The Zinn Reader (54 page)

We all grow up with the notion that the law is holy. They asked Daniel Berrigan's mother what she thought of her son's breaking the law. He burned draft records—one of the most violent acts of this century— to protest the war, for which he was sentenced to prison, as criminals should be. They asked his mother who is in her eighties, what she thought of her son's breaking the law. And she looked straight into the interviewer's face, and she said, "It's not God's law." Now we forget that. There is nothing sacred about the law. Think of who makes laws. The law is not made by God, it is made by Strom Thurmond. If you nave any notion about the sanctity and loveliness and reverence for the law, look at the legislators around the country who make the laws. Sit in on the sessions of the state legislatures. Sit in on Congress, for these are the people who make the laws which we are then supposed to revere.

All of this is done with such propriety as to fool us. This is the problem. In the old days, things were confused; you didn't know. Now you know. It is all down there in the books. Now we go through due process. Now the same things happen as happened before, except that we've gone through the right procedures. In Boston a policeman walked into a hospital ward and fired five times at a black man who had snapped a towel at his arm—and killed him. A hearing was held. The judge decided that the policeman was justified because if he didn't do it, he would lose the respect of his fellow officers. Well, that is what is known as due process—that is, the guy didn't get away with it. We went through the proper procedures, and everything was set up. The decorum, the propriety of the law fools us.

The nation then, was founded on disrespect for the law, and then came the Constitution and the notion of stability which Madison and Hamilton liked. But then we found in certain crucial times in our history that the legal framework did not suffice, and in order to end slavery we had to go outside the legal framework, as we had to do at the time of the American Revolution or the Civil War. The union had to go outside the legal framework in order to establish certain rights in the 1930s. And in this time, which may be more critical than the Revolution or the Civil War, the problems are so horrendous as to require us to go outside the legal framework in order to make a statement, to resist, to begin to establish the kind of institutions and relationships which a decent society should have. No, not just tearing things down; building things up. But even if you build things up that you are not supposed to build up—you try to build up a people's park, that's not tearing down a system; you are building something up, but you are doing it illegally—the militia comes in and drives you out. That is the form that civil disobedience is going to take more and more, people trying to build a new society in the midst of the old.

But what about voting and elections? Civil disobedience—we don't need that much of it, we are told, because we can go through the electoral system. And by now we should have learned, but maybe we haven't, for we grew up with the notion that the voting booth is a sacred place, almost like a confessional. You walk into the voting booth and you come out and they snap your picture and then put it in the papers with a beatific smile on your face. You've just voted; that is democracy. But if you even read what the political scientists say—although who can?—about the voting process, you find that the voting process is a sham. Totalitarian states love voting. You get people to the polls and they register their approval. I know there is a difference—they have one party and we have two parties. We have one more party than they have, you see.

What we are trying to do, I assume, is really to get back to the principles and aims and spirit of the Declaration of Independence. This spirit is resistance to illegitimate authority and to forces that deprive people of their life and liberty and right to pursue happiness, and therefore under these conditions, it urges the right to alter or abolish their current form of government—and the stress had been on abolish. But to establish the principles of the Declaration of Independence, we are going to need to go outside the law, to stop obeying the laws that demand killing or that allocate wealth the way it has been done, or that put people in jail for petty technical offenses and keep other people out of jail for enormous crimes. My hope is that this kind of spirit will take place not just in this country but in other countries because they all need it. People in all countries need the spirit of disobedience to the state, which is not a metaphysical thing but a thing of force and wealth. And we need a kind of declaration of interdependence among people in all countries of the world who are striving for the same thing.

3

T
HE
B
ILL OF
R
IGHTS

I was one of the speakers at historic Faneuil Hall in Boston (though named after an early slave trader, it was the scene of many meetings of anti-slavery groups before the Civil War) in 1991, when the Civil Liberties Union of Massachusetts organized a celebration of the Bicentennial of the Bill of Rights. I wanted to use the opportunity to make clear that whatever freedoms we have in the United States— of speech, of the press, of assembly, and more—do not come simply from the existence on paper of the first ten Amendments to the Constitution, but from the struggles of citizens to bring those Amendments alive in reality. My talk was reprinted in the book
Failure to Quit: Reflections of an Optimistic Historian
(Common Courage Press,1993).

Afew years back, a man high up in the CIA named Ray Cline was asked if the CIA, by its surveillance of protest organizations in the United States, was violating the free speech provision of the First Amendment. He smiled and said: "It's only an Amendment."

And when it was disclosed that the FBI was violating citizens' rights repeatedly, a high official of the FBI was asked if anybody in the FBI questioned the legality of what they were doing. He replied: "No, we never gave it a thought."

We clearly cannot expect the Bill of Rights to be defended by government officials. So it will have to be defended by the people.

If you do a bit of research into the origins of the Bill of Rights— and I had to do some because it is a job requirement of the historical profession—you will find that when the new government of the United States adopted the Bill of Rights in 1791, it did not do so with enthusiasm. The Bill of Rights was a political tool to quiet down critics of the Constitution. A Bill of Rights on paper comforts people. You don't have to take it seriously. Like that CIA man, you can smile, and say, they're only Amendments.

Well, in 1791, the first ten Amendments—the Bill of Rights— were added to the Constitution, and the First Amendment says, among other things: "Congress shall make no law...abridging the freedom of speech, or of the press..." Seven years later, in 1798, Congress passed a law abridging the freedom of speech and the press. It was the Sedition Act of 1798, and it provided jail sentences for people who criticized the government. A number of writers and speakers were imprisoned. They appealed to the court. Now we all learned in junior high school about checks and balances and how if Congress passes a law violating the Constitution, we are very lucky to have the Supreme Court to check that and declare the law null and void. (I was always proud to know such a fancy phrase, "null and void.")

Well, the members of the Supreme Court, apparently having skipped junior high school, or perhaps understanding that the phrase "checks and balances" is just intended to satisfy schoolchildren—did not declare the Sedition Act null and void. Not at all. They said it was constitutional. You may ask: by what legal philosophy can Supreme Court justices explain how Congress can pass a law abridging the freedom of speech when the Constitution says Congress shall make no law abridging the freedom of speech? I could tell you how they did that; but it would take a while and cause indigestion. Let us just say that legal training is a wonderful thing, it enables you to explain the unexplainable, defend the indefensible, and rationalize the irrational.

It seems that especially in time of war or near-war (and in 1798 it was such a time), the First Amendment is ignored. You may have noticed that the year 1991 did not start with a celebration of the Bill of Rights, but with a war. And that the government established control over information and the mass media became tongue-tied with patriotic fervor, and the First Amendment was bombed into oblivion. It is a truism of our political culture: if you are at war for freedom and democracy, you can't have freedom and democracy. So, exactly when free speech is most needed, that is, when it is a matter of life and death for the young people about to be sent to the battlefield—exactly at such a moment the government declares it can be suspended.

In 1917, as armies of young men in Europe were slaughtering one another in the first World War, and the United States decided to send its own young men into the butchery, Congress passed the Espionage Act, and the Sedition Act, providing heavy sentences for those criticizing the war. The Supreme Court again put our junior high school lesson to shame: checks and balances? Not in wartime. Not when you need them. The great liberal Oliver Wendell Holmes himself wrote the opinions affirming the constitutionality of the Espionage Act, sending a man named Schenck to jail for distributing a leaflet criticizing the war and the draft. Two thousand people were prosecuted for speaking or writing against the war, including Eugene Debs, the great labor leader and Socialist.

There were ludicrous episodes in all that. A filmmaker who made a movie about the American Revolution was sent to prison for ten years because the movie portrayed the British as the enemy in the American Revolution, and now the British were our allies in the war. The name of the movie was
The Spirit of '76
and the title of the court case against the filmmaker was
U.S. v. Spirit of 76.

And that case sums up the relationship of the government to the Bill of Rights:
U.S. v. Spirit of '76.
It was the President of the United States, Harry Truman, who instituted loyalty oaths even before Joseph McCarthy waved his lists of Communists in the State Department. It was the Congress of the United States, Democrats as well as Republicans, that set up the House Un-American Activities Committee, and voted contempt citations against people who refused to bow down to that Committee. It was the Supreme Court that affirmed the convictions of the Hollywood Ten for invoking the First Amendment. It was Republicans and Democrats, it was all three branches of government, all of them swearing to uphold the Constitution of the United States, and all of them violating that oath.

A word about the Supreme Court. We now have nine conservative justices, including one conservative woman and one conservative black man. It's called American pluralism. Many people have been depressed over this. Frankly, I tried to get depressed, but didn't succeed. Sure, it's better to have a liberal Supreme Court. But the Supreme Court at its most liberal has never been a dependable protector of people's rights. One year it will say you have a constitutional right to distribute leaflets in front of a supermarket. Another year it will say you can go to jail for that. One year it will say: high school students have a right to wear black armbands to protest a war. Another year it will say: high school students don't have the right to put out their own newspapers without censorship by the school authorities. The Supreme Court, when it was liberal, affirmed that Japanese-Americans could be put in concentration camps because we were at war. The Supreme Court, liberal or conservative, sworn to defend the Constitution, has never been a bulwark against unconstitutional wars.

If it were left to the institutions of government, the Bill of Rights would be left for dead. But someone breathed life into the Bill of Rights. Ordinary people did it, by doing extraordinary things. The editors and speakers who, in spite of the Sedition Act of 1798, continued to criticize the government. The black and white abolitionists who defied the Fugitive Slave Law, defied the Supreme Court's
Dred Scott
decision, who insisted that black people were human beings, not property, and who broke into courtrooms and police stations to rescue them, to prevent their return to slavery.

Women, who were arrested again and again as they spoke out for their right to control their own bodies, or the right to vote. Members of the Industrial Workers of the World, anarchists, radicals, who filled the jails in California and Idaho and Montana until they were finally allowed to speak to working people. Socialists and pacifists and anarchists like Helen Keller and Rose Pastor Stokes, and Kate O'Hare and Emma Goldman, who defied the government and denounced war in 1917 and 1918. The artists and writers and labor organizers and Communists— Dalton Trumbo and Pete Seeger, and W.E.B. Du Bois and Paul Robeson, who challenged the congressional committees of the 1950s, challenged the FBI, at the risk of their freedom and their careers.

In the 1960s, the students of Kent State and Jackson State and hundreds of other campuses, the draft resisters and deserters, the priests and nuns and lay people, all the marchers and demonstrators and trespassers who demanded that the killing in Vietnam stop, the GIs in the Mekong Delta who refused to go out on patrol, the B52 pilots who refused to fly in the Christmas bombing of 1972, the Vietnam veterans who gathered in Washington and threw their Purple Hearts and other medals over a fence in protest against the war.

And after the war, in the '70s and '80s, those courageous few who carried on, the Berrigans and all like them who continued to demonstrate against the war machine, the Seabrook fence climbers, the signers of the Pledge of Resistance against U.S. military action in Central America, the gays and lesbians who marched in the streets for the first time, challenging the country to recognize their humanity, the disabled people who spoke up, after a long silence, demanding their rights. The Indians, supposed to be annihilated and gone from the scene, emerging ghostlike, to occupy a tiny portion of the land that was taken from them, Wounded Knee, South Dakota. Saying: we're not gone, we're here, and we want you to listen to us.

These are the people, men, women, children, of all colors and national origins, who gave life to the Bill of Rights.

The Bill of Rights was expanded after the Civil War, with the passage of the 13th, 14th, and 15th Amendments, to apply to the states, to prevent them from keeping slavery, to require that they give all people, regardless of race or color, the equal protection of the laws. But these amendments were soon ignored, as blacks were kept in semi-slavery in the South, segregated, humiliated, beaten, lynched by mobs, unprotected by either the local police or the national government. For almost a hundred years after the 14th Amendment became law, every President, whether liberal or conservative, Republican or Democrat, violated his oath of office, his pledge to uphold the Constitution, by failing to enforce those Amendments. And the Supreme Court interpreted them so as to make them useless.

And so black people in the South, in the most dangerous towns and cities in the country, decided to give life to the 14th Amendment, at the risk of their own. They boycotted the buses in Montgomery, Alabama, they sat in at segregated lunch counters, they rode the buses as Freedom Riders, they marched through the streets of Albany, Georgia and Birmingham, demonstrated in Alabama, were arrested, set upon by dogs, knocked down by water hoses, beaten bloody by state troopers, and murdered. There were protests in 800 cities in the year 1963. And then the President acted, then Congress acted, then the Supreme Court acted. The 15th Amendment was now being enforced, only a hundred years late.

It is good to have a Bill of Rights, good to have a 14th and 15th Amendment. They are useful as standards. But it is disastrous to depend on them. Words have never been enough. Ask the authors of the Ten Commandments.

For many people there were not even words—not for working people, women, gays and lesbians, disabled people. The Bill of Rights says nothing about the right to work, to a decent wage, to housing, to health care, to the rights of women, to the right of privacy in sexual preference, to the rights of people with disabilities.

But we don't need permission from on high, words approved by the authorities, to tell us that certain truths are self-evident, as the Declaration of Independence put it. That we are all created equal, that we all have rights that cannot be taken from us, the rights to life, liberty, and the pursuit of happiness. And so working people went on strike thousands of times, were beaten and killed on the picket line, until they won an eight-hour day, and a bit of economic security. Women created a national movement that changed the consciousness of millions of people. Gays and lesbians, disabled people, organized, spoke up, declared: we exist, we must be paid attention to. And people began to pay attention.

We should look beyond the Bill of Rights to the UN's Universal Declaration of Human Rights, which says that all people, everywhere in the world, are entitled to work and decent wages, to holidays and vacations, to food and clothing and housing and medical care, to education, to child care and maternal care.

The guarantees of the Bill of Rights have little meaning so long as we have a class society with enormous differences of wealth and income. The rights of free speech and press depend on having the resources to use them. The right to legal counsel is different for rich and poor. The right to be free from unreasonable searches and seizures is different for a family living in a mansion and another living in a housing project, or out on the street.

In the real world, the fate of human beings is decided every day not by the courts, but out of court, in the streets, in the workplace, by whoever has the wealth and power. The redistribution of that wealth and power is necessary if the Bill of Rights, if any rights, are to have meaning.

The novelist Aldous Huxley once said: "Liberties are not given; they are taken." We are not given our liberties by the Bill of Rights, certainly not by the government which either violates or ignores those rights. We take our rights, as thinking, acting citizens.

And so we should celebrate today, not the words of the Bill of Rights, certainly not the political leaders who utter those words and violate them every day. We should celebrate, honor, all those people who risked their jobs, their freedom, sometimes their lives, to affirm the rights we all have, rights not limited to some document, but rights our common sense tells us we should all have as human beings. Who should, for example, we celebrate?