RIGHT & LAW: Can They be on Speaking Terms?
by Maurice Isserman

Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has every
Graphic: Unknown

man a conscience, then? I think that we should be men first, and subjects afterward. It is not desirable to cultivate a respect for the law, so much as for the right.
- Henry David Thoreau, "Civil Disobedience," 1849.

Politics, it is often said, is the art of the possible, and there lies the rub for many anti-war activists. We often find ourselves, at least temporarily, at odds with popular opinion and electoral majorities. Five years ago when the Iraq war began in a climate of public hysteria about terrorist threats skillfully manipulated by the Bush administration, it was the rare elected official from either party who joined ranks with the anti-war movement or supported our cause on the floor of Congress. To take an example unfortunately close to home, in October 2002 New York Senators Hillary Clinton and Charles Schumer both supported the resolution authorizing President George W. Bush to deploy United States armed forces against Iraq. Never has there been a clearer example of an instance where, in Thoreau's terms, respect for "the right" and obedience to "the law" were at greater odds. Senator Clinton's subsequent back-peddling on the issue of the war does not inspire renewed confidence in her principles or her leadership. The peace movement's traditional reliance on direct action tactics - from Henry David Thoreau's refusal to pay taxes in support of the Mexican War, to the draft resistance movement of the 1960s, and on to the marches, vigils and acts of civil disobedience that have followed the invasion of Iraq - has also reinforced a skeptical attitude among many anti-war activists regarding the value of electoral politics.

But in this election year it is useful to remember - and also to remind our elected officials - that in the past, courageous politicians have taken principled stands against reckless and unjust wars. Respect for "the right" and for "the law" are not inevitably at odds. Consider, for example, the stand taken by an obscure first-term Congressman from Illinois in 1846. Abraham Lincoln was one of a group of Whig Congressmen who regarded the war against Mexico as a land-grab on behalf of the slave-owning South. He voted against the declaration of war (as did former President John Quincy Adams, who served many years in the House of Representatives following his time in the White House), and continued to speak out against the war thereafter. Lincoln argued that the war was not simply an act of aggression against a neighbor who posed no real threat to the United States, but also undermined democracy at home. As he wrote to his law partner William H. Herndon back in Illinois on February 15, 1848:

Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion… and you allow him to make war at pleasure… If to-day he should choose to say he thinks it necessary to invade Canada to prevent the British from invading us, how could you stop him? You may say to him, "I see no probability of the British invading us"; but he will say to you, "Be silent: I see it, if you don't."

The provision of the Constitution giving the war making power to Congress was dictated, as I understand it, by the following reasons: kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This [the Constitutional Convention of 1787] understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.

"Liberation and Salvation"
In 1861, newly-elected President Lincoln had a war forced upon him by Southern secessionists. He fought to preserve the Union and eventually to free the slaves (and even some dedicated pacifists like abolitionist leader William Lloyd Garrison decided that the cause of emancipation made it necessary to support this particular war). Lincoln deeply believed in the Union cause, but he was careful in his public utterances not to confuse his own policies or the interests of the nation with that of God's will. As he noted in his second inaugural address, delivered just a month before his assassination in the spring of 1865, when war began between the North and the South four years earlier, both sides

"…read the same Bible and pray[ed] to the same God, and each invoke[d] His aid against the other. It may seem strange that any men should dare to ask a just God's assistance in wringing their bread from the sweat of other men's faces, but let us judge not, that we be not judged. The prayers of both could not be answered. That of neither has been answered fully. The Almighty has His own purposes."

Syracusans say “No Business As Usual” during war and occupation. Amber Coon, Richard Vallejo and Gary Bonaparte are arrested by Syracuse Police for blocking Salina St. on the 5th anniversary of the Iraq War, March 19, 2008. Photo: Michael Greenlar

Subsequent Presidents, alas, have not always been as scrupulous in distinguishing between the Almighty's purposes and their own. In the First World War, Woodrow Wilson proclaimed that Allied victory over Germany would bring the world "redemption," for "nothing less depends upon this decision than the liberation and salvation of the world." But 50 Congressmen and six Senators voted against Wilson's request for a declaration of war against Germany in April 1917, notwithstanding an atmosphere of public hysteria very similar to that we have witnessed in more recent days. Among those opposing Wilson was Senator Robert M. ("Fighting Bob") LaFollette of Wisconsin, a Republican and leading figure in the Progressive movement, who regarded the war as "senseless and useless." Former President Teddy Roosevelt denounced LaFollette as "a skunk who should be hanged," but LaFollette stood his ground, not only in opposition to the war, but in defense of the civil liberties of anti-war dissenters, many of whom were packed off to prison by the Wilson administration. In the aftermath of the "war to end all wars," many in the US decided that LaFollette had been vindicated by subsequent events, including the division of territorial spoils that followed among the victors (a redrawing of the imperial map that included British occupation of the newly-created state of Iraq in the 1920s, and the bloody suppression of the Iraqi resistance that ensued).

"Power and Virtue"
The threat posed by the spread of fascism and the Japanese attack on Pearl Harbor meant there would be little opposition to Franklin Roosevelt's request for a declaration of war on December 8, 1941. In the Korean War of 1950-1953 President Harry Truman never asked for a declaration of war, thus setting a precedent that would reshape the power of the executive to launch wars without formal congressional approval. By the time the war in Viet Nam became a major conflict in the mid-1960s, the tradition of anti-war opposition in Congress was at a low ebb. Only Senators Wayne Morse of Oregon and Ernest Gruening of Alaska voted against the Gulf of Tonkin Resolution in August 1964, which Lyndon Johnson used to justify his subsequent escalation of the war.

A coalition of radical pacifists, campus anti-war groups and civil rights advocates initiated the movement to oppose the Viet Nam War in the aftermath of the Gulf of Tonkin events. But they would soon be joined by dissenters in Congress. Senator J. William Fulbright of Arkansas, chairman of the Senate Foreign Relations Committee, came to regret his vote for the Gulf of Tonkin Resolution, and (unlike, say, Hillary Clinton) he redeemed himself with a clear, forceful and profound condemnation of the policies and attitudes that had led to the Viet Nam debacle. In 1966, he declared:

"...a great nation is particularly susceptible to the idea that its power is a sign of God's favor, conferring upon it a special responsibility for other nations - to make them richer and happier and wiser, to remake them, that is, in its own shining image. Power confuses itself with virtue and tends also to take itself for omnipotence. Once imbued with the idea of a mission, a great nation easily assumes that it has the means as well as the duty to do God's work."

Senators Eugene McCarthy, Robert and Ted Kennedy, George McGovern, Mark Hatfield and others would join Fulbright in opposition to American policies in Viet Nam. They would be reinforced in the House of Representatives by a group of Congressmen who owed their election to their opposition to the war, including Allard Lowenstein, Bella Abzug, Father Robert Drinan, Ron Dellums and others.

Radicals in the streets and liberals in Congress were often at odds in the 1960s and early 1970s, and there is no point in pretending otherwise. But with the passage of time it becomes increasingly clear that both contributed to the creation of a powerful, democratic revulsion against the war in Viet Nam. In the coming election year, let us keep our eye on "the right," as Thoreau would have us do. An independent and active anti-war movement is essential, but it also matters who sits in Congress and in the White House. And as things are shaping up as of this writing, this may prove a year in which we can bring "right" and "law" into being, at the very least, on speaking terms with one another.


Maurice Isserman teaches US history at Hamilton College in Clinton, NY. Among his books is America Divided: The Civil War of the 1960s, co-authored with Michael Kazin.