Law in Contemporary Society
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Why was John Brown disapproved by both his contemporaries and people today?

-- By WenweiLai - 17 Apr 2010

It is not the gospel truth that violence cannot be a justified means

All men are created equal, if you believe in the Declaration of Independence. However, in our class discussion about John Brown, it seemed that most people did not agree with his war against inequality. The reason provided by such people was pretty straightforward: because Brown used violence and caused casualties. A similar argument can be found in a Supreme Court judgment, Dennis v. United States (1951). This judgment upheld the Smith Act, which made it illegal to knowingly be a member of an organization that advocates the violent overthrow of the government: “whatever theoretical merit there may be to the argument, that there is a ‘right’ to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change.” Likewise, some scholars have argued that Americans had legalized revolution, substituting ballots for bullets. Therefore, the people in class might be the majority in the real world.

However, this viewpoint is by no means universally accepted as shown in class. In Scales v. United States (1961), Justice Douglas voiced his opposition in a dissent, citing Jefferson’s December 20, 1787 letter to Madison: “I own, I am not a friend to a very energetic government. It is always oppressive… No country should be so long without one (revolution)….” Douglas concluded that the most indifferent arguments are good when one has a majority of votes. In fact, a similar debate took place more than 200 years ago. Following the Independence, there were several armed rebellions against tax, causing way more casualties than Brown’s attack. There was evidence that a lot of people in that age did accept revolution as a legitimate means of protest, even though it was after the enactment of the Constitution. The above-mentioned letter by Jefferson is a good example. Therefore, the argument that violence should by no means be allowed and the democratic process should always be followed is far from the gospel truth.

The fact that John Brown failed cannot totally explain the phenomenon either

Then, why is Brown rejected not only his contemporaries but also by people in the twenty-first century, even though his caused was totally legitimate? A possible explanation is that revolutions are justified only when they succeed. The Americans and French people succeeded in 1776 and 1789 respectively, so we just celebrated Independence Day and Bastille Day this month. When a revolution fails, it is called treason. However, Brown’s revolution did not totally fail in a sense: not long after his death, the Fourteenth Amendment was enacted. Therefore, it is a little weird that Brown is still rejected today, even when his cause has more or less prevailed.

What’s more, Brown fared particularly badly even among criminals convicted of treason. After the Whiskey rebellion (a rebellion against tax on Whiskey enacted in 1791), only two among the twenty arrested rebels were convicted of treason, and they were all pardoned by President Washington. Fries was also pardoned by President Adams after his conviction of treason for his rebellion in 1799 against the tax for an expected war with France. In conclusion, there must be something other than violence causing people’s rejection and lack of sympathy toward John Brown’s struggle.

The establishment just don’t like people who would threaten their interests

John Brown’s rebellion was unique among all the above-mentioned rebellions in that it was a struggle on behalf of the minority against the majority. I pointed out in the previous version of this essay that because the majority don’t like violence, Brown’s attack may not be justified under the framework of civil disobedience set up by legal scholars. However, there is another possibility: maybe Brown was disapproved by his contemporaries and people in class simply because his deeds were against the interest of the people occupying the positions in the establishment then, and today.

To verify this viewpoint, we have to compare Brown’s “violent” revolution with a non-violent movement similarly waged by the minority against the establishment. If the non-violent movement is similarly disapproved by those in power (not only politically, but also socially and economically), then we can say that violence or non-violence is not the key. The movement that came to my mind was the movement in the 60s. In 1968, Justice Abe Fortas published a book, Concerning Dissent and Civil Disobedience, arguing that civil disobedience must be limited to laws that are themselves wrong. According to this opinion, almost every form of civil disobedience would become unjustified; when you burn the flag to protest a war, you are not violating the law that is itself wrong.

When was 1968? It was when the anti-war movement was at its height and King was assassinated. Who was Abe Fortas? He was Lyndon Johnson’s close friend who co-wrote Johnson’s State of the Union speech. Fortas’ opinion, to a degree, represented the people in power. As Howard Zinn put it, “…poverty, racism, war are held sacrosanct against civil disobedience by Fortas’ rule. For exactly those conditions which require the strongest of protests, citizens are deprived of the strongest of weapons. The Fortas rule guarantees that civil disobedience will never touch the most vital beams of our social system, however decayed they may be.”

Thus, the disapproval of John Brown was not due to the “violent” character of his attack; the non-violent protests were treated in the same way. Rather, such resistance to push for change was out of fear. The people in power were afraid that they might lose the right to exploit the underprivileged and suppress different voices. They should not enjoy the right in the first place.

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