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April 12, 2005

and now, the case of the conscientious taxpayer

Don Herzog, The Bartlett Files: April 12, 2005

Wanting to write more about conscientious objection, I turned to my faithful old buddy, the remarkable Mr. Bartlett.  In February, he co-sponsored the Taxpayers' Freedom of Conscience Act of 2005.  Here's its sole operative language:

No Federal official may expend any Federal funds for any population control or population planning program or any family planning activity (including any abortion procedure), irrespective of whether such program or activity is foreign or domestic.

I don't doubt that some taxpayers object when their money is forcibly taken from them to support family planning and abortion.  I don't doubt that some of them, like our conscientious pharmacist, Neil Noesen — indeed perhaps including Mr. Noesen, who might double as a conscientious taxpayer — "have trouble sleeping" and suffer "the worst kind of pain, spiritual pain."  What follows?

The Hyde Amendment and ensuing legislation have gotten the feds out of the business of funding abortions.  (Here's what's up in the states.)  So Mr. Bartlett's legislation is really aimed at contraception.  I don't doubt that many Americans believe that funding abortion or contraception is sin.  But they have evil twins leering at them from the political mirror:  I mean the many Americans who think the war in Iraq savagely unjust.  If some think abortion and contraception a matter of life and death, so do some think the war.  (They're the ones who flinch at such euphemisms as "collateral damage.")  If some think being forced to fund population control drenches your hands in blood, so too do some think of funding the war.  Hawks circling in the blogosphere, then, will find it devilishly difficult to approve the conscientious objections of opponents of abortion and contraception without approving the conscientious objections of opponents of war.  Does Mr. Bartlett want to prohibit the feds from fighting the war?

Nor does it take a matter of life and death to trigger conscientious objection.  Comb through the federal budget, your state and municipal budgets too while you're at it.  I'd say call me in the morning with the results, but, um, call me sometime next year.  Every time you find a spending provision, think about what kinds of Americans will have sincere moral or religious objections to having their money spent that way.  Picture principled objections to posting an embassy in the Vatican, drilling for oil in the Alaska wilderness, and funding the National Endowment for the Arts.  ("Remember Mapplethorpe!" and "Remember Serrano's Piss Christ!" won't have quite the shelf life of "Remember the Alamo!", but we'll remember them for some time yet.)  Or picture principled objections to more humdrum spending:  Get It Straight!, a book for kids published by the Drug Enforcement Administration; free workshops on the Americans with Disabilities Act for small business; and NASA's launch this Friday of DART, a computer-piloted rocket that will attempt a rendezvous with a satellite.

You'll object to all of these if you think any more than the minimal state is unjustified.  And if you're an anarchist, you'll object to taxes across the board.  Those of us with less austere views may object for more local reasons to particular government spending.  Conscientious objection to government spending can't automatically trigger shutting it down.  That's got to be too draconian a response; anyway, it's a principle that dictates anarchism.  What else might we do?

Should conscientious objectors be entitled to subtract their share of objectionable spending from their taxes?  Should they worry that that won't change overall spending at all, that the government will just take the money from elsewhere in the budget? or, should I say, the deficit?

Mr. Bartlett seems happy to while away his hours drafting legislation going nowhere fast.  (Yes, for Capitol Hill the speed with which his bills are referred to committee, never to resurface, is genuinely impressive.)  Maybe he could draft a bill setting up procedures to decide when Americans qualify for conscientious tax exemptions.  I wonder what agency would administer these claims, and what would happen when people had conscientious objections to its jurisdiction.  I wonder on what basis courts would review challenges.  I wonder how we'd figure out who had serious objections and who was just trying to cheat on taxes.

Are you inclined to shrug off the prospect as mad?  Why?  Not because spending money is any less "direct" or "material" support than, say, filling a prescription for a contraceptive is.  Lysander Spooner thought a ballot "a mere substitute for a bullet," because the ballot directs others' coercion.  Similarly, thoughtful people may well balk at any distinction between killing Iraqis themselves and paying the government to pay soldiers to kill Iraqis.  I just filed my tax return.  I know where some of that money is going.

Forget the practical worries about how to administer a scheme of conscientious objection for taxes.  I think the apparent absurdity of conscientious objection in taxpaying is a reminder that we're all in this political business together.  All of us have dirty hands.

And no, whittling down the government to a bare minimum wouldn't solve the problem.  Plenty of us would have conscientious objections to that, too.  Are you tempted to say, with Mr. Ridgely, "The fact is, a majority never has the moral right to impose its will unless all have first agreed to the majority process"?  Not to pry into Mr. Ridgely's domestic arrangements, but just try running a family on that model.  "Listen, Dad, I didn't choose you, I didn't choose Mom, I didn't choose my genetic inheritance, I didn't choose my place of birth, and I didn't choose what language I'd grow up speaking.  To add insult to injury, now you think we should go for pizza just because everyone else wants to.  Well, I want Thai food.  And I don't recall agreeing to be bound by what the rest of you decide."

No, government and society aren't one big happy family.  Not one big unhappy family, either.  But in all these cases, marriage and immigration aside, we don't choose our attachments.  Liberal democracy is an attractive arrangement for hashing out decisions on our collective fate.  We may decide, together, that we ought to get government out of spheres in which there are reasonable conscientious objections and the payoffs aren't worth incurring those costs.  But there's no room here for a general right of individual opt-outs, nor for a presumption that government shouldn't tax to support causes that trigger conscientious objections.

Or, if you like:  hail fellow citizens; welcome aboard.  Nope, sorry, it's not a luxury liner.  Lots won't be to your liking.  Lots isn't to mine, either.  No whining, please:  let's pitch in and get to work.

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» Would a Global Polis Change His Argument from Pseudo-Polymath
Don Herzog pens a little essay on how (rightly I think) should not be allowed to opt out of taxes on the basis of our disagreements with some of the government's policies. However, his argument that "marriage and immigration aside,... [Read More]

Tracked on Apr 12, 2005 12:27:26 PM

» We Can Allow Individuals To Opt-Out from Catallarchy
There is a better pragmatic answer: we don't all have to be in this together. There doesn't have to be a right answer to many of these issues to which conscientious taxpayers object. We can agree to be civilized human beings and allow multiple leg... [Read More]

Tracked on Apr 13, 2005 8:37:07 AM

» Breaking the Law from Pseudo-Polymath
Don Herzog, one of the most profligate writers in the cabal at Left2Right made this unusual statement in a comment about a week ago. He wrote: Oh, I've got nothing against civil disobedience, but I'm not sure how anything I... [Read More]

Tracked on Apr 22, 2005 8:04:15 PM

Comments

Posted by: D.A. Ridgely

Mr. Ridgely is perfectly willing to acknowledge that his domestic relations are conducted in a highly non-democratic manner. Indeed, if anything, it is patterned on the Absolute Monarchy model insofar as the rearing of children is concerned.

Mr. Ridgely does note, however, that his and his wife’s is a benevolent and shared dictatorship in that any child wishing to order Thai food and to pay for it with his or her own money is always welcome to opt out of the family pizza run. In fact, any such child, all of whom have to date been the equivalents of lifetime welfare recipients even including the extravagant overcompensation they receive for the Ridgely family version of work-fare, is welcome to flee the realm for greener pastures at any point. They are aware of this option; so far there have been no takers.

Alas, just as we continue to try to get Ms Anderson et al. to understand that, say, Social Security is only superficially like private investment or insurance, so also Mr. Herzog’s analogy between the state and the family falls apart under even the most cursory scrutiny. Children are not adults. Serious libertarianism doesn’t pretend otherwise. Conscientious parents raise their children to be independent, insofar as independence is possible, of both the state and from their parents. In fact, moral parents work toward putting themselves out of a job. But citizens are not in any sense the children of the state, and any suggestion to the contrary starts moving us toward totalitarian collectivism. I'm sure that is not Mr. Herzog's intent.

In any case, government (as understood from and encouraged by the liberal perspective) is constantly seeking to make citizens less independent. In the process, as Mr. Herzog observes, it requires of all of us that we participate if only through our involuntarily extracted wealth in many government enterprises which we individually consider immoral. There is an easy solution to mitigating if not entirely avoiding that situation. People should not only not be coerced, they should especially not be coerced for immoral purposes.

Posted by: D.A. Ridgely | Apr 12, 2005 8:21:09 AM


Posted by: Don Herzog

I tried to be clear about the state/family analogy — No, government and society aren't one big happy family. Not one big unhappy family, either. — but apparently I blew it. The only dimension I'm pressing the analogy on is that we don't choose our attachments.

Meanwhile, this liberal is a staunch believer in independence. This liberal is inclined to believe that liberal policies on equality of opportunity, public education, and the like are (1) designed to promote independence and (2) do a pretty good job doing so. This liberal is always open to argument that (3) some particular programs, or for that matter the whole set, have all kinds of perverse consequences. But this liberal finds himself skeptical of the arguments, sometimes pressed by Mr. Ridgely, that (4) the actual motivation of liberal policies is to create needy clienteles, and that (5) whatever minimal benefits these programs have are overwhelmingly swamped by their perverse consequences.

Posted by: Don Herzog | Apr 12, 2005 8:44:58 AM


Posted by: john t

I wonder if the elections in Iraq were "savagely unjust". Mr Bartlett is more of a straw man than anything found in the Wizard of Oz,why use him as a launchpad for a lecture on our need to pay our taxes and shut up. In linking to the Hyde amend. I saw restrictions on abortion funding,not anything that has "gotten the feds out of the business of funding abortions". Was this an absolutist reading on Mr Herzog's part? Overall the comparisons used in this post were far fetched,to be specific we're not killing Iraqui's,we're killing murderer's & terrorists,a distinction would help and thoughtful people should be able to make them. I would also hope we don't see any more mentions of fellow posters families. I'm sure Herzog thought this was the epitome of Voltarian wit but politely put it was tasteless. Ridgely as usual responded with decorum.

Posted by: john t | Apr 12, 2005 9:20:55 AM


Posted by: D.A. Ridgely

My apologies to Mr. Herzog if I misrepresented him. (I don’t, for what it’s worth, think I misunderstood him.) But to point out that we cannot choose our familial attachments is not much in the way of evidence or argument that we should not be free to choose most of our other attachments.

Whether the intent of general liberal encouragement of government programs is the creation of needy clienteles or not, the result is the same. An educated public is a good thing. It doesn’t follow that the public should be educated in state operated schools. Similarly, whatever equality of opportunity may abstractly mean, facilitating the sort of “minimum floor” for people discussed in earlier threads is a morally worthy goal but, again, not one necessarily well met by government programs.

Posted by: D.A. Ridgely | Apr 12, 2005 9:22:02 AM


Posted by: D.A. Ridgely

I hasten to point out after john t's comments that I have absolutely no objection to Mr. Herzog referring to my family as he did in his post. I did not find Mr. Herzog's comments in that regard (or any other) tasteless or otherwise inappropriate.

In fact, Mr. Herzog even took the trouble to ask me in advance whether I might object to his using my earlier comments in his post today and offered to show me a rough draft. I told him I was confident he would not misrepresent me and that there was no need for me to review such a draft. He did not misrepresent me, there was no need to review his most recent post in advance, and our entire exchange including the family banter has been (at least from my point of view) entirely within the bounds of spirited but legitimate intellectual disagreement conducted in good faith.

Posted by: D.A. Ridgely | Apr 12, 2005 9:39:07 AM


Posted by: Terrier

john t, first off, Mr. Herzog did not say "pay our taxes and shut up." I'm absolutely certain that he realizes that no argument he can make will induce you to shut up nor should it. He was trying to make the point that the expectation that you or I can live in this world without having to make some compromises EVERY day is wishful thinking. As for "People should not only not be coerced, they should especially not be coerced for immoral purposes." It shows a complete lack of understanding of the post. Mr. Ridgely, your morality I am quite certain is not mine. I might find objectionable all kinds of things that you thought were harmless and vice versa. It is madness to suggest that we can live in a world without expecting anything from each other and your statement actually expects far more from others than any appeal to community I have ever imagined. You must expect that people do not disagree with you morally! I'm sure you never shared a duplex with Eric Rudolph. Your libertarian utopia only makes sense if operates under the same benevolent dictatorship that your family life does. But just as you don't want Washington to be your daddy I'm sure most of us don't want you to be our dad either.

Posted by: Terrier | Apr 12, 2005 10:28:17 AM


Posted by: D.A. Ridgely

Not even if I let you get Thai food?

Posted by: D.A. Ridgely | Apr 12, 2005 10:37:58 AM


Posted by: Terrier

Mr. Ridgely, I buy my own Thai food whenever I get it (love that peanut sauce!) But I'm happy to live in a country where you can have pizza if you like - just not one where it is acceptable to threaten the lives of judges despite what your private morality might justify. (Note that I am not implying that this is your view.)

But seriously, explain to me how to prevent Rudolph from bombing without coercing him in a way he considers immoral?

Posted by: Terrier | Apr 12, 2005 11:37:02 AM


Posted by: DJmatheso

Don: It's hard not to agree on the discrete point about tax opt-outs, but I'm worried about a few implications of your apparent lack of sympathy for conscientious disobedience (hopefully perhaps I'm reading too much into one example). Among them: where is the room in your "pitch in" theory for civil disobedience?

I ask because the "pitch in" theory seems to imply that illegal disobedience is necessarily illegitimate because it's not participation from within the framework of the process, it would rather constitute shirking the consequences of the process. (and just to anticipate the response that the First Amendment will protect those actions--which I'm sure you wouldn't raise--let's assume I've bought the idea from your previous posts that there is not First Amendment claim against government action not knowingly directed at speech).

Perhaps I'm reading too much into one example, but I'm curious where the pitch in theory leaves us. Surely you're operating from the assumption that current political outcomes are legitimate (with which I don't necessarily disagree), and that given their current (approximate) legitimacy, attempts to use Congress to weasel out of certain burdens is illegitimate. But to the extent that an "illegitimate" local equilibrium is ever reached, what then?

I've always sort of operated from the premise that if one is willing to accept the consequences of disobedience, it's not illegitimate to defy any authority, including the state. If I can convince my Congressman to remove the consequences of my refusal to participate, so much the better.

(let's not debate tax policy, but as an aside, your theory appears to leave everyone who likes social engineering through the tax code in an awkward position).

Posted by: DJmatheso | Apr 12, 2005 11:54:39 AM


Posted by: Don Herzog

Oh, I've got nothing against civil disobedience, but I'm not sure how anything I said here bears on that problem.

I do emphatically reject

the premise that if one is willing to accept the consequences of disobedience, it's not illegitimate to defy any authority, including the state

at least if that means we should interpret the criminal law code as a price scheme, on the Posner/Landes approach, and say, hey, sure, want to commit murder? well if you're willing to serve forty years, or die, then go right ahead.

Posted by: Don Herzog | Apr 12, 2005 1:26:02 PM


Posted by: Dan Kervick

Don, this whole discussion seems like overkill. Why belabor the obvious?

Government is coercion. That coercion can be democratic, when minorities are coerced by majorities; or it can be non-democratic, when majorities or minorities are coerced by minorities. But somebody is being coerced when there is government. If there were never any need, in order to achieve large common purposes, to coerce others into doing what they would not otherwise do, there would be no need for government - period. There might be voluntary, cooperative planning and agreement; but there would be no government.

There is no real logical space between anarchism and taxation. Any action of governement requires the expenditure of funds, and those funds come from somewhere. Taxation involves taking something of value away from private individuals or companies and converting it into state property. If government revenues were all derived from voluntary donations, rather than legally coerced takings, then there would be no taxation, but something else. Indeed, it seems to me that any organization of people, of whatever size, that was funded entirely by voluntary donations would no longer count as the governement of a state, but would be private corporation of some kind - even if a non-profit corporation.

There is nothing novel about Mr. Bartlett's proposal - despite its misleading title and reference to "freedom of conscience". Bartlett is free to agitate for legislation against government spending on family planning, abortion, etc. Others, like me, who want the government to spend money on these programs can resist this legislation and agitate for contrary legislation. May the majority rule. Fortunately we live in something vaguely like a democracy, not an anarcho-capitalist dystopia.

What would be novel would be the attempt to make the contribution to certain government spending programs voluntary, by pegging those programs to certain classes of tax revenues and making the payment of those classes of taxes voluntary. I would strongly oppose such measures on democratic principle, even if they were enacted to suit my personal taste - for example by allowing me to decline to contribute to certain military spending programs. But so far as I can tell, that is not Barnett's proposal. He is not seeking a "conscientious objection" exemption. He is seeking to end certain kinds of government spending, not make them voluntary.

I think you may be a bit too generous when it comes to accepting the stated motivations of these "conscientious objectors" at face value. The main motivation driving these legislative moves, including the legislation prompted by the Noesen case discussed in your previous entry, is not just to carve out a space for conscientious objection. Ask yourself exactly what the vague terms "population control or population planning program" or a "any family planning activity" are meant to comprise. These are foot-in-the-door attempts to shut down all sorts of things detested by the enemies of abortion rights and family planning by putting any program or organization that is involved, in any way, in these activities in the position of having to cease those activities or decline any federal funding they receive.

Posted by: Dan Kervick | Apr 12, 2005 1:57:10 PM


Posted by: miab

The main point of this post is entirely a non sequitur.

The bill says: "No Federal official may expend any Federal funds for any population control or population planning program or any family planning activity (including any abortion procedure), irrespective of whether such program or activity is foreign or domestic."

There's nothing in there about opt-outs or conscientious objection. This is an attempt to cause the federal government to take or not take certain actions. It is phrased in federal-legislation-speak, which tends to involve casting everything as a power of the purse issue, because that's congress's clearest power. Whenever congress is trying to control the executive it uses similar language, denying him the right to use funds for certain purposes and therefore the ability to do those things. It is, for example, one way congress can assert itself in foreign policy (for an example of how this sometimes plays out when some parties do choose to "opt out" of abiding by federal statutes prohibiting certain uses of federal money, see the Iran-Contra affair).

If Bartlett wanted, in D.H.'s example, to "prohibit the feds from fighting the war" then yes, Bartlett would draft a bill saying: "No Federal official may expend any Federal funds for fighting or supporting fighting in Iraq."

While I disagree with his policy proposal regarding contraception, for once Bartlett is not in fact advocating a breakdown of civil society.

I also note that, contrary to john t's assertion, D.H. nowhere mentions D.A.R's family. He cites a political comment by D.A.R., and then proposes a general thought experiment about family arrangements -- clearly not attempting to specifically describe or cast aspersions on D.A.R.'s own.

Posted by: miab | Apr 12, 2005 2:56:36 PM


Posted by: Don Herzog

Dan Kervick writes,

Don, this whole discussion seems like overkill. Why belabor the obvious?

Um, occupational hazard? but more because sometimes I hear people on and off this blog saying things about taxing and government that seem to me odd at best, and I wanted to try to think through why and invite others to show me what the rejoinders are. I don't mind disagreeing with others, but I do mind it when it seems to me their views are simply odd.

So I chose to take Rep. Bartlett's bill at the face value of its title. That may be pure pretense, though of course nothing would stop Bartlett from introducing legislation that said explicitly it was aimed at shutting down government involvement in population control. So miab is quite right to say of the bill,

There's nothing in there about opt-outs or conscientious objection.

And all I can say is, but there's the title. As I noted, the bill's operative legal force is not its title. Even those convinced Bartlett is simply lying about what he's doing might think about why he'd think this a politically advantageous lie to tell.

Posted by: Don Herzog | Apr 12, 2005 3:06:39 PM


Posted by: Perseus

Speaking of odd statements: "Oh, I've got nothing against civil disobedience." The Hobbesian in me would say that there is nothing civil about disobeying the sovereign (though I'd add Locke's modification that sanctions revolution where absolute despotism is on the horizon). So, given the general "no whining" principle, why is civil disobedience uncivil in the case of taxation but civil in the other, unspecified cases?

Posted by: Perseus | Apr 12, 2005 4:02:46 PM


Posted by: Don Herzog

Perseus, I'm so sorry to hear that you're suffering a case of Hobbesianism. It's cognitively and politically disabling, not least because it masquerades as somber and hardheaded. I do hope you recover quickly.

If people want to make political statements of opposition to reigning practice by refusing to pay part or all of their taxes, if they think it a sensible strategy for addressing the majority and calling their attention to what they take to be a serious injustice, and they want to signal their general acceptance of the legitimacy of the regime and ground rules by patiently suffering the punishment, that's fine by me. It's like sitting in on lunch counters, or sitting in front of bulldozers about to break ground for nuclear power plants.

I don't think civil disobedients of the more traditional sort should be excused from punishment on the grounds that they have lofty motivations. Nor those withholding taxes. And in neither case do I believe that the fact of conscientious objection gives them a presumptive right not to obey the rules.

Posted by: Don Herzog | Apr 12, 2005 4:12:48 PM


Posted by: Terrier

The whole point of civil disobedience is to suffer the consequences. If there are no consequences then what are you disobeying? Don't pay your taxes but prepare for jail - that's civil disobedience. When they take you away don't whine about your incarceration. Point out why the law you are disobeying is unjust. Thoreau went to jail because he opposed the Mexican War. He said he was more free in jail than those outside.

And by the way, can someone explain to me how to prevent Eric Rudolph from bombing without coercing him in a way he considers immoral?

Posted by: Terrier | Apr 12, 2005 4:40:39 PM


Posted by: Perseus

My position is the same as that of Lincoln, who emphasized that even bad laws should be observed religiously, thereby excluding any notion of lovingly breaking the law. I suppose it's also fine by you when abortion protesters block entrances to abortion clinics (at least those willing to face the consequences). And with your easy-going toleration of such lawlessness, we have at least one minor cause of the large prison population that you lament. I'd also add that modern liberalism is likewise cognitively and politically disabling, and so wish you a speedy recovery as well.

Posted by: Perseus | Apr 12, 2005 5:11:02 PM


Posted by: Don Herzog

Lincoln thought Dred Scott should be respected as law but not as a "rule of political action," and if you peek behind the curtain his alleged reverence for law is, um, not all that reverent. And I suppose you know what was said then and has been said now about his treatment of habeas corpus during the war. And so on and on and on. Wholesale abstractions like "religious observance of the law" are fine if you want to content yourself with highly stylized pictures of political obligation, but decidedly unhelpful if you want to escape Sunday school and think about hard political dilemmas. Nor is this all a matter of lofty questions of justice and conscience. Perseus, do you jaywalk? Do you shudder in horror when your fellow citizens blithely jaywalk without a second thought? Do you worry that the republic is crashing down about you? I sure hope not.

It is in fact fine with me when abortion protesters hassle people going into clinics, though not when they literally block them, and I think the various Supreme Court opinions upholding injunctions and (in Colorado) statutes shutting down such protests are train wrecks.

Posted by: Don Herzog | Apr 12, 2005 5:16:01 PM


Posted by: Terrier

Perseus, I've been trampled by anti-abortion protesters as they stormed a clinic - that was not civil disobedience. The well-behaved ones that walked the public sidewalk with signs and occasional curse words were pleasurable in comparison. I'm not advocating civil disobedience - I pay my taxes tho they are transmuted into the treasures of Halliburton. if I thought that withholding my payment would shine a spotlight on our imperial adventures then I might be tempted. As far as the clinics go, it was my understanding that they were freed of protestors by imposing monetary damages. What's more libertarian than a free market? Also, I used to jaywalk when I worked in the city until the police started cracking down on it after several accidents. The last time I did it, a policeman blew his whistle at me and sternly shook his head and said "you don't want me to write you up for that do you?" I can't say that I felt either the iron fist of Stalin or the paternal wag of my father's belt - it seemed more like a brother offering friendly advice so I listened.

Posted by: Terrier | Apr 12, 2005 5:48:26 PM


Posted by: DJmatheso

It's fairly easy to argue that democracy is only an exercise in determining who has more sticks (I'm not familiar with Spooner, but I've heard as much elsewhere--"the franchise is force, naked and raw, the power of the rods and the axe."), but it's not too satisfying. There's also something to be said for the argument that all procedurally legitimate outcomes should be respected, but it fails to provide a point of view on whether the individual has an obligation of cooperation, or merely fear of reprisal.

I guess I jumped the gun when I asked about civil disobedience, but I thought Don's post lead naturally to Perseus' question, in which I am interested because I happen to draw this perhaps untenable distinction: it is illegitimate for me to dodge my taxes, but it's legitimate for me to block traffic with a sign and wait to be arrested. I'm not saying both shouldn't be punished, just that I view one as justifiable and respect it more than the other. (note that we only admire Thoreau for getting locked up because he didn't hide from the poll tax or plead penury, he flatly told the assessor/sheriff he wasn't going to pay it to make a point, and if they wanted to lock him up, go ahead--one might add that his tax was paid by his friends a day later, he wasn't exactly Mandela).

Does the communicative value of intentional lawbreaking that make it seem noble?

But clearly there's a limit. Nonviolence has generally been more respected not just becuase it's a nice thing to teach the 6th graders, but because, as Don points out, the mere willingness to pay high costs does not in and of itself justify an action.

Posted by: DJmatheso | Apr 12, 2005 6:24:20 PM


Posted by: Dan Kervick

I guess I jumped the gun when I asked about civil disobedience, but I thought Don's post lead naturally to Perseus' question, in which I am interested because I happen to draw this perhaps untenable distinction: it is illegitimate for me to dodge my taxes, but it's legitimate for me to block traffic with a sign and wait to be arrested.

If "legitimate" means "lawful", and the reference is to positive law, then we can say that it equally illegitimate to dodge one's taxes and to block traffic, since both are against the law.

But one might have different senses of "legitimate" and "illegitimate" in mind. May one be justified - acting legitimately - in breaking the law in some other sense, morally justified perhaps? I assume so, yes.

So perhaps a conscientious objector to contraception or war or incarceration or welfare or toll roads is considering withholding his taxes, or blocking traffic, as a way of publicly protesting government involvement in one of those activities, or simply as a way to diminish his feeling of personal involvement in the activity. May he do so? No uniform answer suffices, since it depends on the merit of his opposition to the activity he is protesting - and I suspect we will all find ourselves in disagreement about those merits. But if you feel that strongly about it, go ahead and disobey. But also expect those who support the law - presumably a majority - to prosecute you for violation.

It's hard to make any general statements about the nobility of acts of civil disobedience. We all have different moral sympathies; I am personally apt to view the war protestor more favorably than the abortion protestor, for example. Others would have exactly opposite sympathies. On the other hand, I do think that almost all of us view non-violent resistance to law more favorably than violent resistance, and so you may get broader concurrence across the moral and political spectrum on the nobility - or at least the absense of ignobility - of certain acts of non-violent civil disobedience.

And we may be able to admire, in some degree, the fortitude of a person who is protesting some activity through civil disobedience, and her willingness to endure hardships to press her case, even if we don't admire the politics or moral outlook that prompts the disobedience.

Posted by: Dan Kervick | Apr 12, 2005 7:13:43 PM


Posted by: Perseus

I don't think that the exceptional circumstances of Dred Scott & the Civil War are sufficient to demonstrate that Lincoln was particularly irreverent about law-abidingness (as Jaffa argues, Lincoln's membership in the tribe of the eagle is where his true irreverence may be found). And it is not obvious to me that the other examples provided constitute the sort of "hard political dilemmas" that would excuse departing from "Sunday school" notions.

As for jay-walking, I do shudder in horror while driving when my fellow citizens blithely jaywalk without a second thought because, as Terrier notes, that sort of behavior causes accidents. And while the republic may not come crashing down as a result of jay-walking, I do think (a la Wilson & Kelling) that we should be less nonchalant about such disorderliness.

Posted by: Perseus | Apr 12, 2005 8:01:18 PM


Posted by: Don Herzog

Oh my. How about jaywalking at 2am, with silent streets, no cars or pedestrians around?

Last I checked, citizens of California were forbidden to use a dishrag unless they had boiled it before use, and they had a duty to boil it after use. The law apparently survived from a nineteenth-century outbreak of cholera. Is it okay for citizens to wantonly violate it? or should they draw up short at the thought of themselves invoking the legal doctrine of desuetude and dutifully wait for their legislature to get around to repeal?

Posted by: Don Herzog | Apr 12, 2005 8:22:30 PM


Posted by: Perseus

In my part of SoCal, cars are driving around even @ 2am (and later), which explained my harsher attitude towards jay-walking (I can accept your exception). And funny you should also mention dishrags since I regularly (though not before and after each use) pour boiling water over or microwave my dish sponge to sterilize it (medical family background). But I am willing to accept citizens invoking the legal doctrine of desuetude. Just don't blame me if you get food poisoning.

Posted by: Perseus | Apr 12, 2005 9:42:32 PM


Posted by: Don Herzog

So your Lincolnian religious reverence for law permits 1/defying a Supreme Court decision on the lead political question of the day (Roe opponents will appreciate the license), 2/the president tossing people in jail and forbidding them access to the courts to challenge the action, 3/citizens to decide for themselves when laws are obsolete and no longer need be followed, and 4/citizens to decide for themselves that even if the law is usually worth following, in the particular setting they're in they can ignore it.

Hmm. —Oh! Perseus! Congratulations on your awfully speedy recovery from your Hobbesianism!

Posted by: Don Herzog | Apr 12, 2005 9:53:53 PM


Posted by: john t

Terrier, "lots won't be to your liking------no whining please;let's pitch in and get to work". No whining? Hardly sounds like a ringing endorsement of active dissent and disagreement on tax and spending to me. The overall thrust of the original post and the numerous ways the government finds to spend money was essentially grin and bear it. Or as Don H put it { again } "lots won't be to your liking". Just what did I miss? The references to C O's,well Bartlett's proposal has nothing to do with that and in any case Don H later says" forget the practical worries about how to administer a scheme of conscientious objection for taxws, I think the apparent ABSURDITY of conscientious objection in taxpaying is a REMINDER that we're all in this political business together". In other words Terrier it was a straw man argument to make a larger and to Don H ,more important point. Now go back to the first sentence of this post and tell me what I missed. Yeah,shut up and pay your taxes,no "whining". Not my word,his.

Posted by: john t | Apr 12, 2005 11:06:52 PM


Posted by: bakho

Abortion and lack of birth control are linked. The countries with the lowest abortion rates are those countries that have the highest use and availability of contraceptives. In countries where abortion is illegal, the abortion rate is still proportional to the availability of birth control. Bottom line: Making abortion illegal does not affect the abortion rate. Making birth control available and widely used greatly reduces the abortion rate. If you really want to reduce abortions, then promote birth control. This should be common sense.

Posted by: bakho | Apr 13, 2005 1:26:06 AM


Posted by: Perseus

I should clarify. I'm not a full-fledged Hobbesian, but I do like to invoke him (particularly when I'm around modern liberals) to criticize civil disobedience. In my view, civil disobedience is an untenable attempt to combine revolutionary and conventional political action that undermines the process of reforming the law and obedience to the law.

As for my Lincolnian reverence for law:

1) I would never apply the doctrine of desuetude to constitutions, and if a court rules that a law has become void by virtue of desuetude, no law was truly broken (likewise with an unconstitutional law). Ergo, no civil disobedience.

2) As Lincoln said in defense of tossing people in jail without the benefit of habeas corpus: "Are all the laws but one to go unexecuted, and the Government itself go to pieces, lest that one be violated?" This strikes me as revering the law in the extreme circumstances created by the utter lawlessness of secession, which is in principle no different from civil disobedience (compare Thoreau).

3) In what way did Lincoln defy the Supreme Court? The only way that Lincoln can be seen as defying the Court is if one accepts the proposition that the Court is the final arbiter of the meaning of the Constitution (i.e. judicial supremacy), which even Hamilton would have rejected out of hand. And I don't regard Roe as the equivalent of Dred Scott--even though I do regard Roe as an abominable piece of constitutional interpretation--since Dred Scott paved the way for secession.

Posted by: Perseus | Apr 13, 2005 5:14:19 AM


Posted by: Don Herzog

If you put the slightest pressure on "how did Dred Scott pave the way for secession?" you will find actors willing to disobey the law, for good and bad reasons alike, not a brute impersonal mechanism. If you actually want courts to be disciplined in their legal arguments by fear of bad consequences, you have a new recipe for irreverence toward law. Dred Scott was a disastrous opinion, but yours is an odd way of saying why.

But let's move it closer to the present, Perseus. Do you think it was wrong for aggrieved blacks to sit in at lunch counters where Southern law dictated racial segregation? I don't.

Posted by: Don Herzog | Apr 13, 2005 8:10:53 AM


Posted by: Terrier

john t, the point is this: if you oppose a particular activity of government then you might refuse to pay taxes to highlight that disagreement in the hopes of changing people's minds about it; if you oppose taxing then pack your bags and leave because anything you say about that will by definition be whining if you don't take the logical step of leaving. If you are an anarchist then be one, but don't expect me to give two hoots about it. I am a citizen. As I see it, there are two important components of civil disobedience: it must be 'civil', so this precludes violence, and by that I would include non-physical violence, for example, you shouldn't make threats on particular people or classes of people; and it must include a willingness to suffer the stringent application of the law you are disobeying in a public way, a protest that involved thousands of people jaywalking at 2 am would not make much of a point. Considering how the income tax works, withholding your taxes is clearly a not very effective form of civil disobedience. You could make an argument that it is not very civil because you would still be enjoying some benefits while refusing to pay any cost but more important is the fact that it provides no public display of enforcement.

Posted by: Terrier | Apr 13, 2005 9:44:06 AM


Posted by: john t

Terrier, The "point" seems to have migrated. I suggest you re read your 4/12 10:28am post and re read my 11:06pm response. More then that I can't and won't say. Thanks for the junior high school lecture on civics but I don"t need it. And one last thought,and I do mean last,you and a couple of others see anarchism under every bed.You could not find a thing I ever posted that would imply anarchy rather than a concern over big government. The constant use of that word highlights the futility of trying to reach some people.

Posted by: john t | Apr 13, 2005 12:03:18 PM


Posted by: Perseus

I mentioned the link between Dred Scott and the Civil War to argue that Dred Scott (an even more abominable Court decision than Roe) was a sui generis and thus deny Roe's opponents a "license" to imitate the more extreme tactics that Lincoln was forced to employ during the Civil War.

As for sitting at lunch counters during segregation, if the aim was to challenge the constitutionality of such laws, then I wouldn't find it objectionable. If, instead, it was simply an act of civil disobedience to protest those laws, I would find it objectionable.

Posted by: Perseus | Apr 13, 2005 6:01:32 PM


Posted by: D.A. Ridgely


The point of civil disobedience, as classically understood and justified by Gandhi and M.L. King, was to subject oneself to the consequences of intentional law breaking so as to stir the conscience of the population and convince it that the law is unjust and should be changed, constitutional or not.

I’m sure Perseus would want to qualify his Hobbesianism a tad, perhaps by arguing that one must be living in at least a fundamentally just society in order to have that obligation to obey even an unjust though constitutional law. Otherwise, he would find himself in the uncomfortable position of having to argue that when the storm troopers come knocking at the door demanding if any little Jewish girls are hiding in the attic, the right thing to do would be to tell the truth.

I conscientiously object to paying practically all of my taxes. Alas, the law does not afford me the opportunity to opt out, largely for the reasons Mr. Herzog urges. I think they’re bad reasons, but there you are. Conscientious objection, however, has little to do with civil disobedience except insofar as one might be morally driven to an act of civil disobedience on grounds of conscientious objection. Alas, also, I doubt my refusing to pay my taxes and thus going to jail would so stir the conscience of my fellow citizens to slashing them as I would prefer. Oh well, I live in hope.

By the way, I am often amused by comments about how Americans pay lower taxes than their European counterparts. While it is certainly true that the tax rate in Europe is generally much higher, it is also true that at least some Europeans consider tax fraud a national sport. I lived in Italy for several years and can testify at the incredulity of my Italian neighbors who heard we were actually paying certain provincial taxes they took great joy in evading. A cash-only black market flourishes for just about everything. Italian restaurants are required to give their customers a “fiscal receipt” (recivuto fiscale) and can be fined if they do not have it on them as they leave the restaurant. Of course, the point is not to fine them but to ensure that the restaurant pays its tribute to the state. Regular customers, however, routinely ask for an off-the-books receipt, the customer and the restaurant split the difference and everyone is happy. The Italian authorities know all about this and so they set the taxes rates far higher than they would need to if Italians were as, ahem, honest as Americans. It is one of the few differences where I can honestly say I wish we behaved more like them.

Posted by: D.A. Ridgely | Apr 13, 2005 8:02:39 PM


Posted by: Perseus

I did modify my quasi-Hobbesianism (a la Locke) as Mr. Ridgely suggests: I don't owe any obedience to a fundamentally despotic regime and may therefore revolt. (Herbert Storing's critique of King's civil disobedience is close to my view.)

I cannot, however, endorse tax evasion, although it is understandable in the social democratic nations of Europe where taxes are high and the corruption of the ancient order persists. But I suppose in keeping with the theme of this thread Mr. Ridgely deserves (tax) credit for being open, honest, and loving in his wish that Americans were more dishonest in their taxpaying.

Posted by: Perseus | Apr 13, 2005 10:10:51 PM


Posted by: Untenured Republican

OK, Don, you completely lost me on this one. Does Mr. Bartlett have anything to say about the relationship between conscientious objection and the payment of taxes? Not so far as I can tell. He seems to be saying, filled with hope, "me and mine are in the majority and will spend or decline to spend on what we damn well please, and if you in the minority don't like it, tough." In other words, Mr. Bartlett is your friend. Except, um, I have this weird suspicion that if given the chance you and he would vote differently on his bill. So? (I wouldn't know how to vote: less spending=good; stupid message=bad).

I saw something above about "lying." Well, that seems a bit strong. Spending priorities can be used to send moral messages (more to the point, can they avoid doing so?) Why should the word "conscience" be exclusively associated with conscientious *objection*? Would you feel better if he called it the "Legislating Morality, Just Like Everyone Else (Including Our Opponents) Does, Act"?

Posted by: Untenured Republican | Apr 14, 2005 6:01:34 AM


Posted by: Untenured Republican

In short, I have a somewhat different model of what the import of this sort of thing is. You see it as a wrong-headed attempt to provide some sort of escape clause for the minority on conscientious grounds from the fiscal will of the majority. I note that only the majority can get it enacted in the first place, so it *must* be nothing more than an expressive act *by* the majority, and hence not opting out of an attachment, but rather, creating one, say, between you and folks you may very well disagree with about contraception. I can see how the caption may have confused one, but I suspect that forgetting that, no, it is *you* who are in the minority these days, may have played some role as well (tweak).

Posted by: Untenured Republican | Apr 14, 2005 6:08:44 AM


Posted by: Don Herzog

Oh, us poor leftists, apparently so addled that we simultaneously grovel in petulant bitter misery at being Outs and continue our overweening fantasies of perpetual dominance. What's a guy to do?

But more serious: "legislating morality" is too crude a category to affirm or deny. The harm principle, however conceived, is a moral view, but it takes some moral issues out of the purview of the government (and society too). And so on.

Again if you breeze past the title to the bill, it's any old legislative measure on spending. I did Rep. Bartlett the courtesy of thinking that he chose the title to tell us something about the justification of the measure. And again if you think that was all pishtosh, you should wonder about why he'd think it politically advantageous pishtosh.

Posted by: Don Herzog | Apr 14, 2005 7:03:45 AM


Posted by: Untenured Republican

To be fair, I guess I'm in denial about you're point, though I sense it there, underneath my Freudian censor, peeking out. I can't quite focus on what it says it is because I'm overwhelmed by what it *actually* is. No, you're right, it *is* couched as if it was addressing a conservative majority that fancies itself in the minority (see? these delusions run both ways). I wonder how much politics in this country will change (changing the subject slightly) if these two reciprocal delusions I've alluded to ever *really* went away. For one thing, the Republican Party might actually start *scaring* people enough to lose, and the Democratic Party might get the fire in the belly it needs to start winning.

It's kinda funny, isn't it? "Don't let them liberals in Washington tell you how you can spend *your* money!" There are still liberals in Washington? Really? Hoodathunkit.

Posted by: Untenured Republican | Apr 14, 2005 7:41:10 AM


Posted by: Anthony

Mr. Bartlett is engaging in a bit of political deception, as most members of congress aren't likely to make the argument that by refuing to use tax funds to support contraception, the taxpayer is liberated to spend those funds on contraception or on other things besides contraception according to his conscience.

His bill is likely to fail, or be buried, even if the number of people in this country who believe contraception immoral approaches the number who believe abortion immoral. Why? Because abortion *is* a special case, as it involves an issue which some large part of the population consider homicide, if not murder. Pro-choice moderates might be willing to support a ban tax-funding of abortion for that reason, which would not hold true in the case of a ban on contraception funding.

The mirror image argument does hold - Congress is rather reluctant to authorize spending on real wars (as opposed to "peacekeeping missions" where it is arguable that we will be preventing more homicides than we cause). Imagine if Congress had the moral values and reverence for the lives of soldiers and foreigners which the Chinese Communist Party does. We would be restrained from warmaking only by pragmatic considerations of whether we could win, or afford, the war, not whether it was inherently wrong.

Posted by: Anthony | Apr 18, 2005 10:20:14 PM


Posted by: Harald Korneliussen

On a side note, I've read of some Quakers who manage to live below taxable income because they don't want to support the millitary in any way.

There's an important but unpopular distinction to be made in the legitimacy of civil disobedience - one Gandhi and Martin Luther King missed, btw. That is the basic fact that your conscience never forces you to one particular course of action. It only forbids certain actions. Gandhi didn't like the "passive" in pacifism, but it's there for a reason.

You may think (I do) that abortions are wrong, and this forbids you from having one, performing one or assisting in one. It does in no way force you to block the entrance to a clinic, that is creative, illegal and probably ineffective. I think it wrong on the second point.
However, if a law tries to force you to perform an abortion (and when the Norwegian abortion law was introduced 25 years ago, some people actually wanted that), then you are right to NOT do it, even if you end up in jail.

I believe this passive principle should be obeyed in all civil disobedience. Not filling a prescription is OK, keeping it to prevent them from getting it elsewhere - that's getting creative, and by no means demanded by conscience.

Another way to distinguish legitimate and illegitimate civil disobedience is instrumentality. Do you do your actions to achieve some end, or is it an end in itself? The quaker tax resisters I mentioned earlier don't have any illusion that their microscopic effect on the millitary budget will make a difference. Perhaps they think that their example makes a difference, but probably not. They do it because they feel it as a duty. The prescription grabber though, does something that her conscience forbids (holding on to something that isn't hers) in order to avoid a bad end result.

To sum it up: Those of you who say civil disobedience is never right may be correct as far as I know from a utillitarian perspective. But real CD, which Thoreau advocated, was always based on duty, not utility. Shame on Gandhi who made people forget the difference.

Posted by: Harald Korneliussen | Apr 19, 2005 4:28:40 AM


Posted by: arbitrary aardvark

"On a side note, I've read of some Quakers who manage to live below taxable income because they don't want to support the military in any way."
I am, most of the time, one of those.
(I am not quaker per se, but have ecumenical quaker-influenced beliefs.)
A conscientious objector program for taxpayers could be workable. It would formalize existing informal arrangements - millions of american file and pay no income taxes. Revenues might actually go up if there were that sort of escape value for people with genuine objections. My father was a CO during Korea - that didn't keep the war from happening. I am a vocal draft non-registrant. There are other stupid laws that I am quieter about breaking.
It is possible to raise children or animals without treating them as chattel, and I tend to be sceptical of people who would claim to be libertarians but view children as property without rights. www.tcs.org.
I am not claiming to be pure or uncompromising in my behavior, but I've drawn the line differently than many of you have, about how involved I want to get in a government that murders and oppresses people.

Posted by: arbitrary aardvark | Apr 19, 2005 3:53:28 PM


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