Notre Dame Journal of Law, Ethics & Public PolicyVolume 5Issue 4 Symposium on Civil Disobedience Article 9

February 2014

Motive Testimony and a Civil DisobedienceJustificationMartin C. Loesch

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Recommended CitationMartin C. Loesch, Motive Testimony and a Civil Disobedience Justification, 5 Notre Dame J.L. Ethics & Pub. Pol'y 1069 (1991).Available at: http://scholarship.law.nd.edu/ndjlepp/vol5/iss4/9

MOTIVE TESTIMONY AND A CIVILDISOBEDIENCE JUSTIFICATION

MARTIN C. LOESCH*

Table of Contents

INTRODUCTION ......................................... 1070I. DISOBEDIENCE-HISTORY, DUTY AND A DEFINITION .. 1071

A. Disobedience in America .......................... 10711. Pre-Revolution-Religious Toleration ...... 10722. Revolution-E Pluribus Unum ............... 10733. Slavery-All Men Are Created Equal ....... 10764. Women-All People Are Created Equal .... 10795. Labor-Is the Government a Friend or Foe? 10816. Civil Rights-Equal Not Separate .......... 10827. Anti-Vietnam-The Government Can't Hear

M e ........................................ 10848. Conclusions From History ................. 1086

B. Duty and Obligation ............................. 1087C. A Definition and Characteristics ................... 1092D. Civil Disobedient or Criminal? .................... 1094

II. TOWARD A REASONED RESPONSE ..................... 1096A. A Potential Solution ............................. 1096

1. Introduction ............................... 10962. Mistake of Law Defense .................... 10973. Necessity Defense .......................... 10984. Jury Nullification ........................... 10995. Conclusion ................................ 1100

B. M otive Testimony ............................... 11011. Introduction ............................... 1101

a. What the Jury Gets to Hear ............. 1101b. Problems with Punishing Civil

Disobedients ........................... 1102c. Motive Testimony as a Solution ......... 1103

2. Previous Attempts at the Use of MotiveTestim ony ................................. 1104a. M oylan ................................. 1104

* B.A. 1987, University of Notre Dame; J.D. 1991 University of NotreDame; Thomas J. White Scholar 1989-1991. This article is dedicated to myparents, Connor and Anne Loesch, and Dr. John Robinson, without whom itspublication would not have been possible.

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b. Berrigan ................................ 11063. Why "Good Motive" Arguments Have

Failed ..................................... 1107C. Proposed Amendments ............................ 1108

1. The Model Penal Code .................... 1109a. Justifications in General ................ 1109b. A Civil Disobedience Justification ....... 1109

2. The Federal Rules of Evidence ............. 1110D. Potential Problems ............................... 1111

1. C haos ..................................... 1111a. Criticism ............................... 1111b. Response .............................. 1112

2. Courts Should Not Become PoliticalPlatform s .................................. 1113a. Criticism ............................... 1113b. Response .............................. 1114

3. Degeneration of the Proper Role of the Jury 1115a. Criticism ............................... 1115b. Response .............................. 1115

4. Civil Disobedients Will Not Really Be BetterOff With This Justification ................. 1116a. Criticism ............................... 1116b. Response .............................. 1116

5. Civil Disobedients Depend Upon theSympathy and Attention Their PunishmentEngenders ................................. 1117a. Criticism ............................... 1117b. Response .............................. 1117

6. Sum m ary .................................. 1118C ONCLUSION ........................................... 1118

INTRODUCTION

The criminal justice system has responded inadequately tothe moral and political significance of civil disobedience in oursociety. As civil disobedients continue to be prosecuted forcrimes which they commit in response to a conflict betweenbinding legal and moral obligation, the enforcement of the lawconfronts a fundamental tenet of our society: freedom of con-science. In this article, I propose one solution to the problemof how to respond to the difference between civil disobedientsand ordinary criminals. By amending the Model Penal Codeand the Federal Rules of Evidence we would allow defendantsin criminal trials to admit, in some limited circumstances, testi-mony relevant to the motive for their actions. This amendment

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gives the jury or judge the ability to assess the culpability of thedefendant in light of those characteristics which distinguish herfrom an ordinary criminal.

In Part I of this article, I will discuss some of the highlightsof the robust history of civil disobedience in this country.Against the backdrop of that history, I will then explore thenature of legal duty and moral obligation in order to arrive at asuitable definition of civil disobedience. Part I will concludewith a discussion of some morally significant distinctionsbetween the civil disobedient and other people who break laws.

In Part II of this article, I will examine various suggestionsfor how the judiciary ought to respond to civil disobedients.After arguing that none of these proposals are adequate, I willrecommend the development of a Civil Disobedience Justifica-tion for one class of defendants. Two examples of civil disobe-dience will demonstrate why motive testimony has not beenallowed in the past., and five of the most common problemsassociated with the use of motive testimony will be explored.In light of these problems, I present a proposed amendment tothe Model Penal Code and Federal Rules of Evidence allowingthe use of motive testimony and providing the qualifying provi-sions necessary to accommodate the risks involved. I concludeby responding to those problems and suggest that the admis-sion of motive testimony as part of a Civil Disobedience Justifi-cation can be tailored to satisfy these objections.

I. DISOBEDIENCE-HISTORY, DUTY AND A DEFINITION

A. Disobedience in America

From the Boston Tea Party to the Catonsville Nine, fromthe Underground Railroad to Operation Rescue, when legalremedies have failed or have been perceived as bound to fail,Americans have voiced their opposition to law through someform of civil disobedience. Despite its long presence within thehistory of the United States,' civil disobedience, as a concept,has eluded definition by the criminal law.

1. See, e.g., the abolitionist clergyman, Theodore Parker, who said inopposition to the Mexican War:

* . . We are a rebellious nation; our whole history is treason; ourblood was attainted before we were born; our creeds are infidelity tothe mother church; our constitution treason to our fatherland. Whatof that? Though all the governors in the world bid us committreason against man, and set the example, let us never submit. LetGod only be a master to control our conscience.

Quoted in M. BAssIOUNI, LAw OF DIssENT AND RIOTS 155 (1971).

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Because this country was born of open defiance of the lawand because principled violation of legal obligations has con-tinued until this day, it should come as some surprise that ourcriminal justice system lacks a definition of civil disobediencewhich distinguishes those who engage in such acts from otherpeople who violate the law. In the second part of this section, Iwill show that there are strong analytical reasons for makingsuch a distinction and for seeing our jurisprudence to date asinadequate to the task. Before analyzing the requirements ofobedience and disobedience, I will sketch out, in brief, the his-tory of civil disobedience in this country. That history willdescribe some of the important contributions civil disobedi-ence has made to the dialectic of American political life by con-centrating on seven related but distinct periods of its use inAmerica.

1. Pre-Revolution-Religious Toleration

The history of American civil disobedience begins for allpractical purposes with resistance to religious persecutionimported from England and the Continent. Later, conscience-based objection to specific laws would become the norm.2 Toestablish the rights of individual conscience, minority religiousgroups first had to gain the foothold of toleration. In themulti-ethnic and multi-religious colonies, toleration did notcome easily.

Within each of the new colonies one religious group wasgenerally prominent. As a result, the Tocquevillian conflictbetween majority and minority groups was born.' This conflictinforms all the civil disobedience which followed in America.The intimacy of the church-state relationship in the colonialperiod made predominantly religious confrontations into civilquestions.

The colonies can be divided into four types: first, the "freecolonies" which never had state churches, Rhode Island, Penn-sylvania, Delaware, and New Jersey; second, what Hofstadtercalls the "vacant establishments" where the Anglican churchwas established by law but where Anglicans did not represent asignificant enough majority of the population to exercise con-trol, New York, Maryland, the Carolinas, and Georgia; third,Virginia, where the Anglican church held substantial controland acted on it; and finally, Puritan Massachusetts and Con-

2. D. WERER, CIVIL DISOBEDIENCE IN AMERICA 20 (1978).3. See, e.g., A. TOCQUEVILLE, DEMOCRACY IN AMERICA 246-76 (J.P. Mayer

ed. 1969) (Chapters Seven and Eight).

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necticut.4 Note first that the English, Dutch, French, and Span-ish who settled this land did not set out to establish a regime oftoleration. The colonies were an export operation. "[Plower,profits, and internal unity" were priority goals; evangelizationwas not.5 Because much of the public protest was against thegovernments of the fourth group, Massachusetts and Connecti-cut, I will focus on disobedience in those territories.

Quakers faced stiff opposition in Massachusetts. Quakersobjected to restrictions on their right to worship, to hold office,and to preach.6 They also refused to pay taxes used for mili-tary purposes.7 They, and later Baptists as well, were exe-cuted,' banished, or subject to corporal punishment.9 Thesevere punishments they suffered attracted much public atten-tion and eventually resulted in less repressive laws.

Civil disobedience in America began as the colonists strug-gled to adapt to religious pluralism and grew to accept the con-cept of freedom of conscience.'" From the challenge of theQuakers the colonists learned that it was indeed possible tovindicate the claims of individual conscience without under-mining the stability of civil government. The American insis-tence on the separation of church and state began."

2. Revolution-E Pluribus Unum

The Revolution of 1776 may seem an improper place todiscuss the phenomenon of civil disobedience in America. Iinclude it in this brief history because one of the reasons fornot accepting the validity of civil disobedience as an expressionof social protest has been the fear of revolution or general law-lessness.' 2 The Revolution and the protests which preceded it

4. R. HOFSTADTER, AMERICA AT 1750 198-99 (1971).5. Id. at 189.6. Id. at 182.7. See generally S. LYND, NONVIOLENCE IN AMERICA: A DOCUMENTARY

HISTORY xvii-xxiii and 5-6 (1966). See also D. WEBER, supra note 2, at 19.8. R. HOFSTATDER, supra note 4, at 193.9. See generally D. WEBER, supra note 2, at 19.10. See id. at 20.11. R. HOFSTADTER, supra note 4, at 182.12. A. FORTAS, CONCERNING DISSENT AND CIVIL DISOBEDIENCE 47-61

(1968). This claim has been contested. See, e.g., C. WHITTAKER & W. COFFIN,LAW, ORDER AND CIVIL DISOBEDIENCE 31 (1967). The difference betweencivil disobedience and revolution is complicated. The point of my effortshere is not to exhaust the sophisticated distinctions that need to be made butonly to introduce what I see as the fundamental difference between the twospecies of civil protest. For a comprehensive treatment of the subject, see H.ARENDT, ON REVOLUTION (1963).

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provide me with a good opportunity to distinguish civil disobe-dience from revolution.

The Revolution in America in 1776 found philosophicalfoundation in the social contract theorists and seventeenth-century English revolutionaries Milton, Sidney, and Locke.'"The Colonists looked back on the English Revolution of 1688-89 and the unwritten constitution that followed to find supportfor their fundamental presupposition: both the ruler and theruled were subject to the law.' 4 They sought a return, a revolu-tion, to traditional practices of British rule. Only when theyknew that the return they sought was impossible did they seekin earnest a complete break. The Stamp Act and other taxationefforts were the catalyst for that break.

The Stamp Act went into effect on March 22, 1765.15

Colonial petitions against the Act had been ignored by Parlia-ment. Public frustration grew into public action. The firstdemonstrations against the Stamp Act occurred in August of1765. On the fourteenth, Bostonians paraded an effigy of thefuture stamp distributor around the city before they burned it;they leveled the building that was to be his office; and theyattacked his home. The stampman quit the next day. Theydemonstrated again on the twenty-sixth, but that action wasmore a riot than a protest. In later weeks and months, theaction on the fourteenth would be praised for its restraint andthe events of the twenty-sixth would be criticized for their reck-lessness and damage to personal property. These demonstra-tors represented oddly wedded social groups in the stratifiedcolonies. The uprisings were started by "a social club ofrespectable merchants and tradesmen " " and were finished bymobs.

These demonstrations and the similar protests in othercolonies which followed became the models for resistancethroughout the period that preceded the revolution. Failedconstitutional efforts were followed by demonstrations, organi-zation, and boycotts. Eventually the resistance to British efforts

13. P. MAIER, FROM RESISTANCE TO REVOLUTION 27 (1973).14. Id. at 29.15. The act placed stamp duties upon "colonial legal documents,

papers, almanacs, newspapers, and newspaper advertisements to help financeBritish military expenses in America. The duties or taxes had to be paid ingold or silver, and violations of the act could be tried in admiralty as well ascommon law courts." M.JENSEN, THE FOUNDING OF A NATION: A HISTORY OFTHE AMERICAN REVOLUTION, 1763-1776 65 (1968) (cited in P. MAIER, supranote 13, at 51).

16. Id. at 58.

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to restrict American trade, to extract taxes at unbearable levels,and to continue managerial control from afar encouraged thecolonists to organize. The Intercolonial Sons of Liberty wereformed. The Sons of Liberty began with men from the upperand middle ranks of colonial society but soon broadened toinclude all social and economic subgroups. 17

The Sons of Liberty took on the Stamp Act and its repealas their special charge. When it looked as if the British mightseek to enforce the Stamp Act with force, the Sons of Libertypromised to oppose force with force.' 8 Since force was notwidespread at this time, their main action was to encouragepeople to refuse to pay their Stamp Act dues. Throughout thisearly period, the Sons of Liberty insisted that they intended touphold, not overturn, the established government.' 9 When theStamp Act was repealed and the Acts of Trade with Americawere reconsidered the Sons of Liberty movement dissolved.2 °

The opposition to the Stamp Act and the Sons of Libertymovement represent the first widespread use in North Americaof political protest as a means for people without political influ-ence to induce social change. Relations with the British contin-ued to deteriorate. The Townsend Revenue Act, the New YorkRestraining Act, the Quartering Act, the Boston Massacre, thedefeat of the Regulators, and the impotency of petitioning fromthe Baltimore Committee of Correspondence all exacerbatedthe colonial feelings of oppression. At some point, probablyjust after the new English Parliament opened in December of1774, the protestors of the late sixties and early seventiesbecame interested not only in removing odious tax burdens,but also in liberating the colonies from the despotism ofGeorge the Third.

This change marks the difference between civil disobedi-ence and revolution. Even though the disobedience of the col-onists had not always been "civil," it had not, previous to 1774or there about, sought to throw off the existing government.Revolution is concerned with liberation and freedom, notreform.' In the minds of the American Revolutionaries, all theorgans of their government, the King, Parliament, and theirministers, had systematically violated the constitution and laws.The social contract was broken and their rulers had forfeited

17. P. MAIER, supra note 13, at 86-88.18. Id. at 94.19. Id. at 96. See also H. ARENDT, supra note 12, at 13-52.20. P. MAIER, supra note 13, at 111.21. H. ARENDT, supra note 12, at 25.

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their authority. Colonists, oppressed by what they had consid-ered the "freest government in the world,"22 became revolu-tionaries when they physically demonstrated their freedom byousting the British occupying troops. The transformation ofcolonial actions helps to illuminate the important distinctionbetween civil disobedience and revolution. Revolutionariescontest the legitimacy of a government; civil disobedience maybe part of a revolutionary campaign, but civil disobedients gen-erally recognize that a legitimate government is acting, albeitillegitimately.

From this point forward my comments will address onlycivil disobedience. Therefore, when I use this term I, by defini-tion, exclude other forms of social protest which claim as theiraim the overthrow of the government.23 The sections whichfollow will be more brief and will be used to describe some ofthe instances of civil disobedience in American history, the the-ories which supported them, and the benefits gained fromthem.

3. Slavery-All Men Are Created Equal

Slavery and its residual effects have caused the greatestpolitical rift in American history. No political question hasbeen so divisive and no issue has brought this country as closeto dissolution. Though more than one hundred years havepassed since slavery was abolished, America is not yet finishedwith its racial problems. "Slavery was but one aspect of a raceand color problem that is still far from solution here, oranywhere." 24

Any discussion of civil disobedience in America would beincomplete without including both the resistance to the phe-nomenon of slavery and the philosophy of Henry Thoreau.Fortunately, the two complement one another. Thoreau pro-vided theoretical expression for the spirit that resisted the slavetrade. The Underground Railroad was one of that spirit's overtmanifestations. I will address each in turn.

Henry Thoreau, in On the Duty of Civil Disobedience, claimedthat, "All men recognize the right of revolution; that is, theright to refuse allegiance to and to resist the government, whenits tyranny or its inefficiency are great and unendurable. But

22. P. MAIER, supra note 13, at 269.23. I will present a formal definition of civil disobedience later. See text

accompanying notes 89-94 infra.24. 2 S.E. MORISON, THE OXFORD HISTORY OF THE AMERICAN PEOPLE

281 (1965).

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almost all say that such is not the case now."25 Thoreau drewattention to the tension between the majority who want to pre-serve the status quo and citizens who disobey the law to inspirechange. Most people agree that citizens appropriately disobeylaws they perceive as unjust. Nonetheless most people also dis-approve of the civil disobedience they observe in their time.26

By definition, civil disobedience, then, cuts against the grain ofsocietal approval.

Thoreau believed that the right, indeed the duty, to diso-bey unjust laws exists within the relationship between citizensand governments. He emphasized the primacy of the individ-ual conscience and personal freedom as a prerequisite forhuman flourishing. As a result, he concluded that the individ-ual's responsibility was first to his own beliefs and then to therequirements of the state. Thoreau is significant because hesynthesized two previously separate strands of thought: theChristian emphasis on following the mandates of conscienceand the Lockean justification of revolution which undergirdedthe resistance to and eventual break from England.

Individual citizens, as well as Africans forcibly transported,held, and oppressed here, questioned the legitimacy of the gov-ernment that made the slave trade possible. Thoreau distin-guished himself from "no government men." He appealed fora better government, one that would command respect.27 Heresisted recognizing "that political organization as my govern-ment which is the slave's government also."-28 From WilliamLloyd Garrison, who demanded immediate emancipation orsecession of the free states, to Wendell Phillips, who used hisoratorical abilities to impress listeners with the shame of slav-ery, the abolitionists represented a wide swath of the socioeco-nomic groups of the north. They too joined Thoreau's cry fora better government.

In time, slaves and sympathetic free people began bothopen and covert efforts to end the slave system. The mostfamous of these efforts was called the Underground Railroad.It operated simply enough. Slaves hid in the woods or other

25. H. THOREAU, WALDEN AND CIVIL DISOBEDIENCE 225 (1960)(Thoreau's essay on civil disobedience was first published in 1849).

26. "There are thousands who are in opinion opposed to slavery and tothe war, who yet in effect do nothing to put an end to them; who, esteemingthemselves children of Washington and Franklin, sit down with their hands intheir pockets, and say that they know not what to do, and do nothing .. " H.THOREAU, id. at 226 (emphasis in original).

27. Id. at 223 (emphasis in original).28. Id. at 224 (emphasis in original).

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cover near their master's house, and then, when possible, fol-lowed the North Star to the free states. There, friendlynortherners hid them during the day and transported themundercover or assisted them in getting to another safe house.Quakers sheltered and assisted many runaway slaves, as didformer slaves and free blacks.29 Slave catchers roamed thenorth in search of fugitive slaves, making the trip perilous.

This type of covert resistance was not the revolution of oneenvisioned by Thoreau nor was it a strict form of civil disobedi-ence, but it too captured hold of those two previously separatestrands joined by Thoreau-primacy of individual conscienceand Lockean rights theory. The Quakers, free blacks, andother northerners who conducted the Underground Railroadassumed the one obligation Thoreau claimed able to accept: todo at any time what they thought right.3 °

Through the public actions of the abolitionist speakers andpoliticians, public opinion turned against the atrocity of slav-ery. Through the quiet action of the Underground Railroad,the legal order which supported slavery gradually degenerated.After a long and bloody conflict, Lincoln's goal of preservingthe Union was achieved and slavery ended.

The last two examples I described began in resistance andended in revolution or civil war. Civil disobedience has alwayswalked a precarious line on the other side of which lies vio-lence. For this reason, some critics of civil disobedience as aform of social protest have decried its utility.3 ' Thoreauresponded by asking, "Why does [the government] not cherishits wise minority? ... Why does it not encourage its citizens tobe on the alert to point out its faults, and do better than itwould have them?""2 His question is the genesis for this arti-cle. In the remaining sections I will describe some of the signif-icant civil disobedient movements of this century. For the mostpart, they were conducted without violence. At least, violencewas not the focus of the actions and there has never again beena serious threat of civil war in this country.

29. Harriet Tubman escaped and returned to the South to helphundreds of slaves find their way to the free north. See 2 S.E. MORISON, supranote 24, at 277. She was also not the only black woman involved inemancipating blacks and aiding the North in the war. See H. ZINN, A PEOPLE'S

HISTORY OF THE UNITED STATES 188 (1980).30. H. THOREAU, supra note 25, at 223.31. See, e.g., A. FORTAS, supra note 12.32. H. THOREAU, supra note 25, at 229.

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4. Women-All People Are Created Equal

Civil Disobedience in the twentieth century has been dif-ferent from what it was in the eighteenth and nineteenth cen-tury. The legitimacy of the form of government and theexisting ruling elite has not been seriously questioned by theprototypical civil disobedient. I do not mean to imply that thechallenges have been less significant-they have not-but theyhave been more directly focused on righting injustices in a gen-erally just system.

The struggle for women's rights represents that type ofchallenge I have been describing. Women have used the fullmeans of political action available to them (running for publicoffice, acquiring increased economic independence, engagingin protest actions, and educating society at large) to try toimprove their situation in society. Their efforts to gain inde-pendence and political identity began as part of the abolitionistmovement. 3 Advocates of freedom for blacks, such as WilliamGarrison, included women in their movement early on. Thewomen's suffrage movement began in the 1840s and ended in1920 with the passage of the nineteenth amendment.3 4

For the purposes of this article, the suffrage movement forwomen is significant because it both represents the union ofthe two traditions Thoreau joined and portended the style ofdisobedience that has become typical in the twentieth century.Lucretia Mott drew upon her Quaker belief in the equality ofthe sexes and its tradition of opposition to unjust laws torespond to the oppression she and other women experiencedwhen speaking out on social issues.

In July of 1848 on a trip in upstate New York, Mott andElizabeth Cady Staton had the idea of a convention to discussthe subject of women's rights. The resulting "Declaration ofSentiments and Resolutions of the First Women's Rights Con-

33. S. LYND, supra note 7, at 160. Even Lincoln, known as a moderateconservative, included women in his plans for reelection as an Illinoislegislator in 1836. He said, "I go for all sharing the privileges of governmentwho assist in bearing its burdens. Consequently I go for admitting all whitesto the right of suffrage who pay taxes or bear arms (by no means excludingfemales)." See R. HOFSTADTER, supra note 4, at 128. See also 2 S.E. MORISON,

.supra note 24, at 273.34. 3 S.E. MoRIsoN, THE OXFORD HISTORY OF THE AMERICAN PEOPLE

237 (1965). Women have been, both before and after the nineteenthamendment, active in civil disobedience and political resistance in thiscountry. I do not mean to imply either that their special struggles are over orthat they have not been involved. Here I only address suffrage.

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vention"35 adopted Jeffersonian natural rights language. TheDeclaration began by harkening back to common origins:"When, in the course of human events, it becomes necessaryfor one portion of the family of man to assume among the peo-ple of the earth a position different from that which they havehitherto occupied. *"36 The resolutions which followedadopted plain natural law foundations which would be heardlater in the race conflicts of the sixties.3 7

After 1848, the women's movement became more demon-strative. In 1872 Susan B. Anthony organized women to regis-ter and vote illegally under the theory that the language of thefourteenth amendment already entitled them to the right tovote.38 She was convicted but refused to pay the fine assessedher. About the same time, Abbey and Julia Smith resisted pay-ing tax assessments increased against women because theywere barred from participating in the decisions against them.39

In the early years of this century, women were active alsoin protests against the First World War. They used traditionalmethods of persuasion including petitions, lobbying, and writ-ing. They also pressed the new Wilson administration to passthe National Suffrage Amendment. 40 When those efforts failedand Wilson had already been elected for a second term, moremilitant feminists, led by Alice Paul, took to the streets to beginan extended picket of the White House and the seeminglyambivalent Wilson. When the women were arrested and jailedfor "obstructing the traffic,"'4 ' they undertook hunger strikes todraw attention and sympathy to their plight. The news of theirdetention and subsequent force feedings attracted national

35. See D. WEBER, supra note 2, at 180-84.36. Id. at 180.37. Resolved, That such laws as conflict, in any way, with the true and

substantial happiness of woman, are contrary to the great precept of natureand of no validity, for this is "superior in obligation to any other."

Resolved, That all laws which prevent woman from occupying such astation in society as her conscience shall dictate, or which place her in aposition inferior to that of man, are contrary to the great precept of nature,and therefore of no force or authority. Id. at 182-83.

38. Her argument appealed to the privileges or immunities clause ofthe amendment, which provides that "[N]o State shall make or enforce anylaw which shall abridge the privileges or immunities of citizens of the UnitedStates." See D. WEBER, supra note 2, at 184-85. Her directed verdict in thatcase may have been the last time such a verdict was rendered in a criminalcase. See United States v. Anthony, 24 F.Cas. 829 (N.D. New York 1873).

39. See D. WEBER, supra note 2, at 188-95.40. D. WEBER, supra note 2., at 195-202.41. Id. at 198.

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attention that ultimately helped the passage of the nineteenthamendment.4 2

These pioneers were some of the first women leaders inthis country. Some of their protests broke the law and somedid not, but they merit attention in this history nonetheless.Their style of protest is a style that has been replicatedthroughout the years that have followed: 1) they tied theirclaims of oppression to violations of the fundamental conceptsof freedom and liberty as well as to claims of moral injustice, 2)they first pursued legal means of voicing their concerns andempowering their voices, and 3) when those methods provedunsuccessful, they violated unjust laws or laws in order todemonstrate the injustice they suffered to the community atlarge.

5. Labor-Is the Government a Friend or Foe?

The kinds of protests that typified the labor movement inthis country are not ordinarily the type of actions that can beclassified as civil disobedience.4

- For one thing, the "labormovement," the goals of which included better working condi-tions, better wages, child labor regulation, safety and healthprotection, and uniform working hours, was not a single cam-paign. Over many years a series of episodic disputes resultedin increased governmental action. America's industrializationafter the Civil War meant that machines could more produc-tively and less expensively duplicate the human workforce.44

For the next seventy years, until the passage of a long string ofgovernment regulations,45 American workers struggled toassert standards of human decency within the current of capi-talism given free reign.

42. "The right of citizens of the United States to vote shall not bedenied or abridged by the United States or any State on account of sex."U.S. CONST. amend. XIX, § 1.

43. In this regard I acknowledge that the violence associated with thelabor movement was initiated by both sides. To the extent that workers actedviolently, I believe that their actions were less "civilly" disobedient and morerevolutionary. The presence of some violence, however, does not in my mindtransform a generally non-violent movement into a revolution. This case isspecial also, because many of the disputes were with owners or managers andnot with the state directly. Even so the state that allowed the gross abuse ofthe rights of workers was also, indirectly, imputed.

44. H. ZINN, supra note 29, at 247-48.45. The Clayton Act, the Sherman Anti-Trust Act, the La Follette

Seaman's Act, the Adamson Act, the National Labor Relations Act, and thecreation of the Federal Trade Commission. See R. HOFSTADTER, THEAMERICAN POLITICAL TRADITION 334-35 (1973).

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Ostensibly, most of those disputes were with privateemployers and not with the government. What was really atissue, however, was whether the government could or shouldregulate employee-employer relationships. When employeedemonstrations were broken up or when sit-ins were forciblycleared, the government acted to support property and con-tract rights against the human dignity claims of labor.4 6 In sofar as labor was also protesting the governmental protection ofa system they saw as oppressive, the.actions of the labor move-ment can in fact be seen as a form of civil disobedience.

Finally, the labor movement initiated the style and organi-zational structure of the civil rights demonstrations to followlater. Labor protests, such as the sit-in strikes at twenty Gen-eral Motors plants in 1936 and 1937,47 involved hundreds ofthousands of people and lasted for months. The strikes werehighly organized, with the union acting as the source of com-mand. By using the overwhelming force of numbers, combinedwith a unified voice speaking through one mouthpiece, theworkers were successful in forcing management to respond totheir complaints. Labor also employed what Big Bill Haywoodcalled "direct action" in the form of the general strike. Work-ers committed to support the actions of other workers in otherunions; broad cross-sections of the workforce protested condi-tions in one industry. The practice of "filling the jails," laterutilized by the Civil Rights movement began with this cross-spectrum of workers accepting incarceration to demonstratetheir resolve.

6. Civil Rights-Equal Not Separate

I will resist the temptation to spend too much timedescribing the events of the Civil Rights movement of the1960s. Those days are too recent and the details still too clearfor my brief statement of what happened to be of much use.

46. See the Industrial Workers of the World Preamble:There can be no peace so long as hunger and want are found

among millions of the working people, and the few who make up theemploying class have all the good things of life.

Between these two classes a struggle must go on until theworkers of the world organize as a class, take possession of theearth, and the machinery of production, and abolish the wagesystem.

Quoted in S. LYND, supra note 7, at 240-41.47. For one account of the organization and methods of those strikes,

see S. LYND, supra note 7, at 241-70.

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Suffice it to say that the Civil Rights movement built on theprotest movements that preceded it.

The Student Nonviolent Coordinating Committee48

adopted the direct action tactics of the Wobblies before them.They filled the jails with people willing to demonstrate publiclyand to suffer personally so that they might expose the injusticeof the system.49 Sit-ins, hunger strikes, parades, pickets, dem-onstrations, registration of black voters, public appeals, passiveresistance to abusive police forces, and boycotts were allemployed in this dramatic effort to make the freedom of thefourteenth amendment real. The names of the events havetaken on meaning and significance of their own: Brown v. Boardof Education,5 ° the Montgomery bus boycott,5 ' the lunchcounter sit-ins,5

1 the Freedom Rides, 53 the Mississippi Sum-mer,54 the Birmingham Manifesto, 55 the Letter from a Birming-ham Jail,56 the March on WashingtonY.5 Not all of the eventsthat made up the Civil Rights movement would qualify as civildisobedience; neither the voter registration efforts nor the vio-lence blacks returned to police would satisfy the terms of civildisobedience action. Nevertheless, there can be no doubt thatthe movement as a whole is a great example of the power ofcivil disobedience to change unjust social orders.

The Civil Rights movement is also important because itbrought forth the most prominent American civil disobediencetheorist since Thoreau. Drawing upon the Natural Law tradi-tion of St. Thomas Aquinas and the political philosophy ofMahatma Gandhi (who was in turn influenced by Thoreau), theReverend Martin Luther King, Jr. based his critique of theAmerican political system upon the nature of unjust laws andthe proper response to their mandates. All around him he sawthat Black Americans were not treated equally with WhiteAmericans. Unjust laws supported that inequality and so ren-dered themselves illegitimate. On the subject ofjust disobedi-

48. See their Statement of Purpose, quoted in S. LYND, supra note 7, at398-99.

49. See Thomas Giather'sJailed-In, in S. LYND, supra note 7, at 399-415.50. 347 U.S. 483 (1954).51. Symbolically begun in 1955 by a forty-three year old seamstress,

Rosa Parks, who refused to move to the back of the bus. See H. ZINN, supranote 29, at 442.

52. Id. at 444.53. S. LYND, supra note 7, at 415-28.54. H. ZINN, supra note 29, at 447-48.55. See S. LYND, supra note 7, at 458-60.56. See id. at 461-81.57. H. ZINN, supra note 29, at 448-50.

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ence to those laws, he said, "One who breaks an unjust lawmust do it openly, lovingly .... and with a willingness to acceptthe penalty."58 A citizen confronted with a law that conflictswith basic standards of human dignity and violates the mandateof conscience, can, indeed should, refuse to obey that law. Inorganizing a movement of civil disobedience, King called forfour basic steps: 1) collecting the facts, 2) negotiation, 3) self-purification, and 4) direct action.59 All were important andnecessary steps to validate the violation of the law. Like theother civil disobedients before him, King sought to draw atten-tion to the injustice of the political system through direct, butnon-violent, defiance of or refusal to comply with unjust laws.

7. Anti-Vietnam-The Government Can't Hear Me

Protests to conditions in Vietnam under the United States-established regime of Ngo Dnh Diem began even before theUnited States entered the war. In June of 1963, a Buddhistmonk sat down in the square in Saigon and set himself on fireto dramatize his opposition to the Diem regime.60 Othermonks committed suicide as well. After the United Statesovertly joined the war against communist North Vietnam,Americans Norman Morrison and Alice Herz similarly lit them-selves on fire to protest the war.6' The dramatic nature ofthese protests underscored the depth of their opposition to theUnited States actions in Southeast Asia.

The civil disobedience associated with the anti-war move-ment was similar in kind to the disobedience of earlier days. Itis noted for the involvement of university students62 and mem-bers of the clergy,6" but thousands of other Americans joinedin the protests. Black soldiers especially, who represented adisproportionate number of men fighting in Vietnam and whoalso experienced army racism, grew disenchanted with a warthat was not their own and that they increasingly saw as

58. King, Letter from a Birmingham Jail, in S. LYND, supra note 7, at 469(emphasis in original).

59. Id. at 463.60. H. ZINN, supra note 29, at 464. Note that as this article was being

completed a similar tragedy occurred in Amherst, Massachusetts as GregoryLevy set himself on fire to protest the war in the Persian Gulf.

61. On the second of November, 1965, Morrison, a father of three, sethimself on fire outside Defense Secretary Robert McNamara's window. Laterthat year, Alice Herz, age eighty-two, committed suicide in Detroit to protestthe horrors going on in Indochina. Id. at 476-77.

62. Id. at 481-82.63. Id. at 479-81.

MOTIVE TESTIMONY

unjust.' In marches, demonstrations, responses to polls, andletters to newspapers Americans voiced their dissatisfactionwith a war that many people believed the United States shouldnot be fighting.

The protests against the war in Vietnam did not introduceany radically different tactics into the performance of civil diso-bedience. They are important because they represent a recentand widespread series of protests, not against a specific unjustlaw, but against a particular government action. That actiondirectly involved only the executive branch, but insofar as thedecisions of the executive branch were supported economicallyand politically by Congress and legally by the Supreme Court,it involved the whole government. Many citizens perceivedthemselves as unable to affect the decisions of a "representa-tive" government far removed from their voices. The story ofthe Vietnam war, for those who used public protest as a meansof expressing their horror at the actions of their government, isa story of frustration, but also of action.

I include the anti-war movement at the close of my briefhistory of civil disobedience in America also because it allowsme to introduce two acts of civil disobedience which will be dis-cussed later in this article.6 5 The Berrigan brothers, as they areboth affectionately and critically know, were two of many mem-bers of the Catholic clergy who protested the war in Vietnam.They attracted national attention first in the fall of 1967 whenFr. Philip Berrigan, with three other men, poured blood(including their own) over the draft records of the draft boardin Baltimore, Maryland. They waited to be arrested; they weretried, convicted and sentenced to two to six years in prison. InMay of 1968, Philip Berrigan, who was out on bail, and hisbrother Daniel, who was also a priest, entered the office of thedraft board in Catonsville Maryland with seven other people.They had previously informed the press about what theyintended to do, and in the presence of onlookers, they removedthe draft records, doused them with napalm, and lit them onfire. Their act, their conviction, and later efforts by the govern-ment to imprison them made them famous. They becameknown as the Catonsville Nine. 66

While in prison, Fr. Dan Berrigan wrote the following:

64. Id. at 485-88.65. See text accompanying notes 124-43 infra.66. H. ZINN, supra note 29, at 479-80. See also THE BERRIGANS (W.V.

Casey & P. Nobile eds. 1971).

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Our apologies, good friends, for the fracture of goodorder, the burning of paper instead of children, theangering of the orderlies in the front parlor of the char-nel house. We could not, so help us God, do other-wise .... We say: killing is disorder, life and gentlenessand community and unselfishness is the only order werecognize. For the sake of that order, we risk our liberty,our good name. The time is past when good men canremain silent, when obedience can segregate men frompublic risk, when the poor can die without defense. 67

I conclude this history with the Berrigans because their act ofdisobedience typifies the type of civil disobedience I wouldconsider justifiable. I worry a bit about the destruction ofproperty, but in these instances it was limited enough and nec-essary enough to be acceptable. I end their story with this quo-tation because it gives voice to the conflict that most true civildisobedients experience and the interests that they balance indeciding to go forward with their action. I will return to thelegal story of their prosecution because it exemplifies the inad-equacies of our current jurisprudence.

8. Conclusions From History

I draw attention to the existence of civil disobedience inthis history because those events should inform our responseto civil disobedience today. Repeating the stories is important.We must not forget the inequities of the past; they remind us ofthe suffering endured to create the more just society we enjoytoday. Civil disobedience has not ended. Only the peopleinvolved and the causes have changed. The Intercolonial Sonsof Liberty, the Underground Railroad, and the Wobblies havebeen replaced today by groups known as Operation Rescue,the Plowshares, Act Up, the Sanctuary Movement, Earth First!,and Greenpeace. Like their predecessors, they and others pro-test what they perceive to be social injustices. Because civil dis-obedience has been an important catalyst for righting graveinjustices in our past, we should be predisposed to provide anadequate legal response to its use, in the proper circumstances,today.68

Before I can make my amendment to improve the ModelPenal Code, I should be clear about what civil disobedience is.I will show that, like the historical uses and punishments of civildisobedience described in the previous pages, the concept of

67. H. ZINN, supra note 29, at 479.68. See generally R. DWORKIN, A MATrER OF PRINCIPLE 105 (1985).

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civil disobedience can be described in various ways. Before Iventure into a detailed discussion of the definitional require-ments for civil disobedience, however, I will describe the moralcontext in which the question of whether or not civil disobedi-ence is justifiable arises. The definition of civil disobedienceand the justification of its use are closely aligned, but must bedistinguished. The section which follows will attempt to lay outthe moral context in which civil disobedience can be justified;afterwards I will provide a definition of civil disobedience.

B. Duty and Obligation

I will restrict my comments on the conditions of politicalobligation to what I, echoing Rawls, shall call a nearly justdemocracy.69 By "nearly just democracy" I mean a societywhich, on the whole, attempts to realize the requirements ofparticipatory government and which supports substantially justinstitutions.7" A society of this kind rightly requires certainresponsibilities of its citizens and guarantees certain rights tothem. By contrast, the relationship between citizens and thestate, as well as the rights and responsibilities which result fromthat relationship, in a nonrepresentative or totalitarian statecalls for a significantly different analysis of obligation to law(thus altering the nature and significance of civil disobedience).Even in a facially democratic state, such as South Africa, wherethe institutions of society work substantially to the detriment ofa significant portion of the population, the relationshipbetween the individual and the state may become so distortedthat the restrictions on civil disobedience, which I will developlater, might become inoperative. Notice, however, that I beginwith the rebuttable presupposition that, given the proper con-ditions, obedience is rightly expected of a citizen in a nearlyjust democracy. 7'

Citizens engage in civil disobedience when they perceive aconflict between moral and legal obligation. Implicit in thisstatement is the belief that both moral and legal obligations

69. Rawls states that '".. a person is required to do his part as definedby the rules of an institution when two conditions are met: first, theinstitution is just (or fair), that is, it satisfies the two principles ofjustice; andsecond, one has voluntarily accepted the benefits of the arrangement or takenadvantage of the opportunities it offers to further one's interests." J. RAWLS,A THEORY OF JUSTICE 111-12 (1971). These two conditions define when acitizen is subject to obligations imposed on him by the state. Unless theseconditions exist, no duty to obey obtains.

70. Id. at 343.71. See id. at 333-91.

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exist, and that it is possible that these two obligations requirecontrary actions. Only if moral obligations can in some circum-stances trump otherwise legitimate legal obligations is disobe-dience justifiable. In the section which follows, I focus on thesources of and interaction between moral and legal obligation.

Persons incur moral obligation by virtue of being human.7"Moral obligations are predicated upon respect for oneself andfor others-for the physical integrity and personal dignity ofboth self and others, and upon the acceptance of self andothers as moral beings. Moral obligations may be usefully bro-ken down into two types." Moral obligations of the first orderinclude the prohibition against violating the physical integrityand personal dignity of another person through the use offorce or fraud. First-order moral obligations also include thosepositive actions with respect to other people necessary to rec-ognize and affirm their status as moral beings. Moral obliga-tions of the second order require personal and social supportof institutions that make realization of first order moral obliga-tions possible. As a result, the state can generate second ordermoral obligations that are binding upon its citizens.

Legal obligations are incurred by virtue of participating inand receiving the benefits of a particular legal system. 74 Legaltheorists have articulated a variety of reasons which support aduty to comply with legal obligations, but two main ideologiesprevail today: the Natural Law tradition and the Modern Lib-eral tradition. Natural Law theorists view positive law as aproduct of reason devising coercive and facilitative legalregimes against a background of universally valid moral normsderived from human nature.75 The prima facie obligation to

72. The nature and origin of moral obligation has, of course, been thefocus of much serious philosophical and theological reflection. A substantialdiscussion of the intricacies of that argument would involve resources andspace beyond the purview of this article.

73. I am indebted to Dr. John H. Robinson, Associate ProfessorUniversity of Notre Dame Law School, for making this distinction clear to me.

74. See J. RAWLS, supra note 69, at 333-42 (1971). Note that thisstatement entails an extraordinarily complex discussion that is, again, beyondthe scope of this article. To account fully for the nature and origin of thisduty, one would have to examine the source of a duty that is, for mostnaturally-born citizens, not voluntarily chosen. To be meaningful, the dutyto obey the law also must overcome some favorable consequences of notobeying. Further, the duty to obey must permit blame to be levied when theduty to obey the law is breached. For a comprehensive and sophisticatedanalysis of a prima facie obligation to obey the law, see K. GREENAWALT,

CONFLICTS OF MORALITY AND LAW 159-203 (1987).75. For example, John Finnis describes the "principles of natural law"

as follows:

MOTIVE TESTIMONY

obey the law results from the duty to support institutions whichpromote human flourishing through cultivation of thosenorms. By supporting the development of the common good,the individual citizen also participates in the promotion of hisown individual good.76 Modem Liberal jurisprudence, follow-ing Rawls, views the duty to obey the law as confluent with theduty "to support and to further just institutions."" Combinedwith the principle of fairness,7 s the duty to support just institu-tions generates the duties and obligations of citizenship. Thus,the Natural Law theorists and Modern Liberals both concludethat citizens have legitimate legal obligations to obey the law;our analysis of civil disobedience must focus upon the link orinteraction between moral obligations and legal obligations.To the relationship between these two obligations I turn next.

Moral obligations differ from legal obligations, not onlysubstantively, but also hierarchically; that is to say that moralobligations are sometimes superior to legal obligations. As aresult, conflicts in duty can arise which require a person tochoose to do what is morally obligatory in preference to what islegally obligatory.79 The interaction between obligations ofdifferent types requires an ordering of duties.

There is (i) a set of basic practical principles which indicate the basicforms of human flourishing as goods to be pursued and realized andwhich are in one way or another used by everyone who considerswhat to do, however unsound his conclusions; and (ii) a set of basicmethodological requirements of practical reasonableness ... which... provide the criteria for distinguishing between... ways of acting

that are morally right or morally wrong-thus enabling one toformulate (iii) a set of general moral standards.

J. FINNIS, NATURAL LAW AND NATURAL RiCHTs 23 (1980). See also T. AQUINAS,SUMMA THEOLOGICA, I-I, Q. 90-95, and J. RAZ, PRACTICAL REASON 162(1978).

76. For a more complete exposition of these ideas, see K. GREENAWALT,

supra note 74, at 161-62. See also C. COHEN, CIVIL DISOBEDIENCE 105-20(1971).

77. J. RAWLS, supra note 69, at 334.78. Rawls defines the principle of fairness as follows: "[A] person is

under an obligation to do his part as specified by the rules of an institutionwhenever he has voluntarily accepted the benefits of the scheme or has takenadvantage of the opportunities it offers to advance his interests, provided thatthis institution is just or fair... " Id. at. 342-43.

79. Indeed some Natural Law theorists believe the obligatory characterof a law ceases to exist when that law conflicts with moral norms. Joseph Raz,in criticizing Natural Law theorists, says that "[n]atural lawyers can onlyjudge a law as morally valid, that is, just, or morally invalid, i.e. wrong. Theycannot say of a law that it is legally valid but morally wrong. If it is wrong andunjust, it is also invalid in the only sense of validity they recognize." Raz,Kelson's Theory of the Basic Norm, 19 AM. J. JURIS. 94, 100 (1974).

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When an act that would otherwise be morally permissibleis legally proscribed (marginally exceeding the speed limit on adeserted highway, for example), the second-order moral obli-gation to support institutions which further justice is likely torequire acquiescence to the legal demands. In the same way,an act that is legally permissible, but morally proscribed (e.g.revealing legally admissible evidence of the sexual history of aplaintiff that is substantially irrelevant to the issue of guilt in asexual harassment suit)"° remains morally proscribed regard-less of legal approval. These examples reveal that the permissi-ble is superseded by the obligatory or absolute, whether legalor moral. In order for individuals to make peace with conflict-ing requirements, the permissible should ordinarily give way tothe compulsory.

The true test of the rigor of legal obligation arises whenlegal obligations create affirmative obligations that conflict withmoral prohibitions (e.g. school children are required to salute aflag in direct opposition to a religious mandate),8 ' or whenmoral obligations become legally prohibited (e.g. when Peyote-smoking Indians are not allowed to use mind altering drugs inreligious ceremonies).2

In the last two instances, in the conflict between opposingobligation and prohibition, citizens rightly consider disobedi-ence to legal duties and obligations. The moral obligations (orprohibitions) at issue must supersede the conflicting legalrequirements for the actor to maintain integrity as a moralagent.83 Any disobedience actually undertaken must recognizeand affirm the first and second order moral obligations applica-ble to the situation at hand.84 Notice that it is not enough that

80. Note, Feminism in the Law: Theory, Practice and Criticism, 1989 U. CHI.L. FOR. 219 (written by Catherine O'Neill).

81. West Virginia State Board of Education v. Barnette, 319 U.S. 624(1943).

82. See Employment Division, Department of Human Resources v.Smith, 110 S. Ct. 1595 (1990).

83. "I think that we should be men first and subjects afterward."Thoreau, Civil Disobedience, in S. LYND, supra note 7, at 60.

84. Robert Hall has said something similar:... [Amn act of civil disobedience may be considered justified whenthree conditions are satisfied:(a) the moral reasons favoring disobedience must outweigh themoral considerations in favor of obedience,(b) the agent must acknowledge and maintain his general moralobligation to obey the law and must view his disobedience astranscending this prima facie duty (civil disobedience is thusdistinguished from rebellion and revolution),(c) the agent must acknowledge and maintain his general moral

MOTIVE TESTIMONY

a citizen consider a particular law obnoxious, or even "bad."For civil disobedience to be justified, a true conflict betweenopposing obligations must exist. Only when a citizen must optfor one sufficiently weighty obligation over another does theprimacy of moral obligations outweigh the moral imperative ofobeying the law. The truth of this claim has force whether acitizen is refusing to obey a law or actively violating one tomotivate political change.

These types of conflicts are not mere academic theorizing;as I demonstrated previously, they have existed in the past andthere is no reason to believe they will not arise again. TheQuakers, Seventh Day Adventists, and other groups who wereinstrumental in developing and supporting the UndergroundRailroad believed that the legal requirement that they acqui-esce in the operation of a legal system which made possible theenslavement of Africans forcibly transplanted here violatedtheir moral duty to fellow beings. The Hungarian FreedomFighters refused to recognize the validity of laws responsiblefor great injustice.8" And, the Civil Rights activists of the 1960swho engaged in sit-ins at public facilities from which they werelegally barred were driven by moral beliefs that led them toconclude the existing law was fundamentally immoral andtherefore invalid.86 As the history of disobedience in this coun-try I laid out earlier showed, the list of groups who acted con-trary to legal requirements which conflicted with theobligations of conscience is long.87 Not all of this disobedienceto legal authority fit the definition of civil disobedience, but allof it challenged an established law or set of laws.

We have looked briefly into the sources of moral and legalobligation. The potential for their conflict, even in just polit-ical orders, is plain. History has demonstrated that conflict has,at times, existed and that some citizens who sought to respectthe just aspects of the legal order have resorted to acts thatconflicted with what they perceived to be unjust legal obliga-tions in order to realize their more primary moral obligations.Because of the courage and witness to justice shared by civil

obligation to respect the interests of others and must view hisdisobedience as transcending this prima facie duty (civildisobedience is thus distinguished from crime).

R. HALL, THE MORALITY OF CIVIL DISOBEDIENCE 100 (1971).85. See King, Letter from Birmingham City Jail, in S. LYND, supra note 7, at

470 (1963).86. For a very brief, but enlightening, description of one such group,

see S. LYND, supra note 7, at xl-xli.87. See text accompanying notes 1-68 supra.

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disobedients, grave acts of injustice were put to an end. Ron-ald Dworkin, in Taking Rights Seriously, summarized the relationbetween legal and moral duties:

... In a democracy, or at least a democracy that in princi-ple respects individual rights, each citizen has a generalmoral duty to obey all the laws, even though he wouldlike some of them changed. He owes that duty to his fel-low citizens, who obey laws that they do not like, to hisbenefit. But this general duty cannot be an absoluteduty, because even a society that is in principle just mayproduce unjust laws and policies, and a man has dutiesother than his duties to the State. A man must honourhis duties to his God and to his conscience, and if theseconflict with his duty to the State, then he is entitled, inthe end, to do what he judges to be right."8

In these situations, where moral obligation supersedes existinglegal obligation, disobedience can be justified. Indeed, inorder to preserve his integrity as a moral being, the citizen maybe compelled to disobey. His disobedience affirms his status asa moral agent and the priority of his superseding moralobligation.

The question of how the legal system should respond tothose citizens who disobey its laws but do so as a result of over-riding moral obligation has not been answered. I have arguedthat civil disobedience can, under the right conditions, bejusti-fied. The rest of this article will focus on disobedience in prac-tice and how it affects the community. After defining "civil"disobedience and distinguishing it from "uncivil" disobedience(or ordinary crime), I will recommend changes in our approachto civil disobedience that should allow us to respond fairly tothose citizens who practice it.

C. A Definition and Characteristics

Scholars have adopted a variety of definitions for civil diso-bedience.89 Gandhi's definition is perhaps the most simple:"Civil Disobedience is civil breach of unmoral statutory enact-

88. R. DWORKIN, TAKING RIGHTS SERIOUSLY 186 (1978). He goes on tosay, "If he decides that he must break the law, however, then he must submitto the judgment and punishment that the State imposes, in recognition of thefact that his duty to his fellow citizens was overwhelmed but not extinguishedby his religious or moral obligation." Id.

89. See Bedau, On Civil Disobedience, 58 J. PHIL. 653, 661 (1961); A.FORTAS, supra note 12, at 49 (1968); C. COHEN, supra note 76, at 39;J. RAWLS,supra note 69, at 364 (1971); R. DWORKIN, supra note 68, at 104-16.

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ments."9 As far as it goes, this definition would not bestrongly contested. It does not, however, resolve the questionof perspective. Whose morality is qualified to judge the just-ness of a law? No definition will answer that question. Theanswer is different depending on who asks the question. Thepreceding discussion makes clear that the conflict betweenmoral and legal obligations can be resolved only by the individ-ual. To be sure, it must be informed by other members of thecommunity, but that assessment is ultimately an individualjudgment.

The definition designed by John Rawls is helpful. Hedefines civil disobedience as "a public, nonviolent, conscien-tious yet political act contrary to law usually done with the aimof bringing about a change in the law or policies of the govern-ment."'" The elements of this definition are important.

"Public" disobedience means that people who violate thelaw for reasons of conscience must state or demonstrate thereason for their disobedience. By so doing they distinguishthemselves from those who use force or fraud in unjust causes.They affirm their acceptance of the community and its legalorder, as well as their disagreement with both. Their disobedi-ence must reflect both the disagreement and their acceptanceof the legal order. For this reason, it must be publicly accom-plished. This requirement would exclude disobedience like theUnderground Railroad, which succeeded because of its covertoperation, from a strict definition of civil disobedience.

Nonviolence as a goal has been present in all the examplesof civil disobedience presented earlier. That is not to say thatall of those acts have been nonviolent, but that the goal of theaction was not destruction of life or property. Civil dis-obedients should seek nonviolence to demonstrate that theyassume the responsibility of community membership and actwith the best interests of the community in mind.

Civilly disobedient acts are meant to be both conscientiousand political. The political aspect of the act plays into the pur-pose. Civil disobedience is usually done "with the aim ofbringing about a change in the law or policies of the govern-ment." These acts speak to the body politic. Ballots also speakto that body, but the electoral process rarely poses stark moralchoices to the electorate. The majority, furthermore, is quitecapable of being as wrong on moral matters as it can be onother issues. As our history has shown, the majority has often

90. GANDHI: ESSENTIAL WRITINGS 30 (P. Murti ed. 1970).91. J. RAWLS, supra note 69, at 364.

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been mistaken about what is right or just. Civil disobediencespeaks to and past the bureaucracy: it speaks to the people inpower, but calls them to reflect upon fundamental values. Peo-ple who engage in civil disobedience believe that the majorityhas lost touch, in some way, with the values that bind our soci-ety together. Because it is a political act, done with the goal ofbenefitting the community, civil disobedience legitimizes boththe government in power and the primacy of conscience.

Rawls provides several characteristics of civilly disobedientacts within his definition. To his list I would add "limited."Civil disobedients must be careful to avoid the slippery slopeinto chaos that so troubled Justice Fortas.92 Their acts must beclearly focused to draw attention to the unjust law they protest,and must do no more. By limiting their disobedience in scopeand duration, they achieve their goal and avoid encouraginggeneral disorder. Myriad concerns about civil disobedience inmodern democracies have lead writers other than Gandhi andRawls to suggest characteristics or requirements for an act ofdisobedience to be considered "civil," including that the civildisobedient:

1) have exhausted all available constitutional means (todemonstrate that law should be broken only whennecessary),2) be willing to face arrest and punishment (by which thedissenter acknowledges respect for the legal system),3) have full knowledge of the law broken,4) engage in only nonviolent expressions of dissent(note that this condition is especially controversial),9"and5) make her disobedience public to acknowledge herrespect for the interests of other people.94

I will keep these characteristics in mind as I continue my dis-cussion and return to specific requirements for someone to fallinto the category of civil disobedient.

D. Civil Disobedient or Criminal?

Modern penal codes in the United States contain no defini-tion of civil disobedience. They do not distinguish civil disobe-dience from ordinary criminal acts. But those citizens whoengage in civil disobedience are different from ordinarycriminals. If they comply with the requirements listed above

92. A. FORTAS, supra note 12.93. See, e.g., K. GREENAWALT, supra note 74, at 244-68.94. See R. HALL, supra note 84, at 76-99.

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for "just" disobedience, they distinguish themselves and theiracts from criminals and criminal actions. Part of the difficultyin talking about this distinction is that few acts of disobedienceactually meet the requirement of true conflict between oppos-ing obligations; nevertheless, the distinction between civil dis-obedients and ordinary criminals should be accounted for inour criminal law.

The most significant difference between the civil disobedi-ent and the criminal is that the civil disobedient does what shedoes not only to resolve the conflict between conflicting moraland legal obligations, but also to right what she perceives as anunjust political order. As a result, her action attempts to "sup-port and to further just institutions."95 She seeks to affirmboth her first and second order moral obligations, despite con-flicting legal obligations. The criminal, on the other hand,standardly does what she does out of self-interest and in viola-tion of the respect citizens are required to show other personsand their interests. So, too, the person who vindicates hismoral authority by attacking another, physically or otherwise,violates the respect required toward other human beings. Themotives that lead these people to do outwardly similar acts aredrastically different. This difference in motive requires differ-entjudicial treatment because it speaks directly to culpability. Iwill return to the significance of this difference shortly.

Civil disobedients tend to be people who demonstratetheir respect for the legal system in other areas of their lives.They seek not to overthrown the political system as a whole,but to call it to task for failing to live up to foundational stan-dards of justice. They are, in ideal, civically-minded peoplefrom whose participation society as a whole benefits.

Because modern penal codes in the United States fail todistinguish acts of civil disobedience from criminal acts, andbecause our jurisprudential history has not accounted for themoral context that leads someone to do civil disobedience,96

the response of the American judicial system to the presence ofcivil disobedience is inadequate. Those citizens who seek toredress injustices in legal and political structures and who findno recourse in the "legal" means the democratic process offersthem,9 7 and those who believe that their duties to the state con-

95. See J. RAWLS, supra note 69, at 334.96. See A. FORTAS, supra note 12, whose suspicion of civil disobedience

and fear of its potentially de-stabilizing effect appear to have won the day.97. See H. ZINN, DISOBEDIENCE AND DEMOCRACY: NINE FALLACIES ON

LAW AND ORDER (1968).

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flict with their duties to conscience, find themselves treated bythe judicial system like ordinary criminals. This response iswholly inappropriate.

II. TOWARD A REASONED RESPONSE

A. A Potential Solution

1. Introduction

In the first part of this discussion I drew attention to thefact that the United States history is replete with examples ofcitizens who, when they felt the democratic process failingthem, turned to disobedience of unjust legal obligations to ful-fill the dictates of their conscience and their duty to supportjust institutions. I described some common characteristics ofcivil disobedience and noted that our judicial treatment of theviolation of the penal code by civil disobedients does not reflectthe distinctions in motivation between civil disobedients, onthe one hand, and ordinary criminals and self-rigthteous assas-sains, on the other. In this section of this article, I propose toexplore a possible solution to the inability of our judiciary torecognize the differences between the civil disobedient and theordinary criminal. First, I will address several arguments thathave been made for how the legal system should respond tocivil disobedience. Those arguments have not been successful,and generally for good reasons.

Legal scholars recommend a variety of potential solutionsto the problem of civil disobedience. Professor Ronald Dwor-kin has suggested that there might be good reasons for notprosecuting civil disobedients at all.9" Those reasons are notpersuasive outside of the academy. Other suggestions havesimilarly lacked political feasibility. Professor Hugo Bedau hassuggested that every law "have a rider to the effect that anyonewho violates it on conscientious grounds shall be exempt fromprosecution and penalty." 99

Bedau fails to account for the prima facie second-ordermoral obligation to obey even the unjust laws of a nearly juststate. He also draws precipitously close to allowing the govern-ment to proscribe conduct indirectly through how it defines"conscientious."' 0 0 By failing to define clearly what types of

98. R. DWORKIN, supra note 88, at 207.99. Bedau, supra note 89, at 655.100. Modern conscientious objector laws are good examples of this

phenomenon. By defining which conscience-based objections to armedservice will be recognized and which will not, the imprimatur of thegovernment for particular objections has come to mean the difference

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disobedience would qualify as "conscientious," Bedau's sug-gestion offers little benefit to civil disobedients. Civil dis-obedients are worse off under a system that could allow fortheir protests to be prohibited covertly, through shifting defini-tions, than they are under a penal system such as the one cur-rently existing in the United States.

I will not argue that all civil disobedience should be pro-tected or that civil disobedience should be encouraged by thelegal system. Our political system contains some safeguardsthat act as a check on the effect of an unjust majority. The Con-stitution is one such check. The Bill of Rights and due processrequirements protect minority voices. The doctrine of separa-tion of powers also allows the judiciary to support or condemnmajoritarian legislative action. I argue that our legal systemshould adequately account for the moral significance of civildisobedience. The Constitution and judiciary have failed in thepast (as we saw earlier), and during some of those failures actsof civil disobedience have helped to return our political systemto the correct path.

Three main arguments have been used to deal with civildisobedience. They are: the Mistake of Law Defense, theNecessity Defense, and Jury Nullification. I will take up each ofthem in brief detail in the section which follows.

2. Mistake of Law Defense

Some traditional legal theorists have advocated the crea-tion of a civil disobedience wing of a "mistake of law"defense.' 0 ' If the "mistake of law" defense °2 was made avail-able to civil disobedients, a defendant could avoid convictioneven if a law met constitutional requirements. Though sugges-tions vary, one scholar argues that acquittal should result if adefendant could meet the following requirements:

1. That the defendant had the purpose, not of dis-obeying the law, but of demonstrating its unconstitu-tional character.

between life and death. I suggest that civil disobedients should not want thegovernment, as an interested party, to make this determination.

101. Hughes, Civil Disobedience and the Political Question Doctrine, 43N.Y.U. L. REV. 1 (1968).

102. This defense exonerates a defendant who reasonably believed thather acts were lawful. See MODEL PENAL CODE § 2.04(3) ("A belief thatconduct does not legally constitute an offense is a defense to a prosecutionfor that offense based upon such conduct when: [the actor] acts in reasonablereliance upon an official statement of the law .. ")

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2. That there was legitimate doubt about the constitu-tionality of the law as perhaps evidenced by expert testi-mony about the state of professional opinion.3. That there was no way short of disobedience bywhich the defendant could have obtained a determina-tion of the validity of the law.4. That the disobedience was nonviolent.' 03

Though rooted in a concern for demonstrating respect for thelegal order, this suggestion would not have reached injusticeswhich were constitutionalized (like slavery, previous to 1865)and would also brush up against the reluctance of Federalcourts to open themselves up to giving advisory opinions.

3. Necessity Defense

A substantial number of legal thinkers have urged anexpansion of the use of the "necessity" defense" 4 to apply tocivil disobedience.' 0 5 Courts have generally rejected the neces-sity defense as it might apply to civil disobedients. 10 6 Judgesview acts of disobedience and the defense of necessity offeredto exonerate protestors with undue suspicion.10 7 They fear

103. Hughes, supra note 101, at 5-6.104. "The 'necessity defense' exonerates persons who engage in

conduct that ordinarily amounts to a crime under the pressure ofcircumstances if the harm that would have resulted from compliance with thelaw would have significantly exceeded the harm actually resulting from thedefendant's breach of the law. Successful use of the 'necessity defense'requires (a) that there is no third and legal alternative available, (b) that theharm to be prevented be imminent, and (c) that a direct, causal relationship bereasonably anticipated to exist between defendant's action and the avoidance of theharm." State v. Marley, 54 Haw. 450, 509 P.2d 1095 (1973) (emphasisadded).

105. See among others: Levitan, Putting the Government on Trial: TheNecessity Defense and Social Change, 33 WAYNE L. REV. 1221 (1987); Lippman,Civil Disobedience.: The Dictates of Conscience Versus the Rule of Law, 26 WASHBURNL.J. 233, 246 (1987); Note, The State Made Me Do It: The Applicability of theNecessity Defense to Civil Disobedience, 39 STAN. L. REV. 1173 (1987) (written bySteven M. Bauer & Peter J. Eckerstrom); Note, Antinuclear Demonstrations andthe Necessity Defense: State v. Warshow, 5 VT. L. REV. 103 (1980) (written byMichael J. Kessler) [hereinafter Kessler]; Note, Civil Disobedience as the LesserEvil, 59 U. COLO. L. REV. 961 (1988) (written by Tammy A. Tierney)[hereinafter Tierney].

106. See United States v. Seward, 687 F.2d 1270 (10th Cir. 1982);Cleveland v. Municipality of Anchorage, 631 P.2d 1073 (Alaska 1981); City ofSt. Louis v. Klocker, 637 S.W.2d 174 (Mo. Ct. App. 1982). See also thetrespass conviction of Alex Luce in Morristown, NewJersey Municipal Court(Docket number C1771) reported in N.Y. Times, April 30, 1991, § C, at 19.

107. "One who elects to serve mankind by taking the law into his ownhands thereby demonstrates his conviction that his own ability to determine

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that chaos that would result if individual citizens could choosewhat laws they will follow and what laws they will not. Dwor-kin, however, argues that it does not follow logically, and thereis no evidence that society will collapse if it tolerates not all, butsome, disobedience.' The fear of allowing limited defensesto civil disobedients is without foundation.

While necessity may be a helpful defense to some citizenswho engage in civil disobedience, it lacks universal applicabil-ity. The requirements are too strict,109 the standards too nar-row, for a necessity defense to answer to the moral conflictfaced by some dissenters of conscience. When citizens protesta policy or law by engaging in demonstrations that violate atrespass statute, they do not expect that their action, by itself,will cause the reform of the law to which they object. They will,therefore, only very rarely meet the requirement that a rationalperson could have concluded that their disobedient action byitself would result in the change for which they hope.

4. Jury Nullification

Other scholars have recommended giving some backboneto the jury power to "nullify"" 0 the defendant's conviction byacquitting contrary to the clear law and facts."' Currently,judges do not allow attorneys to inform jurors of their ability torule contrary to the law and facts. Judges also will not allow

policy is superior to democratic decision making. Appellant's professedunselfish motivation, rather than a justification, actually identifies a form ofarrogance which organized society cannot tolerate." United States v. Cullen,454 F.2d 386, 392 (7th Cir. 1971). See also United States v. Dougherty, 473F.2d 1113 (D.C. Cir. 1972).

108. R. DWORKIN, supra note 88, at 206.109. See, e.g., United States v. Seward, where the court quotes the trial

court admissibility "ground rules":7. Unless the offer of proof meets the very narrow limits ofjustification defenses, evidence in support of those defenses will notbe received. . . . Among other things, the proffered evidence willhave to show:1) A direct causal relationship between the defendant's actions andthe avoidance of the perceived harm. This includes a showing that areasonable man would think that blocking the entry to Rocky Flatsfor one day would terminate the official policy of the United Statesgovernment as to nuclear weapons or nuclear power.

687 F.2d 1270, 1273 (1982).110. Traditionally recognized as first affirmed in Bushel's Case, 124 ENG.

REP. 1006 (1670). See also United States v. Fielding, 148 F. Supp. 46, 56 (D.C.Cir. 1957).

111. See Scheflin & Dyke, Jury Nullification: The Contours of a Controversy,43 J. L. & CONTEMP. PROBS. 51 (1980). But see contra Scott, Jury Nullification:An Historical Perspective on a Modern Debate, 91 W. VA. L. REV. 389 (1989).

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jury instructions to contain any reference to that power.112

Curiously, they reason that if the jury were informed of theirpower, chaos would result as juries rendered decision afterdecision with no principled connection with the penal code." 13

Such recklessness could work to the detriment as well as thebenefit of those engaging in civil disobedience. Even advocatesofjury nullification have to recognize its limitations: jury nulli-fication is most meaningful if defendants are permitted tointroduce evidence of motive, rationale, or moral imperative tojustify actions violative of legal obligation. Juries have no basisto rule contrary to the law and in a defendant's behalf if theyare not allowed to know why she did what she did. Becausedefendants cannot now introduce evidence of this type, theright of nullification is impotent.

5. Conclusion

These solutions to the problem of prosecuting civil dis-obedients have serious flaws. Either they do not respond to themotivations that lead citizens to engage in civil disobedience,or they do not account for the limitations of the legal system. Ihope that it is clear by now that the primary difference betweencivil disobedience and crime lies in the motivation of the actor.Any acceptable solution to the differences between a civil diso-bedient and a criminal must account for the difference in theirmotivation.

The admission of motive testimony to justify civilly disobe-dient action would appropriately distinguish the action of thecivil disobedient from criminal activity. Unfortunately, how-ever, motive is currently irrelevant for most offenses. The nextsection will address the presence of "motive" in the criminallaw and how I think it should change. As we saw earlier, it isprecisely the issue of motive that distinguishes the civil disobe-dient from the ordinary criminal. Because of this distinction,civil disobedients should be allowed to admit motive testimonyor make "good motive" defense arguments.1 1 4

112. Sparf & Hansen v. United States, 156 U.S. 51 (1895); UnitedStates v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972).

113. United States v. Dougherty, 473 F.2d 1113, 1141 (1972) (Bazelon,J., concurring).

114. See Lippman, supra note 105.

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B. Motive Testimony_

1. Introduction

a. What the Jury Gets to Hear

The current character of the criminal law does not allowthe defendant in a criminal case to present evidence describingthe motivation for his or her actions. The Model Penal Code" 1 5

defines culpability in terms of a person having satisfied thestate of mind requirements relative to each of the elements ofan offense. 1 6 Elements of an offense are those factors whichestablish culpability for conduct based on state of mind withrespect to attendant circumstances, conduct, and results ofconduct.'17 The state of mind requirements focus on the"intent," not the motive, of the defendant." 8 The motive of adefendant is the reason for the action; intent is the state of mindof the defendant relative to the elements of an offense. Motiveconcerns why the defendant did what he did; intent focuses onhis level of cognitive commitment to what he did. The distinc-tion has significant legal consequences.

State of mind is broken down into four levels of awarenessof what a person is doing. Under the M.P.C. scheme a personmust act either negligently, recklessly, knowingly, or purposelywith respect to each of the elements of an offense. To proveculpability, the state must prove that a defendant acted with therequisite level of conscious awareness for the conduct, circum-stances, and result. Later, when I discuss the cases involvingthe Berrigan brothers, these abstractions will be made moreconcrete.

For persons who engage in civil disobedience, this struc-ture causes a conflict. Most civil disobedients will admit all theelements of their offense; they want to argue, however, thatthey should not be punished for their act because either theirmoral obligation is sufficiently weighty or their reason for act-ing as they have justifies what they did. I will argue that civildisobedients should, under certain conditions, be allowed topresent their motive to the jury. Because criminal law does notnow recognize the relevance of motive, we must amend ourcriminal law statutes to make this possible. The amendment I

115. Used here as representative of modem criminal statutes.116. MODEL PENAL CODE § 2.02 [hereinafter M.P.C.].117. M.P.C. § 1.13.118. For an example of common state of mind standards, see M.P.C.

Article 2.

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propose would operate as a "justification" ' 19 for civil disobedi-ence. I will describe it in more detail later.

If it is true that motive is the primary characteristic thatdistinguishes civil disobedients from criminals, then a bar onadmission of motive testimony120 precludes civil disobedientsfrom making the very arguments with which the community,represented by the jury, should be concerned. If we allow civildisobedients to make motive arguments to the jury, we thenmake it possible for the proper representatives of the con-science of the community t 2t to assess whether the defendant'sclaim of moral obligation is one which the community is pre-pared to accept.

b. Problems With Punishing Civil Disobedients

People prosecuted for acts they would characterize as civildisobedience commonly argue that their good motive shouldexcuse their conduct. 122 In addition to the difficulties with get-ting a jury to hear the reason why a defendant did what she did,another problem arises when we try to fit the civil disobedientwithin one of the three historical theories of punishment: retri-bution, deterrence, and rehabilitation. Though punishment isnot generally an issue within the purview of the trier of fact, theincompatibility between punishment theories and civil dis-obedients exemplifies yet another failure ofjudicial reaction todisobedience.

To seek retribution for a trespass against the communitystandards when the purpose of that trespass is to bring to lightthe injustice of those standards does not reflect the proper rela-tion between culpability and punishment. A civil disobedient isnot a proper candidate for retribution. Retribution modelsseek to settle the score-to punish an offender in equal weightto the injury they have inflicted. The moral imperative of pun-ishment diminishes when the actor's self-interested pursuit ofsome personal gain, to the detriment of others in the commu-nity, is removed. Not all people who violate laws altruistically

119. As defined in M.P.C. Article 3, a justification is a complete defensewhereby a defendant's actions are held to be non-culpable even though shehas fulfilled all the requisite elements of an offense.

120. I use live testimony as my primary example because the majorityof evidence offered to support a civil disobedient's justifying motive wouldnecessarily come from viva voce testimony offered by the defendant.Documentary evidence or testimony of other witnesses could also be subjectto the same analysis.

121. Williams v. Florida, 399 U.S. 78, 100 (1969).122. See the Berrigan cases which follow.

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should avoid punishment, but juries should evaluate civil dis-obedients in light of the reasons for their action.

The deterrent model of response to criminality is of ques-tionable value also when it comes to civil disobedience. Deter-rence theory depends upon a belief that if the punishment issevere enough and sure enough the offense-considering citizenwill refrain from violating the law. If, however, citizens feel asufficiently weighty moral conflict with a community-imposedlegal obligation they are not likely, indeed in the ideal they willnever, choose to obey the legal obligation over that moral obli-gation. The threat of severe punishment may not enter intothe balance. Before the act, the civil disobedient may balancethe importance of the relevant moral and legal obligations, notthe nature of the burden she will be required to bear for herchoice. At best, deterrence efforts, however severe, may beineffective because they may not factor into the equation ofwhether to act or not to act. At worst, the deterrent theory ofpunishment results in bullying tactics that do not account forthe philosophical underpinnings of civil disobedience that wediscussed earlier.

The rehabilitative theory of punishment is similarly inade-quate to deal with the civil disobedient. The rehabilitative the-ory of punishment responds to criminal behavior by trying toconvert an antisocial member of a society into a contributingmember through instruction or persuasion. Civil disobedients,unlike criminals, have not proven themselves to be antisocial oreven in need of reform. They engage in the same balancingthat leads law-abiding citizens to choose to obey the law; forthe civil disobedient, the balance tips toward his perceivedmoral obligation. In the same way, the judicial system shouldhesitate to sanction those civically-minded citizens who con-front the conflict between moral and legal obligations and fol-low their moral obligation in hopes of law reform. In the past,some citizens were subjected to psychological internment forexpressing political and moral convictions through violationsof the law.' 23 Rehabilitative punishment does not work for civildisobedients because they don't need to be rehabilitated.

c. Motive Testimony as a Solution

Do I mean to say that we should not punish civil dis-obedients at all? No, but we must realize that they are differentfrom most people who appear in our courtrooms, and that we

123. See the treatment of activists in the suffrage movement for womenin S. LYND, supra note 7, at 160-71.

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should approach punishing them for their violations of the lawdifferently. Not only are civil disobedients inappropriate formost of the recognized justifications for punishment, but theyare different from most of the types of people we punish withregularity.

One possible solution to the problem of how to respond tothe difference is to allow civil disobedients to do what they allwant to do: make arguments to the jury about why they didwhat they did. As I noted above with jury nullification sugges-tions, these arguments have been met with judicial suspicion, ifnot hostility. Though I believe these fears are misplaced andnot responsive to the philosophical underpinnings of civil diso-bedience, there are several problems which this suggestionmight precipitate, and I shall address them in turn.

Before I undertake a discussion of the problems that willarise, I will take a look at contemporary judicial treatment ofarguments which have been made for a "good motive"defense. After laying out some of the potential objections tothe use of motive testimony, I will explore some possible solu-tions to those problems. Those solutions lead me to propose arule of evidence and an addition to the Model Penal Code toaccommodate the use of motive testimony in the prosecution ofcivil disobedients.

2. Previous Attempts at the Use of Motive Testimony

The response of the judicial system to the "good motive"defense has been stymied by unnecessary fear and by reasoningwhich is unresponsive to the philosophical significance of theconflict between moral and legal obligation. I have selected forour attention two cases which are illustrative of the response ofcourts to testimony regarding motive. In both cases, thedefendants sought to make arguments regarding the relation ofmotive to culpability for the violations with which they werecharged.

a. Moylan

In United States v. Moylan,124 nine defendants, among themDan and Philip Berrigan, were charged with willful mutilationof government records,' 25 destruction of government prop-

124. 417 F.2d 1002 (1969).125. The defendants were charged with violating 18 U.S.C. § 1361,

which provides in part:Whoever willfully injures or commits any depredation against

any property of the United States, or of any department or agency

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erty, and interference with the administration of the SelectiveService System for their 17 May, 1968 removal and burning ofSelective Service records in Catonsville, Maryland. At trial, alldefendants were convicted. On appeal the defendants firstargued that the trial court erred in not informing the jury that itpossessed the power to nullify a conviction. 126 The defendantsalso argued that the court should apply a "more expansive"definition of "willfully"'' 2 7 than was used in the statutes. Thedefendants argued that "since they acted from good motives,i.e. to protest a war which they sincerely believed was not onlyillegal but immoral, they could not have 'willfully' violated thestatutes and must be acquitted."' 2 8

The appellate court correctly distinguished "motive" from"intent" and noted that the intent element of "willfully" is sat-isfied if the "accused acted intentionally, with knowledge thathe was breaching the statute."'' 29 Despite sloppy use of techni-cal definitions of intent for defining culpability, .the appellatecourt was correct in finding that "whatever motive may haveled [the defendants] to do the act is not relevant to the ques-tion of the violation of the statute, but is rather an elementproper for the judge's consideration in sentencing."' 30

The restriction on use of evidence related to motiveemphasizes the judicial interest in fairness in adjudicating vio-lations of the law.' 3 ' Regardless of substantive differences,materially similar violations require similar response by the

thereof, or any property which has been or is being manufactured orconstructed for the United States, or any department or agencythereof, shall be punished as follows: .... (emphasis added)126. Whereby the jury could have acquitted the defendants even if

their act fulfilled all the elements of the offense.127. See supra note 125.128. Moylan, supra note 124, at 1004.129. Id. Note, however, that M.P.C. § 2.02(7) defines "wilfulness" as

follows: "A requirement that an offense be committed willfully is satisfied if aperson acts knowingly with respect to the material elements of the offense,unless a purpose to impose further requirements appears." The appellatecourt is not strictly accurate in requiring that the defendant act "intentionally,with knowledge that he was breaching the statute." The intent element forconduct, as specified by the statute, would be "knowingly," not"intentionally" or "purposefully" as defined by the appellate court. For afurther discussion of element analysis of statutory provisions see, Robinsonand Grall, Element Analysis in Defining Criminal Liability: The Model Penal Code andBeyond, 35 STAN. L. REV. 681 (1983).

130. Moylan, supra note 124, at 1004.131. See, e.g., the court's discussion in United States v. Kabat, 797 F.2d

580, 584-85 (8th Cir. 1986), where the court looked at previous treatment ofpeople who violated the same statute for different reasons to argue that thesewell-intentioned defendants should be treated no differently.

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judicial system. In, other words, courts consider it unfair topunish a person who violates a law out of self-interest and notpunish someone who violates the same law for the bettermentof the community. 32 Moreover, they consider it unfair not topunish those who do not fulfill their legal obligations whenothers who could have violated the law did not in recognitionof their prima facie obligation to obey the law.13 1

Contrary to common belief, it is fair that the people whoviolate the law because of conflicting moral obligation not bepunished. Even though other people choose not to obey thelaw, the law-abiding person, if aware of any potential conflict,goes through the same analysis as those who disobey. The law-abiding person performs the same balancing of moral and legalobligations as the civil disobedient does. The only significantdifference is the outcome. The law-abiding person concludesthat his legal obligations outrank his moral obligations. So,too, the action of a criminal and a protester are different fromone another. The law should treat them differently, because inthis instance motive is an important element of culpability.

A grossly simplified demonstration may help: When Maryknocks her sister down to be mean, her parents appropriatelypunish her. When she knocks her sister down to shield herfrom an oncoming car, her parents appropriately applaud her.The two acts, like the violation of the law by the common crimi-nal and the civil disobedient, are materially similar, but sub-stantively different. The law should be equipped to respond tothem differently.

b. Berrigan

The second, very similar and factually related example Iwould like to focus upon began as United States v. Berrigan.'34

Several months before the events which precipitated the Moylandecision took place the following occurred: Two of the Caton-sville defendants and two other men extracted some of theirown blood and mixed it with animal blood. They entered aSelective Service office in Baltimore, Maryland in the earlymorning. They went beyond the counter, opened cabinetscontaining Selective Service documents, and poured the blood

132. See United States v. Cullen, supra note 107.133. See, e.g., Walker v. City of Birmingham, 388 U.S. 307, 320-21

(1967).134. 283 F. Supp. 336 (D. Md. 1968). This decision was later upheld as

United States v. Eberhardt, at 417 F.2d 1009 (4th Cir. 1969)-the companioncase to Moylan.

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mixture over the documents. They then left the building andwaited for police to arrive. At trial, the defendants sought tooffer evidence to the jury demonstrating that based on whatthey knew of the war in Vietnam, the war was illegal andimmoral.

The defendants argued that because they acted .under thebelief that their actions were geared toward prohibiting theUnited States from engaging in further illegal activity, the req-uisite mens rea for conviction was lacking. 35 The trial courtnoted that after the elements of a crime are proven by the gov-ernment, good motive will not save the defendant from convic-tion. ' 6 The defendants cited to cases where the accusedmistakenly believed that he was acting within the law. Thecourt distinguished those cases by observing that these defend-ants knew that what they were doing was illegal but acted undera bona fide belief that their motives negated criminal intent. 1

37

The court also made the paradigmatic objection to the use ofmotive as dispositive of guilt or innocence:

No civilized nation can endure where a citizen can selectwhat law he would obey because of his moral or religiousbelief. It matters not how worthy his motives may be. Itis axiomatic that chaos would exist if an individual werepermitted to impose his beliefs upon others and invokejustification in a court to excuse his transgression of aduly-enacted law.' 3 8

3. Why "Good Motive" Arguments Have Failed

The arguments of the Berrigan defendants failed for tworeasons.' 3 9 First, the proponents of both arguments sufferedfrom a mistaken understanding of the definitions of "intent"and "motive." Remember that within the criminal law theseterms have a specific meaning that is significant, even ifcounter-intuitive. "Intent" relates to the required state ofmind of the accused as applied to each element of an offense."Motive" relates to the system of belief or purpose whichguided an actor. Moral obligation is a matter of both motiveand intent in the standard case; so motive testimony falls under

135. United States v. Berrigan, 283 F. Supp. 336, 338 (1968).136. Id. at 339.137. Id. at 340.138. Id. at 339.139. For further discussion of these two cases see Note, Civil

Disobedience-Protests Beyond the Law, 14 ST. Louis U.LJ. 719 (1970) (written byKathianne Knaup).

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the category of motive not intent. 4 The motive argumentsthe defendants sought to make had no bearing on the state ofmind required by the statute for conviction.

The second failure of the Berrigans was to characterizetheir arguments in terms of an excuse to culpability, ratherthan as a justification for their actions. The motive testimonythe defendants sought to offer would have served, not tonegate one of the elements of the offense, as would an excuse(e.g. insanity or mistake of fact),' 4 ' but to counter the elementsof the offense with a reason why the defendant should not beheld responsible for violating the statute. Everyone involvedknew that the Berrigans violated the statute in question.Whether or not they violated it was not the issue. The issuewas whether or not they merited punishment for theirviolation.

The commonly-accepted justifications for violating the law(self-defense defense of others, duress, necessity, choice ofevils, law enforcement, and so forth) do not include a justifica-tion for civil disobedients. As we have seen, some people havesought to fit civil disobedience within the categories of neces-sity142 and duress 14 justifications, but with only limited suc-cess. Only by creating a separate category of justification, acivil disobedience justification, can we respect the importanceof moral obligation as a motivator of a political act ofdisobedience.

C. Proposed Amendments

This section will define the amendments I propose to boththe Model Penal Code and the Federal Rules of Evidence. Iaddress my attention to the Model Penal Code and the FederalRules because these rules or some variation on them has beenadopted in most jurisdictions. The additions to the ModelPenal Code are far more important for the purposes of provid-ing a justification for the conduct of some civil disobedientsthan is the change I recommend to the Federal Rules of Evi-dence, but the change to the evidentiary rules follows from thepenal code reform. Jurisdictions which have adopted themodel provisions would have to enact the amendments I pro-pose; those which have not yet adopted the uniform standards

140. See text accompanying notes 115-19 supra.141. See M.P.C. Article 3.142. See Levitan, Lippman, and Kessler, supra note 105.143. See Tierney, supra note 105.

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would have to make the appropriate conversions to their ownsystem.

1. The Model Penal Code

a. Justifications in General

Article Three of the Model Penal Code defines the GeneralPrinciples of Justification. A justification is different from anexcuse to culpability, like insanity or mistake of fact. Ajustifica-tion admits the elements of the offense and finds that evenwhen all the elements of the offense are proven a defendantshould not be held criminally responsible.'4 4 The Model PenalCode describes these justifications as "affirmativedefense[s].' 45 By that description the drafters mean that thejustification does not act to negate one of the elements of theoffense, but instead negates culpability of the agent when theelements are proven. A defendant asserting an affirmativedefense bears the burden of proving the elements of thedefense by a preponderance of the evidence.

b. A Civil Disobedience Justification

The proposed section 3.12 of the Model Penal Code wouldread as follows:

§ 3.12. CIVIL DISOBEDIENCE JUSTIFICATION

(1) RequirementsThe violation of legitimately-enacted criminal standardsof conduct is justified when the actor reasonably believesthat the legal requirement conflicts with a serious moralobligation and only if:

(a) all reasonable legal alternatives to violation havebeen pursued,

(b) the violation is nonviolent in character,(c) the violation is specifically limited and narrowly

tailored to suit the character of the conflict, and(d) the actor can demonstrate the existence of a

legitimate moral belief the vindication of which substan-tially outweighs the governmental interest in prohibitingthe conduct at issue. 14 6

(2) Admissibility of Evidence

144. See G. FLETCHER, RETHINKING CRIMINAL LAW 759-98 (1978).145. M.P.C. § 3.01.146. This requirement would involve evaluations similar to those

undertaken in the area of religious practices where the sincerity andseriousness of the belief held by the individual and the governmentalinterests involved in the regulation are balanced.

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Evidence of the motives of the actor claiming the CivilDisobedience Justification is admissible and limited tothe testimony of the actor, relevant experts, and docu-mentary evidence, describing:

(a) the legitimacy and substance of the belief atissue, and

(b) the process by which the actor arrived at thedecision to violate the law.

2. The Federal Rules of Evidence

Evidence of the motive of the defendant in a criminal caseis not generally admissible under the Federal Rules because itis not relevant under Rule 401. Because the motive of thedefendant does not tend to make the existence of any of theelements of the crime more likely or unlikely, such evidence isnot relevant to any issue of material fact. Under the proposedamendment, evidence related to motive would become rele-vant, but an addition to the Federal Rules of Evidence is neces-sary to clarify the scope of the admission of motive evidence ina criminal case. Because the proposed rule addresses relevancyand admissibility, it should be added to the list of rules con-tained in Article 4.

The Federal Rules of Evidence should be amended toinclude the following provision:

Rule 413. Admission of Motive Testimony when theCivil Disobedience Justification is raised.(a) In a criminal trial, in which the person accused of vio-lating a provision of law raises the Civil DisobedienceJustification (see Model Penal Code § 3.12), evidence ofthe motive(s) of the accused for the violation is admissi-ble to show legitimacy and sincerity of belief, serious con-flict of conscience, and the balancing of competingobligations that led to the decision to violate the law.(b) If the accused intends to offer under subdivision (a)evidence pertaining to the motive for the violation, theaccused shall make a written motion to offer such evi-dence not later than fifteen days before the date on whichthe trial in which such evidence is to be offered is sched-uled to begin.(c) The motion described in paragraph (b) shall beaccompanied by a written offer of proof. If the courtdetermines that the offer of proof contains evidencedescribed in paragraph (a) the court shall order a hearingto determine whether a given act fulfills the requirements

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necessary to seek recourse in the justification. At suchhearing the parties may call witnesses and offer evidencethat would be relevant if the qualifications for the justifi-cation were met.(d) If the court determines on the basis of the hearingdescribed in paragraph (c), that the qualifications for thejustification have been met and that the court will permitrecourse to the justification, evidence thereby made rele-vant shall be admissible in the trial to the extent an ordermade by the court specifies evidence which may beoffered and areas with respect to which the accused maybe examined or cross-examined.(e) If the court determines on the basis of the hearingdescribed in paragraph (c), that the qualifications for thejustification have not been met, the evidence described inparagraph (a) is inadmissible.

D. Potential Problems

Of course, this proposal will be met with disagreement. Ihave already alluded to some of the pertinent objections. Inthis section, I will focus on five of those complaints. Followingeach major objection, I will provide a brief response to theclaims it asserts.

1. Chaos

a. Criticism

Judge Northrop, the judge who decided the Berrigan case,offers the paradigmatic objection to the use of motive testi-mony.' 47 His fear of the chaos that would result from accom-modating civil disobedience has been shared by other membersof the judiciary. The argument depends on the acceptance ofseveral points. First, civilized societies require laws to maintainorder. Second, only when society is ordered can justice beachieved. Third, citizens in democratic societies voluntarilyagree to act according to the laws of society, even those thatbring personal burdens, by accepting the benefits of the orderthey bring. Finally, nearly-just societies could not exist if everycitizen could select whatever laws he or she would obey.

This problem would not arise if decisions were arrived atby unanimous consent, but since unanimous consent is not apractical objective, occasions will arise where some subset ofsociety will find themselves at odds with the majority. The

147. Supra note 138.

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chaos argument claims that if at every occasion where a disa-greement of this kind arose citizens were free to obey or notobey on a whim, anarchy would result. Society would col-lapse.' 48 This strain of argument presupposes that violation ofthe law would increase if the threat of punishment of civil diso-bedience was removed as a deterrent. I have already discussedthe inadequacy of punishment to deter civil disobedience.

As part of the "chaos" claim, courts point to the politicalchaos that could result from courts intruding upon the prov-ince of the legislature. In asking the court to validate her"excuse" for why she did what she did, the civilly disobedientcitizen seeks the power of the court to vindicate her claim tomoral superiority.' 49 Courts should not engage in this sort ofvariation on the legislative intent. If representative legislaturesdo fairly speak for the majority of citizens, then the place tovindicate the injustices experienced by the protestor is in thelegislature, not in the courts.

b. Response

Judge Northrop's assumption, though popularly sup-ported, is flawed. He is correct in so far as he claims that it is"axiomatic" that civilized society could not survive if every citi-zen always followed only what laws fit his or her fancy. Aspointed out by Dworkin, however, while it is surely true thatsociety cannot endure "if it tolerates all disobedience; it doesnot follow, nor is there evidence, that it will collapse if it toler-ates some"' 50 (emphasis added). Carl Cohen says, "As a resi-dent and an observer of a municipality in which civildisobedience has been several times employed in recent years,I would report that so far as I can tell, its practice has had littleor no tendency to encourage disrespect for law or to cause ageneral deterioration of the social order."'' Even Justice For-tas, an outspoken critic of civil disobedience, warns that "[t]hedanger of serious national consequences from massive civil dis-obedience may easily be exaggerated."'' 52 Jurisdictions which

148. Justice Fortas echoed these views when he said, "Just as we expectthe government to be bound by all laws, so each individual is bound by all ofthe laws under the Constitution. He cannot pick and choose. He cannotsubstitute his own judgment or passion, however, noble, for the rules of law."A. FORTAS, supra note 12, at 55.

149. United States v. Kabat, 797 F.2d 580, 587 (8th Cir. 1986).150. R. Dworkin, supra note 88, at 206.151. C. COHEN, supra note 76, at 152-53. Note, however, that Cohen is

specifically referring to a society in which civil disobedience is punished.152. A. Fortas, supra note 12, at 59.

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adopt my proposal will see that admitting the testimony regard-ing motive of some violators of the law does not mean thatthose persons will be acquitted. Not everyone who makes aclaim of justification predicated upon conscience will find hisclaim vindicated. A Civil Disobedience Justification only makesit possible for juries to hear the moral evidence relevant totheir determination of culpability.

Like the presumption that serious chaos would result fromthe toleration of some disobedience, the presupposition thatmore people would be inclined to engage in civil disobedienceif they knew that they could be acquitted is unverified. While itis reasonable to assume that some people would be more likelyto engage in civil disobedience if they believed that they had achance of getting their claim vindicated, if we limit the claimswe are willing to recognize to those predicated on conscienceor moral obligation, the growth in the number of incidentsshould not be severe.

Also, the fact that juries acquit civil disobedients based ontheir claim that a particular law is unjust should serve as addi-tional notice to the legislators that their decisions are not sup-ported. I say "additional" notice because appeal to thisjustification will require that the defendant have used legalmeans of persuasion unsuccessfully before choosing to disobeythe law. Courts would not, contrary to possible fears, berewriting laws by failing to prosecute individual civil dis-obedients any more than they rewrite laws when they fail toprosecute individuals who use force to protect themselves,others, or property. Judge Northrop's concerns about comingchaos are unfounded; the history of civil disobedience in thiscountry argues against his worries and the results of a justifica-tion would not be as dire as he imagines.

2. Courts Should Not Become Political Platforms

a. Criticism

If testimony and evidence of motive were to becomeadmissible, courts would find their already backlogged docketsdelayed even further by defendants who wanted to parade astream of "experts" before a jury to demonstrate the sound-ness of their position. Under such circumstances, courtroomswould cease to be forums for the investigation and evaluationof facts applied to relevant law, but would instead dissolve intoplatforms for any political minority who felt their views under-represented.

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b. Response

This criticism is serious, because it cuts to the core of theintegrity of the judicial system. Fortunately, the problems ofpoliticization of the judicial process 53 can be overcomethrough discriminate use of the justification I propose. Thosedefendants who want to claim as a justification for their actionthe motivation of conscience must satisfy strict requirements.To make my amendment viable, I also propose what I call"qualifying characteristics" for a defendant to be able to availherself of the justification.'54 The characteristics I proposerequire that an act be nonviolent, non-destructive, limited, andnarrowly-tailored for the justification to be available.

The defendant would demonstrate to the court that she"qualified" for the exception by providing evidence to showthat her act met all the requirements. Robert Hall in arguingfor an extension of the jury nullification powers has argued that"[t]o qualify as an act of civil disobedience, an action wouldhave to be appropriate to the agent's stated purpose, and thepurpose itself would have to be of a socially responsiblenature."'5 Since these demonstrations could happen duringthe pretrial stage, they could be handled expeditiously andwithout undue influence upon the jury.

If the persons seeking to make motive arguments to thejury were limited by factors such as those described above,'56

the judge could retain some control over the politicization ofthe trial process. Once a person "qualified" for the exception,the judge could then allow only such evidence as would directlyaddress the motivation of the defendant and could limit theburden on the trial process accordingly.

153. By this term I mean something different than former Judge Borkdoes. He uses the phrase "politicization of the law" to refer to the politicalprocess and its influence over the judiciary, particularly in the area ofconstitutional jurisprudence. In short, I mean my use of the term to be lessinclusive than does Judge Bork. See R. BORK, THE TEMPTING OF AMERICA:THE POLITICAL SEDUCTION OF THE LAw (1990).

154. I am not committed to the factors I list, nor does my argumenthinge on the reader accepting them. Those characteristics which woulddefine a "civil disobedient act" under the statute could be negotiated, and infact could differ from state to state. It is important, however, that certaintypes of actions "qualify" for the justification and others fail to qualify. Thislimitation will address most of the chaos concerns that would give alegislature pause in accepting my recommendation.

155. R. HALL, supra note 84, at 146.156. See text accompanying notes 144-46 supra.

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3. Degeneration of the Proper Role of the Jury

a. Criticism

Juries in America have undergone many changes and evo-lutions from the days of Georgia v. Brailsford 57 when they wereconsidered the masters of both law and fact. Today, jurors areexpected to listen to the facts as presented by evidence admit-ted during trial and to apply the law as given to them by thejudge. Though the power to rule contrary to the given law andadmitted facts still exists,' the right to be informed of thatpower has been denied.' 59 The third argument againstallowing the admission of motive testimony or evidence in thetrial of civil disobedients is that if juries were given the abilityto "excuse" the conduct of someone who violated the law, theywould be overstepping their powers.

b. Response

Justice White has stated that the "essential feature of ajurylies in the interposition between the accused and his accuser ofthe commonsense judgment of a group of laymen, and in thecommunity participation that results from that group's deter-mination of guilt or innocence."'160 If the justification I advo-cate were put into effect, "'conscientious disobedience' wouldhave the effect of allowing the question to be put to the jury insuch a way that the demands of conscience and the socialresponsibility of the agent could be taken into account."16'

Rather than moving the jury into some nebulous field ofpower where it would have free reign to make decisions outsideof the stream of legal authority, giving the jury the power, inlimited circumstances, to listen to testimony regarding themotivation of a civil disobedient would lead the jury to the bal-ancing of values appropriate to such action. The jury wouldevaluate the sincerity of the beliefs of the defendant, the impor-tance of the independent moral autonomy of each citizen, thegravity of the interest or alleged injustice at issue, and the formand content of the act of disobedience. They would then bal-ance those interests against the societal interest in maintaininglegal order, the potentially degenerating effect of disobedience,whether or not the defendant pursued all reasonable legal rem-

157. 3 U.S. 1 (1794).158. See United States v. Fielding, 148 F. Supp. 46 (1957).159. See United States v. Moylan, 417 F.2d 1002 (1969).160. Williams v. Florida, 399 U.S. 78, 100 (1969).161. Id. at 147.

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edies, and the community's view of the injustice pointed to bythe defendant.

4. Civil Disobedients Will Not Really Be Better Off WithThis Justification

a. Criticism

Extending the power of the jury to acquit people the legis-lature clearly intended to be convicted could, as mentionedpreviously, act to the detriment as well as the benefit of a civildisobedient. Black defendants in the South of the 1960s couldhave found themselves at the mercy of racist, white juries, whowould have been wholly unpersuaded by arguments supportingpotentially reasonable violations of unjust laws.

Extending the power of the jury to consider motive testi-mony might put the civil disobedient in no better position thanshe had been previously. She, rather than facing a legislatureunresponsive to her claims of injustice, would have to facemembers of a jury who have values similar to those of theirrepresentatives. If the legislature has been unresponsive to herclaims, she has no reason to assume that she will have anygreater luck with a jury. Allowing the admission of motive tes-timony only presents a false hope.

b. Response

This concern fails to recognize two things. First, the possi-bility of appeal from criminal prosecutions helps to negate thedetrimental effects of a biased jury. If a civil disobedient waspresented with a racially, sexually, ethnically, or religiously dis-criminatory jury, a prosecution under such circumstanceswould be appealable. The problem caused by racist juries issolved by making juries less racist. 162 Second, many peopletoday, especially those likely to engage in civil disobedience,perceive either themselves or the people they represent to bepolitically powerless. Allowing appropriate civil disobedientsto make claims of injustice which might otherwise go unheardcan only work to the advantage of the community. Juries willvindicate claims of substantial injustice and so continue toensure that legislative actions are in tune with the community'sstandards of justice. They will likewise refuse to vindicate

162. See Powers v. Ohio, 111 S. Ct. 1364 (1991), and Batson v.Kentucky, 476 U.S. 79 (1986).

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those claims which do not resonate with the foundations of ourpolitical system.

5. Civil Disobedients Depend Upon the Sympathy andAttention Their Punishment Engenders

a. Criticism

Finally, it could be argued that civil disobedience, as a con-cept, requires that those who engage in it should suffer to drawattention to their claim. The justification I propose wouldallow some civil disobedients to avoid punishment. This argu-mentwould claim that the prima facia benefit they gain by avoid-ing the undesirable result of punishment would be outweighedby the loss of public sympathy.

Certainly, many people who have engaged in civil disobe-dience in the past have willingly accepted the punishment theyknew would befall them as a result of their action. They did soto affirm publicly their belief in the legitimacy of the politicalsystem and to attract publicity. Civil rights activists in the1960s and women's rights demonstrators knew that they wouldbe punished for refusing to leave the lunch counter and forregistering for an election that forbade their vote. They con-tested their guilt and, in some cases, accepted their punish-ment. In theory, the cause of justice benefitted from theirpunishment.

b. Response

To ask a civil disobedient to willingly accept punishmentfor violating a law he or she considers to be unjust is counter-intuitive. They may accept their punishment for a variety ofreasons, but the law currently allows them no choice in thismatter. The amendment I propose would give civil dis-obedients the opportunity to square their account with society,to tell a jury and the court why they did what they did. Theycould choose not to avail themselves of the justification, andthey then might be found guilty. The odds of their convictionwould increase dramatically by their refusal. They could alsomake their plea to the jury, and still be found guilty. Theamendment only gives the civil disobedient a choice in whetheror not to accept punishment "willingly." It is important tonote that this criticism goes to a tactical point that should beleft up to the civil disobedient. Some disobedients mightbelieve that their willing acceptance of punishment is an impor-

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tant part of their message. Others may not. By making ajusti-fication available to them they can make that choice.

6. Summary

The balancing approach used by a jury in assessing indi-vidual claims ofjustification would be similar to the process thecivil disobedient underwent in deciding to favor moral obliga-tion over legal obligation. At the very least, this process ofallowing motive testimony after successful qualification for a"Civil Disobedience Justification," would demonstrate judicialcomprehension of and respect for the importance of moralobligation. The toleration society would be extending to thecivil disobedient would be similar in kind to that offered to con-scientious objectors.'6 3

Under this proposal "civil disobedience would be no moretolerated than the community wished."'" I am arguing not forthe acquittal of all civil disobedients, but for a judicial processthat accounts for the distinctions which I have shown betweencriminals and civil disobedients, addresses the conflict betweenmoral and legal obligations-and the primacy of moral obliga-tions-in a systematic way, and demonstrates an appreciationfor the benefits our society has gained by the courage of thosewho have stood up in the face of perceived injustice.

CONCLUSION

This article has made the case for an amendment to theModel Penal Code and the Federal Rules of Evidence whichwill permit persons who engage in civil disobedience to haverecourse to a Civil Disobedience Justification. The argumentsupporting this amendment is based on two fundamentalclaims. The first claim is that civil disobedience has been a sig-nificant part of the history of this nation, one from which wehave derived significant benefit. The second claim is that theresponse of the judiciary to the phenomenon of civil disobedi-ence has been inadequate and misguided. From these twoclaims I conclude that the present situation is not acceptableand that we need to change our understanding of and approachto civil disobedience.

The first section of the article traced the development ofdisobedience and resistance in the United States since before itwas a nation until the present. The pre-Revolutionary strug-

163. R. HALL, supra note 84, at 150.164. Id.

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gles for religious toleration led, in part, to the revolution andbreak from Britain. Challenges by blacks and women to thewhite male definition of "equality" resulted in new relation-ships among citizens. The Labor movement and Civil Rightsmovement demanded that rights guaranteed in the past bebrought to fruition. The Vietnam era and actions of civilly dis-obedient groups and individuals today show that this problemremains with us. Attention to these events in our history led toa close scrutiny of the origins of the duty to obey the law and tothe moral environment in which citizens might justifiablychoose to disobey the law. In the final part of the first section Ioffered a definition of what types of disobedience to law wouldqualify as civil disobedience..

My second claim began with the conclusion of the first sec-tion, that civil disobedience will continue to be practiced andthat we must reform our judicial reaction to it. I then focusedon several methods of responding to civil disobedience and itsdistinctions from crime that have been used in the past. Thosesolutions have failed to account for the moral significance ofcivil disobedience. One worthy option, which has not receivedwidespread support, is to allow civil disobedients to testify totheir motives for violating the law. I described the two Berri-gan cases, where the defendants argued unsuccessfully that a"good motive" justified their actions. I then proposed myamendment to the Model Penal Code and Federal .Rules of Evi-dence as a possible mechanism for making motive testimonyadmissible in trial and useful to civil disobedients. Finally, Iresponded to some of the potential criticisms of my suggestion.

Civil disobedience is here to stay. Our jurisprudence todate has not responded to its true significance. Adoption of ajustification defense for civil disobedients would be a step inthe right direction.

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