“I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations” - James Madison
When I was in college and law school my view of the practice of law was largely influenced by my father and his law partner. Their admonitions and actions produced a belief that lawyers were meant to be the “tour guides” through an increasingly complex society. As a corollary, it meant that you accepted the law as it was written and you changed it not by judicial fiat, rather by legislative action.
But there was a competing principle that had roots in our founding fathers and had become more visible in the early 60’s. In college we studied the life of Mahatma Gandhi and his advocacy of non-violent civil disobedience. At about the same time we began to witness Rev. Martin Luther King and his use of non-violent civil disobedience in the pursuit of civil rights. It might seem, at first, that these principles are diametrically opposed – but they are not if practiced as advocated by Mr. Gandhi and Rev. King.
Democracy, for all its flaws, remains the best means of government ever created by man. It has, however, two major flaws. The first is the ability of the majority to trample on the rights of the minority. While President Abraham Lincoln’s Emancipation Proclamation followed by ratification of the Thirteenth Amendment may have technically freed the large population of slaves, the fact is that local laws and practices – including those in Oregon – kept African-Americans as second class citizens through pervasive acts of discrimination. It was one of America’s most insidious instances of the majority oppression.
The second is the ability of the government to selectively impose burdens on groups of people that have the effect of taking their property and their rights. Most often this is achieved by the government exercising a legitimate power in an abusive manner. A prime example of this was the trend of local governments to use their power of eminent domain to take property from one person to give to another who might use the property to increase tax revenues to the local government. (Kelo v. City of New London)
In both such instances, a significant injustice is perpetrated by government. Government actions may be lawful – as they were before adoption of the Thirteenth Amendment – but their application is still unjust. The use of civil disobedience is a means by which such injustices are highlighted in a manner to stir action to correct the injustice.
Pay careful attention to that last admonition. Civil disobedience has been perverted by any number of groups to justify violent actions that cause physical injury to people and property. While in law school I participated in the anti-Vietnam war movement – not because I was trying to incite revolution, but because the administrations of Presidents Lyndon Johnson and Richard Nixon engaged in a war that they had no intention of winning and fought primarily to avoid losing and, in the process, put the young men and women of my generation, including all three of my college roommates in harms way for no good reason. We engaged in sit-ins and teach-ins, picketed the draft offices and participated in public marches. Although I was never arrested, others who participated were and they dutifully accepted their penalties while using the judicial process to further proclaim their objections. Those activities stood in marked contrast to others who used the anti-war movement to engage in violence (Bill Ayers and the WeatherUnderground) and who were really self-styled revolutionaries hoping to bring down the government through violence and civil war. The former group (the one in which I participated) followed the teachings of Mr. Gandhi and Rev. King.
Today, there are two significant government actions that require the exercise of civil disobedience. The first is the imposition of the Affordable Care Act (Obamacare) and the latter is the eavesdropping by the National Security Administration (NSA) at the behest of President Barack Obama.
Obamacare is an aberration founded on a series of lies.
- If you like your doctor, you can keep your doctor – period.
- If you like your healthcare plan, you can keep your healthcare plan – period.
- The cost of healthcare for the average family will be reduced by $2500 per year.
- The total cost of Obamacare will only be $900 Billion dollars over the first ten years (now estimated to be $2.7 TRILLION and growing with each new revelation).
- Public funding of abortions will not be permitted.
One of the biggest lies is whether you can keep your doctor. It has become obvious that you cannot. Not all doctors are accepted into various plans. The reimbursement of doctors under some plans require physicians to subsidize the actual cost of services – in essence the taking of a person’s profession. As a result, there are a growing number of doctors who are refusing to participate in Obamacare. There are now discussions occurring within the medical community as to whether to boycott Obamacare – not individually, but collectively as a profession. This latter act is an act of civil disobedience that can put the license to practice medicine at risk. It is an act of civil disobedience that should be encouraged, supported and publicized. In this instance the physicians are the sharp end of the spear in a confrontation over a highly unpopular law.
The second venal element is the suppressed reality that the totality of Obamacare is dependent on the young purchasing insurance for healthcare that they do not need at prices greatly inflated so as to subsidize others. However, the young can avoid the purchase and pay a minimal penalty. The only means for collecting that penalty is to withhold refunds from overpayment of individual income taxes. Those young people – the “millenials” who voted overwhelmingly, but unwittingly, for Mr. Obama – should join with physicians in boycotting Obama care by first electing to not participate followed by adjusting their withholdings and/or quarterly estimates so as to ensure that there will be no refund upon filing their taxes and thus no source of money upon which the government can impose the penalty.
The eavesdropping by the NSA presents another imperative for civil disobedience. Under the guidance of Mr. Obama, the NSA has refined its electronic eavesdropping capabilities such that it now monitors and stores information on virtually every domestic telephone and cellphone conversation and internet communication by American citizens. Mr. Obama has already demonstrated his willingness to use the resources of the government to attack his political enemies – the IRS scandal targeting conservative groups, the phony affidavits to justify wiretapping reporters and the targeted tax audits of those supporting conservative causes. In this instance the “civil disobedience” may have to occur in the corporate world where communications companies (Verizon, AT&T, Sprint, etc.) and large data driven companies (Apple, Microsoft, Amazon, Google, etc.) should refuse to permit access by the federal government to their communications structure and/or data storage infrastructure, including a refusal to honor subpoenas. Such corporate refusals can be triggered by users, individually and/or collectively, demanding that personal information gathered from them not be delivered to any governmental agency. Divestiture of shares in the stock of companies who continue to supply such information to the government can enhance the message. While Mr. Obama and the NSA may be acting legally (now cast in doubt based on the recent ruling in Klayman v. Obama) there abuse of private citizens is most certainly unjust.
The American traditions of “civil disobedience” extending from the Boston Tea Party to the Civil Rights movement remains alive, albeit dormant, awaiting an abusive government. This is the moment for a new generation to exercise that great tradition.
It should be noted that no matter how much Edward Snowden seeks to embrace the concept of civil disobedience through his revelations of American intelligence information, his actions in delivering that information to foreign governments nullifies any justification for undertaking his acts. The essence of civil disobedience is that you not cause physical harm to others or their property – it extends to not endangering their safety as well and Mr. Snowden has endangered a great many lives in the shadowy world of foreign intelligence gathering.