The Zinn Reader (49 page)

The rule of law does not do away with the unequal distribution of wealth and power, but reinforces that inequality with the authority of law. It allocates wealth and poverty (through taxes and appropriations) but in such complicated and indirect ways as to leave the victim bewildered.

Exploitation was obvious when the peasant gave half his produce to the lord. It still exists, but inside the complexity of a market society and enforced by a library of statutes. A mine owner in Appalachia was asked, some years ago, why the coal companies paid so little taxes and kept so much of the wealth from the coal fields, while local people starved. The owner replied: "I pay exactly what the law asks me to pay."

There is a huge interest in the United States in crime and corruption as ways of acquiring wealth. But the greatest wealth, the largest fortunes, are acquired legally, aided by the laws of contract and property, enforced in the courts by friendly judges, handled by shrewd corporation lawyers, figured out by well-paid accountants. When our history books get to the 1920s, they dwell on the Teapot Dome scandals of the Harding administration, while ignoring the far greater reallocations of wealth that took place legally, through the tax laws proposed by Secretary of the Treasury Andrew Mellon (a very rich man, through oil and aluminum), and passed by Congress in the Coolidge Administration.

How can this be? Didn't the modern era bring us democracy? Who drew up the Constitution? Wasn't it all of us, getting together to draw up the rules by which we would live, a "social contract"? Doesn't the Preamble to the Constitution start with the words: "We the People, in order to...etc., etc."?

In fact, while the Constitution was certainly an improvement over the royal charters of England, it was still a document drawn up by rich men, merchants, and slaveowners who wanted a bit of political democracy, but had no sympathy for economic democracy. It was designed to set up a "rule of law," which would efficiently prevent rebellion by dissatisfied elements in the population. As the Founding Fathers assembled in Philadelphia, they still had in mind farmers who had recently taken up arms in western Massachusetts (Shays' Rebellion) against unjust treatment by the wealth-controlled legislature.

It is a deception of the citizenry to claim that the "rule of law" has replaced the "rule of men." It is still men (women are mostly kept out of the process) who enact the laws, who sit on the bench and interpret them, who occupy the White House or the Governor's mansion, and have the job of enforcing them.

These men have enormous powers of discretion. The legislators decide which laws to put on the books. The president and his attorneygeneral decide which laws to enforce. The judges decide who has a right to sue in court, what instructions to give to juries, what rules of law apply, and what evidence should not be allowed in the courtroom.

The lawyers, to whom ordinary people must turn for help in making their way through the court system, are trained and selected in such a way as to ensure their conservatism. The exceptions, when they appear, are noble and welcome, but too many lawyers are more concerned about being "good professionals" than achieving justice. As one student of the world of lawyers put it: "It is of the essence of the professionalization process to divorce law from politics, to elevate technique and craft over power, to search for 'neutral principles,' and to deny ideological purpose."

Equal Justice Under Law is the slogan one sees on the marble pillars of the courthouse. And there is nothing in the words of the Constitution or the laws to indicate that anyone gets special treatment. They look as if they apply to everyone. But in the actual administration of the laws are rich and poor treated equally? Blacks and whites? Foreign born and natives? Conservatives and radicals? Private citizens and government officials?

There is a mountain of evidence on this: a CIA official (Richard Helms) commits perjury and gets off with a fine. Alger Hiss spent four years in jail for perjury. A president (Nixon) is pardoned in advance of prosecution for acts against the law, and Oliver North and other Reagan administration officials are found guilty of violating the law in the IranContra affair, but none go to prison.

Still, the system of laws, to maintain its standing in the eyes of the citizenry and to provide safety valves by which the discontented can let off steam, must keep up the appearance of fairness. And so the law itself provides for change. When the pressure of discontentment becomes great, laws are passed to satisfy some part of the grievance. Presidents, when pushed by social movements, may enforce good laws. Judges, observing a changing temper in the society, may come forth with humane decisions.

Thus we have alternating currents of progress and paralysis. Periods of war alternate with periods of peace. There are times of witchhunts for dissenters and times of apologies for the witch-hunts. We have "conservative" presidents giving way to liberal presidents and back again. The Supreme Court makes decisions one week on behalf of civil liberties and the next week curtails them. No one can get a clear fix on the system that way.

The modern system of the rule of law is something like roulette. Sometimes you win and sometimes you lose. No one can predict in any one instance whether the little ball will fall into the red or the black, and no one is really responsible. You win, you lose. But as in roulette, in the end you almost always lose. In roulette the results are fixed by the structure of the wheel, the laws of mathematical probability, and the rules of "the house." In society, the rich and strong get what they want by the law of contract, the rules of the market, and the power of the authorities to change the rules or violate them at will.

What is the structure of society's roulette wheel that ensures you will, in the end, lose? It is, first of all, the great disparities in wealth that give a tremendous advantage to those who can buy and sell industries, buy and sell people's labor and services, buy and sell the means of communication, subsidize the educational system, and buy and sell the political candidates themselves. Second, it is the system of "checks and balances," in which bold new reforms (try free medical care for all or sweeping protections of the environment) can be buried in committee, vetoed by one legislative chamber or by the president, interpreted to death by the Supreme Court, or passed by Congress and unenforced by the president.

In this system, the occasional victories may ease some of the pain of economic injustice. They also reveal the usefulness of protest and pressure, suggest even greater possibilities for the future. And they keep you in the game, giving you the feeling of fairness, preventing you from getting angry and upsetting the wheel. It is a system ingeniously devised for maintaining things as they are, while allowing for limited reform.

Obligation to the State

Despite all I have said about the gap between law and justice and despite the fact that this gap is visible to many people in the society, the idea of obligation to law, obligation to government, remains powerful. President Jimmy Carter reinstated the draft of young men for military service in 1979, and when television reporters asked the men why they were complying with the law (about ten percent were not), the most common answer was "I owe it to my country."

The obligation that people feel to one another goes back to the very beginning of human history, as a natural, spontaneous act in human relations. Obligation to government, however, is not natural. It must be taught to every generation.

Who can teach this lesson of obligation with more authority than the great Plato?

In Plato's dialogue
Onto,
Socrates, in prison and facing death for speaking his mind to the young, is urged by his friend Crito to escape. Socrates refuses, arguing that he must obey the decision of the state. Plato has Socrates saying (we have no way of knowing if these are Socrates' words or if Plato is putting his favorite ideas into Socrates' mouth, for Plato wrote this dialogue decades after Socrates' death): "In war, and in the court of justice, and everywhere, you must do whatever your state and your country tell you to do, or you must persuade them that their commands are unjust."

There is no equality in Plato's scheme: the citizen may use persuasion, but no more; the state may use force. Why not insist that the
state
persuade
us
to do its bidding?

It is curious that Socrates (according to Plato in his dialogue
The Apology)
was willing to disobey the authorities by preaching as he chose, by telling the young what he saw as the truth, even if that meant going against the laws of Athens. Yet, when he was sentenced to death, and by a divided jury (the vote was 281 to 220), he meekly accepted the verdict, saying he owed Athens obedience to its laws, giving that puny 56 percent majority vote an absolute right to take his life.

It seems that the idea of owing, of obligation, is strongly felt by almost everyone. But what does one owe the government? Granted, the government may do useful things for its citizens: help farmers, administer old-age pensions and health benefits, regulate the use of drugs, apprehend criminals, etc. But because the government administers these programs (for which the citizens pay taxes, and for which the government officials draw salaries), does this mean that you owe the government your life?

Plato is enticing us to confuse the country with the government. The Declaration of Independence tried to make clear that the people of the country set up the government, to achieve the aims of equality and justice; and when a government no longer pursues those aims of equality and justice it loses its legitimacy, it has violated its obligation to the citizens, and deserves no more respect or obedience.

We are intimidated by the word patriotism, afraid to be called unpatriotic. Early in the twentieth century, the Russian-American anarchist and feminist Emma Goldman lectured on patriotism. She said,

Conceit, arrogance and egotism are the essentials of patriotism.... Patriotism assumes that our globe is divided into little spots, each one surrounded by an iron gate. Those who had the fortune of being born on some particular spot, consider themselves better, nobler, grander, more intelligent than the living beings inhabiting any other spot. It is, therefore, the duty of everyone living on that chosen spot to fight, kill, and die in the attempt to impose his superiority upon all others.

Even the symbols of patriotism—the flag, the national anthem— become objects of worship, and those who refuse to worship are treated as heretics. When in 1989 the U.S. Supreme Court decided that a citizen has a right to express himself or herself by burning the American flag, there was an uproar in the White House and in Congress. President Bush, almost in tears, began speaking of a Constitutional amendment to make flag burning a crime. Congress, with its customary sheepishness, rushed to pass a law providing a year in prison for anyone hurting the flag.

The humorist Garrison Keillor responded to the president with some seriousness:

Flag-burning is a minor insult compared to George Bush's cynical use of the flag for political advantage. Any decent law to protect the flag ought to prohibit politicians from wrapping it around themselves! Flag-burning is an impulsive act by a powerless individual—but the cool pinstripe demagoguery of this powerful preppie is a real and present threat to freedom.

If patriotism were defined, not as blind obedience to government, not as submissive worship to flags and anthems, but rather as love of one's country, one's fellow citizens (all over the world), as loyalty to the principles of justice and democracy, then patriotism would require us to disobey our government, when it violated those principles.

Accept Your Punishment!

Socrates's position—that he must accept death for his disobedience—has become one of the cardinal principles in the liberal philosophy of civil disobedience and part of the dominant American orthodoxy in the United States, for both conservatives and liberals. It is usually stated this way: it's your right to break the law when your conscience is offended; but then you must accept your punishment.

Why? Why agree to be punished when you think you have acted rightly, and the law, punishing you for that, has acted wrongly? Why is it all right to disobey the law in the first instance, but then, when you are sentenced to prison, start obeying it?

Some people, to support the idea of accepting punishment, like to quote Martin Luther King, Jr., one of the great apostles of civil disobedience in this century. In his "Letter from Birmingham City Jail," written in the spring of 1963, in the midst of tumultuous demonstrations against racial segregation, he said, "I submit that an individual who breaks a law that conscience tells him is unjust, and willingly accepts the penalty by staying in jail to arouse the conscience of the community over its injustices is in reality expressing the very highest respect for the law."

King was writing in answer to pleas by some white church leaders that he stop the demonstrations. They urged him to take his cause to the courts but "not in the streets." I believe King's reply has been seriously misinterpreted. It was an impassioned defense of nonviolent direct action, but it is obvious that he wanted to persuade those conservative church leaders of his moderation. He was anxious to show that, while committing civil disobedience he was "expressing the very highest respect for law."

The "law" that King respected, we know unquestionably from his life, his work, and his philosophy, was not man-made law, neither segregation laws nor even laws approved by the Supreme Court, nor decisions of the courts nor sentences meted out by judges. He meant respect for the higher law, the law of morality, of justice.

To be "one who willingly accepts" punishment is not the same as thinking it
right
to be punished for an act of conscience. If this were so, why would King agree to be released from jail by behind-the-scenes pressure, as he did in 1960 when a mysterious benefactor in a high position (someone close to President-elect Kennedy) pulled strings to get him out of prison? The meaning of "willingly accepts" is that you know you are risking jail and are willing to take that risk, but it doesn't mean it is morally right for you to be punished.