FIGHTING BACK

Libertarian Essays on Resisting the State By C.R. Clark, II

East Boston, Massachusetts 2010

Author: Clark, C.R., II First edition, 2010 ISBN 978-0-557-45574-4

The author hereby releases the following work into the public domain. In the event that this is not possible, the author grants the reader a nonexclusive license to use, reproduce, and distribute this work, in whole or part, for any purpose whatever.

TABLE OF CONTENTS

Part I: Jury Nullification An Essential Feature of Trial by Jury Introduction Origins & History of Trial by Jury Juries in Colonial America and the Early United States Decline of Jury Nullification in America Nullification Today The Argument for Jury Nullification 2 5 13 27 32 35

Part II: Render What to Whom? Tax Resistance as Civil Disobedience Introduction Tax Resistance, War, and Conscience Assessing the Legitimacy of the Tax Resister Relationship to Civil Disobedience Conclusion 39 42 46 53 58

Part III: Fighting Back Analysis of Two Types of Forcible Resistance to the State Introduction 62 Natural Law vs. Positive Law, and Other 67 Theories of Rights Libertarian Ethical Analysis of Individuals and 74 the State Defense Against Excessive Force 84 Resisting Unlawful Arrest 88 Conclusion 100

Part I Jury Nullification
An Essential Feature of Trial by Jury

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Chapter 1 INTRODUCTION According to Black’s Law Dictionary, the term “jury nullification” refers to “a jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.”1 This power of the jury to nullify the positive law as a matter of conscience has been an important but controversial feature of the petit jury for hundreds of years. Since the middle of the nineteenth century, the rise of complex rules of evidence and the regular use of formal, detailed jury instructions have changed the role of the American trial jury significantly. The shift towards a more limited, factfinding role for the trial jury reflects both a distrust of jurors as discerners of both law and fact and a desire for uniform application of the law.2
“Jury nullification.” Black’s Law Dictionary, 3rd Pocket Edition. Bryan A. Garner, ed. St. Paul, MN: Thomson-West, 2006. p. 399. 2 Hall, Kermit and Peter Karsten. The Magic Mirror. Second Edition. New York: Oxford University Press, 2009. p. 115.
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However, many legal theorists have protested that the limitations on jury discretion have encroached on the jury’s essential function as a community rampart against the arbitrary or malicious application of state power. Despite the greater restrictions on the types of evidence that are admissible and the narrow bounds of jury instructions, examples of jury nullification may be found throughout American history, and arguably determined the result of such sensational modern trials as those of disgraced politician Marion Berry and former professional football star O.J. Simpson.3 Debate continues on the merits of jury nullification, with a number of scholars calling for jury nullification as an appropriate means for achieving social ends ranging from racial justice, 4 to

Parmenter, Andrew. “Nullifying the Jury: ‘The Judicial Oligarchy’ Declares War On Jury Nullification.” Washburn Law Journal. Vol. 46, p. 379. Winter 2007. p. 379, n7. 4 Butler, Paul. "Racially Based Jury Nullification: Black Power in the Criminal Justice System." Yale Law Journal. Vol 105, p. 677. 1995. p. 711.
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the diffusion of political power,5 to the restraint of centralized government.6

Ostrowski, James. "The Rise and Fall of Jury Nullification." Journal of Libertarian Studies. Vol. 15, No. 2. pp. 89–115. Spring 2001. p. 113. 6 Barnett, Randy E. Restoring the Lost Constitution: The Presumption of Liberty. Princeton, NJ: Princeton University Press, 2004. p. 266.
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Chapter 2 THE ORIGINS AND HISTORY OF TRIAL BY JURY Henry II, an Angevin king who ruled England from 1154 to 1189, instituted an ambitious series of legal reforms during his long reign. He is credited with being first to utilize “a permanent court of professional judges, frequent regularized missions of itinerant judges… and use of the ‘original writ’ as a regular part of the machinery of justice.” 7 When he founded the Assize of Clarendon in 1166, Henry II introduced an early form of inquisitorial jury to the English legal system. 8 The act let it be known that: King Henry ordained on the advice of all his barons, for preserving peace and maintaining justice, that inquiry be made through the several counties and through the several hundreds by twelve more lawful men of the hundred and by
Benson, Bruce. The Enterprise of Law. San Francisco, CA: Pacific Research Institute, 1990. p. 51. 8 Id.
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four more lawful men of each vill, upon oath that they will tell the truth, whether in their hundred or in their vill there is any man cited or charged as himself being a robber or murderer or thief or any one who has been a receiver of robbers or murderers or thieves since the lord king was king. And let the justices inquire this before themselves and the sheriffs before themselves.9 Although the new jury system regularized the process of lodging a criminal complaint, until 1215 a party’s being accused by an English jury meant he was subject to a trial-by-ordeal. A major procedural innovation for England, the inquisitorial jury was introduced as part of a Henry II’s broader, fiscally motivated rearrangement of the legal system. In order to expand the royal revenues, the king’s court usurped many functions previously carried out by county and hundred courts, with ministers of the exchequer being dubbed “justices”
“Assize of Clarendon, 1166.” Internet Medieval Sourcebook. Fordham University. Retrieved 24 January 2009.
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by 1165.10 Henry II’s juries were mechanisms for supporting and directing the exercise of his authority, rather than meaningful checks on the power of the sovereign, and were introduced by the king as an attempt to legitimize his use of itinerant judges—themselves means of centralizing authority under his control.11 Jury trials had been previously used, if sporadically, to resolve legal disputes by the Frankish and Norman legal systems,12 had some common features with the Anglo-Saxon dooms,13 and included many characteristics and procedural assumptions that may have descended from the Islamic Lafif system.14 The legendary eighteenth century English commentator William Blackstone credited the Magna Carta of 1215 with guaranteeing the Englishman’s right to trial by jury:

Benson at 51. Id. at 53. 12 Makdisi, John A. “The Islamic Origins of the Common Law.” North Carolina Law Review. Vol. 77, pp. 1635–1739. June 1999. p. 1678. 13 Id. at 1679. 14 Id. at 1638.
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The trial by jury, or the country, per pariam, is that trial by the peers of every Englishman, which, as the grand bulwark of his liberties, is secured to him by the great Charter: nullus liber homo capiatur, vel imprisonetur, aut exulet, aut aliquo alio modo destruatur, nisi per legale judicium parium suorum, vel per legem terra.15 At the time of the Great Charter, however, the people of England were wary of the jury, whose static membership, dual roles as accuser and factfinder, and predictable guilty verdicts made it appear to be little more than a dangerous puppet of the king. Another obstacle—an economic one— delayed the widespread acceptance of and cooperation with these early jury trials. A felony
Blackstone, William. The Student’s Blackstone: Commentaries on the Laws of England, in Four Books. Robert Malcolm Kerr, ed. London: John Murray, 1869. p. 552. (“No freeman shall be arrested or imprisoned or disseised or outlawed or exiled or in any other way harmed. Nor will we [the king] proceed against him, or send others to do so, except according to the lawful sentence of his peers and according to the Common Law.”)
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conviction from a jury would result not only in the accused’s execution but also in the forfeiture of his property to the king, whereas “[d]eath under hard and severe pressure meant that he was not convicted and his property went to his family.”16 Whether or not a party was found guilty, the king got his due: a guilty defendant would be executed or exiled and have all his goods confiscated, while a losing plaintiff would be amerced for lodging the unmeritorious complaint.17 To insure the king’s profits, a victim who successfully sought restitution from an aggressor before presenting the tortfeasor to a king’s justice could himself be criminally prosecuted for his failure to offer the crown first share of the spoils.18 The expansion of offenses known as “crimes”—defined as “violating the king’s peace”— under Henry II’s twelfth century reign meant that England’s sovereign would be keeping his courts busier than when cases before the court were almost exclusively between private parties.19 The increasing number of cases where individuals stood accused by
Benson at 59. Id. at 53. 18 Id. at 62. 19 Id.
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the government for crimes against the state spurred the recomposition of the jury so as to include randomly chosen men from neighboring communities. This drawing of jurors from the freemen in local communities became a matter of constitutional right for Englishmen.20 This development increased the popular acceptance of jury trials as not-guilty verdicts became more common, but the jury’s role throughout the thirteenth century was still dominated by its “witness-bearing” responsibilities.21 The roles of grand jury and petit jury were not made distinct until the mid-fourteenth century.22 Despite the drawing of jurors from the community, juries were not always free to render verdict according to their consciences. Jurors in both civil and criminal cases were subject to liability for displeasing the authorities with their testimony and verdicts. “In civil cases, as ‘witnesses,’ they were subject to being punished for perjury, known as ‘attaint.’ In criminal cases, the Star Chamber could
Spooner, Lysander. “Trial By Jury.” The Lysander Spooner Reader. George H. Smith, ed. San Francisco: Fox & Wilkes, 1992. p. 235. 21 Benson at 59. 22 Id.
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punish them for bringing a ‘false verdict,’” an offense for which jurors were imprisoned by the infamous court for six months in the treason case of Sir Nicholas Throckmorton in 1554.23 Such authoritarian control of the jury did little to promote the image of the jury as an independent community organ protecting Englishmen against the predations of the sovereign. In 1628, Chief Justice Edward Coke “declared that judges do not decide questions of fact and juries do not decide questions of law.” 24 The scope of the jury’s authority was enhanced, however, as a result of Bushell’s Case, a landmark 1670 dispute which was initiated by the habeus corpus petitions of jurors who were imprisoned after having refused to convict Quaker William Penn of unlawful assembly for his dissident religious gatherings. In his decision, Court of Common Pleas Chief Justice Sir John Vaughan “declared that the jury determines the law in all matters decided by a general verdict, and forbade judges from punishing jurors for returning a verdict [with which the judge
Ostrowski at 90. Alschuler, Albert W. “Jury Trial.” Heritage Guide to the Constitution. Edwin Meese, ed. Washington, D.C.: Regnery Press, 2005.
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disagreed].”25 His opinion characterized the jury’s authority broadly and promised a shield for jurors against punitive action by vindictive judges whose instructions had been disregarded. Vaughan reasoned that without the freedom afforded by protection from imprisonment and fines jurors would cease to be useful in the administration of justice.26 The decision sparked a frenzy of pamphleteering by excited advocates of this freshly enunciated right of the juror to ignore the judge’s opinion of the law and to exercise his conscience.27 By 1730, London jurors would customarily receive instructions from the judge but were free to disregard these instructions and conduct themselves as their consciences dictated.28 This latitude for jurors finally overcame the distrust for juries among the people, who by then had come to see juries as a safeguard against royal judges.29

Parmenter at 382. Ostrowski at 91. 27 Parmenter at 382. 28 Benson at 67. 29 Id. at 70.
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Chapter 3 JURIES IN COLONIAL AMERICA AND THE EARLY UNITED STATES The trial and acquittal of American journalist John Peter Zenger in 1735 is an instance of jury nullification which is notable for the role it played in the rise of the independence movement in America. Zenger was charged with seditious libel after publishing unflattering remarks about New York’s colonial governor, William Cosby.30 The doctrine of seditious libel in the common law allowed, ...the Assembly as well as the governor-and-Council [to] summon and invoke criminal penalties against anyone who it decided had impeached its behavior—or had traduced its honor or affronted its dignity. These were all seditious scandals against the government
Hall, Kermit, Paul Finkelman, and James Ely. “The Zenger Trial.” American Legal History. Third Edition. New York: Oxford University Press, 2005. p. 75.
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and punishable as a breach of parliamentary privilege.31 Zenger’s attorney, Andrew Hamilton, drew from Trenchard and Gordon’s Cato’s Letters the theory that truth should be a defense to libel. The idea that a jury should decide both the law and the facts in seditious libel cases was first asserted in America in 1692 by William Bradford, the first person tried for seditious libel in the colonies. 32 The customary distribution of authority in a seditious libel case was for the judge to make a legal determination that statements were indeed libelous and for the jury to determine whether the accused had, in fact, published them.33 Bradford’s trial had ended in a jury deadlock, a result which was followed by the acquittal of seditious libel defendant Thomas Maule on religious freedom grounds in Massachusetts in 1696.34 In the Zenger case, Hamilton, aware of the public grumblings against the heavy handed rule of the British, and despite the
Rothbard, Murray N. Conceived in Liberty. Volume II. Auburn, AL: Ludwig von Mises Institute, 1999. p. 145. 32 Id. at 151. 33 Hall, Finkelman, and Ely at 75. 34 Rothbard at 151.
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judge’s instructions that “[a] libel is not to be justified; for it is nevertheless a libel that is true,” successfully urged the jury to exercise its right “beyond all dispute to determine both the law and the fact…” and to judge for themselves whether or not truth was rightly a defense against the charge before them. 35 Although no formal precedent was set by the jury’s exercise of its power to nullify the unjust law, the Zenger trial became an important historical event that influenced jurors and lawmakers for years. In 1771, John Adams described as “an absurdity” the notion that “the law would oblige [jurors] to find a verdict according to the direction of the court, against their own opinion, judgment, and conscience.” Adams believed of the empanelled juror that “[i]t is not only his right, but his duty, in that case, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”36 However, the British authorities, already thwarted by local, colonial juries’ regular acquittal of smugglers, had taken action to suspend or alter
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Hall, Finkelman, and Ely at 76–77. Alschuler at 350.

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jury trials for certain offenses, especially as Britain came to depend more heavily on revenue collection from its American possessions. The Navigation Act of 1696 created vice-admiralty courts to “circumvent the tendency of American juries not to convict smugglers.”37 It was enacted by Parliament, that whenever offences should be committed against the acts… the prosecutor might bring his action for the penalty, in the courts of admiralty, by which means the defendant lost the advantage of being tried by a jury, and was subjected to the necessity of having his case decided upon, by a single man, a creature of the crown, whose salary was to be paid out of forfeitures, adjudged by himself.38 Thus, those who attempted to evade the king’s revenue agents would be tried not by a jury of
Rothbard at 206. Ramsay, David. The History of the American Revolution. Volume One. 1789. Indianapolis: Liberty Fund, 1990. p. 45.
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sympathetic fellow colonists who had felt the sting of the rising duties, imposts, and excises, but instead by a judge who had a financial incentive to find the defendant guilty and to abscond with a share of his property. Furthermore, the parliamentary enactment shifted the burden of proof for such violations from the accuser to the defendant.39 All of these innovations for the purpose of fattening the royal revenues angered the colonists, especially in light of the promises in the various colonial charters that “the emigrants to America should enjoy the same privileges, as if they had remained, or had been born within the realm.”40 To the colonists, one of the chief virtues of the English common law had been that it, at least in theory, required the concurrence of the people for government action. 41 The jury room provided an important opportunity to provide or withhold such consent. “Juries are taken, by lot or by suffrage, from the mass of the people, and no man can be condemned of life, or limb, or property, or reputation, without the concurrence of the voice of the people.”42
Id. Id. at 51. 41 Id. at 49.
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The right not to be deprived of liberty or property except after a trial before a jury drawn from all the freemen in the community was a right that was thought essential enough by the revolutionaries for them to list the deprivation of it as a major cause for the secession that was declared in the Declaration of Independence. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world… He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknow-ledged by our laws; giving his Assent to their Acts of pretended Legislation: … For depriving us in many cases, of the benefits of Trial by Jury: For
Sparf v. United States, 156 U.S. 51, 143 (U.S. 1895) (J. Gray, dissenting)
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transporting us beyond Seas to be tried for pretended offences.43 George Mason and Patrick Henry in particular were insistent that justice required that an accused be tried before a local jury. 44 Later, this right was acknowledged in the Sixth Amendment to the United States Constitution, which states that “[i]n all criminal prosecutions, the accused shall enjoy the right to a… trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.45 Thomas Jefferson was vehement about the accused’s right to a trial before a lawfully composed jury because Jefferson distrusted judges, and juries served to limit the scope of the judicial authority that might be wielded to the detriment of liberty. He was so suspicious of magistrates that he said it would be better to leave a legal case’s resolution to a game of chance than to leave it to a biased judge. “In truth, it is better to toss up cross and pile in a cause, than to refer it to a judge whose mind is warped by
Jefferson, Thomas. Declaration of Independence. 1776. Alschuler at 350. 45 The Constitution of the United States, Amendment 6.
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any motive whatever…. But the common sense of twelve honest men gives still a better chance of just decision, than the hazard of cross and pile.”46 Because Jefferson believed that the jury would be more likely to yield a just decision than a professional judge, he also argued that the jury should be the judge of both fact and law, especially where the public liberty was in peril.47 He was joined in this belief by many luminary jurists in the fledgling American republic. In 1794, John Jay instructed a jury that, ...on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be recognized that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy… [b]oth
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Ostrowski at 99. Id.

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objects are lawfully, within your power of decision.48 Alexander Hamilton took the position that “in criminal cases, the law and fact being always blended, the jury, for reasons of a political and peculiar nature… is entrusted with the power of deciding both law and fact.”49 In 1807, while presiding over the Aaron Burr treason trial, another chief justice, John Marshall, expressed his view that juries possess the authority to judge both law and fact: Levying of war is a fact which must be decided by the jury. The court may give general instructions on this as on every other question brought before them, but the jury must decide upon it as compounded of fact and law… The jury have now heard the opinion of the court on the law of the case. They will apply that law to the fact, and will find a verdict of guilty or not guilty
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Id. at 98. Id.

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as their own consciences may direct.50 The proper domain of juries and judges remained a point of fierce contention throughout the nineteenth century, but the trend towards the formal acceptance of jury nullification slowed as revolutionary distrust of government died out along with members of the revolutionary generation.51 No doubt remembering the lauded result of the Zenger trial, a New Jersey constitutional provision that was approved by voters in 1844 required juries to judge facts and law in libel cases. 52 Boston abolitionist Lysander Spooner, who favored jury nullification of fugitive slave laws as a peaceful, grassroots strategy for effecting the escape of slaves,53 argued in his 1852 treatise, Trial By Jury, that “all this ‘trial by country’ would be no trial at all ‘by the country,’ but only a trial by the government, if the government could either declare who may, and who may not, be
Id. at 105. Alschuler at 350. 52 Hall and Karsten at 115. 53 Smith, George H. “Introduction.” The Lysander Spooner Reader. George H. Smith, ed. San Francisco: Fox & Wilkes, 1992. p. xv.
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jurors, or could dictate to the jury anything whatever, either of law or evidence, that is of the essence of the trial.”54 Spooner did not merely favor abolition of slavery, but of all involuntary social arrangements, including that of despotic governments with their subjects. In Spooner’s view, the right to trial by a lawfully assembled jury was a practical, legal means for effecting political change, because, ...any law, which does not… obtain the unanimous sanction of twelve men, taken at random from the people, and judging according to the standard of justice in their own minds, free from all dictation and authority of the government, may be transgressed and resisted with impunity, by whomsoever pleases to transgress or resist it. The trial by jury authorizes all this, or it is a sham and a hoax, utterly worthless for protecting the people against oppression…. If it [does] not
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Spooner at 123.

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authorize individuals to nip tyranny in the bud, it does not authorize them to cut it down when its branches are filled with the ripe fruits of plunder and oppression… [W]here there is no legal right to resist the oppression of the government, there can be no legal liberty.55 Spooner explained that the threat of revolution would not alone satisfactorily restrain government from tyranny because, “the right of revolution… is of no practical value except for those who are stronger than the government. So long, therefore, as the oppressions of a government are kept within such limits as simply not to exasperate against it a power greater than its own, the right of revolution cannot be appealed to....”56 Neither did Spooner believe the internal checks and balances of the government to be adequate to restrain it from tyranny, and he argued that widespread suffrage was insufficient to dissuade politicians from tyrannical policies. Spooner said of suffrage that,
55 56

Id. at 128. Id. at 129.

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It can be exercised only periodically; and the tyranny must at least be borne until the time for suffrage comes. Besides, when the suffrage is exercised, it gives no guaranty for the repeal of existing laws that are oppressive, and no security against the enactment of new ones that are equally so. The second body of legislators are liable and likely to be just as tyrannical as the first. If it be said that the second body may be chosen for their integrity, the answer is, that the first were chosen for that very reason, and yet proved tyrants.57 Unlike voting for a democratic representative, the juror who chooses to nullify an unjust law undertakes a course of conduct which is immediately effective at binding the power of the state. Rather than pinning his hopes for the maintenance of liberty on the good will of a
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Id. at 126.

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majority of voters and the honesty of power-seeking politicos, Spooner advocated the individual juror’s right to exercise his conscience in the jury room, time after time, for as long as the people could persist in so resisting. “Practically speaking, no government knows any limits to its power, except the endurance of the people.”58

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Id. at 131.

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Chapter 4 THE DECLINE OF JURY NULLIFICATION IN AMERICA Despite the vigorous defense offered by Spooner and others advocates of jury nullification, the sentiments of the American legal community, attracted by the presumed efficiency and greater predictability of uniform laws,59 began to move towards a clear division of labor between jury and judge, with the jury serving only as fact-finder and the judge having full authority to instruct the jury as to the law. In 1895, the U.S. Supreme Court issued a lengthy opinion in Sparf v. United States, the precedent most responsible for limiting the scope of the modern jury’s authority to fact-finding only. The question in Sparf was whether or not a jury might find a defendant guilty of a lesser included charge, manslaughter, despite the trial judge having found no evidence to support such a charge. 60 In holding that there exists a “duty of the jury to receive the law from the court,”61 Justice Harlan indicated his doubts about the authenticity of the
Hall and Karsten at 115. Ostrowski at 102. 61 Sparf v. United States, 156 U.S. 51, 63 (U.S. 1895).
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1794 jury instruction given by John Jay. “If the chief justice said that it was the province of the court to decide questions of law, and the province of the jury to decide questions of fact, he could not have said that the jury had the right, in a civil case, to judge of and determine both law and fact.” 62 Harlan also objected that John Marshall’s verbiage from the Burr trial did not really support the jury’s having the right to judge both law and fact: The language of the Chief Justice plainly imports that while the jury must of necessity often pass upon a question, “compounded of fact and law,” their duty, when considering the evidence, was to apply the law, as given by the court, to the facts proved; and, thus applying to law, return a verdict of guilty or not guilty as their consciences might direct. If he had believed that the jury were entitled, of right, whatever might be the views of the court, to determine for themselves
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Id. at 64–65.

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the law of the case, it is impossible that he could have said that “they will apply that law”—the law as he declared it to be—“to the facts.” On the contrary, he observed that the province of the jury was to determine whether the accused was guilty or not guilty, according to his statement of the law as applied to the evidence.63 Harlan feared that approval of jury nullification would lead to lawlessness that would endanger the public. “Public and private safety alike would be in peril, if the principle be established that juries in criminal cases may, of right, disregard the law as expounded to them by the court and become a law unto themselves.”64 In his lengthy dissent, Justice Gray reviewed legal precedents going back to the Magna Carta to support his argument for a broader jury authority.65 Because the Sparf murder case presented a question of life or death, Gray thought that the
Id. at 67. Id. at 101. 65 Id. at 114.
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jury’s right to judge both the law and the fact of the case was particularly crucial.66 Citing Lord Bacon, Gray observed that, [t]he peril or danger… into which the jury ran by taking upon themselves the knowledge of the law, and undertaking to decide by a general verdict the law involved in the issue of fact submitted to them, was the peril of an attaint, upon which their verdict might be set aside and themselves punished… Moreover, no attaint lay in a criminal case… [W]herever an attaint did not lie, the “judgment of the jury, commonly called verdict, was considered as a kind of gospel;” and that the reasons why an attaint did not lie in a capital case were, not only that two juries, the indictors and the triers, had passed upon the case, but chiefly that juries, in cases of life and death,
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Ostrowski at 102.

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should not be discouraged, or act timidly, by being subjected to suit and penalty if they decided in favor of life.67

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Sparf at 114.

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Chapter 5 JURY NULLIFICATION TODAY Despite Gray’s energetic dissent, the Sparf decision signaled a turning point in the jury trial in America. Because Harlan’s opinion in Sparf declared that jurors have a duty to receive the law from the judge and restrict their analysis to the factual questions presented them, a juror’s unwillingness to accept the law became grounds for dismissal. As future lawyers are now taught, “if a trial judge determines that a juror is ‘unable or unwilling’ to discharge her legal duty to ‘determine the facts and render a verdict in accordance with the court’s instruction on the law,’ the juror may be discharged.”68 Not only may jurors with nullification in mind be dismissed, but a juror who during voir dire fails to disclose an unwillingness to doggedly apply the law as instructed by the court may later be found criminally liable. In 1997, a Colorado juror was “convicted of criminal contempt, in part because she failed to disclose her pro-nullification
Dressler, Joshua. Understanding Criminal Law. Fourth Edition. Newark, NJ: LexisNexis, 2006. p. 8, citing People v. Williams, 21 P.3d 1209, 1223 (Cal. 2001).
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views in voir dire.”69 Some judges have allowed shrouded arguments for jury nullification to be presented to juries,70 but most courts have held that no such argument or jury instruction is permissible.71 Yet, despite the acceptance of pre-trial screening for these troublesome conscientious jurors, the legal peril that threatens any juror concealing such a dangerous tendency as following her conscience, and the widespread refusal to even allow such a thing to be suggested, jurors do still wield the power to nullify although they have no legal right to do so.72 Observers still note instances of jury nullification today, especially in cases involving sympathetic defendants or victimless
Ostrowski at 108. Dressler, p. 9, citing United States v. Datcher, 830 F.Supp. 411 (M.D. Tenn. 1993) (permitting the defense to argue to the jury that it should acquit because of a “draconian sentence” hanging over the defendant; but stating in dictum that it would not have permitted an instruction on jury nullification if it had been requested). 71 Id., citing United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972); State v. Hatori, 990 P.2d 115 (Haw. Ct. App. 1999); Holden v. State, 788 N.E.2d (Ind. 2003); State v. Ragland, 519 A.2d 1361 (N.J. 1986); State v. Bjerkaas , 472 N.W.2d 615 (Wis. Ct. App. 1991). 72 Id. at 7.
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crimes.73 Although prosecutors sometimes secure the discharge of a juror for inability or unwillingness to accept the judge’s legal instructions,74 nullification still occasionally occurs because of the fact that jury deliberations are secret and judges and prosecutors are forbidden from prying “too deeply into juror’s motivations…. [I]f the record evidence discloses any possibility that the request to discharge stems from the juror’s view of the sufficiency of the government’s evidence, the court must deny the request.75 The jury room veil descended from Bushell’s Case still affords some degree of protection for uncooperative jurors, paltry though it may be.

Tuccille, J.D. “Jury Nullification at Work in Marijuana, Gun Cases.” Examiner.com. 11 February 2009. 74 Dressler, p. 8, citing People v. Williams, 21 P.3d 1209, 1223 (Cal. 2001). 75 Id., citing United States v. Brown, 823 F.2d 591, 596 (D.C. Cir. 1987).
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Chapter 6 THE ARGUMENT FOR JURY NULLIFICATION At their core, arguments for jury nullification universally stand for the principle that jurors should sometimes exercise some degree of independent judgment about the ethical issues raised by their participation in the judicial process, and should act on conscientious objections to the government’s action by refusing to offer their assent to the punitive action being sought. Perhaps the most straightforward reason for taking this position is that the nature of the institution “makes juries less likely than judges to let personal bias taint their decisions.”76 Countering an Illinois judge’s 1998 attack on nullification in which the judge objected that jurors are “unelected” and “unaccountable,”77 James Ostrowski notes that jurors—unlike professional judges—did not actively seek the authority they wield, and jurors’ individual tendencies towards arbitrary or biased decisionmaking are buffered by the constant presence of
76 77

Ostrowski at 111. Id. at 110.

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eleven strangers endowed with the same authority. Judges often have personal biases due to their opinions of the lawyers before them, the impact of a particular action on their legal career and reputation, and political interests that may not be apparent to the voting public and its elected representatives.78 The jury, when given the latitude to intervene where conscience demands, serves “to impress upon the criminal defendant and the community as a whole that a verdict of conviction or acquittal is given in accordance with the law by persons who are fair.”79 As Spooner argued, the jury serves as an important means for peaceful resistance to civil authority that is far less destructive, and far easier to undertake, than outright revolution to overthrow a dictatorial regime. Although opponents of jury nullification claim that jury nullification of a legislative enactment will lead society down a slippery slope to unchecked mayhem and class struggle,80 Spooner’s thesis casts this into doubt. If occasional jury nullification serves as a sort of release valve for societal pressures and unrest, it may
Id. at 111. Butler, p. 713, citing Powers v. Ohio, 499 U.S. 400, 413 (1991). 80 Dressler at 9.
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very well be the case that the broader scope for jury power will tend to stave off revolutionary sentiment and result in a period of sustained civil tranquility longer than that produced by a system allowing for only the strictly mechanical jury role that is now viewed as proper by the bulk of the legal profession. If this is the case, even those who generally favor the broad sovereignty of the state may have a reason for favoring the autonomy of the jury, since the device of the jury trial may slow the rate at which resistance to the sovereign grows and consolidates into a meaningful threat to those in power. Whether or not jury nullification encourages or delays revolution, those who love liberty for its own sake have good reason to argue for jury nullification as a final line of defense against those directing the application of government power.

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Part II Render What to Whom?
Tax Resistance as Civil Disobedience

Above: A June 1774 engraving by Paul Revere considering the repercussions of the Boston Tea Party.

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Chapter 7 INTRODUCTION If taxation is a necessary feature of civil government, it is arguable that tax resistance must have been the first type of civil disobedience to arise. Whether called “Chief,” “King,” or “President,” the sovereign must invariably seek sources of revenue in order to conduct the activities of the state. As economist and historian Murray Rothbard explained, The State... is the only organization in society that regularly and openly obtains its monetary revenues by the use of aggressive violence; all other individuals and organizations (except if delegated that right by the State) can obtain wealth only by peaceful production and by voluntary exchange of their respective products. This use of violence to obtain its revenue (called ‘taxation’) is the keystone of State power. Upon this base the State erects a further structure of 39

power over the individuals in its territory, regulating them, penalizing critics, subsidizing favorites, etc.81 If taxation is indeed an essential mechanism by which government operates, it stands to reason that obstructing the collection of a government’s tax revenues is a means of attacking that government. And indeed, throughout history, dissidents have withheld or rendered more difficult the payment of taxes for a multitude of reasons. The student of tax resistance must examine the governmental and popular responses to such resistance. In some historical episodes, resistance to taxation led to an escalation of violence and further subjugation. In other cases, grassroots tax resistance efforts served as a forerunner to and inspiration for broader sociopolitical reform movements. One common thread among the most influential tax resistance rationales centered on the assertion that one ought not to acquiesce in paying a
Rothbard, Murray N. "War, Peace, and the State." We Who Dared to Say No to War: American Antiwar Writing from 1812 to Now. Murray Polner and Thomas E. Woods, eds. (New York: Basic Books, 2008) p. 221. (orig. published 1963).
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tax that violated one’s conscience. Such conscientious objection to taxation is sometimes tied to the nature of the government expenditures that the taxation will support, such as war or popular oppression. Very often, though, resistance to taxes is a response to the form or the level of the taxes themselves. Scholars differ as to the ethical status of different classes of tax resisters, with the motives, specific tactics, and goals of the disobedients playing a role in the analysis. Finally, there remains the question of what relationship tax resistance plays in a larger social movement. One view is that tax resistance is one of many tactics available to social activists, to be used in certain circumstances to apply pressure to the sovereign powers that be. A more robust understanding of the dynamics of taxation indicates that high levels of tax evasion have often served as a barometer by which dissidents have identified a popular climate favorable to sociopolitical change, and that tax resistance is not only a tactic of activists but also a useful indicator of existing civil discontent.

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Chapter 8 TAX RESISTANCE, WAR, AND CONSCIENCE Since antiquity, certain individuals have deemed it appropriate to resist paying taxes and other duties for reasons of conscience. Since Socrates chose the hemlock concoction over a nominal fine, refusal to remit payment to one’s sovereign has been both a dangerous and aweinspiring form of willful resistance to the state. Early Christians refused to pay taxes to support the heathen places of worship.82 Less than three decades after Columbus’s celebrated rediscovery of the Americas, disgruntled taxpayers played a major role in the social upheaval that brought the Aztecs under Spanish domination. Resistance to Aztec taxation by the indigenous peoples of Mexico was already commonplace by the time Cortes arrived in Mexico in 1519. An uprising in Cotaxtla in 1458 saw the district tax director and his staff killed; other revenue enforcement agents of emperor Montezuma I were assassinated, their dead bodies were dressed
Mayer, Milton. “The Tribute Money.” Civil Disobedience: Theory and Practice.. Hugo Adam Bedau, ed. New York: Pegasus, 1969, p. 133.
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up, and then the cadavers were mocked at an elaborate feast. The emperor later brought the city under his control, and he imposed a penalty of double the outstanding tax liability. When Cortes arrived, he learned of these past revolts and by abusing and then releasing Montezuma II’s revenue agents he provoked the Aztec emperor’s wrath against the Cotaxlans and another group with a similar history of tax-resistance, the Tlaxcalans. This provocation forced the former dissident groups to seek protection from the European conquerors rather than face the renewed wrath of the Aztec sovereign in Tenochtitlan.83 After his success in dividing and toppling the Meso-American empire, Cortes carefully preserved the regime’s tax records and assumed control of the already functioning tax system, even enforcing the same payment schedule as he began to siphon off the wealth of the newly conquered empire.84 The European colonists who later came to inhabit the eastern coast North America were no strangers to taxation. The Massachusetts Bay Colony
Adams, Charles. For Good and Evil: The Impact of Taxes on the Course of Civilization. London: Madison Books, 1993, pp. 200– 202. 84 Id. at 204.
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imposed wealth and poll taxes. However, the sanction for evading these taxes, as detailed in The Laws and Liberties of Massachusetts (1648), was purely civil in nature.85 The Quakers posed an early challenge to tax authorities in the fledgling colonies. The Quaker Peace Testimony (1661) stated the Friends’ theological opposition to war, proclaiming that “...the Spirit of Christ which leads us into all Truth, will never move us to fight and war against any man with outward weapons, neither for the Kingdom of Christ, nor for the kingdoms of this world....”86 As scholar Robert Pennock explains, “[i]f persons hold that it is wrong to kill other persons it is not much of a stretch to also hold that it is likewise wrong to pay others to do so.”87 In fact, the Quakers did object not only to joining in military endeavors, but also in providing equipment, animals, and money to the militias.88 More than 600 militia enactments were passed in the American colonies between 1600 and 1775. The recognition of objections to war on religious
Id. at 384. Pennock, R.T. “Death and Taxes: On the Justice of Conscientious War Tax Resistance.” 1998. p. 7. 87 Id. at 8. 88 Id.
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grounds led to the enactment of conscience clauses throughout the colonies, beginning with Rhode Island in 1673. In Pennsylvania, militia service was made voluntary due no doubt to the large number of Quakers residing there. At the time of the American Revolution, twelve of the thirteen colonies had provided a legal means by which a conscientious objector could avoid being legally compelled to compromise his conscience in service of the militia. 89 After the First Amendment to the Constitution was adopted, Aedamus Burke remarked in Congress that requiring a man who was “conscientiously scrupulous of bearing arms” to pay a fee for exemption from military service was unconstitutional. Explaining the rationale behind this careful exception to government authority, Thomas Jefferson said in 1801 in his Notes on Virginia that “The rights of conscience we never submitted, we could not submit. We are answerable for them to our God.”90

Freeman, Harrop A. “A Remonstrance for Conscience.” 106 U. Pa. L. Rev. 806, 809 (1958). 90 Id. at 813.
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Chapter 9 ASSESSING THE LEGITIMACY OF THE TAX RESISTER The supremacy of the natural law over man’s positive law was an obvious state of affairs to many Judeo-Christian thinkers of the Enlightenment, and indeed it was nearly as obvious to the classical thinkers that Jefferson and other American revolutionaries had studied. Homer, Sophocles, Socrates, and Aristotle had all recognized supremacy of conscience. The Roman writer Cicero expressed the concept simply in his De Re Publica: “We cannot be freed from its [conscience] obligations by senate or people.”91 St. Peter, in Acts 5:29 of the Christian New Testament, explained succinctly that “We must obey God rather than men.” Aquinas, noting Peter’s admonition, was categorical in stating that unjust laws “must nowise be observed.”92 It was the supreme status of the natural law that also prompted Locke and his followers to oppose criminal sanctions for tax evasion. The famous jurist William Blackstone
91 92

Id. at 815. Id. at 814, fn. 33.

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reasoned that “positive offenses”—that is, those created by the state’s edict—ought not to be put on the same level as capital crimes that offended the natural law instituted by the Almighty.93 In the context of modern-day civil disobedience, the kind of tax resistance that is most widely admired by scholars is the refusal to pay taxes because of the way in which government plans to spend its revenue. Tax historian Charles Adams notes that “[s]ince Magna Carta, Englishmen have believed that taxes are bad and evasion is justified if government pursues improper objectives.”94 It is most typically opposition to the policies that a tax pays for that wins a tax resister the respect of those in the academy. For example, Pennock describes the proper Quaker tax resister as possessing the following characteristics: 1) not against all taxation, 2) not resisting for personal gain, and 3) required by beliefs to resist the tax.95 The definition above seems overly exclusive in all three points.
Adams, Charles. For Good and Evil: The Impact of Taxes on the Course of Civilization. (London: Madison Books, 1993), pp. 279– 280. 94 Id. at 399. 95 Pennock, R.T. “Death and Taxes: On the Justice of Conscientious War Tax Resistance.” 1998. p. 10.
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With regards to opposing only certain taxes, Thoreau took no such position as a matter of ideology. The author to whom credit is given for coining the phrase “civil disobedience” offered his own analysis of involuntary taxes: When I meet a government which says to me, 'Your money or your life,' why should I be in haste to give it my money? It may be in a great strait, and not know what to do: I cannot help that. It must help itself; do as I do.96 Thoreau’s principled anti-statist position was not merely an opposition to a particular war or a particularly vile form of chattel slavery—although those societal defects were symptoms indicative of an oppressive state of affairs. Thoreau made clear that his tax resistance was a gesture of his general non-allegiance to the state: It is for no particular item in the tax-bill that I refuse to pay it. I
96

Thoreau, Henry David. “Civil Disobedience.” p. 40.

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simply wish to refuse allegiance to the State, to withdraw and stand aloof from it effectually. I do not care to trace the course of my dollar, if I could, till it buys a man or a musket to shoot one with—the dollar is innocent—but I am concerned to trace the effects of my allegiance. In fact, I quietly declare war with the State, after my fashion, though I will still make what use and get what advantage of her I can, as is usual in such cases.97 Thoreau is opposed to having anything to do with the state’s machinations. He doesn’t wish to lend his personal allegiance, or the appearance of it, to the government, and so he feels compelled to display his non-allegiance. Rothbard’s characterization of state wars is useful in understanding why it is the anti-state sentiment in Thoreau’s writings that is the key to understanding the non-pacifist individualists who find themselves

97

Id. at 43.

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morally compelled to resist funding government wars generally: All State wars, therefore, involve increased aggression against the State's own taxpayers, and almost all State wars (all, in modern warfare) involve the maximum aggression (murder) against the innocent civilians ruled by the enemy State. On the other hand, revolutions are generally financed voluntarily and may pinpoint their violence to the State rulers, and private conflicts may confine their violence to the actual criminals. The libertarian must, therefore, conclude that, while some revolutions and some private conflicts may be legitimate, State wars are always to be condemned.98
Rothbard, Murray N. "War, Peace, and the State." We Who Dared to Say No to War: American Antiwar Writing from 1812 to Now. Murray Polner and Thomas E. Woods, eds. (New York: Basic Books, 2008). p. 222. (orig. published 1963).
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With regards to the no-personal-gain prong of Pennock’s definition of ethical tax resistance, one wonders whether he might reform his criteria to include those American colonialists who resisted Britain’s Sugar Act of 1764. That act was itself a response to tax riots in London. In seeking new sources of revenue, the English Parliament had levied new excises on foreign goods imported to the American colonies. Although the excises themselves were not terribly oppressive, the other features of the Act increased penalties for smugglers, changed the venue for their trials to the Halifax admiralty court where juries would not be so likely to nullify the law, and protected the Crown’s revenue agents from tort actions that had previously been possible after an acquittal.99 It can hardly be said that those resisting the Sugar Act were not seeking some personal gain—indeed, such resisters sought cheaper goods, personal profits, and a more favorable legal setting in which to seek acquittal and then scrabble for one’s belongings and hard fought profits. Finally, Pennock’s third condition—that the tax resister’s creed requires resistance to the tax
Adams, Charles. For Good and Evil: The Impact of Taxes on the Course of Civilization.. London: Madison Books, 1993. p. 297.
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at issue—seems to presuppose the proposition provided by the Third Circuit Court of Appeals: that taxation may rightfully be considered an end unto itself. In Adams v. Commissioner of Internal Revenue, the court held that “uniform, mandatory, participation in the Federal income tax system, irrespective of religious belief, is a compelling governmental interest…. As a result, requiring petitioner’s participation in the Federal income tax system is the only, and thus the least restrictive means of furthering the Government’s interest.”100 This position seems obviously contrary to the statements of Aedamus Burke and Thomas Jefferson above.

Adams v. Commissioner of Internal Revenue, 170 F.3d 173, 178 (3d. Cir.1999).
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Chapter 10 RELATIONSHIP TO CIVIL DISOBEDIENCE Charles Adams suggests that there are three major classes of tax resisters today: 1) Admirable resisters who use tax resistance to point out and combat evils, 2) those who fall back on "nonsense" legal arguments, 3) the invisible, sometimes underground resister who just wishes to divert money to other uses.101 In the first category, Adams places figures like Gandhi, Thoreau, and Karl Hess, a 20th C. political operative and anti-state activist. Hess, who worked for Joe McCarthy during the House Committee on Un-American Activities era, wrote speeches for Barry Goldwater and won an Academy Award for his documentary film Toward Liberty, described his open, publicly declared tax resistance in plain terms: I became a tax resister, not simply because of the [Vietnam] war, not simply because of corruption... I
Adams, Charles. Those Dirty Rotten Taxes: The Tax Revolts that Built America. New York: Free Press, 1998. p. 190.
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became a tax resister, at that particular moment, because I got mad and because somewhere in everybody's life there probably is a line in the real world which you will not or cannot cross and which, often with the sort of sudden anger I felt, you balk at, stand on, and fight on.102 An IRS agent said of Hess in a 1971 intelligence report that “[Mr. Hess's] open defiance of Internal Revenue Laws makes him more of a criminal than one who would conceal these facts.” Although Hess won respect from many for his long efforts to fight the state, his resulting poverty left him to barter welding services for food and other necessities. Hess was candid about the price of such open resistance: “Refusing to pay taxes is not a laughing matter.... It has cost me a mint of money, left me pretty much destitute, and caused a terrible

Adams, Charles. For Good and Evil: The Impact of Taxes on the Course of Civilization.. London: Madison Books, 1993, p. 375, Citing Karl Hess. Dear America. 1975.
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amount of trouble for my family and for other friends.”103 In Adams’ second category, one might include the now discredited and incarcerated Irwin Schiff and others who claim that there is no legal requirement to file a personal income tax return.104 Such individuals may either be considered to be genuinely mistaken about the value of their legal arguments or perhaps hopeful that the proper enunciation of some legal talisman will free them of the burden of federal income taxation. In either case, they may not qualify as tax resisters insofar as they believe that they are acting within the law. The final category includes those described by Adam Smith when he remarked that “When there is a general suspicion of much unnecessary expense and misapplication of the public revenue, the laws that protect it will not be respected.”105
Hess, Karl. Mostly On the Edge. New York: Prometheus Books, 1999, p. 39. 104 See United States v. Schiff, 801 F.2d 108 (2d Cir. 1986), cert. denied, 480 U.S. 945 (1987) and United States v. Schiff, 2003–2 U.S. Tax Cas. (CCH) paragr. 50,546 (D. Nev. 2003). See also Barton v. Commissioner of Internal Revenue, Not Reported in F.Supp.2d, 2000 WL 33115896 (D.Utah). 105 Adams, Charles. Those Dirty Rotten Taxes: The Tax Revolts that Built America. New York: Free Press, 1998, p. 190.
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Montesquieu, in 1751, stated that tax evasion is the result of excessive taxation, which entices taxpayers to evade because of the lucrative benefits that high tax rates provide to the evader. Alexander Hamilton echoed this sentiment in Federalist, No. 35.106 Such tax resisters act on the belief that they will put their money to better use than the government. Not only do such “invisible” tax resisters benefit the public when they are correct by conserving valuable resources, the eventual signs of their noncompliance also serves to signal to others that dissatisfaction abounds. It is instructive to note that Gandhi—who discouraged tax resistance during the height of his organized campaigns107—was nonetheless inspired to act in part based on the knowledge of committed tax resistance among Indians and Africans in South Africa, 108 and in India among Bengalis, Andhra Delta residents,109 and the Patidars opposing land rents.110 In those contexts,
Adams, Charles. For Good and Evil: The Impact of Taxes on the Course of Civilization. London: Madison Books, 1993, p. 279. 107 Ackerman, Peter and Jack Duvall. A Force More Powerful: A Century of Nonviolent Conflict. New York: Palgrave, 2000. p. 90. 108 Id. at 61. 109 Id. at 75. 110 Id. at 94–95.
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such civil disobedience exposed the government’s willingness to use violence to enforce its arbitrary policies. It also showed government leaders the limits of their own ability to govern.111 The great Austrian economist Ludwig von Mises stated that “Taxes are paid because the taxpayers are afraid of offering resistance to the tax gatherers. They know that any disobedience or resistance is hopeless. As long as this is the state of affairs, the government is able to collect the money that it wants to spend.”112

Id. at 106–107. Mises, Ludwig von. The Quotable Mises. Mark Thornton, ed. Auburn, AL: Mises Institute, 2005. p. 248.
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Chapter 11 CONCLUSION If, as G.G. James says, “…the only feature which acts labeled ‘civil disobedience’ in ordinary language have in common is that they are acts of opposition to civil authority,”113 straightforward tax resistance of any stripe should qualify as civil disobedience. According to the United States General Accounting Office (GAO), millions of Americans live abroad and don't file tax returns. The motive for their emigration was in many cases likely tax law. In the 1940s, Justice Jackson described American “taxation by confession,” and noted that evasion was rare. In 1962, IRS Commissioner Caplin boasted “No other nation in the world has ever equaled this record [of voluntary compliance].” In 1982, West Virginia Supreme Court of Appeals Chief Justice Richard Neely lamented that tax cheating was everywhere, “pervasive” wherever the opportunity existed.114 If
James, G.G. "The Orthodox Theory of Civil Disobedience." Social Theory and Practice 2, No. 4. 475–498 (1973), p. 486. 114 Adams, Charles. For Good and Evil: The Impact of Taxes on the Course of Civilization. London: Madison Books, 1993. pp. 377–379.
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tax resistance and evasion rates are inversely related to the success of the relevant tax policy, perhaps the trend indicated above is suggestive that a radical change in U.S. federal income tax policy is warranted. In any case, given the nature of tax resistance, the incentives are in place to recruit new dissidents.

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Two Forms of Forcible Resistance to the State

Part III Fighting Back

Above: Wood engraving from the Illustrated London News, May 1849, depicting the arrest of John Hamilton for making an attempt on the life of Queen Victoria.

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I quarrel not with far-off foes, but with those who, near at home, cooperate with, and do the bidding of, those far away, and without whom the latter would be harmless.115 So the question is not whether we will be extremists, but what kind of extremists we will be.116

Thoreau, Henry David. Civil Disobedience. In Bedeu, Hugo. Civil Disobedience: Theory and Practice. New York: Pegasus, 1969. p. 31. 116 King, Martin Luther, Jr. “Letter From a Birmingham Jail.” Birmingham, Alabama. April 16, 1963.
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Chapter 12 INTRODUCTION Opposition to state action is not always in the context of town hall meetings or voting booths. Domestic opponents of state action who use political processes to prevent the imposition of unjust policies must act under the pretext of guiding the application of state power rather thwarting it. However, political and legal action, even when they are effective, take time, and the state’s actions are by definition acts that involve the use of violence. Like the political institutions historically preceding it, the state is a relation of men dominating men, a relation supported by means of legitimate (i.e. considered to be legitimate) violence.… [T]he modern state is a compulsory association which organizes domination.117

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Select state actors may legally apply physical force in carrying out state mandates, and states traditionally act to centralize the use of legal force in the state apparatus. This centralization of power is essential to the statist social order. Although force or the threat of force may sometimes be legally used by non-governmental actors, states claim the authority to create rules for the private use of force and act as the final arbiters of whether instances of forceful conduct were permissible or impermissible. If the state is to exist, the dominated must obey the authority claimed by the powers that be…. [A] state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory. Note that 'territory' is one of the characteristics of the state. Specifically, at the present time, the right to use physical force is ascribed to other institutions or to individuals only to the extent to which the state permits it. The state 63

is considered the sole source of the 'right' to use violence. Hence, 'politics' for us means striving to share power or striving to influence the distribution of power, either among states or among groups within a state.118 The modern democratic state offers official means for redressing grievances without resort to violent self-help, but if these means are either too untimely or too ineffectual, recourse to force may be the only option left for resisting state action. If the official channels for petitioning the government are useless for effecting actual change, systematic, popular opposition with a more strategic focus may develop as a response. If the right to use force is a mere dispensation from the state, forceful disobedience to the state will rarely be a matter of legal right. As history has often demonstrated, however, conduct that is permitted or even mandated under by the positive law frequently violates justice, and many of those who have illegally resisted state action have
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Weber, Max. Politics as a Vocation. 1919.

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been deemed heroes rather than villains in retrospect. In order for resisters to be judged favorably, the right to resist must stem from some other authority than that of the state. Traditional natural law theory provides one basis for individual rights apart from the state. Argumentation and estoppel theories also serve to animate individual rights. Since states determine when force may be legally applied, one would expect that the legal right to use force against state actors would be quite limited. However, not all violence against state actors is illegal, though the legal right to forcibly resist state actors has been recently diminished in the modern English and American systems. This part of the book examines two different forms of forcible resistance to government: self-defense against excessive force and resisting unlawful arrest. It is just to use force against state actors in many circumstances, although modern courts in the United States have tightly defined the scenarios in which such force is lawful. The lawful force used against state actors in classic self-defense and defense of third parties is on one end of a continuum of forceful—although not "aggressive" in what is perhaps an idiosyncratic libertarian sense of the 65

word—actions,119 all of which may be supported by the same basic libertarian framework of individual rights. While such violence may be justifiable, the strategic implications of individual acts of violence against the state often mean that violent resistance should be a last resort. Further, the right to violently resist does not imply a duty to resist.

Other such conduct includes advocacy of violent overthrow of government (Smith Act), seditious conspiracy, sedition, secession, revolution, and assassination.
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Chapter 13 NATURAL LAW VS. POSITIVE LAW, AND OTHER THEORIES OF RIGHTS Legal philosophers distinguish between “descriptive” and “normative” jurisprudence, that is, legal reasoning which is value-free in applying the positive law and legal reasoning that is informed by moral reason.120 While legal rules may be found to be valid by the courts of a particular jurisdiction and thus be enforceable, the question of one’s moral duty to obey the law is a different one. “One is legally bound to obey a valid law, but is there any moral obligation? Is the claim that a law is valid equivalent to the claim that it is morally valid and justifiable?”121 The natural law tradition has long been associated with Christian thinkers like Augustine and Thomas Aquinas, and more recently with socioreligious leaders like Martin Luther King, Jr. King’s eloquent statement of natural law theory reads:

Tebbit, Mark. Philosophy of Law: An Introduction. New York: Routledge, 2000. p. 36. 121 Id. at 37.
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A just law is a man-made code that squares with the moral law or the law of God. An unjust law is a code that is out of Harmony with the moral law. To put it in the terms of St. Thomas Aquinas: An unjust law is a human law that is not rooted in eternal law and natural law. Any law that uplifts human personality is just. Any law that degrades human personality is unjust.122 Augustine, who famously wrote of universal justice being accessible via the human conscience as an “eternal law that is stamped upon our minds,”123 was perhaps echoing the Apostle Paul, who wrote in his letter to the Romans that, …not the hearers of the law [are] just before God, but the doers of the law shall be justified. For when the Gentiles, which have not the law, do by nature the things contained
King. Augustine. On Free Choice of the Will. Indianapolis: Hackett, 1993. p. 11.
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in the law, these, having not the law, are a law unto themselves: Which shew the work of the law written in their hearts, their conscience also bearing witness, and [their] thoughts the mean while accusing or else excusing one another.124 The influential Dutch Renaissance legal philosopher Hugo Grotius wrote that “even if that which cannot be conceived without the greatest iniquity, that God did not exist, were true, natural law would still have binding force.”125 Modern natural law secularists like Lon Fuller assert, apart from any divine command theory, that good laws are discovered rather than freely invented in the same sense that good carpentry is discovered rather than created arbitrarily—the natural characteristics of the subject must be taken into account in any successful project in either craft.126 As nineteenth century Boston legal scholar Lysander Spooner wrote,
Romans 2:13–15, King James Version. Tebbit at 46. 126 Id. at 47.
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Men living in contact with each other, and having intercourse together, cannot avoid learning natural law, to a very great extent, even if they would. The dealings of men with men, their separate possessions and their individual wants, and the disposition of every man to demand, and insist upon, whatever he believes to be his due, and to resent and to resist all invasions of what he believes to be his rights, are continually forcing upon their minds the questions, Is this act just? Or is it unjust? Is this thing mine? Or is it his? And these are questions of natural law; questions which, in regard to the great mass of cases, are answered alike by the human mind everywhere.127
Spooner, Lysander. “Natural Law.” The Lysander Spooner Reader. George H. Smith, ed. San Francisco: Fox & Wilkes, 1992. p. 12.
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Legal positivists have been depicted as asserting that “law may have any content.”128 Legal positivists have largely moved from Austin’s command theory of law to more sophisticated positions that note the interplay between different actors in government and draw distinctions between “primary” and “secondary” state rules.129 H.L.A. Hart wrote of his “moderate” legal positivist view that “theories that make… close assimilation of law to morality seem, in the end, often to confuse one kind of obligatory conduct with another, and to leave insufficient room for difference in kind between legal and moral rules and for divergences in their requirements.”130 However, scholars note Hart’s “minimum content thesis” as an important divergence from previous incarnations of legal positivism. According to Hart, the facts of the human condition draw an outer boundary as to what sorts of legal rules are viable. One author characterized Hart’s thesis as asserting that:

Hart, H.L.A. The Concept of Laws. New York: Oxford University Press, 1997. p. 199. 129 Tebbit at 45. See Hart, H.L.A. The Concept of Laws. New York: Oxford University Press, 1997. pp. 27–28. 130 Hart at 8.
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[T]here are a number of natural features of humans living in society which to some extent determine the content of law as it must exist if it is to be viable as an institution consistent with the minimal purpose of human survival. Natural human vulnerability, for example, makes laws prohibiting violence absolutely basic. The environmental fact that resources are always limited dictates the need for laws protecting the security of land and the basic needs of life.131 Although legal positivism in some incarnation or another132 has been widely accepted by most as the most empirically founded approach
Tebbit at 45. For example, legal realists may claim that their school of thought is a competing school of thought to legal positivism, but in fact it is an outgrowth and further development of the fundamental tenets of Austin’s and Bentham’s positivist theories. See Sebok, Anthony James. Legal Positivism in American Jurisprudence. New York: Cambridge University Press, 1998. pp. 22–23.
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to jurisprudence,133 the primary importance of the individual conscience has been recognized by a solid cadre of human rights activists and civil disobedients. Thoreau, in a work held up as foundational by international human rights luminaries including Gandhi and King, said that for the individual, conscience must trump orders from the state. “Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has every 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.”134 Some legal scholars assert that a radical theory of universal individual rights may be also be reached by a purely economic-utilitarian calculus. 135 Libertarian legal theorists also assert universal individual rights based on estoppel and argumentation ethics-based philosophical schema.136
Campbell, Tom. Prescriptive Legal Positivism: Law, Rights, and Democracy. London: UCL Press, 2004. p. 29. 134 Thoreau at 28. 135 See Friedman, David. The Machinery of Freedom. Chicago: Open Court Publishing, 1989. 136 Kinsella, N. Stephan. "New Rationalist Directions in Libertarian Rights Theory." Journal of Libertarian Studies . Ludwig von Mises Institute. Vol. 2, No. 2. pp. 313–326.
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Chapter 14 LIBERTARIAN ETHICAL ANALYSIS OF INDIVIDUALS AND THE STATE Libertarian tax resister and Goldwater ghostwriter Karl Hess wrote in his March 1969 essay “The Death of Politics,” Libertarianism is the view that each man is the absolute owner of his life, to use and dispose of as he see fit; that all man's social actions should be voluntary; and that respect for every other man's similar and equal ownership of life, and by extension, the property and fruits of that life, is the ethical basis of a humane and open society.137 The credo of equality, voluntarism, and property rights, if taken to its logical conclusion, leaves adherents with a dim view of political

Hess, Karl. “The Death of Politics.” Mostly on the Edge. New York: Prometheus Books, 1999. p. 321.
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government, similar to Thoreau’s.138 Libertarian political philosopher Albert Jay Nock stated that an essential distinction drawn by libertarians is that between political and economics means: There are two methods, or means, and only two, whereby man’s needs and desires can be satisfied. One is the production and exchange of wealth; this is the economic means. The other is the uncompensated appropriation of wealth produced by others; this is the political means.139 Libertarians regard the state as an aggressor, and as a decivilizing force in society, because the state is not a respecter of equal individual rights.
“I heartily accept the motto, — "That government is best which governs least"; and I should like to see it acted up to more rapidly and systematically. Carried out, it finally amounts to this, which also I believe, — ‘That government is best which governs not at all’; and when men are prepared for it, that will be the kind of government which they will have.” Thoreau at 27. 139 Nock, Albert Jay. Our Enemy,The State. Tampa, Florida: Hallberg, 1996. pp. 58–59. See also Oppenheimer, Franz. The State. New York: Free Life Editions, 1975. p. 12.
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Murray Rothbard wrote in his libertarian manifesto that, [T]he critical difference between libertarians and other people is not in the area of private crime; the critical difference is their view of the role of the State—the government. For libertarians regard the State as the supreme, the eternal, the best organized aggressor against persons and property of the mass of the public…. [I]f you wish to know how libertarians regard the State and any of its acts, simply think of the State as a criminal band, and all of the libertarian attitudes will logically fall into place.140 Although proponents of democracy often claim that a government “of the people” deserves respect and obedience, libertarians would contest any system in which a majority is permitted to
Rothbard, Murray N. For a New Liberty: The Libertarian Manifesto. Auburn, Alabama: Ludwig von Mises Institute, 2006. pp. 56–57.
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dictate to a minority simply by virtue of having greater numbers. “Such a government is a mere conspiracy of the strong against the weak.” 141 A government that rules by mere majority does not have a mandate to operate by the “consent of the governed.”142 As Spooner phrased the argument, What is implied in a government’s resting on consent? Manifestly this one thing… is necessarily implied in the idea of a government’s resting on consent, viz: the separate, individual consent of every man who is required to contribute, either by taxation or personal service, to the support of the government. All of this, or nothing, is necessarily implied, because one man’s consent is just as necessary as any other man’s. If, for
Spooner, Lysander. “No Treason No. II.” The Lysander Spooner Reader. George H. Smith, ed. San Francisco: Fox & Wilkes, 1992. p. 68. 142 “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” Declaration of Independence. July 4, 1776.
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example, A claims that his consent is necessary to the establishment or maintenance of government, he thereby necessarily admits that B’s and every other man’s are equally necessary; because B’s and every other man’s rights are just as good as his own. On the other hand, if he denies that B’s or any other particular man’s consent is necessary, he thereby necessarily admits that neither his own, nor any other man’s is necessary; and that government need not be founded on consent at all…. It was also, in the eye of the law, only as separate individuals, each acting for himself, and exercising simply his natural rights as an individual, that the people at large assented to, and ratified the Declaration.143

Spooner, Lysander. “No Treason No. I.” The Lysander Spooner Reader. George H. Smith, ed. San Francisco: Fox & Wilkes, 1992. p. 55–56.
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Proudhon said that to be governed was “to be watched, inspected, spied, directed, law-ridden, regulated, penned-up, indoctrinated, preached at, checked, appraised, sized, censured, commanded; by beings who have neither title nor knowledge nor virtue.”144 The American individualist philosopher Benjamin Tucker wrote, The essence of government is control, or the attempt to control. He who attempts to control another is a governor, an aggressor, an invader; and the nature of such invasion is not changed, whether it is made by one man upon another man, after the manner of the ordinary criminal, or by one man upon all other men, after the manner of an absolute monarch, or by all other men upon one man, after the manner of a modern democracy.145
Tucker, Benjamin. “Relation of the State to the Individual.” Anarchy and the Law. Edward Stringham, ed. London: Transaction, 2007. p. 503. 145 Tucker at 501.
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Tucker’s assertion that official state invasions of liberty and property are ethically equivalent to similar invasions by private criminals is crucial to analyzing the use of force against state actors. For the radical libertarian who accepts Tucker’s position, forcible resistance to state action may be justified by the same rationale that underpins the rights to defense and retaliation against any aggressor. Further, the status of the state as a criminal enterprise has other far-reaching consequences to the libertarian’s analysis beyond the question of forcible resistance to state actors. [N]o one is morally required to obey the State (except insofar as the State simply affirms the right of just private property against aggression). … [A]s a criminal organization with all of its income and assets derived from the crime of taxation, the State cannot possess any just property. This means that it cannot be unjust or immoral to fail to pay taxes to the State, to appropriate the 80

property of the State (which is in the hands of aggressors), to refuse to obey State orders, or to break contracts with the State (since it cannot be unjust to break contracts with criminals).146 In delineating the right to resist, it is crucial to note that no corollary universal duty to resist is implied by such a right. A victim remains free to forgo defense and retribution. A victim's choice to forgive an offender is comparable to the voluntary canceling of a debt that one could legitimately collect. The total amount of the debt sets the maximum for collection, but the holder of the right to collect may elect to forgo some of what is due to him if he so chooses. He may not, however, be as free to extract more than what is owed. “...[A]s Professor McCloskey states: ‘We do not act unjustly if, moved by benevolence, we impose less than is demanded by justice, but there is a grave injustice if the deserved punishment is exceeded.’”147 Forcible
Rothbard, Murray N. The Ethics of Liberty. New York: New York University Press, 1998. p. 183. 147 Id. at 89–90.
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resistance must be no more severe than what is proportional to the affront being resisted. Other strategic, practical concerns may, in an individual’s own analysis, outweigh the importance of acting to enforce his rights. In such a case, the individual who is subjected to state force is ethically free to choose nonresistance or to delay his resistance. “I quietly declare war with the State, after my fashion, though I will still make what use and get what advantage of her I can, as is usual in such cases.”148 The violation of individual rights need not be an irresistible altar-call for martyrs.149 All this does not mean, of course, that we must counsel or require civil disobedience, nonpayment of taxes, or lying to or theft from the State, for these may well be prudentially unwise, considering the force majeure possessed by the State apparatus. But what we are saying is that these actions are just and morally licit. Relations with the
Thoreau at 43. Lora, Manuel. “Against Libertarian Martyrdom.” LewRockwell.com. February 14, 2008.
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State, then, become purely prudential and pragmatic considerations for the particular individuals involved, who must treat the State as an enemy with currently prevailing power.150

150

Rothbard. The Ethics of Liberty. p. 184.

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Chapter 15 DEFENSE AGAINST EXCESSIVE FORCE Although, as has been shown, the positive law may diverge from justice, it is instructive to survey the legal status of some types of resistance to the state that involve the use of violent force against the state. Most forms of violent resistance are characterized as illegal, but some forcible resistance to the state by private actors has been permitted since the English Revolution. If individual rights exist independently of the positive law, understanding the rights of resistance that have been historically recognized allows one to judge the justice of the positive law. If, as Hart posits, the positive law can only remain viable when it accounts for certain essential features of human existence, such as physical vulnerability and economic scarcity, reviewing the ways in which resistance has been treated throughout legal history may aid in the development of more successful, sustainable, and stable legal systems. Self-defense against the excessive force used by police officers is permitted in most jurisdictions in the United States. A charge of assault and battery on a police officer may be justified where force was 84

reasonably believed necessary to prevent death or serious injury from excessive force used by arresting officers.151 Courts have concluded that “a person being subjected to an unprovoked assault may defend himself against such assault…. [T]he use of excessive force by the officer in effecting the arrest amounts to an assault against which the arrestee is warranted in defending himself.”152 In some jurisdictions, defense of the arrestee by a third party may also be excused under this rationale.153 In Massachusetts, “where the officer uses excessive or unnecessary force to subdue the arrestee, regardless of whether the arrest is lawful or unlawful, the arrestee may defend himself by employing such force as reasonably appears to be necessary.”154 “An arrestee, on the basis of traditional principles of self-defense, may reasonably resist an officer's overzealous efforts to take him into custody. In any subsequent prosecution of the arrestee, self-defense must be
See Ytreberg, Dag E. “Right to resist excessive force used in accomplishing lawful arrest.” 77 A.L.R.3d 281. 152 Id. 153 Id. 154 Commonwealth v. Frederick R. Moreira, 388 Mass. 596, 601 (1983).
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pled as an affirmative defense, and the question of the reasonableness of the force used is a question for the factfinder.”155 This right of self defense against excessive force by a police officer is tightly bounded, of course. “[O]nce the arrestee knows or reasonably should know that if he desists from using force in self-defense, the officer will cease using force, the arrestee must desist. Otherwise, he will forfeit his defense.”156 Additionally, it may be difficult to exercise this right in practice because at trial the authority of the state may lend apparent credibility to an otherwise implausible account by police officers. In order for a claim of self defense against excessive force to vitiate charges against an arrestee who is accused of violence against a police officer, it must be shown that the defensive force was only used for as long as the excessive force was being applied by the police officer. Additionally, the arrestee’s own conduct must not have been the circumstance which compelled the officer to use the
Commonwealth v. Orlando Montes et al., 29 Mass. App. Ct. 789, 792 (2000). 156 Moreira at 602.
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level of force alleged to be excessive. 157 Further, the arrestee must have reasonably feared serious injury or death; fear of more minor injury or rough treatment may not be adequate to trigger the right. “[T]he arrestee’s right to freedom from arrest without excessive force which falls short of causing serious injury or death can be protected and vindicated through legal processes, whereas loss of life or serious physical injury cannot be repaired in the courtroom.”158 Self-defense against excessive force by a police officer is in many jurisdictions all that remains of the right to resist unlawful arrest, and is now entirely based on the right to protect against serious injury or death rather than on an independent right to oppose arbitrary power. 159 As a result, resisting arrest charges are often added proactively to head off later accusations of police brutality.160
Ytreberg, citing State v. Westlund, 536 P.2d 20 (Wash. App. Ct. 1975). 158 Id. 159 Hemmens, Craig and Daniel Levin. “’Not a Law at All’: A Call for A Return to the Common Law Right to Resist Unlawful Arrest.” 29 Sw. U.L. 1, 2 (1999). 160 Hemmens and Levin at 40.
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Chapter 16 RESISTING UNLAWFUL ARREST In the English and American legal traditions, unlawful arrest of a freeman was considered a reasonable provocation to violence because resistance to arbitrary power was a matter of right. “Originally the right was part of the right to resist any unlawful official process. An action by an official in excess of his authority was a trespass that could be resisted by physical force. The cases frequently treated the trespass as a ‘provocation,’ which would justify an assault, or, if the officer were killed, would reduce the crime from murder to manslaughter.”161 In Hopkins Huggett's case (1666), the King’s Bench held, “that if a man be unduly arrested or restrained of his liberty by three men, altho' he be quiet himself, and do not endeavor any rescue, yet this is a provocation to all other men of England, not only his friends but strangers also for common humanity sake, as my Lord Bridgman said, to endeavor his rescue.”162 In Queen v. Tooley (1710)
Chevigny, Paul G. “The Right to Resist Unlawful Arrest.” 78 Yale L.J. 1128, 1129 (1969). 162 Id., citing 84 Eng. Rep. 1082 (K.B. 1666).
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the court firmly recognized the right to resist unlawful arrest, in this case that of a third party. “[A] man ought to be concerned for Magna Charta and the laws, and if anyone against the law imprison a man, he is an offender against Magna Charta. We seven hold this to be sufficient provocation…” 163 The rise of the English legal right to defend against unlawful arrest coincided with the English Revolution (1666-1710), a period when “common citizens first began to recognize that they had rights of personal liberty against the lords and the Crown.” The right to resist unlawful arrest memorializes one of the principal elements in the heritage of the English revolution: the belief that the will to resist arbitrary authority in a reasonable way is valuable and ought not to be suppressed by the criminal law.164

163 164

Id., citing 2 Ld. Raym. 1297, 92 Eng. Rep. 349 (K.B. 1710). Id. at 1137.

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In the United States, the common law right to defend against unlawful arrest was upheld by the Supreme Court in Bad Elk v. United States (1900).165 At common law, if a party resisted arrest by an officer without warrant, and who had no right to arrest him, and if in the course of that resistance the officer was killed, the offence of the party resisting arrest would be reduced from what would have been murder, if the officer had had the right to arrest, to manslaughter. What would have been murder, if the officer had the right to arrest, might be reduced to manslaughter by the very fact that he had no such right. So an officer, at common law, was not authorized to make an arrest without a warrant, for a mere misdemeanor not committed in his presence.... If the officer have no right to arrest, the other party
165

Bad Elk v. United States, 20 S. Ct. 729 (1900).

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might resist the illegal attempt to arrest him, using no more force than was absolutely necessary to repel the assault constituting the attempt to arrest.166 The high court continued to uphold the common law right well into the mid-twentieth century.167 In the earliest version of the right, technical defects in the warrant that made an arrest unlawful were held to trigger the right to use force to prevent the arrest.168 Thus, where a police officer acted to execute a defective warrant in good faith, the arrestee had a legal right to resist. English and American courts adopted a “good faith” exception to the right in order to protect bystanders and the police officers who acted in good faith to execute defective judicial decrees.169

Id. at 731. United States v. Di Re, 332 U.S. 581 (1948) ("[O]ne has an undoubted right to resist an unlawful arrest, and courts will uphold the right of resistance in proper cases."). 168 Chevigny at 1131. 169 Id. at 1132.
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Some have argued that this “‘good faith’ exception fails to recognize the arrestee's subjective point of view—that he has not committed a crime and is therefore the victim of an unlawful arrest. Those arrested in ‘good faith’ under a defective warrant are often just as enraged as individuals arrested by an officer possessing knowledge of the warrant’s invalidity.”170 In other words, the good faith exception to the right meant that individuals with the same provocation—unlawful arrest—could variously find the right to resist available or unavailable, something which arrestee could not easily discern at the time of arrest. As Paul Chevigny explains, The right does not exist to encourage citizens to resist, but rather to protect those provoked into resistance by unlawful arrests. In the excitement of an arrest, a person is likely to respond to his emotions, and if his impulse to resist is provoked by arbitrary police behavior, it is fundamentally
170

Hemmens and Levin at 12.

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unfair to punish him for giving in to that impulse with measured resistance.171 By the middle of the twentieth century, opponents of the right had assembled a lengthy list of objections to the right to resist unlawful arrest. Opponents of the right sought to have it abolished based on the perceived danger of self-help to the public at large, claiming that the right was unnecessary in face of available legal remedies, which are safer for the public.172 Such critics have claimed that the right to resist unlawful arrest was an anachronism from times when jail was more dangerous to one's health and when arrestees were likely to be held for longer periods before their day in court.173 However, the provocation of an arrest and imminent false imprisonment may not be relieved by the amenities offered by one’s jailer: To be taken without consent from my home and friends; to lose my
Chevigny at 1133–1134. Chevigny at 1133, citing State v. Koonce, 89 N.J. Super 169, 184 (App. Div. 1965). 173 Hemmens and Levin at 2–3.
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liberty; to undergo all those assaults on my personality which modern psychotherapy knows how to deliver... to know that this process will never end until either my captors have succeeded or I grown wise enough to cheat them with apparent success—who cares whether this is called Punishment or not? That it includes most of the elements for which any punishment is feared—shame, exile, bondage, and years eaten by the locust—is obvious. Only enormous ill-desert could justify it; but ill-desert is the very conception which the Humanitarian theory has thrown overboard.174 Critics of the right also claimed that it opposes legal force against legal force (i.e., the arrestee’s right to defense against the police officer’s legal authority). However, the common law assigned the right to use force only to those resisting
174

Lewis, C.S. Quotation in Rothbard. Ethics of Liberty. p. 95.

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unlawful arrest, not to the officer acting without legal authority.175 Even if the state does grant such authority, such a grant does not serve to eliminate the provocation because “[f]or most people, an illegal arrest is an outrageous affront and intrusion —the more offensive because under color of law— to be resisted as energetically as a violent assault.”176 In 1962, the promulgation of the Model Penal Code confirmed that the right to resist unlawful arrest was at a tipping point in the United States. MPC §3.04(2)(a) states that “[t]he use of force is not justifiable... (i) to resist an arrest that the actor knows is being made by a peace officer, although the arrest is unlawful...” In the context of the burgeoning Civil Rights movement at that time, the results were disastrous for the activists resisting the status quo. As Hemmens and Levin explain: When resisting an unlawful arrest is criminalized, the initial unlawful arrest becomes lawful and the resisting individual may be charged with a crime, even though the
175 176

Hemmens and Levin at 27. People v. Cherry, 307 N.Y. 308, 311 (1954).

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individual committed no crime prior to being provoked by the police. In such situations, the police, who already have the advantage in such encounters, have further incentive to abuse their 177 authority. Such provocation was often used to arrest African-Americans who resisted police authority before and during the Civil Rights era. 178 Further deference afforded by courts to police during that era raised serious concerns about institutional comity between courts and police,179 and thus about the legitimacy of the regime they served. The increased deference given to police authority by contemporary courts undermines the common law principle that citizens are governed by laws, not men, and that it is the police officer's lawful authority, and not the officer's person, which
Hemmens and Levin at 43. Id. at 42. 179 Id. at 49.
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empowers the officer to make an arrest.180 Now, “[i]n Massachusetts, as in a majority of jurisdictions, the common-law right to resist an unlawful arrest has been abolished.”181 Although most states have abolished the right to resist unlawful arrest, Louisiana has notably retained the right. In a case that examined an incident where an arrestee resisted an unlawful arrest in Louisiana, the United States Supreme Court determined that that the writ of certiorari had been improvidently granted. Chief Justice Warren dissented, arguing that the Lousiana common law retained the right. 182
Hemmens and Levin at 7. Montes at 792. 182 Wainwright v. City of New Orleans, 88 S. Ct. 2243, 2252 (1968)(dissent, J. Warren)(citing City of Monroe v. Ducas, 203 La. 971, 979-980 (1943) for right to resist unlawful arrest in Louisiana)(“The right of personal liberty is one of the fundamental rights guaranteed to every citizen, and any unlawful interference with it may be resisted. Every person has a right to resist an unlawful arrest; and, in preventing such illegal restraint of his liberty, he may use such force as may be necessary.... A prosecution will not lie for resisting an officer where the officer is attempting to make an unlawful arrest.”).
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Justice Douglas, in his dissent, excoriated the Court for failing to enunciate a federal common law right to resist unlawful arrest, arguing that such a right might be found within the Fourth Amendment. 183 Expressing his dissatisfaction, Justice Douglas wrote: I feel that with Terry and Wainwright we have forsaken the Western tradition and taken a long step toward the oppressive police practices not only of Communist regimes but of modern Iran, ‘democratic’ Formosa, and Franco Spain, with which we are now even more closely allied.184 Echoing Douglas, Hemmens and Levin have concluded that the abolition of the right is indicative of a modern move away from liberalism, in favor of state-imposed order.185 Washington
Wainwright v. City of New Orleans, 88 S. Ct. 2243, 2257 (1968)(dissent, J. Douglas) (citing Fourth Amendment as basis for right to offer at least token resistance to unconstitutional arrest or search of one's person). 184 Id. 185 Hemmens and Levin at 3.
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Supreme Court Justice Saunders wrote in a 1997 dissent that the court majority, …opined that the established common law rule has outlived its usefulness in our brave new world where resistance to unlawful infliction of state coercive power is not only futile... but also invites ‘anarchy.’ Apparently the majority believes the unlawful use of state force is not anarchy but order.186 187

State v. Valentine, 935 P.2d 1294 (Wash. 1997) (dissent, J. Saunders). 187 On the broader contention that states themselves operate within anarchy, see Cuzan, Alfred G. “Do We Ever Really Get Out of Anarchy?” Anarchy and the Law. Edward Stringham, ed. London: Transaction, 2007. p. 261.
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Chapter 17 CONCLUSION Resistance to the state is permissible under several theories of justice. Under the natural law, resistance to the state is justified where the state acts to violate rights. Under legal positivism, limited rights to forcibly resist the state may be rendered legally permissible as a pragmatic step to avoid more organized civil resistance. No absolute duty exists to obey the mandates of the state, though legal penalties may be brought to bear where one conscientiously resolves to break the law. Although individuals subject to the English and American legal systems have long enjoyed particular rights to resist state usurpations, such rights are being diluted and abolished in favor of a statist conception of order. Perhaps as state power begins to manifest itself in ever more gruesome displays of arbitrary force, the apparent public furor for “order” over liberty may be dissipated. Until such time as a new liberty is secured, Thoreau’s cynicism is apt: As for adopting the ways which the State has provided for remedying 100

the evil, I know not of such ways. They take too much time, and a man's life will be gone. I have other affairs to attend to. I came into this world, not chiefly to make this a good place to live in, but to live in it, be it good or bad.188

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Thoreau at 35.

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