(The Return of) Ignatz, by Sam Heldman

Tuesday, November 19, 2002

Following the decision by Judge Thompson that the Ten Commandments monument in the Alabama state judicial building must go -- a decision that is quite obviously compelled by Supreme Court precedent, I might add, and that can only be overturned by either a judicial fudge or an overt overruling by the Supreme Court of fundamental principles of current constitutional law -- there are rumblings among the pro-monument community of possible civil disobedience, of some mass action to keep the monument in place.

And this brings up, in my mind, the difficulty of achieving a coherent theory about the propriety of civil disobedience. To put it most frankly, it's hard for me -- and hard for most people, I think -- to get past thinking "Civil disobedience is fantastic in service of a cause that I believe is very very important, but is lousy when done in pursuit of goals that I don't share." And I'm not even sure whether, by admitting that this thought forms part of my thinking, I've admitted something slightly embarrassing or not. I think that everybody probably feels the same way, at least at some levels.

When lawyering, one has to find some principle that goes beyond this "my causes are good, and causes that aren't mine are bad" notion. This is why, for instance, labor lawyers always follow with interest all legal developments regarding abortion protests; because the First Amendment (and related) arguments that we make on the picket line are very much affected by abortion protesters' success (or lack thereof) in making similar arguments. Constitutional law makes strange -- and not very close -- bedfellows sometimes. (Note that I am not drawing an equivalence, in terms of tactics or goals, between labor picketing and abortion protests; I am noting the fact that legal precedents in one field carry over into the other).

But one's approach to civil disobedience -- and particularly the avowed violation of an injunction or other specific legal order -- does not, I think, require a lawyer to espouse a principle that cuts across ideological lines. The reason is that by engaging in civil disobedience of this sort, one is not invoking a legal right that one's ideological opponents also have. Instead, civil disobedience of this sort is an act avowedly outside the law. One who does it must go into it, knowing that punishment (by contempt of court or otherwise) is the likely result. Even at the height of the civil rights movement, the Supreme Court upheld punishment of civil rights protesters for violating injunctions that they (correctly, in my view) felt were immoral and indeed unlawful. But that's the deal: engaging in civil disobedience, in terms of violating an injunction or similar order, can subject you to punishment. And so -- having recognized this -- the lawyer is (I think) free to step out of the lawyer-shoes into human shoes and say "does it strike me that this cause is just enough, to warrant violating the order?"

There is, though, one context in which civil disobedience should -- in my view -- be reserved for the most truly once-in-a-lifetime extraordinary situation, if indeed you can think of any example in American legal history where it would be warranted. That context is the one that presents itself in the Alabama Ten Commandments situation: where the person subject to the judicial order is himself a government official -- here, the Chief Justice of the Alabama Supreme Court. The entire concept of being the Chief Justice of that Court, and indeed the entire concept of being a government official, entails an obedience to the law, even if you really really really think that the law is really really really wrong. Civil disobedience by a government official is not civil disobedience; it is usurpation of governmental authority, and it is contrary to everything that our democracy holds dear.

So, my best hope is that Chief Justice Moore will tell his followers, in the strongest terms possible, that he will comply with Judge Thompson's order (while appealing it, if that is what he chooses to do); and that he will ask them not to make it more difficult for him to obey the law in that regard. I trust and believe that he will do precisely that.

posted by sam 4:06 PM 0 comments


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