The concept of civil disobedience has a long and proud history in America — from the American Revolution to the Civil Rights Movement and numerous protest movements, on both left and right, from the ’60s and ’70s through today.
With few exceptions, most have engaged in peaceful protest and embraced the idea, famously orated by Henry David Thoreau in Civil Disobedience, that “Under a government which imprisons any unjustly, the true place for a just man is also a prison.”
Thoreau’s tract is primarily a response to the Fugitive Slave Act and the Mexican-American War and denounces not only these policies as unconscionable, but various taxes levelled against him by “incorporated societies” into which he had not freely joined.
In a way, this is a criticism of the social contract theory that plays an implicit role in America’s governing philosophy. In a nutshell, Lockean social contract theory posits that government can use its collective power to compel its constituent members to certain ends. This seemingly undemocratic ability is justified because men make a compact with another when they enter into a democratic society: they exchange not their natural liberties but their ability to freely exercise certain of those liberties and in return gain the security that, if someone wrongs them, the state’s security apparatus — the judiciary — will adjudicate the matter and ensure justice is dispensed.
The problem with this theory, however, is that this contract to which all members of free societies supposedly agree, is actually only made by the foundational members of that society. That all succeeding generations acquiesce to this bargain is an inherent assumption made on their behalf at the moment of their birth.
Hence Thoreau’s call for acts of civil disobedience when government acts in a manner that violates an individual’s conscience. This, to Thoreau, is a matter of simple logic: government justifies its actions by touting that it derives its just powers from the consent of the governed. When government abuses this power — and claims a mandate from the people it does not actually possess — individuals should use the power of their voice and their actions to defy the laws, passed in their names, with which they disagree.
Declared Thoreau, “The authority of government, even such as I am willing to submit to, — for I will cheerfully obey those who know and can do better than I, and in many things even those who neither know nor can do so well, — is still an impure one: to be strictly just, it must have the sanction and consent of the governed. It can have no pure right over my person and property but what I concede to it. The progress from an absolute to a limited monarchy, from a limited monarchy to a democracy, is a progress toward a true respect for the individual.”
In the behavior of American dissidents across the years, there seems to be an inherent understanding of and sympathy toward this logic. Yet, most protests are organized and display a certain level of exertion that goes out-of-the-way of normal daily activity to stick a thumb into the eye of government.
And this, while wholeheartedly embracing the spirit of Thoreau’s call to civil disobedience, does not necessary fully embrace it in practice.
At a basic level, Thoreau was not talking about organized movements between groups of people but actions the individual could accomplish through his own efforts. This dovetails nicely with a distinction that Thomas Paine, a shining early example of American malcontent, made between natural rights and civil rights. The former, according to Paine, are the foundation of the latter. Natural rights are those which the individual has by right of his existence. But civil rights are those which the individual gains by being a member of society and each “has for its foundation some natural right pre-existing in the individual, but to which his individual power is not, in all cases, sufficiently competent.”
Thoreau’s call for civil disobedience embraces Paine’s idea that natural rights are at the epistemological center of society: he is essentially calling for unification between the thought that underlies the principles of American government — which emphasizes the centrality of natural rights in society — and behavior. Thoreau suggests private actions should be undertaken in such a way that their predominant motivation works to ensure natural rights are exercisable and are more than an abstract idea.
Enter the twilight zone world of the moment. A public health crisis, citizens have been told by officials at various levels, demands everyone stay at home, unless travel is absolutely necessary. This, supposedly, is motivated for a concern for public health and the general welfare.
Which is exactly the kind of “unincorporated society” Thoreau so thoroughly objected too. Mere existence, at this point in time, allows the state to impede the individual’s movement and compel him to alter his behavior in compliance with state guidelines. As justification for this heavy-handed authoritarianism, the state cites police powers, which give it sweeping abilities to reorder and shutter society in an effort to protect public health.
Legally, there’s no doubt that states have the right to shutter businesses and issue shelter-in-place orders. And yet, this represents exactly the kind of situation Thoreau advocated for defying.
The problem with invoking the public good in any measure is that it must unequivocally serve the interests of all the constituent members it claims to represent. Any action that declares an action in the interest of the individual whose opinion on that matter differs is actually harming the collective welfare.
When public officials are able to gainsay what individuals say is in their own interest, they undermine the fabric of democratic society: this negates the idea that political power comes from the consent of the governed. To the contrary, such an action declares government immune from even consulting the governed.
Thoreau’s claim that “It can have no pure right over my person and property but what I concede to it” has both a philosophical and practical application.
Philosophically, democratic organizations are limited by the powers conceded to them by their constituents. Practically, government cannot enforce laws unless citizens consent to obey them.
This is true of punitive shelter-in-place orders that attempt to restrict the movement of people who have determined venturing into public is worth whatever risk may be attached to it.
It is more important now than in times of normalcy that citizens behave in a manner that exaggerates their right to conscience. For it is the right to conscience that is the most fundamental of natural rights. Freedom cannot occur without respect for property: for there can be no rights if there is no entity to hold them. And property begins with ownership of the self and, most importantly, the ability to exercise the mind.
American government enshrines this principle and, incredibly, limits government in such a way that conscience is maximized: it creates a representational system beholden to the interests of its citizens.
Thoreau is right: when government behaves in a manner that callously dismisses the ability of citizens to be masters of their own being, they owe a moral debt to themselves to behave in a way that reminds government whom it serves. In an era of restrictions on movement and threats made against people for an act as simple as taking a walk, the need for acts of civil disobedience is paramount.
Amazingly, in this moment, the radical act of self-ownership denied citizens is something as simple as evaluating the risks associated with venturing into public and make informed personal choices about how to order their own behavior. No one should be able to gainsay what a person has decided is in his or her best interest. That this is controversial at this moment is stunning and a mark against the example set by Thoreau.