Law-Enforcing Insurgency

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Discussion

Jeremy Brecher:

"Faced with the failure of conventional lobbying and political “pressure group” activity, much of the climate protection movement is now turning to mass civil disobedience, as witnessed by the campaigns against the Keystone XL pipeline, mountaintop removal coal mining, coal-fired power plants, and Arctic oil drilling. Such civil disobedience, while generally recognizing the legitimacy of the law, refuses to obey it in specific instances.

Civil disobedience represents moral protest, but it does not in itself challenge the legal validity of the government or other institutions against which it is directed. Rather, it claims that the obligation to oppose their immoral actions — whether discriminating against a class of people or conducting an immoral war or destroying the climate — is more binding on individuals than the normal duty to obey the law.

A law-enforcing insurgency goes a step further. It declares a set of laws and policies themselves illegal and sets out to establish law through nonviolent self-help. Such insurgents view those who they are disobeying as merely persons claiming to represent legitimate authority — but who are themselves violating the law under what’s known as “color of law,” or the false pretense of authority. So “civil disobedience” is actually obedience to law and a form of law enforcement.

Social movements that engage in civil disobedience often draw strength from the claim that their actions are not only moral, but that they represent an effort to enforce fundamental legal and constitutional principles flouted by the authorities they are disobeying. And they strengthen a movement’s appeal to the public by presenting its action not as wanton law breaking but as an effort to rectify governments and institutions that are themselves in violation of the law.

For the civil rights movement, the constitution’s guarantee of equal rights meant that sit-inners and freedom riders were not criminals but rather upholders of constitutional law. For the struggle against apartheid, racism was a violation of internationally guaranteed human rights. For war resisters from Vietnam to Iraq, the national and international laws forbidding war crimes defined civil disobedience not as interference with legal, democratic governments but rather as a legal obligation of citizens. For the activists of Solidarity, the nonviolent revolution that overthrew Communism in Poland was not criminal sedition but an effort to implement the international human and labor rights law ratified by their own government.

These examples seem paradoxical. On the one hand, the movement participants appear to be resisting the constituted law and the officials charged with implementing it. On the other, they are claiming to act on the basis of law — in fact to be implementing the law themselves against the opposition of lawless states.

Law professor and historian James Gray Pope has developed a concept of “constitutional insurgency” to understand such cases. A constitutional insurgency, or what might be called a “law-enforcing insurgency,” is a social movement that rejects current constitutional doctrine but that “rather than repudiating the Constitution altogether, draws on it for inspiration and justification.” Pope detailed how the American labor movement long insisted that the right to strike was protected by the 13th amendment to the constitution, which forbade any form of “involuntary servitude.” Injunctions to limit strikes were therefore unconstitutional. Although courts disregarded this claim, the radical Industrial Workers of the World told its members to “disobey and treat with contempt all judicial injunctions,” and the “normally staid” American Federation of Labor maintained that a worker confronted with an unconstitutional injunction had an imperative duty to “refuse obedience and to take whatever consequences may ensue.” (http://fpif.org/nonviolent-insurgency-climate-protection/)