CHAPTER 9

RIGHT OF REVOLUTION

A theory of constitutional law being urged today by the Communist Party in America, and which is pertinent to the problems involved in this thesis, is one relating to a so-called right of revolution. According to its supporters, the right of revolution is a concept recognized by our Constitution and protected by it.

If such a theory be valid, then it could be argued, since it presupposes changing our form of government in a manner other than that provided for in article V, that a Constitutional Convention, once convened, could disregard congressional directions and article V, and adopt extra-legal means in establishing a new or revised Constitution. It is a matter of common knowledge, of course, that today free countries with free institutions are on the defensive and, in some instances, are being destroyed by organized violence. Communistic philosophy is based in part on the principle that internal weakness is an inherent character of free institutions and that the American concept of liberty with its constitutional safeguards inhibits any defense against internal enemies. In fact, members of subversive groups in America are cynically taking advantage of the protection of the very constitutional safeguards which they are seeking to destroy,

The decisions of our courts protecting the rights of individuals have been more widely publicized than those which have upheld the right of the Government to defend itself and protect itself againstunlawful change. The decisions, nonetheless, have clearly outlined and upheld both kinds of rights. An outline of some of those decisions. together with an historical development of this controversial political doctrine can be helpful in obtaining a clearer understanding of a government's power to protect and preserve itself.

When English colonists first migrated to America, they brought. with them England's political philosophy, its government, and its law. England itself had experienced attempted unlawful change of government during the so-called English rebellion of 1688. The rule of conduct developed at that time set the standard for future conflicts. In 1688 the King of England was condemned because of his usurpation of governmental power and for tyrannical acts. While it was argued by some that it was the people who, in fact, were in rebellion against their King, Parliament took the position that when the people have entrusted the powers of government to their King and the Parliament, and the King in turn usurps the legislative function and corrupts the Parliament, he is exercising power without lawful authority. In such a situation, as noted by John Locke, the renowned political philosopher of that era, the people are not in rebellion but are acting in self-defense and in behalf of their own self-preservation. Locke asserted that the King had to be resisted when he attempted to do that which he had no authority for doing; that which was a "breach of trust in not preserving the government agreed on."A nation is

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ruled by, and with the consent of, the governed, and changes may be made only if the governed so wish.

Our Founding Fathers accepted this principle. Changes, in time, are inevitable and the Founding Fathers wisely made provision in the constitutional instrument to provide for such changes. The provisions, however, envision orderly and lawful change, not change, as will be discussed, by extra-legal or unconstitutional means, be the means violent or nonviolent.

The first substantial challenge to orderly and nonviolent change in this country came in 1820-30 when South Carolina asserted the "right" of a State to nullify an act of Congress. At that time, many of the States, especially those in the South, took the position that the tariff acts with their rising rates were the cause of increased poverty in the southern States. Since northern States were prospering, the tariff acts were looked upon as discriminatory and unconstitutional devices for taxing the South for the benefit of the North. John C. Calhoun, then Vice President of the United States and a South Carolinian, developed a plan to protect the peculiar interests of his and other Southern States-a plan known as the nullification movement. Simply stated, nullification was based on a two part principle: (1) that the Federal Constitution was a compact or agreement between States, and (2) that the individual States were sovereign and indestructible. As sovereign, South Carolina, and any other State for that matter, had the right to judge when its agent, the Federal Government, exceeded its powers. In 1832, after a finding that the Federal Government had exceeded its powers, the South Carolina Legislature declared the Federal tariff acts to be "null, void, and no law" not binding upon her, her officers, or citizens. It forbade Federal officials to collect customs duties within the State and threatened instant secession from the Union if the Federal Government attempted interference."

President Jackson took prompt action to preserve the Union and maintain the law of the land. His position was that the United States was indivisible and that no State could revolt. He reinforced military garrisons in South Carolina and thereafter issued a proclamation stating that the nullification ordinance passed by that State was an overt act of rebellion and had no basis in constitutional law. He pointed to the paradoxical situation of South Carolina seeking to retain its place in the Union and enjoying Federal benefits, and at the same time wishing to be bound only by those laws that it chose to regard as constitutional.' Jackson proclaimed:

I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed (pp. 483-484).

The firm stand of President Jackson won out and, while Federal tariffs were reduced somewhat as a face-saving gesture for South Carolina, its nullification ordinance was repealed. The "right" to destroy the Union by "nullification" was successfully repulsed.

The "right" to destroy the Union by "secession" was also repulsed but it took a civil war to prove it. Lincoln, of course, had long denied any constitutional right of revolution. In his first inaugural address, he summed it up this way:

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Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination. *** it being impossible to destroy it except by some action not provided for in the instrument itself. [Italics supplied.]"

We have, then, instances of the Government deciding, in a political manner, that there is no constitutional right of revolution or rebellion." In another manner-that is, by judicial decision-our United States Supreme Court has also decided the question and declared that the Constitution supports no right of revolution. After the turn of the present century, world unrest and discrimination problems arising under the 14th amendment brought before our courts the whole question of constitutional rights. Shortly after World War II, the Supreme Court was called upon to decide the question on the right to advocate revolution. In Gitlow v. New York, 10 Benjamin Gitlow was convicted under a New York statute which forbade the advocacy of criminal anarchy (overthrowing organized government by force or violence)." He published a radical journal called The Revolutionary Age and advocated, among other things, "mass action for the conquest of the power of the state." Quoting Story, the Supreme Court held that the "state may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means." 12

Any consideration of the right of revolution involves first of all the question of how far one may go in advocating changes in government. Criticizing one's government does not automatically constitute incitement to revolution. A distinction is to be made between mere expressions of opinion on the one hand, and urging others to some definite act of violence against the government. This distinction was brought out in Herndon v. Georgia. 13 Herndon, an organizer for the Communist Party, was found guilty, under a Georgia statute, of inciting insurrection among southern Negroes against the state because he urged them to unite against white domination. The Supreme Court, in reversing the conviction, announced the principle that it was not unconstitutional for one to express a belief in the need for a change in, even the complete conversion of, the government so long as it was accomplished by peaceful, constitutional means.

16

The Gitlow and Herndon cases determined in broad outline the individual's right to advocate political change by lawful means. They also established the right of a government to legislate against acts of incitement and rebellion." Later cases established the right of government to outlaw organizations created for revolutionary purposes. 15 No one-be it an individual, a group, an organization, or a political party-may advocate revolution. The most notable case in which this communistic doctrine was denounced is Dennis v. United States." There, the petitioners, leaders of the Communist Party in the United States, were indicted under the Smith Act," for conspiring to teach and advocate the overthrow and destruction of the United States by force and violence. It was argued, on behalf of the petitioners, that the people, as sovereign, have an "historically established right to advocate revolution," and that the Constitution recognized such right. The Declaration of Independence was cited as proof of the Constitution's and the people's recognition of such a "right." To contend otherwise, according to the petitioners, would mean that the Government was an entity, independent of the people,

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endowed with the right of self-perpetuation, even if the people did not wish to perpetuate it.

Judge Learned Hand, when the case was before the court of appeals, in denying that such a right existed under the Constitution, succinctly pointed out that no government could tolerate it and exist. He stated:

The advocacy of violence may or may not, fail; but in neither case can there be any "right" to use it. Revolutions are often "right" but a "right of revolution" is a contradiction in terms, for a society which acknowledged it, could not stop at tolerating conspiracies to overthrow it, but must include their execution (p. 213).

When the case was decided in the Supreme Court, Chief Justice Vinson, writing for the majority, observed that the Constitution can only be changed by "peaceful, lawful, and constitutional means.' He further stated:

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Whatever theoretical merit there may be to the argument that there is a “right” to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change. (p. 501).

The fallacy in the Communist party theory lies in the fact that there is a natural law "right" of revolution but not a constitutional "right of revolution." Whenever any form of government becomes oppressive, or when a dictator has usurped the powers of government, there is, of course, the natural right of the people, recognized in international law, to relieve themselves of such oppression, if they are strong enough to do so, by overthrowing the government and initiating a new one.22 The Declaration of Independence was based on this natural law concept and the American colonists invoked it in throwing off the unyielding yoke of despotism and tyranny forced upon them by England.

The Communist concept adopts this theory but such a concept is clearly to be distinguished from orderly changes in government brought about through constitutional and lawful means. Chief Justice Vinson gave the constitutional answer to this question when he stated that there was no such right "where the existing structure of government provides for peaceful and orderly change.' And our Constitution so provides.

The Founding Fathers, fresh from their own revolution, did not seek, in molding the Constitution, to forge a political straitjacket on the generations which were to follow them. Instead, they foresaw that changes, in time, would be inevitable and they wrote article V into the Constitution providing for such changes.

Applying the rule laid down by the Supreme Court in the Dennis and other cases to the problem at hand, and considering the political action taken by our Government to suppress rebellions, it becomes apparent that changes in our form of government can only be accomplished by peaceful, lawful, and orderly means in the manner provided for by the Constitution. A Constitutional Convention, therefore, would be bound to function within, and in accordance with, the provisions of article V and congressional enabling acts, under the "necessary and proper" clause, calling it into being.

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CITATIONS

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History has shown, unfortunately, that governments have been destroyed from within both by agents of foreign sovereigns and by corrupt or overzealous public officials and organizations.

The English Law Courts at the Close of the Revolution of 1688, 15 Michigan Law Review, 529, 1912. Locke. Essay Concerning the True and Original Extent of Civil Government (I. P. Dutton, ed. 1924), pp. 224-242.

Ibid., p. 240. The framers of the United States Constitution accepted this theory for their government and, in fact, invoked it when the colonies broke with England because of the oppressive and tyrannical acts of George III. The Declaration of Independence, composed in large part by Thomas Jefferson, contains phrases taken directly from Locke's treatises, and Locke's pronouncements underlying England's action in its own rebellion were recast by Jefferson to fit the American Revolution. (Hayes, Revolution as a Constitutional Right (1938), 13 Temple Law Qt. 19.)

Strangely, however, the Declaration of Independence which was used by our own nation to justify our break with the English government is relied upon by those who today insist that there is a right of revolution which must be recognized if our present Constitution is to be consistent with the ideals of our founding fathers. (Brief for Petitioners before the United States Supreme Court, p. 287, Dennis v. United States, 341 U. 8. 494 (1951).)

The founding fathers, in framing the Constitution, did not specifically mention that there was no right of revolution or rebellion. They were creating a government, not providing for its overthrow. Since the instrument was silent, it remained for the Supreme Court and the political acts of our government to define the rights of its citizens, acting either as individuals or as groups, to oppose their government. Hayes, Revolution as a Constitutional Right (1938), 13 Temple Law Qt., 19; Brief for petitioners before the United States Supreme Court, p. 267, Dennis v. United States, 341 Ü. B. 494 (1951)."

Locke, ibid., p. 240.

U.S., Congress, Senate, 64th Cong., 2d Sess., 1897, Senate Doc. 353, Pt. 2, p. 283, U. 8., Congress, Senate, 22d Cong., 2d Sess., 1833, Senate Journal, pp. 65-66, 83; Am. An. Reg. VIII, 297; U. 8., Congress, House, 54th Cong., 2d Bess., 1807, Senate Doc. 353, Pt. 2, p. 345.

Morison, 8. F., and Commager, H. E., The Growth of the American Republic, ad ed., Oxford, University Press (1942).

7 Old South Leaflets, I, Boston, containing Lincoln's Inaugurals, p. 3.

The government, by political action in sustaining the doctrine that there is no constitutional "right of revolution" put down rebellious forces in the Wyoming Valley Insurrection, 1872, Shay's Rebellion, 17861787; The Whiskey Rebellion, 1794; Fries's Rebellion, 1842 ("Window Tax war"); Door's Rebellion, 1813 (Rhode Island).

At the time of World War I, two decisions were handed down, upholding the right of the government to protect itself against its enemies even to the extent of providing punishment for criticising in newspaper articles the policy of the government. (Schaefer v. United States, 251 U. 8. 486 (1919); Gilbert v. Minnesota, 254 U. 3. 325 (1920).

268 U. 8. 652 (1925).

McKinney's Consolidated Laws of New York, Penal Law, sections 160, 161 (1909).

13 268 U. 8. 662, 667 (1925).

13 295 U. 8. 441 (1935); also Herndon v. Lowry, Sheriff, 301 U. 8. 242 (1937).

14 See also Whitney v. California, 274 U. 8. 357 (1927); DeJonge v. Oregon, 299 U. 8. 353 (1987); Fiske v. Kansas, 274 U. 8. 380 (1927).

16 Dennis v. United States, 341 U. 8. 494 (1951); United States v. Schneiderman, 106 Fed. Supp. 106, 888 (1952); United States v. Foster, 9 F. R. D. 367, 394 (1951).

Kjar v. Doak, 61 F. 2d 566 C. C. A. Ill. (1932); Gitlow v. Kiely, 44 Fed. 2d 237 D. O. N. Y. (1980). 17 341 U. B. 494 (1961).

18 64 Statutes at Large 671: 18 U. 8. Code, sec. 11 et seq., (1962 ed.)

19 Brief for petitioners before United States Supreme Court, p. 207, Dennis v. United States, 341 U. 8. 494 (1961).

183 Fed. 2d 201 (2d Cir. 1960).

31 United States v. Dennis, 341 U. B. 494, 501 (1951).

Personal Memoirs of U. 8. Grant (1885) p. 786.

The philosopher, John Dewey, is quoted in Sidney Hook's Heresy, Yes-Conspi No as saying "The democratic idea of freedom is not the right of each individual to do as he pleases, (New York: The John Day Co., 1951, p. 15). The free expression and circulation of ideas, as guaranteed by the First Amendment to the Constitution, is not, as we all know, an absolute freedom or right. One cannot, as Justice Holmes noted, yell "fire" in a crowded theater; nor may one blast another's reputation by libelous accusation. Hook stated the governing rule: "no right is absolute when it endangers rights of equal or greater validity." (Ibid., p. 20.)

There is nothing self-contradictory in asserting that, in any society, human beings have a moral right to revolution. What is self-contradictory is the belief that one has a legal right to revolt.

As stated in Herndon v. Georgia, 296 U. 8. 441 (1935), merely aritizing one's government does not automatically constitute incitement to revolution. Such action is protected by the First Amendment. How far one may go in such criticism is the real problem. Congress, through legislation, sets the bounds. It has enacted laws against sabotage and subversion, and has provided severe penalties for violators of those statutes. However, prison sentences have not been a sumcient deterrent. Furthermore, susturices usually imposed after a disastrous event has occurred.

A policy of "preventive" action, comparable by way of analogy to preventive medicine, oped. It is known, for example, that a few strategically placed communists in governmen culable harm. Witness the taking of the atom bomb secrets by Klans Fuch, Harry Gold, etc., government proving grounds in New Mexico. To combat this type of danger a program has been taken, the purpose of which is to eliminate questionable persons from sensitive spots in government part of this program, Congress, in enacting the Smith Act, has outlawed not only all overt acts throw the government through force and violence, but also has made punishable a conspiracy to teac any doctrine advocating such violence. In other words, mere talking about it can, under certain stances, be unlawful.

It may well be that, in an effort to further tighten the defense security of our nation, Congress will actions and words which years ago would have been considered proper and lawful criticism of the gove ment. 80 that, while a person has a moral right, protected by the First Amendment, to criticize his govan mant, the right is not only not absolute, but all criticism, words as well as acts, must be done within the bounds set by Congress, which today because of developments in world political conditions, sesta narrowing.