I HAVE SAID THAT the government has a special responsibility to those who act on a reasonable judgment that a law is invalid. It should make accommodation for them as far as possible, when this is consistent with other policies. It may be difficult to decide what the government ought to do, in the name of that responsibility, in particular cases. The decision will be a matter of balance, and flat rules will not help. Still, some principles can be set out.
I shall start with the prosecutor’s decision whether to press charges. He must balance both his responsibility to be lenient and the risk that convictions will rend the society, against the damage to the law’s policy that may follow if he leaves the dissenters alone. In making his calculation he must consider not only the extent to which others will be harmed, but also how the law evaluates that harm; and he must therefore make the following distinction. Every rule of law is supported, and presumably justified, by a set of policies it is supposed to advance and principles it is supposed to respect. Some rules (the laws prohibiting murder and theft, for example) are supported by the proposition that the individuals protected have a moral right to be free from the harm proscribed. Other rules (the more technical anti-trust rules, for example) are not supported by any supposition of an underlying right; their support comes chiefly from the alleged utility of the economic and social policies they promote. These may be supplemented with moral principles (like the view that it is a harsh business practice to undercut a weak competitor’s prices) but these fall short of recognizing a moral right against the harm in question.
The point of the distinction here is this: The judgment that someone has a moral right to be free from certain injuries is a very strong form of moral judgment, because a moral right, once acknowledged, outweighs competing claims of utility or virtue. When a law rests on such a judgment, that is a powerful argument against tolerating violations which inflict those injuries—for example, violations that involve personal injury or the destruction of property. The prosecutor may respect the dissenter’s view that the law is invalid, but unless he agrees, he must honor the law’s judgment that others have an overriding claim of right.
IT MAY BE controversial, of course, whether a law rests on the assumption of a right. One must study the background and administration of the law, and reflect on whether any social practices of right and obligation support it. We may take one example in which the judgment is relatively easy. There are many sincere and ardent segregationists who believe that the civil rights laws and decisions are unconstitutional, because they compromise principles of local government and of freedom of association. This is an arguable, though not a persuasive, view. But the constitutional provisions that support these laws clearly embody the view that Negroes, as individuals, have a right not to be segregated. They do not rest simply on the judgment that national policies are best pursued by preventing their segregation. If we take no action against the man who blocks the school house door, therefore, we violate the rights, confirmed by law, of the schoolgirl he blocks. The responsibility of leniency cannot go this far.
The schoolgirl’s position is different, however, from that of the draftee who may be called up sooner or given a more dangerous post if draft offenders are not punished. The draft laws do not reflect a judgment that a man has a social or moral right to be drafted only after certain other men or groups have been called. The draft classifications, and the order-of-call according to age within classifications, are arranged for social and administrative convenience. They also reflect considerations of fairness, like the proposition that a mother who has lost one of two sons in war ought not to be made to risk losing the other. But they presuppose no fixed rights. The draft boards are given considerable discretion in the classification process, and the army, of course, has almost complete discretion in assigning dangerous posts. If the prosecutor tolerates draft offenders, he makes small shifts in the law’s calculations of fairness and utility. These may cause disadvantage to others in the pool of draftees but that is a different matter from contradicting their social or moral rights.
It is wrong therefore to analyze draft cases and segregation cases in the same way, as many critics do when considering whether tolerance is justified. I do not mean that fairness to others is irrelevant in draft cases; it must be taken into account, and balanced against fairness to dissenters and the long-term benefit to society. But it does not play the commanding role here that it does in segregation cases, and in other cases when rights are at stake.
Where, then, does the balance of fairness and utility lie in the case of those who counsel draft resistance? If these men had encouraged violence or otherwise trespassed on the rights of others, then there would be a strong case for prosecution. But in the absence of such actions, the balance of fairness and utility seems to me to lie the other way, and I therefore think that the decision to prosecute Coffin, Spock, Raskin, Goodman, and Ferber was wrong. It may be argued that if those who counsel draft resistance are free from prosecution, the number who resist induction will increase; but it will not, I think, increase much beyond the number of those who would resist in any event.
If I am wrong, and there is much greater resistance, then a sense of this residual discontent is of importance to policy makers, and it ought not to be hidden under a ban on speech. Conscience is deeply involved—it is hard to believe that many who counsel resistance do so on any other grounds. The case is strong that the laws making counseling a crime are unconstitutional; even those who do not find the case persuasive will admit that its arguments have substance. The harm to potential draftees, both those who may be persuaded to resist and those who may be called earlier because others have been persuaded, is remote and speculative.
The cases of men who refuse induction when drafted are more complicated. The crucial question is whether a failure to prosecute will lead to wholesale refusals to serve. It may not—there are social pressures, including the threat of career disadvantages, that would force many young Americans to serve if drafted, even if they knew they would not go to jail if they refused. If the number would not much increase, then the state should leave the dissenters alone, and I see no great harm in delaying any prosecution until the effect of that policy becomes clearer. If the number of those who refuse induction turns out to be large, this would argue for prosecution. But it would also make the problem academic, because if there were sufficient dissent to bring us to that pass, it would be most difficult to pursue the war in any event, except under a near-totalitarian regime.
THERE MAY SEEM to be a paradox in these conclusions. I argued earlier that when the law is unclear citizens have the right to follow their own judgment, partly on the grounds that this practice helps to shape issues for adjudication; now I propose a course that eliminates or postpones adjudication. But the contradiction is only apparent. It does not follow from the fact that our practice facilitates adjudication, and renders it more useful in developing the law, that a trial should follow whenever citizens do act by their own lights. The question arises in each case whether the issues are ripe for adjudication, and whether adjudication would settle these issues in a manner that would decrease the chance of, or remove the grounds for, further dissent.
In the draft cases, the answer to both these questions is negative: There is much ambivalence about the war just now, and uncertainty and ignorance about the scope of the moral issues involved in the draft. It is far from the best time for a court to pass on these issues, and tolerating dissent for a time is one way of allowing the debate to continue until it has produced something clearer. Moreover, it is plain that an adjudication of the constitutional issues now will not settle the law. Those who have doubts whether the draft is constitutional will have the same doubts even if the Supreme Court says that it is. This is one of those cases, touching fundamental rights, in which our practices of precedent will encourage these doubts. Certainly this will be so if, as seems likely, the Supreme Court appeals to the political question doctrine, and refuses to pass on the more serious constitutional issues.
Even if the prosecutor does not act, however, the underlying problem will be only temporarily relieved. So long as the law appears to make acts of dissent criminal, a man of conscience will face danger. What can Congress, which shares the responsibility of leniency, do to lessen this danger?
Congress can review the laws in question to see how much accommodation can be given the dissenters. Every program a legislature adopts is a mixture of policies and restraining principles. We accept loss of efficiency in crime detection and urban renewal, for example, so that we can respect the rights of accused criminals and compensate property owners for their damages. Congress may properly defer to its responsibility toward the dissenters by adjusting or compromising other policies. The relevant questions are these: What means can be found for allowing the greatest possible tolerance of conscientious dissent while minimizing its impact on policy? How strong is the government’s responsibility for leniency in this case—how deeply is conscience involved, and how strong is the case that the law is invalid after all? How important is the policy in question—is interference with that policy too great a price to pay? These questions are no doubt too simple, but they suggest the heart of the choices that must be made.
For the same reasons that those who counsel resistance should not be prosecuted, I think that the law that makes this a crime should be repealed. The case is strong that this law abridges free speech. It certainly coerces conscience, and it probably serves no beneficial effect. If counseling would persuade only a few to resist who otherwise would not, the value of the restraint is small; if counseling would persuade many, that is an important political fact that should be known.
The issues are more complex, again, in the case of draft resistance itself. Those who believe that the war in Vietnam is itself a grotesque blunder will favor any change in the law that makes peace more likely. But if we take the position of those who think the war is necessary, then we must admit that a policy that continues the draft but wholly exempts dissenters would be unwise. Two less drastic alternatives might be considered, however: a volunteer army, and an expanded conscientious objector category that includes those who find this war immoral. There is much to be said against both proposals, but once the requirement of respect for dissent is recognized, the balance of principle may be tipped in their favor.
SO THE CASE for not prosecuting conscientious draft offenders, and for changing the laws in their favor, is a strong one. It would be unrealistic to expect this policy to prevail, however, for political pressures now oppose it. Relatively few of those who have refused induction have been indicted so far, but the pace of prosecution is quickening, and many more indictments are expected if the resistance many college seniors have pledged does in fact develop. The Coffin, Spock trial continues, although when the present steps toward peace negotiation were announced, many lawyers had hoped it would be dropped or delayed. There is no sign of any movement to amend the draft laws in the way I have suggested.
We must consider, therefore, what the courts can and should now do. A court might, of course, uphold the arguments that the draft laws are in some way unconstitutional, in general or as applied to the defendants in the case at hand. Or it may acquit the defendants because the facts necessary for conviction are not proved. I shall not argue the constitutional issues, or the facts of any particular case. I want instead to suggest that a court ought not to convict, at least in some circumstances, even if it sustains the statutes and finds the facts as charged. The Supreme Court has not ruled on the chief arguments that the present draft is unconstitutional, nor has it held that these arguments raise political questions that are not relevant to its jurisdiction. If the alleged violations take place before the Supreme Court has decided these issues, and the case reaches that Court, there are strong reasons why the Court should acquit even if it does then sustain the draft. It ought to acquit on the ground that before its decision the validity of the draft was doubtful, and it is unfair to punish men for disobeying a doubtful law.
There would be precedent for a decision along these lines. The Court has several times reversed criminal convictions, on due process grounds, because the law in question was too vague. (It has overturned convictions, for example, under laws that made it a crime to charge “unreasonable prices” or to be a member of a “gang.”) Conviction under a vague criminal law offends the moral and political ideals of due process in two ways. First, it places a citizen in the unfair position of either acting at his peril or accepting a more stringent restriction on his life than the legislature may have authorized: As I argued earlier, it is not acceptable, as a model of social behavior, that in such cases he ought to assume the worst. Second, it gives power to the prosecutor and the courts to make criminal law, by opting for one or the other possible interpretations after the event. This would be a delegation of authority by the legislature that is inconsistent with our scheme of separation of powers.
Conviction under a criminal law whose terms are not vague, but whose constitutional validity is doubtful, offends due process in the first of these ways. It forces a citizen to assume the worst, or act at his peril. It offends due process in something like the second way as well. Most citizens would be deterred by a doubtful statute if they were to risk jail by violating it. Congress, and not the courts, would then be the effective voice in deciding the constitutionality of criminal enactments, and this also violates the separation of powers.
IF ACTS OF DISSENT continue to occur after the Supreme Court has ruled that the laws are valid, or that the political question doctrine applies, then acquittal on the grounds I have described is no longer appropriate. The Court’s decision will not have finally settled the law, for the reasons given earlier, but the Court will have done all that can be done to settle it. The courts may still exercise their sentencing discretion, however, and impose minimal or suspended sentences as a mark of respect for the dissenters’ position.
Some lawyers will be shocked by my general conclusion that we have a responsibility toward those who disobey the draft laws out of conscience, and that we may be required not to prosecute them, but rather to change our laws or adjust our sentencing procedures to accommodate them. The simple Draconian propositions, that crime must be punished, and that he who misjudges the law must take the consequences, have an extraordinary hold on the professional as well as the popular imagination. But the rule of law is more complex and more intelligent than that and it is important that it survive.