The political
thinker and Irish Member to the British Parliament Edmund Burke once famously
declared the duty of a legislator as between being a delegate and doing what constituents
demand versus serving them by exercising one's best judgment. But there is at least another duty that
legislators have and that is a legal if not an ethical duty to comply with
their own laws and to support the government they were elected to serve.
The importance of stating this
duty asks under what occasions, if any, are members of Congress permitted to
disobey a law as a matter of conscience?
This is the question posed by House Republican efforts to repeatedly defund
the Affordable Care Act (ACA or Obamacare) and force a partial governmental
shutdown. In effect, do legislators have
a right to disobey and obstruct a law they do not support? Do they have a right to civil disobedience? While in general civil disobedience is an
important act to test the constitutional values and justice of a society, this
is not an option open to members of Congress, at least on this issue and for
the reasons Republicans give.
The relationship between law,
justice, and civil disobedience has a long history in the west. Sophocles' Antigone tells the story of a woman who buried a deceased brother
in defiance of the king Creon who ordered her not to do so. Her decision to defy was premised, in part,
upon concepts of justice and religious
grounds, contending that her duty to disobey rested upon a higher law from the
gods. Similarly, Socrates’ trial and
defense of his philosophizing invoked a duty to a higher law that justified
defiance of human law. St. Augustine was one of the first Christian writers to
argue that human laws that are unjust really are not laws. St. Thomas defined a legal tradition that
declared that human law must conform with God’s natural laws of justice,
inspiring a generation of political theorists including John Locke who
articulated a right to revolution against governments that violated natural
rights and laws. In all of these cases,
civil disobedience invoked as an appeal to some higher law or rules of justice
that dictated defiance of the law.
The United States as a country is
a product of civil disobedience. The
dumping of tea into the Boston Harbor in 1773 and the 1776 Declaration of
Independence were acts of civil disobedience, providing the case for why some
laws were unjust and should be ignored or defied. The abolitionists, including Henry David Thoreau and John Brown,
so disliked slavery or the Fugitive Slave Act that defiance, going to jail, and
even violence were viewed as proper acts of conscience. And then of course Rosa Parks, Martin Luther
King, Jr., and the many African-Americans who protested segregation by sitting
at “Whites' only” lunch counters or who crossed the Edmund Pettus bridge also
felt civil disobedience was an appropriate stance to take to challenge laws
that thought were wrong. In all of these
cases, appeals to personal conscience, personal morality, or to religious or
other values dictated the choices of individuals to defy the law. But the question is, do legislators have this
same right? May they defy a law they do
not support? Do they have a right to
shut down the government?
Think first about the right of
individuals to engage in civil disobedience.
Political theorist John Rawls argued that civil disobedience has a
constitutional role in a just society.
It is an appeal to the shared values of a community, aiming to persuade
a majority that it is wrong. Civil
disobedience is not an appeal to political expediency or self-interest. It is
not a legal right, but an appeal to justice.
Citizens have a general duty to obey the law, but in some cases some
feel that the law is wrong and must defy it.
But they do so first with the aim of changing the law and second,
cognizant that they face legal retribution for their defiance. The act of civil disobedience has the
potential to change the law because one is willing to go to jail or be punished
for one’s act.
But private citizens are
different than legislators and they may have less right to defy laws they
dislike. First, members of Congress not
only have a general duty to obey the laws they have authored, but they have taken
an oath of office to obey the law. This
current oath commands members of Congress to defend Constitution, accepting
this obligation freely, without reservation, and with the help of God. Such an oath imposes on them a special
duty-above and beyond that of a private citizen—to obey laws. Does that mean congressional members have no
recourse to object to laws they dislike?
Of course not. They can move to
repeal the laws they dislike. House
Republicans have tried that 40 plus times when it comes to Obamacare. The power to legislate and change laws gives
them a tool that mere citizens lack.
While one can question the political reasons or wisdom for repeated
votes to repeal the ACA, do that is the right of legislators.
But there is a difference between trying to
repeal a law one does not like and defying it.
This is what House Republicans are doing in seeking to defund Obamacare,
pushing the government in to a partial shutdown, and perhaps risking a default
on America’s debts come October 17. For
good or bad Obamacare is the law of the land—it has not been repealed and it
has not been declared unconstitutional.
Members of Congress are under a legal and moral duty to fund laws and
programs that they have authorized, even if personally they voted against the
laws. One of the most basic principles
of American democracy is majority rule.
Majorities get their way so long as they do not violate the
constitutional rights of minorities.
Majority rule settles decisions until such time as a majority reaches a
different conclusion. Similarly, majority rule is the rule of Congress. At some point votes and elections have
settled issues and it is time to move on.
This is the case with Obamacare.
Moreover,
Republican efforts to defund Obamacare are not premised upon shared constitutional
values or principles of justice. The
decision is based on dislike of the law, Obama, or government in general. Or it is based on political
expediency--appealing to what their constituents want or what will appeal to
their electoral base--and not on a sense of higher justice. Or perhaps it is based on private conscience or belief that the law is
wrong. All these may be great reasons to
seek to repeal the law, but they are not proper grounds for refusing to perform
one's specific duty to support a law that has been legally adopted in a
democratic society. Contrary to what she
make think, Congresswoman Michele is not Rosa Parks--her reasons for opposing
Obamacare are not based on appeals to justice and higher laws, but instead on
personal and political expediency.
In
general members of Congress do not have a right of civil disobedience to oppose
laws they have a duty to uphold. They
are not like ordinary citizens exercising the right of civil disobedience. Finally, legislators who object to the ACA do
not have a right to defund Obamacare and hurt the rest of the country with a
government shutdown. In doing that they
are not facing legal retribution for their actions as would ordinary citizens
face by defying the law. These members
of Congress are taking a political stand, not an ethical one, and they do not
have the right to do that.
Interesting post. Would you see a distinction between an act of personal civil disobedience (say, if a congressperson joins some anti-ACA sit-in at a government office, or refuses to obtain health insurance in defiance of the ACA requirement) and acts that use the powers of elected office (such as the current situation)?
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