the lowest court in the system if the case is not appealed. Or we may require a decision of some particular court or institution. I shall discuss this second possibility in its most liberal form, namely that the individual may properly follow his own judgment until a contrary decision of the highest court competent to pass on the issue, which, in the case of the draft, is the United States Supreme Court.)

(3) If the law is doubtful, he may follow his own judgment, even after a contrary decision by the highest competent court. Of course, he must take the contrary decision of any court into account in making his judgment of what the law requires. Otherwise the judgment would not be an honest or reasonable one, because the doctrine of precedent, which is an established part of our legal system, has the effect of allowing the decision of the courts to change the law. Suppose, for example, that a taxpayer believes that he is not required to pay tax on certain forms of income. If the Supreme Court decides to the contrary, he should, taking into account the practice of according great weight to the decisions of the Supreme Court on tax matters, decide that the Court’s decision has itself tipped the balance, and that the law now requires him to pay the tax.

Someone might think that this qualification erases the difference between the third and the second models, but it does not. The doctrine of precedent gives different weights to the decisions of different courts, and greatest weight to the decisions of the Supreme Court, but it does not make the decision of any court conclusive. Sometimes, even after a contrary Supreme Court decision, an individual may still reasonably believe that the law is on his side; such cases are rare, but they are most likely in disputes over constitutional law when civil disobedience is involved. The Court has shown itself more likely to overrule its past decisions if these have limited important personal or political rights, and it is just these decisions that a dissenter might want to challenge.

We cannot assume, in other words, that the Constitution is always what the Supreme Court says it is. Oliver Wendell Holmes, for example, did not follow such a rule in his famous dissent in the Gitlow case. A few years before, in Abrams, he had lost his battle to persuade the court that the First Amendment protected an anarchist who had been urging general strikes against the government. A similar issue was presented in Gitlow, and Holmes once again dissented. “It is true,” he said, “that in my opinion this criterion was departed from in [Abrams] but the convictions that I expressed in that case are too deep for it to be possible for me as yet to believe that it…settled the law.” Holmes voted for acquitting Gitlow, on the ground that what Gitlow had done was no crime, even though the Supreme Court had recently held that it was.

HERE THEN are three possible models for the behavior of dissenters who disagree with the executive authorities when the law is doubtful. Which of them best fits our legal and social practices?

I think it plain that we do not follow the first of these models, that is, that we do not expect citizens to assume the worst. It no court has decided the issue, and a man thinks, on balance, that the law is on his side, most of our lawyers and critics think it perfectly proper for him to follow his own judgment. Even when many disapprove of what he does—such as peddling pornography—they do not think he must desist just because its legality is subject to doubt.

It is worth pausing a moment to consider what society would lose if it did follow the first model or, to put the matter the other way, what society gains when people follow their own judgment in cases like this. When the law is uncertain, in the sense that lawyers can reasonably disagree on what a court ought to decide, the reason usually is that different legal principles and policies have collided, and it is unclear how best to accommodate these conflicting principles and policies.

Our practice, in which different parties are encouraged to pursue their own understanding, provides a means of testing relevant hypotheses. If the question is whether a particular rule would have certain undesirable consequences, or whether these consequences would have limited or broad ramifications, then, before the issue is decided, it is useful to know what does in fact take place when some people proceed on that rule. (Much anti-trust and business regulation law has developed through this kind of testing.) If the question is whether and to what degree a particular solution would offend principles of justice or fair play deeply respected by the community, it is useful, again, to experiment by testing the community’s response. The extent of community indifference to anti-contraception laws, for example, would never have become established had not some organizations deliberately flouted those laws in Connecticut.

If the first model were followed, we would lose the advantages of these tests. The law would suffer, particularly if this model were applied to constitutional issues. When the validity of a criminal statute is in doubt, the statute will almost always strike some people as being unfair or unjust, because it will infringe some principle of liberty or justice or fairness which they take to be built into the Constitution. If our practice were that whenever a law is doubtful on these grounds, one must act as if it were valid, then the chief vehicle we have for challenging the law on moral grounds would be lost, and over time the law we obeyed would certainly become less fair and just, and the liberty of our citizens would certainly be diminished.

We would lose almost as much if we used a variation of the first model, that a citizen must assume the worst unless he can anticipate that the courts will agree with his view of the law. If everyone deferred to his guess of what the courts would do, society and its law would be poorer. Our assumption in rejecting the first model was that the record a citizen makes in following his own judgment, together with the arguments he makes supporting that judgment when he has the opportunity, are helpful in creating the best judicial decision possible. This remains true even when, at the time the citizen acts, the odds are against his success in court. We must remember, too, that the value of the citizen’s example is not exhausted once the decision has been made. Our practices require that the decision be criticized, by the legal profession and the law schools, and the record of dissent may be invaluable here.

Of course a man must consider what the courts will do when he decides whether it would be prudent to follow his own judgment. He may have to face jail, bankruptcy, or opprobrium if he does. But it is essential that we separate the calculation of prudence from the question of what, as a good citizen, he may properly do. We are investigating how society ought to treat him when its courts believe that he judged wrong; therefore we must ask what he is justified in doing when his judgment differs from others. We beg the question if we assume that what he may properly do depends on his guess as to how society will treat him.

WE MUST ALSO REJECT the second model, that if the law is unclear a citizen may properly follow his own judgment until the highest court has ruled that he is wrong. This fails to take into account the fact that any court, including the Supreme Court, may overrule itself. In 1940 the Court decided that a West Virginia law requiring students to salute the Flag was constitutional. In 1943 it reversed itself, and decided that such a statute was unconstitutional after all. What was the duty, as citizens, of those people who in 1941 and 1942 objected to saluting the Flag on grounds of conscience, and thought that the Court’s 1940 decision was wrong? We can hardly say that their duty was to follow the first decision. They believed that saluting the Flag was unconscionable, and they believed, reasonably, that no valid law required them to do so. The Supreme Court later decided that in this they were right. The Court did not simply hold that after the second decision failing to salute would not be a crime; it held (as in a case like this it almost always would) that it was no crime after the first decision either.

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    I do not mean to imply that the government should always punish a man who deliberately breaks a law he knows is valid. There may be reasons of fairness or practicality, like those I listed in the third paragraph, for not prosecuting such men. But cases like the draft cases present special arguments for tolerance; I want to concentrate on these arguments and therefore have isolated these cases.

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