Colonialism and Disobedience
(This article was originally published by Enclave Magazine on November 3, 2020).
The Vietnam War (1964–1975) was a horrible mess. Almost 60 thousand American soldiers died, while Vietnam’s government estimated that 3 million Vietnamese perished, including 2 million civilians –among them, women, children and elders. The ecological devastation was also staggering, courtesy of American bombs, chemical weapons, and napalm.
Thousands of young Puerto Ricans were inducted to fight in that war. Many resisted the draft, including Edwin Feliciano. Young Mr. Feliciano was charged and tried in the United States District Court for the District of Puerto Rico, where a jury found him guilty of “refusing to submit to induction.” Puerto Rican federal judge Hiram A. Cancio sentenced him to one year of imprisonment.
Judge Cancio later reduced the sentence to one hour, issuing in early 1970 an opinion explaining his reasons for that decision. See United States v. Feliciano-Grafals, 309 F. Supp. 1292 (D.P.R. 1970). The so-called military draft cases of the Vietnam era caught the attention of many academics, including legal scholar Ronald Dworkin.
The analysis developed by Dworkin centered on what should be the response of the authorities when citizens disobey a law on the basis that it infringes their moral rights or that it is unconstitutional. Dworkin urged societal and governmental tolerance of civil disobedience, particularly when there are strong arguments casting reasonable doubt on the validity of official actions. In his display of leniency toward young Edwin Feliciano, Judge Cancio relied on that same factor.
Rights in a Strong Sense
Dworkin’s reasoning goes as follows. (See his book, Taking Rights Seriously (1978)). Rights under the Constitution are “moral rights” which have received legal recognition, thus becoming “legal rights.” If rights are to be “taken seriously,” governments must allow room for civil disobedience, that is, for defiance of laws which are reasonably and plausibly deemed as abridging moral rights. Government’s stance on the extent of rights is not necessarily the correct one, and it is expected that reasonable people would hold different views on the subject in particular instances.
As the late Dworkin put it, “those constitutional rights that we call fundamental” must be “rights against the government in the strong sense; that is the point of the boast that our legal system respects the fundamental rights of the citizen.” Otherwise, the claim of a right would lose “the political importance it is normally taken to have.”
If rights are given a “strong sense,” we do not merely say that a person has the right to break the law, while the State is still entitled to punish her. That is, we must not think that, because of her view on the extent of her rights, a person is not wrong in defying a law and has our respect for doing so, while still deeming that the government is entitled to punish her. Instead, we must ask whether the government would do wrong by stopping her through arrest and prosecution.
Dworkin sustains that a person sometimes has the right, in the strong sense, to disobey the law. For instance, since he or she has a moral right to free speech, that citizen also “has a moral right to break any law that the Government, by virtue of his right, had no right to adopt.”
It follows that the right to disobey such a law is not separate from the right to free speech; and that the act of disobedience has nothing to do with “conscience.” Moreover, if there are rights at all, then the general benefit cannot be a good ground for abridging rights, even when the benefit in question is a supposed heightened respect for the law.
Dworkin makes the case that, in any event, it is far from clear that civil disobedience lowers respect for the law, but “if we suppose that it does, this fact is irrelevant.” Why? Because the boast that a society respects individual rights would be pointless unless sacrifices are made, including giving up whatever marginal benefits society would receive from overriding rights when they prove inconvenient.
The Leniency of Judge Cancio
In seeking the dismissal of his federal indictment, Edwin Feliciano argued that he had not consented to U.S. laws ruling over his life, because he lacked rights of participation in the American political process. He therefore exposed the most fundamental problem of colonial rule, that of democratic illegitimacy.
Judge Cancio availed himself of the bizarre concept of “generic consent.” Puerto Ricans supposedly gave a “generic” acquiescence to American hegemony, by approving in referenda the current structural arrangement. Usually known as “commonwealth status,” it allowed Puerto Ricans to exercise similar governmental powers to those of the American States. In exchange for the “privilege” of exercising those prerogatives, the argument goes, Puerto Ricans “consented” to the continuous exercise of U.S. government powers, including the enforcement of compulsory military service statutes.
According to the judge, however, reasonable people can believe in good faith “that the generic consent given in the consultations via referenda between 1950 and 1952 were not a consent sufficient to permit Congress to legislate for Puerto Rico in matters so vital to its life as a people, only one of which we need mention here, compulsory military service.” After all, “Puerto Rico is not represented in Congress through delegates with voice and vote. The Resident Commissioner of Puerto Rico in Washington does have a voice in the lower house, but he has no vote. Nor do Puerto Ricans vote for President.”
In 1952 Puerto Rican voters ratified a “constitution” that Congress allowed them to adopt, which came into effect after Congress itself approved it. Therein were established the structural features of the Puerto Rico “local” government, which Congress had set in a more straightforward fashion –by legislating without consulting the Puerto Rican people– in 1900 and 1917. Until 1948 Puerto Ricans did not even vote for the governor, who was appointed by the American President.
Cancio was aware of the weakness of the claim that Puerto Rico ceased to be a colony in 1952, stating that the congressional legislative history of the process that took place between 1950 and 1952 is “sufficiently dim for a respectable and intelligent person to believe” that the colonial status remained unchanged. Thus, he added, “clarification of the political relations between Puerto Rico and the United States will do no harm to anyone and will likely do a great deal of good to the common wellbeing.”
Given all the fairness and democratic problems raised by “commonwealth status,” Cancio added that it “would not be a bad idea” to extend the military draft “only through the specific consent of the people of Puerto Rico. Nor would declaring an amnesty for those who have violated the present law in good faith.”
Dworkin argued that prosecutorial discretion in favor of not processing conscientious objectors to the draft was warranted in most cases. In reducing Feliciano’s punishment from one year to only one hour of imprisonment, Judge Cancio noticed that the young man was an otherwise law abiding, decent human being whose views were reasonable, even if mistaken. That is, the judge exercised his discretion to minimize the effects of an unfair scenario.
On the Right Side of History
According to Dworkin, the draft cases presented “special arguments for tolerance” of civil disobedience. The central reason for it is the plausibility of the stance that the war and the draft were wrong and invalid on both moral and legal grounds.
In other words, the validity of the law was doubtful, and “almost any law which a significant number of people would be tempted to disobey on moral grounds would be doubtful –if not clearly invalid– on constitutional grounds as well.” The moral objections to the Vietnam War were mirrored by legal arguments, including that the American use of weapons and tactics was in violation of treaties signed by the United States; that Congress had not declared war, as the Constitution requires; and that induction was unequally administered to the detriment of poor, young men.
In Puerto Rico, those objections were compounded by a colonial situation in which the island and its people are mostly invisible and irrelevant to American political actors. Their otherwise visibility or electoral relevance, however, would not guarantee fair federal legislation or evenhanded executive action. Up to the present day, voting has never been enough to remedy the inequities and injustices that still plague the United States.
During the Vietnam era, speech was criminalized in the “land of the free.” Indeed, prominent Americans were indicted for urging young men to refuse aiding in the perpetration of genocide on a people who were defending their right to govern themselves. That same right is still denied to Puerto Ricans. Edwin Feliciano, Judge Cancio, and Ronald Dworkin were on the right side of history.
