'Moral Passion and the Rule of Law'

An essay by Stephen H. Sachs, former state attorney general

MORAL PASSION AND THE RULE OF LAW

For those of us who lived it the trial was better theater than the play.

The principal characters were the court and the accused. A canny and sensitive federal judge, Roszel C. Thomsen, obviously pleased to entertain the cause celebre yet edgy at the size, the intensity, and the unpredictability of the crowds which jam his court. A man with a strong prescriptive sense of place, he struggles to adjust to the presence in his court room, as criminal defendants, of clerics who defy church and country. And the defendants, nine Roman Catholics, 7 men, 2 women, of whom the leaders are two priests, brothers Phil and Dan Berrigan. Phil, already convicted and in prison, along with artist Tom Lewis, another of the nine, for pouring blood on government draft files, rugged, winner of a battlefield commission in World War II. Dan, hectorer of Cardinals, cat-like, witty, glib, a poet. The nine had invaded a draft board in Catonsville and taken armfuls of draft files to an adjacent parking lot where they burned them with homemade napalm, joined hands and prayed until arresting authorities arrived.

The scene is the magisterial center court room on the fifth floor of the United States Post Office and Court House in Baltimore at dusk on a chilly, sunless Friday in October 1968, the last day of the trial. The room is too dimly lit by its huge ornate chandeliers which seem to shed more light on the neatly spaced portraits of solemn, ancient judges than on the proceedings below. Except for ceremonial occasions, court sessions are usually attended only by official personnel, witnesses waiting to take the stand, and a handful of retired old men, a faithful fraternity of hangers-on who prefer the more stately pace of federal justice to the near chaos of the state's criminal courts just across the street.

But today, as everyday that week, the court room is filled, to overflowing -- students mostly, dressed in their fashion, with much hair, shapeless duffle coats, sweaters and jeans. Arm bands and peace symbols proclaim their fierce loyalty to the defendants. There is an intensity about most of them, too little humor, a deep skepticism, not to say cynicism, about their government, yet a generally good natured acceptance of the housekeeping instructions of the police and marshals. They were regarded derisively as "dirty hippies" by most of the official court family.

Several thousand of them, many from Cornell University where Dan Berrigan served as sometime chaplain, are converged on the court house for the trial and spend their days picketing ("Free the Nine") and chanting ("Hell no, we won't go"), waiting interminably in lines which snake through the court house corridors for a glimpse of the proceedings. In the evenings the more committed attend rallies at a nearby church where their leaders, and sometimes the defendants and their counsel, address them. Draft cards are burned. Spectators are invited to "bear witness for peace" with much of the same fervor that other crowds in other places are exhorted to make decisions for Christ. A religious dimension, in fact, marks the entire week.

The week long demonstration has been billed by its organizers as a "celebration of life". "We Shall Overcome" and "The Battle Hymn of the Republic" are its constantly repeated anthems. Many in the crowd are young seminarians and nuns. There is no violence, by demonstrator or police, and no arrests despite the huge crowds and a number of technical violations of the law. It is as if the quality of the central act and actors, the burning of draft records by Catholic priests and religiously trained laity, followed by prayer, had touched the crowd. And now, on this late October afternoon, there is a special sense of anticipation. The jury is retiring to deliberate. The final act of the Catonsville drama -- the last steps in the self-imposed passion of the Brothers Berrigan -- is about to begin.

* * * * * * * * * * By this penultimate moment in the trial the strictly legal posture of the defense, weak at its strongest point, had suffered two mortal blows. First, Judge Thomsen refused to permit dense counsel William Kuntsler to inform the jury in his final argument that it could, if it wished, ignore the Court's instructions on the law and acquit the defendants if the jurymens' consciences so dictated, for which act of "jury nullification", as Kuntsler called it, the jury was answerable to no one. Kuntsler wanted to exhort the jury, in the manner of Andrew Hamilton defending John Peter Zenger, "to see with their own eyes, to hear with their own ears, and to make use of their consciences and understanding in judging of the lives, liberties, or estates of their fellow subjects". Second, in the instruction to the jury which he had just delivered, Judge Thomsen not only told it that it must apply the law as he stated it to them but also carefully distinguished between "intent" and "motive" and, over defense objection, stressed the unremarkable legal proposition that if the jury found the defendants "intended" to burn government records it mattered not that the defendants were "motivated" by good or high or unselfish purposes.

At the conclusion of his charge the jury was sent from the court room. Kuntsler informed the court that the defendants wished to address it, an unusual request which Judge Thomsen, an unusual Judge, promptly granted. What followed was a most instructive half-hour session during which the defendants, arrayed in the well of the court before the bench, finally freed from the rigors of formal testimony and the distorting filter of their advocates, "rapped" with the Judge in a kind of mini-critique of the week just passed and the system it symbolized:

MR. MELVILLE: "Your Honor, we feel that the overriding issue in the case has been somewhat obscured by the treatment given in the sense that, if our intention or intent was to destroy Government records, we could have done that very easily by going in at nighttime and taking them out and burning them.

"As it was, we went in the middle of the day; and, after burning them, waited around for fifteen minutes until the police came, to give testimony to what we did. "Our intention was to speak to our country, to the conscience of our people. "We feel that we have not been able to get through to the leaders of our Government. "Now, today and during these last few days we have been in this Court in this same attempt to speak to the conscience of the American people. We feel that those 12 jurors are the representatives of the conscience of the American people.

"They have been brought here now, and they have heard all kinds of legal arguments, which I suppose they must hear. But we feel that, still, the overriding issue has been obscured in the sense that they are going in there now to judge whether we committed the acts that we said right from the very beginning that we committed.

THE COURT: "With the intention of doing it. "I understand your point perfectly. It is simply that I have the responsibility of deciding what the law is. The jury are not the representatives of the American people. You have spoken to the American people through the people who are here in the courtroom and the press from all over the country.

"Nobody has cut you down o the evidence that you wanted to present. You have made your case. You have been given an opportunity to make your case in public.

"The jury's function is not, as I understand the law, to do what you think their function is. "It is quite true that I have not submitted to the jury the question that you would like to have submitted, in the way you would like to have it. I have told the jury that, if they find you intended to burn the records and to hinder the draft board, and so forth, in the several counts, that, then, it was immaterial that you had these other good purposes. And it was immaterial how sincere you were and how right you may ultimately be judged by history.

"I am not questioning the morality of what you did; but I am simply ruling that under the law, as I understand it, and which I am duty bound to enforce and instruct the jury on, I disagree with the theory of law which you are presenting, and which was argued very eloquently by your counsel as far as I would permit him to do it. Because I cannot allow and I cannot rule that somebody may argue something which is entirely contrary to the law, as I understand it, and, therefore, asking the jury to disregard their oath. I cannot allow that.

MR. MELVILLE: "We understand that, Your Honor.

THE COURT: "We just disagree. But you are not presenting your views to the jury, for them to say whether the Viet Nam war is bad, whether you all are justified in it. "If you had gone out there and taken one file and made some token arrangement, you might have had something. But you went out and burned 375 files, according to your own admissions.

And every one of you, I think, said that you did it in order to hinder the operation of the draft. "I simply say that, however noble the motive is -- I am not questioning in any way the highness of the motive, and I think that anybody must admire a person who is willing to suffer for his beliefs -- people who are going to violate the law in order to make a point must expect to be convicted. Then, I will hear everything you have to say. "If you are convicted, I will hear everything you have to say again fully, and anything that you have from other people that you want me to hear -- that is, within any reason, from other people, and in a reasonable time -- as to what should be done.

"That is a different thing from what I am duty bound to submit to the jury.

"I do not see how we can do anything more than to agree to disagree on that.

MR. MELVILLE: "The thing is, Your Honor, we are not arguing from a purely legal standpoint. We are arguing to you as an American, with your obligations to American society; to those jurors as Americans, and their obligations to American society.

"If it is just a question of whether we committed this particular act or we did not, then we feel that perhaps it would be better if the jury is just dismissed; and we can save ourselves a lot of time and money by just you deciding on what our sentence will be...

MR. MISCHE: "The question I have, Your Honor, concerns conscience. Since we had acted out of conscience, I was confused. Maybe I did not understand you right. When Mr. Kuntsler was giving the summation and was referring to that Zenger - Alexander Hamilton case, I thought I heard you say -- I am not sure, but I wanted to find out before the jury went out -- did you tell the jury they could not act according to their conscience in the box?...

THE COURT: "The jury were told that they should decide the case on the law as given by the Court and on the evidence.

"And I did not emphasize it. I certainly did not tell them what your counsel wanted me to tell them: that they could disregard their oaths and let you off on sympathy or because they thought that you were sincere people. I am not allowed to do that...

FATHER DANIEL BERRIGAN: "...Your Honor, we are having great difficulty, I think, in trying to adjust to the atmosphere of a courtroom in which the world is excluded, and the events that brought us here are excluded deliberately by the charges to the jury.

THE COURT: "They were not excluded. The question --

FATHER DANIEL BERRIGAN: "May I continue, Your Honor?

THE COURT: "Well, you say they were excluded.

FATHER DANIEL BERRIGAN: "They were. The moral passion was excluded.

THE COURT: "They were excluded only if the jury found --

FATHER DANIEL BERRIGAN: "It is just as though we were in an autopsy, and we were being dismembered by people who were wondering whether or not we had a soul. We are sure that we have a soul. It is our soul that brought us here. It is our soul that got us in trouble. It is our conception of man.

"We really cannot be dismembered in such. a way that it can be found eventually that our cadavers are here, and our soul is elsewhere, and our moral passion is outside the consideration of this Court, as though the legal process is an autopsy upon us.

THE COURT: "Well, I cannot match your poetic language. (Applause)

THE COURT: "Any further demonstration and the courtroom will be cleared, and I mean that, the whole crowd. "You made your points in front of the jury, on the stand, very persuasively. I admire you as a poet. I must say that I have read the introduction that you wrote to the book of the sister who wrote those. I must say that, as a critic, I have a hard time following some of the things; but I admire you as a poet. I have no doubt of your complete sincerity.

"But I think that you all for some reason, either because your lawyers have not gotten it over to you or for some other reason, simply do not understand the functions of a court.

FATHER DANIEL BERRIGAN: "I am sure that is true, Your Honor.

THE COURT: "And the limitations of a court. "I must tell the jury what it is. You admitted that you went there with the purpose which requires your conviction on each of the counts. "You wrote it out in advance, which covers almost, in effect, both of them. "Your counsel stood up and boasted of it.

"You took the stand and, in answer to Mr. Murphy's short cross-examination, which the Government gave in each case, made it perfectly clear what one of your intents was.

FATHER DANIEL BERRIGAN: "One of our intents.

THE COURT: "That is right. "And if you have the wrong intent, I told the jury that it did not matter how many good intents you had. And I told them that because I believe that that is the law which I am required to tell them.

"Now, you have a great feeling of vocation for the young people, the young men and the young women of this world, and for other people. I admire your feeling of vocation. "I happen to have a job in which I am bound not only by an oath of office, but by a long tradition of which we are proud in this country.

FATHER DANIEL BERRIGAN: "Yes, sir.

THE COURT: "We are proud of the Constitution of the United States. We are proud of the rights that people have under it. "If this had happened in many countries of the world, you would not have been sitting here. You would have been in your coffins long ago. "We have the Constitution of the United States that protects your rights to make many of these protests, which could not be made elsewhere, without any penalty; that is, without any legal penalties --

FATHER DANIEL BERRIGAN: "Yes, Your Honor.

THE COURT: (Continuing) -- although it may hurt your advancement in certain societies, or something like that. I cannot help that. "But the Constitution protects many rights that you have. And the Constitution, as I understand it -- and I will be corrected if I am wrong -- requires you also to obey legally what the law is, or else to take whatever consequences may be visited upon you as a result of it...

FATHER DANIEL BERRIGAN: "I think you spoke again very movingly of your conception of your vocation, and I wish merely to ask whether or not one's reverence for his tradition of law or his tradition of religion or his tradition of any worthwhile, let's say, human inheritance does not also require us constantly to reinterpret this and to adjust it to the needs of the people here and now, to the point where this does not remain a mere inheritance which is deadening us, but a living inheritance which we, ourselves, offer to the living here and now. "So that it may be possible, even though the law has excluded certain very enormous questions of conscience, that we, ourselves, admit them for the first time and, thereby, rewrite the tradition for the sake of our people.

THE COURT: "Well, I think that there are two answers to that: "You speak to me as a man and to me as a judge. To me as a man, I would be a very funny sort of man if I had not been moved by your sincerity on the stand and by your views. "I have not attempted to cut off any of these reasons so that you can spread it to the people as a whole. I have done that as a judge. I think many people will be inspired. "I doubt if any one of these jurors has any great enthusiasm for the Viet Nam War. It seems to me that most of the people of the United States now want to terminate the war. The question is how best to do it...

"The point we have to see is that in this country we say, or it is the basic principle, I think, of our country -- and I know it is the basic principle of our law -- that we try to have the majority control; that they do it: through orderly fashions; and people cannot take the law into their own hands. I did not give this charge to the jury here, because I thought it would hurt you more than it would help you, but people simply cannot take the law into their own hands. "As an illustration, if you can, so can somebody else; and the answer is we will not have a rule of law; but we will either have an authoritarian government; or we will have a civil war, which will be ghastly for everybody concerned and create great hardships for everyone. "Now, we either have a rule of law, or we do not.

FATHER DANIEL BERRIGAN: "You are including our President in that assertion also?

MR. MISCHE: "And the Supreme Court?

FATHER DANIEL BERRIGAN: "That he must obey the law?

THE COURT: "Of course, he must obey the law.

MR. LEWIS: "He hasn't, though.

MISS MOYLAN: "If the constitutionality --

THE COURT: "If the President has not obeyed the law, there is very little that can be done about the President, except not to re-elect him...

FATHER DANIEL BERRIGAN: "Your Honor, you have referred to the war question as a question which may be either political or legal. Suppose it were to be considered as a question of life and death. Would that be appropriate here?

THE COURT: "Well, again, that is a poetic way of saying -- I am not sure what the legal proposition is. I understand why it seems a matter of life and death to you. Of course, the existence of the war is a matter of life and death to all boys who are in it. It is a matter of life and death to some people in Viet Nam... "Well, I certainly feel we have to do something, but I do not think that breaking the law is the way to do it. "I have more personal and less altruistic reasons for hoping the war is over. I have a group of grandsons who, before long, will be of age to go. I certainly want to get rid of war. That may be a selfish, personal reason; but it puts me on your side in wanting to get rid of the war, if I had no other reason.

BROTHER DARST: "It is my own feeling, and perhaps that of some of the other defendants also, that the instructions which you gave to the jury bound them to a very narrow letter of the law; and that their judgment, according to the spirit of the law, was very strictly prohibited.

"It is my feeling, although certainly I am not a legal expert in any sense of the word, that the spirit of the law is important, particularly in American legal tradition and in American life. It is the spirit which counts.

THE COURT: "Well, I suppose a good many books have been written on the difference between the letter and the spirit of the law and how it applies in a case like this. "I am not sufficiently learned to write such a paper, and certainly not sufficiently learned to give an answer off the cuff.

"I did what I believed the law required me to do. There are certain situations, I think, in which the Constitution gives the Judge a good deal of leeway. There are other situations in which it does not.

"Unfortunately, in this case I concluded that I did not have very much leeway. I say, if I am wrong, I will be corrected.

"But part of the system is that -- what protects you and protects the Negro cases that we have had, and many have been won in the Supreme Court and in the other courts and in the Federal courts and in this Court -- the same principle that protects these people in their civil rights against state action or city action or county action, or other action which is improper, is the same Constitution and the same principles which I am trying to apply. All we can do is our best.

FATHER PHILIP BERRIGAN: "...That we have seen no evidence that the institutions of this country, including our own churches, are able to provide the type of change that justice calls for, not only in this country, but also around the world.

"And I go on from that point to state merely this: that we believe that this has become possible because law, and the American attitude toward law, is no longer subject to what I would consider to be the needs of people, which is a pretty good definition of morality.

FATHER DANIEL BERRIGAN: "We do want to thank you, Your Honor. Maybe I could speak for the others. We do not want, however, the edge to be taken off what we have tried to say by any implication on our part that we are seeking mercy in this Court. We welcome the rigors of the Court.

"Our intention in appearing here after Catonsville was to be useful to the peaceable men of the world and to speak for the poor of the world, for the black people of the world and of our country, and for those who have no voice in our prisons already.

"And we do not wish that primary blade of intention to be honed down to no edge at all by some sort of, let us say, even subliminal gentleman's agreement whereby we would conclude that you have agreed with us and we with you. We do not, and we thank you.

THE COURT: "All right.

FATHER DANIEL BERRIGAN: "Could we finish with a prayer, Your Honor? Would that be against your wishes? We would like to recite the 'Our Father' with our friends.

THE COURT: "I will be glad to hear from the chief legal officer of the United States as to his advice, which I do not undertake to guarantee to follow.

MR. SACHS: "It would not be the first time, Your Honor, that my advice is rejected by the Court. The Government, Your Honor, has no objection whatsoever, and rather welcomes the idea.

THE COURT: "All right.

(Whereupon, at this point in the proceedings, those who wished to do so stood and joined in prayer.)

The exchange was not only remarkable for its radical departure from the indirect and distant relationship which generally obtains between judge and the defendants and for its finale, which scandalized believers in the wall of separation between church and state ("Christ, they're praying right in the God damn court room", one outraged First Amendment purist exclaimed). The confrontation also struck a truly classic chord. In it were the modern echos of the eternal clash between freedom and authority, ends and means, passion and order, morality and law; it was a confrontation in the tradition of Socrates and the Elders of Athens, the rebel Antigone and Creon the King, Joan of Arc and the French Bishops. And, once again, in that court room before a crowd which cheered the rebel cause, "the law" was the heavy of the piece.

Few there expected the Nine to be legally exonerated for their acts at Catonsville. But the court room spectators reflect a growing constituency in this Country, not limited by any means to students and blacks, who accept the moral legitimacy of law violation, or what has been referred to generically as "civil disobedience", as a means of social protest. The decade of the Sixties, which began with sit-ins and freedom rides in direct violation of then existing laws enforcing racial segregation and ended with wholesale disobedience to the Selective Service Act, in outraged opposition to the Viet Nam adventure, witnessed the injection into the American spirit, especially of those who seek urgent change, of a new sense of disrespect for, and cynicism toward, the law. Learned journals offer intellectual justification for law-breaking which usually draws heavily on the precedents of the Boston Tea Party and the Underground Railroad. The ideology has its patron saints -- Ghandi, Thoreau, King, Berrigan, and, to some, Cleaver. "If you don't like it, burn it" is not the unthinkable maxim it once might have been.

The appeal of this denigration of the law -- especially to the young who are constitutionally committed to change, and to minorities, like the blacks, who have been cheated for a century, legally cheated, of the law's, proudest promises, is profound. Visit a campus or a community meeting in the ghetto. The accents of contempt for law are unmistakable. And understandable.

Partly, the explanation is emotional. "The law" -- meaning here the forces of institutional order -- generally possesses none of the stuff of drama. It is those cast in opposition to the law, man against the System, who have star quality. It is they who are idealistic, driving, passionate, romantic, visionary; it is their oppressor, the law, which is pedestrian, dry, mundane, static. The odds are against the protestor; therefore sentiment is with him. It's an American affection for the underdog.

But a more profound explanation for the growing acceptance of civil disobedience as a legitimate tool of dissent probably lies in "the law's" frequent enough service as handmaiden to injustice. It is only a little more than a generation, after all, since American courts threw out child labor legislation in the name of "liberty of contract", a legal fiction, which, very loosely translated, means "let the rich get richer".

It has not been 25 years since the death of "separate but equal", another judicial slight of hand which gave legal sanction to racial segregation throughout America. Many Americans simply will not respect "the law" which perpetuates slums and serves a war which they see as not only "illegal" itself but unspeakably wretched. As a new generation which senses the hypocrisy in American life is so assiduously reminding us, there is much in contemporary America that may be legal but is not "right". They see squalor and deprivation in the world's richest nation and recall Anatole France's mordant observation that "the law is majestic in its equality; it prohibits kings and beggars alike from sleeping under bridges". They grasp the irony in Daumier print of the smug magistrate mocking the thief who stole for his supper: "So you were hungry, I'm hungry too but that doesn't make me steal".

It is certainly not the burden of this essay to argue that the law is invariably, or even usually, "right". Or that it must under all conceivable circumstances be obeyed at any cost. Rather it is to point up a few fundamental, though admittedly rough, distinctions between various forms of civil disobedience. I shall suggest, somewhat tentatively, that some forms of civil disobedience, like sit-ins or many means of draft resistance, though illegal and punishable, have a claim to moral legitimacy when measured by what I take to be the premises of the American democratic ethic and that other forms, like Catonsville, are not only illegal but violate some of the fundamental precepts of that democratic ethic. When I label some conduct "justified" or "legitimate" and condemn other conduct as "unjustified" or "illegitimate" I am not speaking in a legal sense but am judging against what I perceive to be the central values of the American democracy.

It is easy, and tempting, to pass a quick and firmly negative moral judgment on any form of purposeful violation of the law. Good citizenship, we have been brought up to believe, requires respect for the law. Anarchy and chaos the certain result of disrespect for law. Obedience to the will of the majority is the price paid by the dissenter for the right to fight again another day. The strain runs deep.

But there is another strain in the American democracy -- at war with the first -- which may be said to be the paradoxical recognition that obedient citizenship is not quite the highest virtue, that each individual has a private reservoir of his person into which the State may not intrude. A skepticism about government itself, a distrust of its power, clearly animated the intellectual world of the Founding Fathers. Indeed, the notion of limited government, the recognition that society and the state are distinct, is the touchstone of American democratic thought and distinguishes it radically from other social orders. The volk ethic is foreign to us; we are not, in the Gaullist sense, a nation. We are, moreover, a people who, generally speaking, share a set of moral values which, whatever their source, religious conviction or a humanist belief in the fundamental rightness and wrongness of things, demand an adherence which transcends, at least in principle, duty to positive law. At Nuremberg, largely an American initiative, we even held trials for violation of newly discovered and highly debatable "laws of humanity".

Universal agreement on the application of the moral imperative in a concrete instance of conflict with positive law is impossible; indeed, agreement that a conflict exists in a specific instance may be unlikely. But most Americans grant the theoretical possibility of such a conflict in duties and the duty of the moral man to stand fast. "Must the citizen ever for a moment, or in the least degree", wrote Thoreau, "resign his conscience to the legislator? Why has every man a conscience, then? I think that we should be men first, and subjects afterward. It is not desirable to cultivate a respect for the law, so much as for the right." Most of us unconsciously echo Thoreau when we say, admiringly, that one "follows his conscience" or "stands up for what he believes is right". Even our positive law acknowledges and respects this principle by permitting exceptions to its rigors on grounds of "conscience". The Selective Service Act itself is the clearest example.

Furthermore, the habit of appeal to a higher -- albeit man-made -- law is ingrained in our legal system itself. Ever since Marbury v. Madison the primacy of the Constitution and the power of courts to strike down congressional and state statutes as unconstitutional has been unquestioned. Testing of legislation on Constitutional grounds is almost reflexive. And what should be borne in mind is the requirement, due to peculiarities in the American legal system we lawyers know as "standing", that some laws, especially criminal laws, must be violated in order to be tested. The judicial system, in short, depends upon the law violator to trigger its operation. The history of free speech in this country would be far different were it not for that delightfully obdurate band of Jehovah's Witnesses who deliberately disobeyed restrictions on their proselytizing which they believed unconstitutional; the history of race relations would be far different were it not for the freedom rides and sit-ins which challenged the use of state power to enforce segregation.

"Civil disobedience" therefore, the purposeful and principled failure to perform a duty the law commands or the purposeful performance of an act the law prohibits, can be justified on one or both of two grounds. First, that the validity of the law in question is unclear and must be tested against a higher positive law, i.e. the Constitution. Second, that adherence to the law -- the act or omission commanded by the law -- requires a violation of conscience so severe that compliance is morally repugnant to the actor in the deepest and most genuine sense. It is crucial to bear in mind that in neither case is it suggested that non-compliance with the law is necessarily legally justified, though that may be the ultimate result of non-compliance on constitutional grounds. On the contrary, the disobedient I am describing here, the black who trespasses to test segregation ordinances, the young man who disobeys an order to report for induction, must expect to be prosecuted and, if found guilty, punished (though it by no means follows that law enforcement and the judiciary must automatically take action). This because obedience to the law (even a law with which one disagrees) is indeed a serious obligation of citizenship in a democracy, an acknowledgment, in the final analysis, of the root principle of majority rule. But such disobedience, I submit, is consistent with the American democratic ethic. Disobedience for the purpose of testing the constitutional validity of the law being violated clearly makes a positive contribution to the development of the law regardless of the outcome of the case. Disobedience to test the validity of segregation ordinances or, somewhat less clearly, to test the constitutional application of trespass statutes to support private segregation are examples of this category.

But even violation of a law whose validity is not in doubt can be legitimate in the sense in which I use the term, where a citizen faced with a conflict between the commands of his government and the commands of his conscience heeds the commands of his conscience and accepts his civil punishment. The inductee who will not report for a physical exam, even the taxpayer who openly withholds -- on moral grounds -- a portion of his tax, are examples of this category. The legitimacy of the disobedient act stems, I. believe, from the inexorability of the conflict between law and conscience and the fact that the government which professes a respect for his private morality seeks to force him to abandon it and threatens to punish him if he does not. Thus, his disobedience is essentially a required act in the sense that it is a morally required reaction to government's intrusion into his private self. The paradox reflects the inevitable clash inherent in the American democracy which attempts to reconcile the essentially irreconcilable values of individual worth, on the one hand, and response to the will of majority, on the other.

Neither of these justifications for civil disobedience can be applied to Catonsville. No one questioned the validity of statutes prohibiting the willful destruction of government property. No law, violative of their conscientious scruple, was being directly applied to them by the government. On the contrary, although Catonsville bears some of the marks of traditional disobedience -- conduct stemming from a sense of moral outrage, submission to civil authority, at least in the sense of prayerfully awaiting arrest -- it is perfectly clear that Catonsville was a cry against a legion of felt injustices, principly the war in Southeast Asia, an admitted "fracture of good order", in the poetic rendering of Dan Berrigan, "the burning of paper instead of children". ("...We destroyed these draft records not only because they exploit our young men", read the press statement released by the Nine at Catonsville, "but because these records represent misplaced power, concentrated in the ruling class of America...we believe that some property has no right to exist...") Catonsville, in short, was a reaching out to violate laws of clear validity for the purpose of expressing deeply felt views. As such, I respectfully suggest, it was an act of moral imperialism which violates the first precepts of the American democracy.

The First Amendment to the Constitution, the free speech amendment, comes closest to symbolizing what I take to be the democratic ethic in this pluralistic society. The amendment embodies the assumption, as Holmes was to put it a century later, that "the ultimate good desired is better reached by free trade in ideas" and "the best test of truth is the power of the thought to get itself accepted in the competition of the market". At root, moreover, is the notion that no one group, no sect, no party, no person has a corner on "the truth" but, on the contrary, that society itself benefits when every man has the right to have his ideas tested for their worth in the open market. There is, in short, a skepticism inherent in the democratic ethic, a disbelief in revealed truth. "Time", Holmes reminded us, "has upset many fighting faiths". There is also a certain modesty in all of this, a recognition of one's own fallibility. "The spirit of liberty" wrote Learned Hand, "is the spirit which is not so sure it's right." Unlike other social arrangements with which we are familiar, Americans have no set, foreordained answers to the problems which beset us as a nation. We have no Mein Kampf, no Das Kapital, no Teachings of Chairman Mao. The fundamental American document is the Constitution, a rule book. How we put the question, in short, is as important, perhaps more important, than the answers we receive. Means are more critical than ends. It is the primacy of process, in a phrase, that is at the heart of the American democratic ethic.

If we grant the legitimacy of Catonsville, on what principled basis can we deny to opponents of the Viet Nam War greater, more extensive injury to "property which has no right to exist"? How deny to the black, angry at a century of broken promises, the right to ransack City Hall? How deny to the Jew, troubled at the United States' Middle East policy, which some passionately believe to be the forerunner to another holocaust, the right to burn official papers at the State Department? How, indeed, deny the "hawk" who thinks United States involvement in Viet Nam is part of a holy war against godless Communism, the right to destroy the Headquarters of a draft resistance advisory center?

So enraptured is the true believer in the certainty of his own rectitude that he either cannot or will not consider these implications of his conduct. The point has been made many times. Never more eloquently though than by Robert Bolt in his play "A Man For All Seasons". You may remember the scene. Thomas A. More, out of favor now with Henry VIII, is about to be betrayed by the disappointed office seeker, Rich. More's family urges him to arrest Rich because "he's bad". More says, "There is no law against that" and Roper, More's self-righteous son-in-law, says "There is! God's law!"

MORE: "Then God can arrest him."

ROPER: "Sophistication upon sophistication!"

"MORE: "No, sheer simplicity. The law. Roper, the law. I know what's legal not what's right. And I'll stock to what's legal."

ROPER: "Then you set man's law above God's!"

MORE: "No, far below; but let me draw your attention to a fact -- I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of the law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God..."

ALICE: "While you talk, he's gone!"

MORE: "And go he should, if he was the Devil himself, until he broke the law!"

ROPER: "So now you'd give the Devil benefit of law!"

MORE: "Yes. What would you do? Cut a great road through the law to get after the Devil?"

ROPER: "I'd cut down every law in England to do that!"

MORE: "Oh? And when the last law was down, and the Devil turned round on you -- where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast -- man's laws, not God's -- and if you cut them down -- and you're just the man to do it -- d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake."

One may believe, as I do, that radical change is overdue in many institutions of American life. One may believe, as I do, that avenues for peaceful change are too frequently cluttered and difficult to travel. One may believe, as I do, that lawlessness on the part of those who have so much makes its own sinister contribution to disrespect for law on the part of those who have so little. One may believe these things and still believe, with a kind of passion of one's own, in the primacy of process. Bolt's More understood the primacy of process. He would have recognized what winds would blow in this deeply divided nation if process is abandoned. It's a lesson which the true believer -- be it Berrigan at Catonsville or George Wallace at the school house door -- should consider.