Dan Marcus teaches at John Stark High School in Weare.
Is it ever okay to defy the law? If so, how?
When I teach civics we spend a lot of time learning about our Constitution and system of government. In doing so, I think the kids come to appreciate that the Constitution is an incredible achievement and it, along with our adherence to the rule of law, are key ingredients to keep our country stable and strong.
Even so, it is important to acknowledge that the law and government can, at times, get it wrong. Yes, even the Constitution.
At the Constitutional Convention in 1787, things were pretty confrontational. There were huge disagreements on representation, government power and of course, slavery. So, provisions adopted for the Constitution were often a product of compromise and not always correct or moral.
Let’s use slavery as an example. The southern states were poised to leave the convention if the Constitution banned the practice of slavery. While there were certainly some who wanted abolition, ultimately the majority decided that keeping the southern delegates happy was more important.
So, the Constitution that was ratified in 1788 had provisions that protected the slave trade for 20 years, had a fugitive slave clause and counted slaves at a rate of ⅗ of a whole person for the purposes of taxation and representation. Keep in mind, the “three-fifths compromise” didn’t give the slaves representation, it gave the white people in slave states more representation in Congress (which would be used to help keep slavery).
While the resolution made peace at the time (for some), today we know (and many knew it then) that having provisions that support slavery in our national Constitution is immoral.
So, in its original form, our Constitution, our highest law, at least on this issue, was wrong. The Framers knew that the document had flaws. None other than Ben Franklin, while encouraging his fellow delegates to sign the Constitution, expressed his concerns about it, stating, “I confess that there are several parts of this constitution which I do not at present approve… In these sentiments, Sir, I agree to this Constitution with all its faults…”
So, what is a righteous person to do when the highest law protects slavery? Harriet Tubman knew what to do. She ran the underground railroad which helped slaves find their way to freedom. Since the Constitution and other written laws of the time would hold the rights of the slave owner as legitimate, Harriet Tubman had to defy the law to do the thing that was moral and right.
Of course, Harriet Tubman had a role model: the Founding Fathers.
The Sons of Liberty defied the King’s law when they participated in the Boston Tea Party, and in the Declaration of Independence, our colonial predecessors unilaterally claimed a right to break free from England against the will (and law) of King George III and the English Parliament.
Given the above, we know that there are times when the right thing to do is to defy the law. Of course, our Constitution and our laws have evolved since the founding era and antebellum period.
So, getting back to the question I started with, how do we know today when and how it is okay to defy the law?
A textbook I use defines civil disobedience as, “Nonviolent direct action… [including] the open violation of unjust laws together with a willingness to accept the consequences of violating those laws.” There are two key components here.
First, the person disobeying the law must “accept the consequences.” This means if you are arrested you go to jail without resistance or violence. This demonstrates that you are willing to make a personal sacrifice for your message and for the greater good. The message is that even though you are defying one law for a righteous purpose, you still respect the rule of law.
As Martin Luther King wrote in his “Letter from a Birmingham Jail,” “I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.”
The second component is that the law being defied must be “unjust.” Of course, determining what is just and what is unjust can be challenging. Again, I look to Martin Luther King’s “Letter from a Birmingham Jail” which states, “To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law.”
This is why Thomas Jefferson discussed “Laws of Nature” so extensively in the Declaration of Independence as the claim there was that natural rights of life, liberty and the pursuit of happiness were being harmed by the King’s law. I think Harriet Tubman’s view of how laws enabling slavery harm these same natural rights is obvious.
Some of our most important changes have come about because people were willing to make sacrifices to draw attention to unfairness. Civil disobedience played an important role in ending segregation and in gaining the right to vote for women.
Our country was founded by people that wanted to make a better system. They succeeded beyond their own wildest dreams. (Ben Franklin thought the Constitution would likely last 20 years or so, and yet here we are 235 years later still adhering to it.)
The Constitution was and is an incredible achievement and for the most part, our laws have served us well. We should always try our best to engage and work within this system to achieve the change we believe in.
Even so, the law is not always fair or correct and there have been times when the right thing to do is to get into “good trouble” as John Lewis put it. Those who used civil disobedience in the past have provided citizens of today with a blueprint for how to draw attention to injustice in a righteous manner. Their sacrifices have improved our laws and present a stark contrast to those who use violence.
3-Minute Civics is a column that explores and examines concepts to help readers understand and participate in state and national political conversation. It runs every other week in the Sunday Forum. The authors of this column are not members of the Monitor’s staff.