JoyfulRook
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PROTEST WITHIN THE LAW
Nobel Peace Prize winner and famous American author Elie Wiesel said that, “There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest.” In this essay, I will present two views of what embodies protest within the law and argue for the active involvement of American citizens to perform their duty to their Constitution and consciences through the pursuit of peaceful protest in order to achieve a higher level of social justice.
The traditional view of ‘protest within the law’ argues that the protester may petition as long as he does not violate a legal ordinance at any level. The First Amendment of the Constitution codifies what has been interpreted in American jurisprudence as citizen’s right to protest within the law when it says, “Congress shall make no law...abridging the freedom of speech...or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” While the freedom to protest is widely recognized as a hallmark of free societies, it has never been expressly acknowledged by any national constitution. Instead, it is considered to be a manifestation of the aforementioned rights.
For centuries, citizens have demonstrated their distaste for perceived injustices, acting on the premise that “All that is necessary for the triumph of evil is that good men do nothing.” Paying heed to this warning (which is often attributed to the American patriot, Edmond Burke) citizens have used their individual power and influence to instigate societal change through the use of protest. Protest can take many forms, including marches, pickets, pamphleteering, petition drives, labor strikes, boycotts, and even use of the bully pulpit.
Under its traditional view, protest within the law has achieved a grand history of success in America. Labor strikes were commonly organized by unions during the Industrial Revolution to advocate for better working conditions and hours for employees. Perhaps the most familiar use of protest for many Americans occurred during the 1950s and ‘60s when the Civil Rights movement made use of peaceful marches and protests within the law as a mechanism to achieve their goals of social equality (though not all of their endeavors fell within the bounds of legality). The March on Washington for Jobs and Freedom in 1963 created an undeniable impact on the Kennedy Administration and brought the Civil Rights movement to the forefront of the public’s mind. It featured speakers from all of the “Big Six” civil rights groups, including Dr. Martin Luther King Jr. and his infamous “I Have A Dream” speech. The protest march is often credited with leading to the passage of the Civil Rights Act of 1964 and the National Voting Rights Act of 1965.
Since the African-American Civil Rights movement, many new social justice and equity campaigns have utilized similar forms of protest in order to achieve their goals. Several examples include the protests of the Vietnam War, the AIDS campaign protests of the late ‘80s and early ‘90s, the 1999 protests of the World Trade Organization in Seattle, and the 2003 Iraq War protest that took place in sixty countries with between six to ten million participants.
Of particular interest to me are the legal protests that were sparked by the the legalization of abortion in 1973. Picketing abortion clinics and providers’ residences, sidewalk counseling, “Truth Displays” (which show the graphic effects of abortion), and “Life Chain” demonstrations are commonly used methods of protest against abortion. During the late ‘80s and early ‘90s, “rescue operations” were commonly performed, where protesters blocked entrances to abortion clinics by carrying out a “sit-in” and preventing client access to the clinic. However, this type of peaceful protest within the law was made illegal when President Clinton signed the “Freedom of Access to Clinic Entrances Act” in 1994.
During the recent Democratic National Convention, a group of pro-life activists from American Right to Life, including myself, constructed a sign that was displayed on Table Mountain, within view of Denver’s entire metro area and visible from the convention delegates’ hotel windows. Designed from more than 2,400 sheets, the so-called “Sheets of Shame” project spelled out: “Destroys uNborn Children” in a crossword-style arrangement, with the “DNC” ordered vertically and colored differently than the other letters. The sign measured 530’ tall by 670’ long and earned the Guinness World Record for “largest protest sign.”
There is, however, another view of what constitutes ‘protest within the law.’ St. Augustine of Hippo wrote in Confessions that, “An unjust law is no law at all.” Therefore, it can be no crime to violate that which is no law. For instance, when the Fugitive Slave Laws were violated by members of the Underground Railroad such as Harriet Tubman, no real crime was committed since the law itself carried no objective moral weight. St. Thomas Aquinas defines an unjust law as a human ordinance that is not rooted in eternal and natural law, but this definition can be expanded to include situations in which a just law is applied unjustly. I call this the Just Law Theory.
Augustine’s assertion that an unjust law should not be recognized is supported, for example, by the philosophy of jury nullification. This is the method whereby a jury may make a particular law or statute void within the context of a certain case with which they are presented. Jury nullification is often seen as a last safeguard against wrongful imprisonment, government tyranny, and the abuse of minorities (racial, political, or otherwise). It asks the question, “How can any duly sworn juror find a defendant guilty either of violating an unjust law or of violating any law applied unjustly?” Obviously, to do so would violate the natural laws of conscience and undermine the very ideal of justice that our system attempts to uphold. When unjust laws are upheld and just laws are applied unjustly, then our ‘justice system’ becomes quite simply, ‘just-a-system.’
From this perspective, ‘protest within the law’ can then be expanded to include non-violent civil disobedience: a type of passive resistance that utilizes the peaceful, yet active, refusal to obey certain laws or demands made by a government. The just law theory derived from Augustine can be used to explain the apparent paradox of including illegal civil disobedience in the category of ‘protest within the law.’ Henry David Thoreau, who wrote his treatise Civil Disobedience in response to the slavery practices of the United States, and the greedy intentions of the Mexican-American War, concluded with the statement, "Unjust laws exist: shall we be content to obey them, or shall we endeavor to amend them, and obey them until we have succeeded, or shall we transgress them at once?” Thoreau answered this question in his own mind by refusing to support the war through declining to pay taxes as an act of protest.
Though used to some extent previously, civil disobedience did not achieve widespread use and acceptance until Mohandas Gandhi pioneered its practice during India’s peaceful resistance to British rule in 1935. As was previously noted, many Civil Rights protests did not fall underneath the traditional view of ‘protest within the law.’ The Montgomery Bus Boycott was sparked by Rosa Parks’ refusal to give up her seat on a segregated bus for a white passenger. Parks was arrested, tried, and convicted for disorderly conduct and violating a local ordinance, yet, if she had given up her seat on that bus, Martin Luther King Jr. might never have been inspired to take leadership in the movement. Martin Luther King Jr. himself was repeatedly arrested for his civil disobedience when he refused to leave “white only” establishments in the South. One might argue that African-American men and women today might still be drinking at “Colored Only” drinking fountains and not be allowed to enter certain hotels and restaurants if courageous protesters like Martin Luther King Jr. had accepted the traditional view of ‘protest within the law’ and had chosen to not resist so strongly the social injustices of their day.
Critics of this alternative view of law, which justifies civil disobedience and jury nullification, argue that it subverts the rule of law. However, it is clear that when the rule of law is the highest goal of a society, then justice can be corrupted and abuses of the minority can go unnoticed. In China, the rule of law is upheld yet basic liberties, human rights, and social justice are continually violated. Even the ability to peacefully protest has been made illegal, so protests outside the law are the only option left for concerned and indignant citizens. These are often crushed with an iron fist, such as the Tiananmen Square protests of 1989 which culminated in the massacre of hundreds of unarmed civilians and students.
NAZI Germany’s Third Reich acted within due process of the Law, but millions of innocent people were still murdered during the holocaust. A notable example of peaceful protest was initiated by the White Rose society, which was formed in opposition to NAZIsm and the holocaust. Consisting of students attending the University of Munich and their professor of philosophy, the White Rose distributed pamphlets decrying NAZI atrocities and demanding active opposition to Hitler’s regime. Because of the sensation that the leaflets had caused, the Gestapo began an intensive search for the publishers. Captured in February 1943, all six core members of the society were executed by beheading. Their only crime was to speak out in non-violent political opposition to the crimes against humanity that their own government was committing.
Both of these regimes suppressed the right to protest and therefore the abuses continued. If the rule of law simply becomes an arch-defender of the status quo, used to passively perpetuate abuses, then America would become no better than Maoist China or NAZI Germany. I would contend that when all other reasonable options have been used, illegal civil disobedience is not only a valid choice, but a duty to be carried out by concerned patriotic citizens in order to instigate change in our society. It can be no crime to violate that which is no law.
In such times of urgency, citizens have taken up the call to cry out against social injustice; often in the face of legal persecution. One must realize that, simply because public opinion dictates that injustice should be legal doesn’t make that injustice moral or mean that we shouldn't have any sort of outspoken public campaign against it. Remember that human rights and dignity do not come from our government, they come from our Creator. These unalienable rights cannot be denied by any level of government. A state does not have the authority to legalize murder, nor does it have the right to deny personhood to people groups. The mistake of attributing the endowment of human rights to the government is what led to the massacre of Jews in NAZI Germany, the enslavement of blacks, and the genocide of the pre-born in the United States. To stop these abuses from occurring, concerned citizens must rise up and make them known to the public. President Abraham Lincoln scolds those who would shy away from such conflict, saying, “To sin by silence when they should protest makes cowards of men.” Injustice must never be allowed social tranquility.
The question we are left with is: which view of protest within the law should be adopted by concerned citizens? I would argue that both are valid in their own right, and both should be actively pursued. Should the law then be strictly applied in situations where the law is a barrier to social justice? You only need to ask yourself if you could hold yourself justified in condemning the members of the White Rose for their outspoken resistance to the holocaust or in denouncing Rosa Parks for her dedication to the phrase “all men are created equal.” Of course you could not! It is our solemn duty to pursue and preserve justice in our society. Ayn Rand observes the importance of this responsibility when she states, “The spread of evil is the symptom of a vacuum. Whenever evil wins, it is only by default: by the moral failure of those who evade the fact that there can be no compromise on basic principles.” If we do not stand against injustice, then it wins by default. Together, we must refuse to allow injustice to continue unopposed by carrying on the grand legacy of protest within the law, regardless of which view you accept. The necessity of action is ours.
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