Zinn V. Fortas

Disobedience and Democracy, Nine Fallacies on Law and Order, by Howard Zinn; Vintage Books; 124 pages; $1.45.

When Abe Fortas put out his "little book" on civil disobedience earlier this year, it was only a matter of time until someone from the Left would step forward to challenge him. That Howard Zinn was the one who did is fortunate, for Zinn's new book, Disboedience and Democracy, Nine Fallacies on Law and Order, reveals at once some of the best and some of the worst of contemporary radical thinking.

The book is divided into nine chapters, each of which is a rebuttal to an aspect of Fortas' theory of civil disobedience. Zinn's best chapters are those which deal with Fortas' smug complacency over the role of the Supreme Court in contemporary American life:

How wonderful it is [Fortas writes in his book] that freedom's instruments--the rights to speak, to publish, to protest, to assemble peaceably, and to participate in the electoral process--have so demonstrated their power and vitality! These are our alternatives to violence; and so long as they are used forcefully but prudently, we shall continue as a vital, free society.

With this assurance, Fortas goes on to describe the role of the Court as that of "striking the balance between the state's right to protect itself and its citizens, and the individual's right to protest, dissent, and oppose." And, with extraordinary civil libertarian vigor, Fortas contends that the U.S. government "recognizes and has always recognized that an individual's fundamental moral or religious commitments are entitled to prevail over the needs of the state."

Confronted with this statement, Zinn devastatingly probes into some of the Court's recent decisions on draft protests and civil rights and finds Fortas' view of the Court as a balancer more than a little one-sided--in fact, hypocritical and patently untrue. The Court is not our stalwart friend and defender, as Fortas would have us believe. What the Court should be doing, Zinn then argues, is standing squarely on the side of the individual's rights, protecting him as best it can from the already stifling massiveness of the federal bureaucracy.

All of this, and much more in the book, is fine. But what is troubling is a question that Zinn raises in the first chapter, but never answers. Left unanswered, it seems to haunt and make slightly unreal all of the emotional energy of Zinn's attack on the Court and American society. If we justify one act of civil disobedience, he asks.

Must we not justify them all? If a student has a right to break the conscription law, does this not give the Klan the right to disobey the Civil Rights Act? There is a confusion here between the tolerance of all speech, and the tolerance of all actions. I would argue that all promulgation of ideas by speech or press whether odious to us or not, should be tolerated without distinction; that we, as citizens, should defend someone's right to speak stupidly (even while we expose that studidity), that whatever "harm" may come from bad ideas it is not irreparable. But as for actions, their result may be irreparable, and so we choose--to support beneficial acts, to oppose harmful ones.

Zinn's line of reasoning, although rhetorically effective, is deceitful; for his method is to raise the question, one of the critical questions in the book, and follow it with the obviously true statement (which even Fortas would support) that there is a difference between the right of free speech and the right of free action. Zinn tries to pass off this truism as the answer to his question--but it isn't.

The book's thesis, insofar as it relates to this question, is not only that the individual citizen has a duty to act on moral grounds, even if his action is illegal, but that the Court must respect this duty and uphold it. The Court, Zinn says, must "stand for the law sometimes, for justice always." This is an exciting, romantic, beautiful idea: that we might order our society on morality and so live together in peace. But Zinn has not carried his theory to its logical end. If he wants the Court to recognize his right to oppose laws (the draft laws), institutions (the Army), and conditions (poverty) in an illegal and sometimes violent way, he must also concede the Court's duty to respect the right of other individuals with different views of justice--the Chicago police, for example--to act according to their consciences.

Zinn's book, in this sense, is both beautfiul and terrifying. It is beautfiul, because it looks forward to the time when men will base their society upon morality, and justice will at last be united with the law. But it is terrifying as well, because the conditions of the 1960's are too angry, too hostile, too violent to let this work. Zinn is overreaching himself when he asks that the Court stand on his side when he breaks a law, no matter how immoral he may consider that law to be. As long as the law stands, the Court must find Zinn guilty. There is no choice.

What is frightening, in essence, about the book is that Zinn, like many of today's radicals, has involved himself so emotionally and so wholeheartedly in the fight for social justice that he is no longer able to stand apart from it, questioning.

Zinn has decided that he can ignore Oliver Cromwell's eloquent plea: "In the bowels of Christ, I beseech you, bethink you that you may be mistaken."