The Future of the End of Democracy
  Against Civil Disobedience

From an article discussing the author’s view that the U.S. Supreme Court has overstepped its legitimate role in cases such as Planned Parenthood v. Casey and Roe v. Wade.

. . .talk of revolution can only inflame unstable minds. Both sides make good points; let us call this match a draw.

Civil disobedience is another matter altogether. Whereas revolution responds to a government that has no right to legislate, civil disobedience responds to a law that cannot in good conscience be obeyed. The “regime” does not have to be “illegitimate” for a law to be unconscionable. I hope readers will forgive me for what may seem scholastic hairsplitting, but it seems to me that much of the “End of Democracy?” confusion is based on the failure of both sides to make necessary distinctions of principle. After that should come case-by-case prudential judgment, which has hardly begun even now.

According to the classical analysis, from Thomas Aquinas, a law can be unjust in either of two ways, and the difference makes a difference. Some laws are unjust because they hinder our relationship to God, for example because they violate the commands of the Decalogue: do not murder, do not steal, do not bear false witness, and so on. Others are unjust because they hinder our life in this world, for example because they serve private rather than public interest, impose disproportionate burdens, or exceed the authority of government.

Concerning laws unjust in the first way, our duty is simple: we must disobey, and that’s flat. A law unjust in the second way may be disobeyed, but there is a catch. Thomas framed it in negative terms, suggesting that if the harm of the ensuing scandal or disturbance would be even greater than the harm of the law itself, the law should be obeyed. Martin Luther King, Jr. framed it in positive terms, suggesting that whoever disobeys must choose means that do not cause avoidable scandal or disturbance--for example by accepting the full legal penalty for breaking the law. John Calvin allowed only subordinate magistrates to resist the second kind of unjust law, because they share in the public authority; others argue that in a republic, citizenship is a public office too.

It is important to remember that civil disobedience is not just a Christian idea. Jewish law firmly maintains the superiority of God’s law to man’s, and the first known case of civil disobedience to unjust laws is from Torah--the refusal of Hebrew midwives to obey Pharaoh’s edict to kill male Hebrew infants, recorded in Exodus 1:15-21. At stake in our own day is the killing not just of infants but of the unborn, disabled, aged, sick, or merely depressed. Several varieties of killing are already legal; several others are on the verge.

The argument that permissive laws cannot be disobeyed is weaker than it looks, because ultimately the culture of death cannot be sustained by permissive laws alone. It requires that certain monies change hands, certain officials do what they are told, certain voices be silenced, and certain information be suppressed. For a small example, in the 1994 case Madsen v. Women’s Health Center, Inc., the Supreme Court upheld a provision of Florida law establishing a thirty-six-foot zone around an abortion clinic, within which demonstrations were permitted by supporters of abortion--but not by supporters of life. A possible mode of civil disobedience for those who hold no office but their citizenship might have been to pray peacefully and silently within the zone, then accept the legal penalty for demonstration. For their part, judges and magistrates might have cooperated in enforcing preexisting laws against violence and trespass by persons of all persuasions, but refused to recognize ordinances that imposed harsher penalties just for holding the pro-life opinion. The penalty for them would presumably have been removal from office. A judge might also protest a law in a manner that does not involve civil disobedience by entering a judgment of conviction, but then suspending the sentence. The latter suggestion is from Michael W. McConnell’s thoughtful essay “Bending the Law, Breaking the Law” (FT, June/July 1997).

My aim is not to recommend mass violations of the thirty-six-foot rule but to show that the option of disobedience cannot be ruled moot just because the government has not (yet) commanded us to abort our own children or euthanize our own grandmothers. The manifold regulations and intricate fiscal arrangements of the modern state present myriad opportunities to draw the line, and these need to be patiently considered. One crucial point is that even though laws and ordinances like the thirty-six-foot rule form part of the support structure for the culture of death, in themselves they are unjust only in the second way, not in the first. They don’t directly violate commands of God such as “Do not murder”; they merely undermine the temporal common good, in this case by imposing disproportionate punishments and burdening the pro-life view with official opprobrium. In such cases civil disobedience is not an unconditional duty but a matter of discretion--something to be weighed according to whether, in the circumstances, it will do more good or harm. For example, a disadvantage of drawing the line here is that hostile journalists do all they can to obscure the difference between praying in the driveway and planting a bomb in the waiting room. Then there is the fact that the knowledge of blood flowing freely only a few dozen feet away is such a terrible goad that the distinction may disappear for some demonstrators too. These are powerful objections. But they are prudential objections, so there is no reason why the conversation between the symposiasts and their critics should end. . .

from “The Future of the End of Democracy,” by J. Budziszewski. First Things: A Monthly Journal of Religion and Public Life. March 1999, p. 15.