Re: Civil disobedience and legal actions to promote liberty

Date: Sat Jan 15 2000 - 06:21:49 MST

In a message dated 1/10/00 3:50:12 PM Central Standard Time, writes:

> I have been thinking of utility of launching some
> personal liberty action campaigns on simple issues,
> to pave the road to more complex things.
> Such as organizing a Body Art Rally in Boston
> (where most of the body mod is prohibited,
> except for genital mutilation of male babies).
> Or starting public lawsuits based on blue laws
> so that they have to be repealed.
> Would anybody comment on this?
> Do you think it makes sense?

It certainly makes sense, as the tactic that has probably done more to extend
human liberty in the Anglo-American world than any other, from the campaigns
of the suffragettes through Ghandi to Thurgood Marshall, Rosa Parks and MLK
(whose day we celebrate in the US on Monday). Disciplined civil
disobedience, coupled with skillful, well-organized and financed legal work
is the ultimate tool of liberty in societies premised on the rule of law.
(N.B.: civil disobedience has limited to no effectiveness in societies whose
ruling orders operate outside the bounds of any legal authority. See Tian An
Men Square and the Soviet Jewish emigration protesters of the late 1970s.)

> What have been tried recently?

Probably the most notable campaigns of this kind since the heyday of the
civil rights movement and anti-war activities of the 1960s have been the
anti-abortion movement, gay rights demonstrations and some isolated
environmentalist campaigns (the WTO mish-mash in Seattle being the most

I would generalize the last 20-30 years in the US as having been a period of
consolidation of changes made as a result of the civil liberties activities
of the 1960s. In particular, the "mainstreaming" of the race-oriented civil
rights campaigns of the 1950s and early 1960s has probably clouded public
perception of the real utility of the classic model of civil disobedience and
blunted its effectiveness. Furthermore, the specific federalist legal
strategies employed to good effect by Marshall's "Inc. Fund" "legal SWAT
team" ultimately caused such a broadening of the use of stretched
constitutional tools like the federal Commerce Clause that principled
libertarians have developed deep misgivings about the legal-theoretic
framework that was created in its aftermath. The almost metaphysical
reasoning employed to rationalize the constitutionality of corrective
legislation in what the Founders would almost certainly have identified as
"private" relationships would make any non-lawyer's eyes cross.

> What are the good targets to start poking that
> can lead to liberation in serious areas?

Because of the constitutional morass of Commerce Clause rationalizations that
the Civil Rights Act of 1964 has given rise to in cases involving private
relationships, the best targets are those that involve clear-cut "state
action", as that term is used in 5th and 14th Amendment jurisprudence. Thus
the examples I've heard you discuss, Sasha, such as prohibitions on public
dancing or body modifications, are at least somewhat appealing candidates.
Here one runs into the doctrine of the "Police Power", the nebulous notion of
the core power of the state generally. As a legal theoretic matter, one has
to identify places where the Police Power runs squarely into a clear-cut
constitutional guarantee of individual liberty, such as the 1st Amendment's
protection of free speech.

So you'll understand the kind of arcane reasoning through which such
campaigns of civil disobedience have to navigate, consider how opponents of
such a campaign will articulate their response. The state has, under its
inherent Police Power, the right to regulate such matters of "vital public
concern" as public health. In exercising that right, your adversaries will
say, the state has the right to regulate tattoo artists and body piercing
salons, for instance. Over against that principle, you will have to argue,
is a constitutionally protected right of free expression. You will then have
to make a compelling showing that body mods and piercing fall within that
right. At that point, you will have to show that the state has struck an
improper balance between these two principles. Prepare for a long, drawn-out
and expensive legal battle, with Attorneys General from many states filing
amicus briefs against you.

In "serious areas" that you identify, the right to control one's own body
seems to be the most vital to transhumanists. Unfortunately, you will look
in vain for a specific articulation of that principle in the US Constitution,
as the many courts who have considered reproductive rights issues have
discovered. Here, we are in the realm of the mysterious "penumbral" rights
of the 1st, 5th and 14th Amendments, may Jefferson have mercy on us . . .

      Greg Burch <>----<>
      Attorney ::: Vice President, Extropy Institute ::: Wilderness Guide -or-
        "We never stop investigating. We are never satisfied that we know
        enough to get by. Every question we answer leads on to another
       question. This has become the greatest survival trick of our species."
                                                -- Desmond Morris

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