The tradition of civil disobedience in America seems to be in pretty good health. Recent examples, including the Occupy movement, disruption of the functioning of abortion clinics, and even the release of classified government documents by Edward Snowden and Chelsea Manning, suggest that it is alive and kicking. Yet a consideration of these examples also re-enforces how fuzzy the edges and undefined the essential core of civil disobedience are. Indeed, a main achievement of Lewis Perry's book under review here is to emphasize that what we now consider the definitive traits of civil disobedience—respect for the law in principle, willingness to accept punishment for violating an unjust law, and a commitment to nonviolence—have rarely all been present when civil disobedience has been engaged in. Perhaps Perry's minimalist description of civil disobedience is the best we can do: “the national heritage of resistance to unjust laws.”Footnote 1
Perry starts his argument by agreeing with Hannah Arendt's claim in her essay “Civil Disobedience” (1970) that it is “primarily American in origins and substance.”Footnote 2 Yet neither Arendt then nor Perry now does a whole lot to substantiate this claim, though Perry is, at least, aware of the need to do so. He fails, for instance, to raise the comparative question of why a tradition of civil disobedience did not develop in Republican France, which also had a strong tradition of rights talk and of taking rights seriously. In retrospect, what made possible a tradition of civil disobedience in America was, I think, the coexistence of a commitment to universal (inalienable) rights, the selective rather than universal enforcement of equal citizenship rights, the distinction between federal and state law and between constitutional and positive law, and the fact of social and cultural pluralism. But American-type federalism was anathema to the French, who emphasized unified sovereignty (or the general will). Overall, in America, proliferating sovereignties were played off against each other.
Arendt also contended that the American tradition of civil disobedience was derived from what Montesquieu called “the spirit of its laws.” The specific spirit (or genius or essence) of America's laws was “consent . . . in the sense of active support and continuing participation in all matters of public interest”, with an emphasis upon “active” and “participation”.Footnote 3 It is difficult to see how a tradition of civil disobedience could get a toehold in any political culture that lacks the idea of an active citizenry. That said, it is in fact hard to find much evidence of the spirit of active participation rather than just consent in America's founding documents, except perhaps in the First Amendment and the requirement of a republican form of government.
As a historian rather than a political theorist, Perry constructs a deeply informed narrative of the development of civil disobedience in the United States, though that narrative can at times seem like just one thing after another, a set of events and actions in search of a shared view of the world. From the beginning, both secular and religious impulses were part of the mix from which a proclivity toward civil disobedience emerged. He notes the pre-Independence influence of “religious martyrs” and “revolutionary nationalists”, who chafed at laws regulating religious or political matters. Radical Baptists and Quakers balked at paying taxes to support war, any war, while the Boston Tea Party was a something like a civil-disobedience project—except its participants had no desire to go to jail for their actions.Footnote 4 There was, he notes, very little approaching what we now call civil disobedience in the writings of the Framers. The Federalist Papers neither advocate nor oppose it. Interestingly, the rudiments of a tradition of civil disobedience only emerged in the 1820s and 1830s when a white missionary in Georgia, Simon Winchester, refused to take an oath of allegiance to the laws of the state of Georgia, which was required if he intended to remain in the state. The reason he refused was his objection to Georgia's refusal to acknowledge the Supreme Court's decision forbidding Indian removal. Not long after, the Nullification Crisis pitted President Andrew Jackson against the state of South Carolina. These early examples show that “conservatives” as well as “progressives” developed a tradition of challenging the validity of positive laws. But Perry also notes that Winchester's refusal to take an oath pointed toward the near future in which civil disobedience would be “directed to the causes of others who were not fully citizens—slaves, blacks, women.”Footnote 5 Thus civil disobedience has always been undertaken both by the excluded and oppressed and on their behalf.
Besides the persisting recourse to higher-law arguments, to the right to revolution, and to appeals to conscience as the basis for civil disobedience during the anti-slavery struggle, Perry also covers the post-bellum influence on the American tradition of civil disobedience movements of Leo Tolstoy and, of course, Mahatma Gandhi as we move into the early twentieth century. The matter of influence and priority is complicated with Gandhi, since he also acknowledged Thoreau's prior influence in the development of his notion of satyagraha (“truth force”).Footnote 6 This doesn't exactly discredit the exceptionalist account of civil disobedience in America, but it does make things more complicated than they at first seem.
Rather than identifying some common spirit or essence of civil disobedience in America, Perry characterizes it as a “via media between revolution and submission to majority rule”.Footnote 7 Civil disobedience rejects the ideas that all laws are just by definition and also that violent revolution is the only way to achieve significant change. It is a necessarily undemocratic element in the political culture of a representative democracy when the law under challenge has been adopted according to constitutional procedures. On this point, Perry might have more clearly identified the First Amendment not exactly as a charter of civil disobedience, but, at least, as a warrant for the creation of a public realm where certain laws could be criticized and alternatives proposed. Perry also makes much of the oxymoronic quality of the label—“civil” and “disobedience”.Footnote 8 He insists that “civil” refers mainly to “respect” and “courtesy”. But there is nothing about the term “civil” as used in civil society, civil liberties, civil rights or civil marriages that bears on courtesy or respect. Rather it refers to that which has to do with a legally defined social and political order.
Not surprisingly the justifications for civil disobedience have generally, but not always, shifted with the growth of secular modernity. Mixtures and overlaps of the religious and secular persist as well. Perry notes that black abolitionists appealed to “the right to revolution” (without pledges of non-violence), while bolstering their positions with higher-law doctrines that were ambiguously religious and/or metaphysical. Appeals to conscience—here Thoreau was very important—also stand halfway between the religious and the secular. Unlike William Lloyd Garrison, Thoreau, claims Robert Richardson, evoked “not God's law but conscience.” In fact “the main thrust of Thoreau's argument is to reach beyond both Bible and Constitution to the individual conscience”.Footnote 9 Perry also rightly emphasizes that civil disobedience, whether it had to do with enslaved people, freed people or (white) women, was closely connected with the achievement of a full complement of citizenship rights, including both civil and political ones. Of course the positions of the two main groups were different but also closely related—both women and free blacks were citizens but generally without political rights, while slaves had, according to Chief Justice RogerTaney in the Dred Scott case, “no rights that a white man is bound to respect”.
A surprising omission in Perry's detailed account is any discussion of how rights claims have, historically, related to civil disobedience. Is a rights claim just a way of leveraging in a claim to equality or freedom? Of course the idea of rights was gradually hijacked by conservatives in the late nineteenth century, applied to corporations not individuals, and held to protect property rather than protecting or empowering individuals or groups. But the tradition of civil disobedience also seemed to presuppose what Arendt in another context referred to “the right to have rights”.Footnote 10 It wasn't just that Americans were rights-bearers, but also that they had the right to insist on those rights as belonging to themselves rather than being granted them.
The most important additions to the justifications for civil disobedience came in the 1930s. Only then did the challenge to unjust laws become firmly associated with the goal of changing the oppressor's mind, of converting him or her to one's cause, though the notion had kicked around for a long time. Perry's chapter 7, “Adapting a Philosophy of Nonviolence”, subjects Richard Gregg's The Power of Nonviolence (1934) and Krishnalal Shridharani's War without Violence (1939) to extended analyses. Both men's work was very influential in shifting the emphasis from passive resistance to “non-violent direct action”, and to “nonviolence as a source of power”.Footnote 11 As well as emphasizing the idea of converting, not humiliating, the enemy/oppressor, the role of coercion, even if non-violent, was also much discussed in the 1930s, for instance by Reinhold Niebuhr in his critique of Gandhi in Moral Man in Immoral Society. Influenced considerably by Tolstoy and Gandhi, Gregg and Shridharani helped shape the vision of embryonic civil rights groups such as CORE in the early 1940s and the views of Martin Luther King. From Perry's discussion, it becomes clear that Gandhi, as mediated by Gregg and Shridharani, was a more important source of the post-World War II civil disobedience practised in the civil rights movement than was Thoreau. This is Perry's most interesting chapter and stands as an essential contribution to the intellectual history not only of civil disobedience but also of the civil rights movement.
Perry's treatment of civil disobedience from the beginning of the civil rights movement and including the anti-Vietnam War movement, especially draft resistance, the women's movement in the late 1960s, and later civil disobedience practised by anti-abortion groups is useful, but offers little that is new. Nowhere more than in these chapters does his work need more conceptual analysis and fewer historical instances of civil disobedience. For instance, the last ten pages of chapter 9 lucidly sum up the emergence of a surprising consensus on the “respectability of civil disobedience” by around 1970.Footnote 12 This consensus encompassed numerous efforts at defining civil disobedience from a variety of figures, including not only Arendt but also anarchist Paul Goodman and conservative Herbert Storing, liberal theorists John Rawls and Ronald Dworkin, and Justice Abe Fortas, among others. It would have been nice if Perry had done this kind of generalizing more often.
THOREAU: FROM CIVIL DISOBEDIENCE TO VIOLENT RESISTANCE
For most people, I suspect, civil disobedience in America is associated primarily with Henry David Thoreau. For example, he was the only American thinker that Arendt chose to discuss in her essay on civil disobedience. But Perry is more measured in the credit he gives to Thoreau, spending part of a chapter relating Thoreau to the radical abolitionists, non-resistors, come-outers and civil disobedients of his time. Also, Perry is most concerned to revisit the standard account of Thoreau's famous act of civil disobedience as reported in his essay. He suggests, for one thing, that Thoreau has been much more widely attended to in the twentieth and twenty-first centuries than he was in his own century. Until 1866, the essay was known as “Resistance to Civil Government”, its original 1849 title. Not surprisingly, Thoreau and Emerson never had their famous exchange (Q: “What are you doing in there, Henry? A:What are you doing out there, Waldo?”). Perry also observes that the taxes Thoreau resisted paying would not have gone to support federal fugitive slave laws, since Massachusetts's “personal liberty law forbade the use of state funds to implement federal fugitive slave laws”.Footnote 13 Not only was Thoreau “never a pacifist”, but the radical abolitionists—whom Thoreau didn't much care for anyway—“produced fewer instances of civil disobedience than might be expected”.Footnote 14 All this has the effect of subtly reducing Thoreau's importance as an intellectual or political force in his own time. More importantly, Perry gets it right when he notes, “It is the writing and lecturing, rather than the now-famous episode at the essay's center, that creates an imagined act of civil disobedience”.Footnote 15 If ever there was a case of writing as a form of political intervention, Thoreau's essay was it.
With this last judgement Perry also joins a debate among Thoreau scholars and students of American political thought, representative samples of which can be found in Jack Turner's edited volume A Political Companion to Henry David Thoreau. All sixteen contributors find their homes in political science or philosophy departments; no intellectual or literary historians are found among them. This means that Thoreau's idea of civil disobedience receives a more a theoretical examination than Perry, an intellectual and political historian, gives it. Conversely, Turner's anthology of readings is light on historical or political detail, which is a clear strength of Perry's book. In general, the pieces in A Political Companion are well done and stimulating. If there is a chief concern in Turner's collection, it is the debate over whether Thoreau wrote and acted from private or public motives, whether his desire was to clear his own conscience or to repair the tear in the fabric of the American republic by speaking out against war and slavery. More generally, was Thoreau an important political thinker or mainly a private moralist, in over his head as he increasingly involved himself in the anti-slavery struggle?
Even on the left, Thoreau has come in for his share of criticism over the years. In the late 1960s, philosopher Arnold Kaufmann, a forgotten co-architect of the New Left, put it bluntly: “Thoreau's position is morally, hence politically, irresponsible.”Footnote 16 As mentioned, Arendt herself recognized Thoreau's importance, but saw him as a moralist rather than as a political thinker. In the terms laid down in her “Civil Disobedience” essay, Thoreau was a conscientious objector, not a civil disobedient. His main concern, she thought, was with cleansing his own conscience rather than acting and speaking with others to challenge the laws that protected chattel slavery. Leigh K. Jenco, a contributor to the Turner collection, echoes Arendt with her claim that Thoreau preferred to work for the “‘right’ over acting for the ‘common good’”. His way of thinking, she goes on to say, “reduces all potentially political obligations to moral ones”.Footnote 17 George Shulman explores Thoreau's deep ambivalence toward politics, as do several other contributors. On these accounts, government, for Thoreau, was the machinery that distances us from our best selves and allows men to keep their slaves. Though not in Turner's Companion, George Kateb has reminded us that the only form of politics that escaped Thoreau's contempt was the “town meeting”. It was, by definition, unable to deal with the national crisis over slavery and its expansion.Footnote 18 Not surprisingly, Harry Jaffa's contribution contrasts Thoreau negatively with Abraham Lincoln. In his “Thoreau and Lincoln” (1969), Jaffa suggests that for one type of person “human depravity” dictates the “goodness of government”, while the other type holds to “human goodness by nature and the inherent depravity of government”.Footnote 19 Clearly Lincoln belonged in the former and Thoreau in the latter of Jaffa's categories. That said, this is not one of Jaffa's most compelling efforts and it seriously oversimplifies Thoreau's view of human nature.
Still, Lincoln clearly possessed the moral and political sensibility to lead his country into war and end slavery, while Thoreau's cast of mind foreclosed him from even thinking what that might entail. Yet Thoreau did come slowly and haltingly to think in wider terms than his “Resistance to Government” allowed. He also came to embrace violence, if it constituted “interference” with slavery.Footnote 20 As we shall see, John Brown was the perfect exemplar of what Thoreau called “action from principle”. Those principles, in turn, derived from nature, not from the public realm or spirit of the laws.
Champions of Thoreau are far from helpless in this argument about morality versus politics. Turner's imaginatively conceived “Thoreau and John Brown” associates his work with a defense of liberal democracy. (Strangely, Thoreau is never explored in relation to republicanism by anyone in the Turner volume.) According to Turner, Thoreau was neither apolitical nor hostile to politics as such, but rather developed “a politics of performing conscience”. Such a politics “transform[ed] the invocation of conscience from a personally political act into a publicly political one”. For Turner, then, Thoreau offered more than apolitical moral judgements shorn of political considerations. He had in mind not just his own conscience but the good of the republic.Footnote 21 Significantly, Turner also shifts the textual focus from the “Resistance to Government” essay to the shorter “Plea for Captain John Brown” (1859) and, by implication, other late pieces by Thoreau. In “democraticizing the power to judge the legitimacy of violent resistance”, writes Turner, Thoreau challenges the state monopoly on the use of violence and thus provides “a cornerstone of liberal self-government.”Footnote 22 That said, it is hard to think of a less likely champion of liberalism, however defined. All revolutionary challenges concern who holds the monopoly on violence, not just liberalism.
Another source of intellectual ammunition for defenders of the political Thoreau can be found in philosopher Stanley Cavell's The Senses of Walden (1972). He grants that Thoreau's night in jail “was not much”, but then adds that “the completion of the act was the writing of the essay that depicts it”, a position that recalls Perry's emphasis upon the political importance of Thoreau's essay. In addition, Cavell sees Walden as a “tract of political education, education for membership in the polis”.Footnote 23 Defenders of Thoreau can also point to his “Slavery in Massachusetts” (1854) as a transitional essay demonstrating Thoreau's growing sense of the importance of political involvement as opposed to expression of moral disapproval. Near the end of that essay, he writes, “What signifies the beauty of nature when men are base? . . . The remembrance of my country spoils my walk.” This rhetorical question is a worthy forerunner of Bertolt Brecht's similar question in his great poem “To Those Who Come after Us” (1939): “what kind of times are these when it is practically a crime to talk about trees if it entails keeping silence about so much wrongdoing?”Footnote 24 Surely “Slavery in Massachusetts” is a clear signpost on Thoreau's way to considering sustained political involvement. Only with the arrest, trial and execution of John Brown do we witness Thoreau's full emergence as a political writer and actor.
Yet the process by which Thoreau's private conscience found political expression, how conscientious objection became civil disobedience, remains opaque. And, however strong the case Turner and Cavell make—not to mention the easy point that roundly denouncing politics and politicians is a way of being political—Henry Thoreau was hardly the best example of what it meant to be political in a country headed for the conflagration of war. We need not join Harry Jaffa in taking President Lincoln as the obvious alternative, but surely Wendell Phillips or Frederick Douglass is a more compelling example of someone who took a stand rooted in moral outrage but then came to see the necessity of politics and acted accordingly.
ON JOHN BROWN
In light of the debate about Thoreau's contribution to the tradition of civil disobedience, what are we to make of John Brown, his great example of action from principle, and his place in that tradition? Was Thoreau right that Brown showed the limits of civil disobedience and the necessity of violence to end slavery? If so, was Brown's the right kind of violence? What about critics of Brown who saw him then, and still see him now, as seriously compromised in moral terms, incapable of thinking politically, and dead wrong about the possibility of the success of the Harpers Ferry raid? John Stauffer's and Zoe Trodd's The Tribunal is an invaluable resource for understanding Brown and his apotheosis. Their long introduction of forty pages is a model of clarity and usefulness. Its essential thesis is that although John Brown's raid was a military failure, it was a political success, not in helping moderate but in exacerbating the sectional crisis. One slight cavil is that the editors could have set aside more space for examples of the later moral, philosophical and historiographical debates about Brown and his raid rather than confining such issues largely to footnotes. A more general problem with The Tribunal is that the debate that John Brown touched off has never escaped the basic terms laid down in 1859 and desperately needs some change of focus or recalibration so that the same old questions are not asked and answered in the same old ways.Footnote 25
The sheer number of people, known and unknown, who responded to Brown's death and life is startling and indicates the way he captured the imagination of much of the country and even received international attention. Praise came from strange quarters: not only Frederick Douglass but also John Wilkes Booth wrote admiringly of Brown's courage and heroism (“that rugged old hero”), to the detriment of the Lincoln the politician, a sentiment that Thoreau undoubtedly shared. One cautionary lesson might be that we should watch out for people who snarl and rant obsessively about politicians as opposed to freelance figures who say what they mean and do what they say. Herman Melville's short poem “The Portent” manages something like a fresh reaction in its last stanza: “But the streaming beard is shown / (Weird John Brown), / The meteor of the war.” Like Melville, Walt Whitman steered clear of abolitionism and was grudging with praise for Brown: “I am never convinced by the formal martyrdoms.” His “Year of Meteors” (1859–60) begins by addressing Brown (“you, old man”) as he “mounted the scaffolding”, but then launches into lines apotheosizing Manhattan and, above all, youth.Footnote 26 Of the two well-known writers, Melville found the most provocative way of characterizing Brown by calling him “weird” rather than showering him with encomia or battering him with condemnation. It's hard to know what Melville might have meant, but the judgement on Brown either as “crazy” or as some sort of saintly martyr has long since lost purchase on our attention.
Generally, though, the responses to Brown and his life fall into some familiar binary oppositions, like the old Amherst sourcebooks did: a hero or fanatic, a martyr or a murderer, crazy or sane? The positive responses were helped along by the way Brown skilfully planted and assiduously cultivated positive images of himself. If Thoreau makes us squirm when he announces that he is more interested in Brown dead than alive, this hardly matches the way Brown used himself, above all, as a martyr, right to the end. As Thoreau and even Brown made clear, he was a figure straight out of the English revolution, not a lucid Jacobin advocating terror. He was one of God's warriors, not someone possessed by a political dream of reason. The problem is that his own writings are so given over to self-promotion, that we rarely see (hear? read?) him when he is off-message, when the private, not the public, Brown filters through. I’m not sure it ever does.
Missing in the documents collected in The Tribunal is any significant discussion of the way neither he, his champions nor even detractors were willing to discuss the five murders he and his men committed in Kansas in 1856. Stauffer and Trodd place the event at Osawatomie Creek in the context of the savage attack on Charles Sumner in the Senate and the general bloodshed and savagery that was common in Kansas. The men that Brown and his men murdered were known to be pro-slavery but were not slave-owners. In general the editors of The Tribunal conclude that the “Radical Abolitionists . . . continued to support him because they viewed his violence within the context of war.” In fact, one of Brown's recent academic biographers, David Reynolds, has referred to what happened in Kansas as “war crimes”, which I suppose is meant to differentiate them morally from just plain murders.Footnote 27 Then and now, almost no one wants to deal with Osawatomie Creek.
At issue in the case of John Brown was how to justify violence politically and morally when the time of civil disobedience had gone. What is the relationship between the morality of an action and the possibility of its success? The judgement of Stauffer and Trodd that John Brown's raid was a military failure and, more seriously, failed to touch off a slave uprising, but a political success can be taken in several ways. Besides Arendt's distinction between morality and politics, and Leigh Jenco's between Thoreau's acting for the right versus his acting for the public good, Max Weber's distinction between an ethic of conscience (Gesinnung) and one of responsibility (Verantworlichkeit) can also remind us to think how easy it is for non-violence to become violence in the context of radical change. In “Politics as a Vocation” (1919), Weber observed the way those who advocate love in politics have been known to suddenly reverse course and resort to violence: “Those for example, who have just preached ‘love against violence’ now call for the use of force for the last violent deed.”Footnote 28
This general statement marks out the path that Thoreau took when he shifted from what seemed to be principled non-violence to public support for a man who embraced violence in the service of a great cause, though both forms of political ethics can dictate violence given certain circumstances. For Thoreau, Captain John Brown was a “transcendentalist” insofar as he exemplified action from principle.Footnote 29 But Brown wanted to rid the nation of the moral taint of slavery without engaging in the tiresome and often futile processes of negotiation and compromise inherent in politics, even revolutionary politics. If anyone was not a political man, though his life and actions had enormous political impact, it was Brown. He had made up his mind and that was that.
Weber also contrasted the ethic of conscience with the ethic of responsibility, no better example of which exists than Abraham Lincoln, though Weber does not mention him. Lincoln's goal was not primarily to save his soul, but to save the republic which he had been elected to lead and then eventually to end slavery. Ultimately Frederick Douglass also refused to join Brown's raid on Harpers Ferry because it presented no real possibility of success. Both of these figures exemplify what Weber calls the ethic of responsibility. Again, the contrast between responsibility and conscience, between Lincoln and Douglass on the one side, and Thoreau and Brown on the other, was (and is) not an argument for or against violence, but one over when and under what terms it is appropriate. On this view, political violence is responsible to the body politic, while moral violence is only responsible to oneself or a small group, and ultimately has little chance of success by itself. Though this seems a long way from the tension between conscientious objection and civil disobedience, it is not, since what underlies the whole issue is the enduring tension between the claims of morality and the claims of politics, however difficult it is to distinguish them historically or conceptually.
