Bob Schwartz

Tag: law

Our Leaders Right or Wrong?: Letter from a Birmingham Jail (originally posted Martin Luther King Jr. Day 2017)

mlk-arrested

We should never forget that everything Adolf Hitler did in Germany was “legal” and everything the Hungarian freedom fighters did in Hungary was “illegal.” It was “illegal” to aid and comfort a Jew in Hitler’s Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country’s antireligious laws.
Martin Luther King Jr., Letter From a Birmingham Jail, April 16, 1963

Monday, January 19, 2025, is Martin Luther King Jr. Day.

The following post was originally published on January 16, 2017. Four days later, Donald Trump was inaugurated for the first time:

Trump and his followers have tried to degrade, diminish and eliminate the presence and spirit of MLK in American history. Despite his being featured on two American postage stamps, 1979 and 2010, as well as on the stamps of many other nations.

MLK and the Civil Rights Movement are reminders that when powerful official policies and actions contravene conscience and justice, sometime brutally, it takes time and work and commitment and courage to change that.


Up to and during the 1960s, a portion of the democratically-elected leaders in America promoted and enforced policies and philosophies that were then and now regarded by many as unacceptable and reprehensible. Once it had been slavery, and even after that was wrested from the hands of those leaders, other means were enacted to continue civil inhumanity.

None of that was a problem for those who supported those leaders. The challenge was for those who were told to accept, respect and obey the leaders and the offices, because that is what we do as loyal and lawful citizens who accept, respect and obey our system and our way of life—but they would not and could not.

Martin Luther King Jr. was one who did not believe in blind and passive acceptance, respect and obedience in the face of benighted and wrongheaded leadership. In this, he followed many who over centuries faced the same tragic dilemma.

On April 12, 1963, King was arrested for violating Alabama’s law against mass public demonstrations. He and Ralph Abernathy had marched from Sixth Avenue Baptist Church in Birmingham into a waiting police wagon. Eight Birmingham clergymen criticized the confrontational strategy, calling it “unwise and untimely” and appealing “to both our white and Negro citizenry to observe the principles of law and order and common sense.”

A few days later, King answered this criticism, writing from his prison cell a public letter that has come to be known as Letter from a Birmingham Jail. It is one of the great public texts in American history, both in literary style and moral impact. It belongs up there with the Gettysburg Address, though given its measured and stirring justification for civil disobedience, is not as universally recited or honored.

In the letter, King wrote:

I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

Of course, there is nothing new about this kind of civil disobedience. It was evidenced sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar, on the ground that a higher moral law was at stake. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience.

We should never forget that everything Adolf Hitler did in Germany was “legal” and everything the Hungarian freedom fighters did in Hungary was “illegal.” It was “illegal” to aid and comfort a Jew in Hitler’s Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country’s antireligious laws.

If you do nothing else on this day to celebrate the life and work of Martin Luther King Jr., and just a few days before the inauguration of a new President and the start of a new era, please read the letter, in part or in whole. It is a very long letter (“Never before have I written so long a letter. I’m afraid it is much too long to take your precious time. I can assure you that it would have been much shorter if I had been writing from a comfortable desk, but what else can one do when he is alone in a narrow jail cell, other than write long letters, think long thoughts and pray long prayers?”). It is printed below.


Letter from a Birmingham Jail

16 April 1963

My Dear Fellow Clergymen:

While confined here in the Birmingham city jail, I came across your recent statement calling my present activities “unwise and untimely.” Seldom do I pause to answer criticism of my work and ideas. If I sought to answer all the criticisms that cross my desk, my secretaries would have little time for anything other than such correspondence in the course of the day, and I would have no time for constructive work. But since I feel that you are men of genuine good will and that your criticisms are sincerely set forth, I want to try to answer your statement in what I hope will be patient and reasonable terms.

I think I should indicate why I am here in Birmingham, since you have been influenced by the view which argues against “outsiders coming in.” I have the honor of serving as president of the Southern Christian Leadership Conference, an organization operating in every southern state, with headquarters in Atlanta, Georgia. We have some eighty five affiliated organizations across the South, and one of them is the Alabama Christian Movement for Human Rights. Frequently we share staff, educational and financial resources with our affiliates. Several months ago the affiliate here in Birmingham asked us to be on call to engage in a nonviolent direct action program if such were deemed necessary. We readily consented, and when the hour came we lived up to our promise. So I, along with several members of my staff, am here because I was invited here. I am here because I have organizational ties here.

But more basically, I am in Birmingham because injustice is here. Just as the prophets of the eighth century B.C. left their villages and carried their “thus saith the Lord” far beyond the boundaries of their home towns, and just as the Apostle Paul left his village of Tarsus and carried the gospel of Jesus Christ to the far corners of the Greco Roman world, so am I compelled to carry the gospel of freedom beyond my own home town. Like Paul, I must constantly respond to the Macedonian call for aid.

Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial “outside agitator” idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.

You deplore the demonstrations taking place in Birmingham. But your statement, I am sorry to say, fails to express a similar concern for the conditions that brought about the demonstrations. I am sure that none of you would want to rest content with the superficial kind of social analysis that deals merely with effects and does not grapple with underlying causes. It is unfortunate that demonstrations are taking place in Birmingham, but it is even more unfortunate that the city’s white power structure left the Negro community with no alternative.

In any nonviolent campaign there are four basic steps: collection of the facts to determine whether injustices exist; negotiation; self purification; and direct action. We have gone through all these steps in Birmingham. There can be no gainsaying the fact that racial injustice engulfs this community. Birmingham is probably the most thoroughly segregated city in the United States. Its ugly record of brutality is widely known. Negroes have experienced grossly unjust treatment in the courts. There have been more unsolved bombings of Negro homes and churches in Birmingham than in any other city in the nation. These are the hard, brutal facts of the case. On the basis of these conditions, Negro leaders sought to negotiate with the city fathers. But the latter consistently refused to engage in good faith negotiation.

Then, last September, came the opportunity to talk with leaders of Birmingham’s economic community. In the course of the negotiations, certain promises were made by the merchants–for example, to remove the stores’ humiliating racial signs. On the basis of these promises, the Reverend Fred Shuttlesworth and the leaders of the Alabama Christian Movement for Human Rights agreed to a moratorium on all demonstrations. As the weeks and months went by, we realized that we were the victims of a broken promise. A few signs, briefly removed, returned; the others remained. As in so many past experiences, our hopes had been blasted, and the shadow of deep disappointment settled upon us. We had no alternative except to prepare for direct action, whereby we would present our very bodies as a means of laying our case before the conscience of the local and the national community. Mindful of the difficulties involved, we decided to undertake a process of self purification. We began a series of workshops on nonviolence, and we repeatedly asked ourselves: “Are you able to accept blows without retaliating?” “Are you able to endure the ordeal of jail?” We decided to schedule our direct action program for the Easter season, realizing that except for Christmas, this is the main shopping period of the year. Knowing that a strong economic-withdrawal program would be the by product of direct action, we felt that this would be the best time to bring pressure to bear on the merchants for the needed change.

Then it occurred to us that Birmingham’s mayoral election was coming up in March, and we speedily decided to postpone action until after election day. When we discovered that the Commissioner of Public Safety, Eugene “Bull” Connor, had piled up enough votes to be in the run off, we decided again to postpone action until the day after the run off so that the demonstrations could not be used to cloud the issues. Like many others, we waited to see Mr. Connor defeated, and to this end we endured postponement after postponement. Having aided in this community need, we felt that our direct action program could be delayed no longer.

You may well ask: “Why direct action? Why sit ins, marches and so forth? Isn’t negotiation a better path?” You are quite right in calling for negotiation. Indeed, this is the very purpose of direct action. Nonviolent direct action seeks to create such a crisis and foster such a tension that a community which has constantly refused to negotiate is forced to confront the issue. It seeks so to dramatize the issue that it can no longer be ignored. My citing the creation of tension as part of the work of the nonviolent resister may sound rather shocking. But I must confess that I am not afraid of the word “tension.” I have earnestly opposed violent tension, but there is a type of constructive, nonviolent tension which is necessary for growth. Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half truths to the unfettered realm of creative analysis and objective appraisal, so must we see the need for nonviolent gadflies to create the kind of tension in society that will help men rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood. The purpose of our direct action program is to create a situation so crisis packed that it will inevitably open the door to negotiation. I therefore concur with you in your call for negotiation. Too long has our beloved Southland been bogged down in a tragic effort to live in monologue rather than dialogue.

One of the basic points in your statement is that the action that I and my associates have taken in Birmingham is untimely. Some have asked: “Why didn’t you give the new city administration time to act?” The only answer that I can give to this query is that the new Birmingham administration must be prodded about as much as the outgoing one, before it will act. We are sadly mistaken if we feel that the election of Albert Boutwell as mayor will bring the millennium to Birmingham. While Mr. Boutwell is a much more gentle person than Mr. Connor, they are both segregationists, dedicated to maintenance of the status quo. I have hope that Mr. Boutwell will be reasonable enough to see the futility of massive resistance to desegregation. But he will not see this without pressure from devotees of civil rights. My friends, I must say to you that we have not made a single gain in civil rights without determined legal and nonviolent pressure. Lamentably, it is an historical fact that privileged groups seldom give up their privileges voluntarily. Individuals may see the moral light and voluntarily give up their unjust posture; but, as Reinhold Niebuhr has reminded us, groups tend to be more immoral than individuals.

We know through painful experience that freedom is never voluntarily given by the oppressor; it must be demanded by the oppressed. Frankly, I have yet to engage in a direct action campaign that was “well timed” in the view of those who have not suffered unduly from the disease of segregation. For years now I have heard the word “Wait!” It rings in the ear of every Negro with piercing familiarity. This “Wait” has almost always meant “Never.” We must come to see, with one of our distinguished jurists, that “justice too long delayed is justice denied.”

We have waited for more than 340 years for our constitutional and God given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we still creep at horse and buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging darts of segregation to say, “Wait.” But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six year old daughter why she can’t go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five year old son who is asking: “Daddy, why do white people treat colored people so mean?”; when you take a cross county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading “white” and “colored”; when your first name becomes “nigger,” your middle name becomes “boy” (however old you are) and your last name becomes “John,” and your wife and mother are never given the respected title “Mrs.”; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of “nobodiness”–then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience. You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may well ask: “How can you advocate breaking some laws and obeying others?” The answer lies in the fact that there are two types of laws: just and unjust. I would be the first to advocate obeying just laws. One has not only a legal but a moral responsibility to obey just laws. Conversely, one has a moral responsibility to disobey unjust laws. I would agree with St. Augustine that “an unjust law is no law at all.”

Now, what is the difference between the two? How does one determine whether a law is just or unjust? 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. All segregation statutes are unjust because segregation distorts the soul and damages the personality. It gives the segregator a false sense of superiority and the segregated a false sense of inferiority. Segregation, to use the terminology of the Jewish philosopher Martin Buber, substitutes an “I it” relationship for an “I thou” relationship and ends up relegating persons to the status of things. Hence segregation is not only politically, economically and sociologically unsound, it is morally wrong and sinful. Paul Tillich has said that sin is separation. Is not segregation an existential expression of man’s tragic separation, his awful estrangement, his terrible sinfulness? Thus it is that I can urge men to obey the 1954 decision of the Supreme Court, for it is morally right; and I can urge them to disobey segregation ordinances, for they are morally wrong.

Let us consider a more concrete example of just and unjust laws. An unjust law is a code that a numerical or power majority group compels a minority group to obey but does not make binding on itself. This is difference made legal. By the same token, a just law is a code that a majority compels a minority to follow and that it is willing to follow itself. This is sameness made legal. Let me give another explanation. A law is unjust if it is inflicted on a minority that, as a result of being denied the right to vote, had no part in enacting or devising the law. Who can say that the legislature of Alabama which set up that state’s segregation laws was democratically elected? Throughout Alabama all sorts of devious methods are used to prevent Negroes from becoming registered voters, and there are some counties in which, even though Negroes constitute a majority of the population, not a single Negro is registered. Can any law enacted under such circumstances be considered democratically structured?

Sometimes a law is just on its face and unjust in its application. For instance, I have been arrested on a charge of parading without a permit. Now, there is nothing wrong in having an ordinance which requires a permit for a parade. But such an ordinance becomes unjust when it is used to maintain segregation and to deny citizens the First-Amendment privilege of peaceful assembly and protest.

I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.

Of course, there is nothing new about this kind of civil disobedience. It was evidenced sublimely in the refusal of Shadrach, Meshach and Abednego to obey the laws of Nebuchadnezzar, on the ground that a higher moral law was at stake. It was practiced superbly by the early Christians, who were willing to face hungry lions and the excruciating pain of chopping blocks rather than submit to certain unjust laws of the Roman Empire. To a degree, academic freedom is a reality today because Socrates practiced civil disobedience. In our own nation, the Boston Tea Party represented a massive act of civil disobedience.

We should never forget that everything Adolf Hitler did in Germany was “legal” and everything the Hungarian freedom fighters did in Hungary was “illegal.” It was “illegal” to aid and comfort a Jew in Hitler’s Germany. Even so, I am sure that, had I lived in Germany at the time, I would have aided and comforted my Jewish brothers. If today I lived in a Communist country where certain principles dear to the Christian faith are suppressed, I would openly advocate disobeying that country’s antireligious laws.

I must make two honest confessions to you, my Christian and Jewish brothers. First, I must confess that over the past few years I have been gravely disappointed with the white moderate. I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to “order” than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: “I agree with you in the goal you seek, but I cannot agree with your methods of direct action”; who paternalistically believes he can set the timetable for another man’s freedom; who lives by a mythical concept of time and who constantly advises the Negro to wait for a “more convenient season.” Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.

I had hoped that the white moderate would understand that law and order exist for the purpose of establishing justice and that when they fail in this purpose they become the dangerously structured dams that block the flow of social progress. I had hoped that the white moderate would understand that the present tension in the South is a necessary phase of the transition from an obnoxious negative peace, in which the Negro passively accepted his unjust plight, to a substantive and positive peace, in which all men will respect the dignity and worth of human personality. Actually, we who engage in nonviolent direct action are not the creators of tension. We merely bring to the surface the hidden tension that is already alive. We bring it out in the open, where it can be seen and dealt with. Like a boil that can never be cured so long as it is covered up but must be opened with all its ugliness to the natural medicines of air and light, injustice must be exposed, with all the tension its exposure creates, to the light of human conscience and the air of national opinion before it can be cured.

In your statement you assert that our actions, even though peaceful, must be condemned because they precipitate violence. But is this a logical assertion? Isn’t this like condemning a robbed man because his possession of money precipitated the evil act of robbery? Isn’t this like condemning Socrates because his unswerving commitment to truth and his philosophical inquiries precipitated the act by the misguided populace in which they made him drink hemlock? Isn’t this like condemning Jesus because his unique God consciousness and never ceasing devotion to God’s will precipitated the evil act of crucifixion? We must come to see that, as the federal courts have consistently affirmed, it is wrong to urge an individual to cease his efforts to gain his basic constitutional rights because the quest may precipitate violence. Society must protect the robbed and punish the robber. I had also hoped that the white moderate would reject the myth concerning time in relation to the struggle for freedom. I have just received a letter from a white brother in Texas. He writes: “All Christians know that the colored people will receive equal rights eventually, but it is possible that you are in too great a religious hurry. It has taken Christianity almost two thousand years to accomplish what it has. The teachings of Christ take time to come to earth.” Such an attitude stems from a tragic misconception of time, from the strangely irrational notion that there is something in the very flow of time that will inevitably cure all ills. Actually, time itself is neutral; it can be used either destructively or constructively. More and more I feel that the people of ill will have used time much more effectively than have the people of good will. We will have to repent in this generation not merely for the hateful words and actions of the bad people but for the appalling silence of the good people. Human progress never rolls in on wheels of inevitability; it comes through the tireless efforts of men willing to be co workers with God, and without this hard work, time itself becomes an ally of the forces of social stagnation. We must use time creatively, in the knowledge that the time is always ripe to do right. Now is the time to make real the promise of democracy and transform our pending national elegy into a creative psalm of brotherhood. Now is the time to lift our national policy from the quicksand of racial injustice to the solid rock of human dignity.

You speak of our activity in Birmingham as extreme. At first I was rather disappointed that fellow clergymen would see my nonviolent efforts as those of an extremist. I began thinking about the fact that I stand in the middle of two opposing forces in the Negro community. One is a force of complacency, made up in part of Negroes who, as a result of long years of oppression, are so drained of self respect and a sense of “somebodiness” that they have adjusted to segregation; and in part of a few middle-class Negroes who, because of a degree of academic and economic security and because in some ways they profit by segregation, have become insensitive to the problems of the masses. The other force is one of bitterness and hatred, and it comes perilously close to advocating violence. It is expressed in the various black nationalist groups that are springing up across the nation, the largest and best known being Elijah Muhammad’s Muslim movement. Nourished by the Negro’s frustration over the continued existence of racial discrimination, this movement is made up of people who have lost faith in America, who have absolutely repudiated Christianity, and who have concluded that the white man is an incorrigible “devil.”

I have tried to stand between these two forces, saying that we need emulate neither the “do nothingism” of the complacent nor the hatred and despair of the black nationalist. For there is the more excellent way of love and nonviolent protest. I am grateful to God that, through the influence of the Negro church, the way of nonviolence became an integral part of our struggle. If this philosophy had not emerged, by now many streets of the South would, I am convinced, be flowing with blood. And I am further convinced that if our white brothers dismiss as “rabble rousers” and “outside agitators” those of us who employ nonviolent direct action, and if they refuse to support our nonviolent efforts, millions of Negroes will, out of frustration and despair, seek solace and security in black nationalist ideologies–a development that would inevitably lead to a frightening racial nightmare.

Oppressed people cannot remain oppressed forever. The yearning for freedom eventually manifests itself, and that is what has happened to the American Negro. Something within has reminded him of his birthright of freedom, and something without has reminded him that it can be gained. Consciously or unconsciously, he has been caught up by the Zeitgeist, and with his black brothers of Africa and his brown and yellow brothers of Asia, South America and the Caribbean, the United States Negro is moving with a sense of great urgency toward the promised land of racial justice. If one recognizes this vital urge that has engulfed the Negro community, one should readily understand why public demonstrations are taking place. The Negro has many pent up resentments and latent frustrations, and he must release them. So let him march; let him make prayer pilgrimages to the city hall; let him go on freedom rides -and try to understand why he must do so. If his repressed emotions are not released in nonviolent ways, they will seek expression through violence; this is not a threat but a fact of history. So I have not said to my people: “Get rid of your discontent.” Rather, I have tried to say that this normal and healthy discontent can be channeled into the creative outlet of nonviolent direct action. And now this approach is being termed extremist. But though I was initially disappointed at being categorized as an extremist, as I continued to think about the matter I gradually gained a measure of satisfaction from the label. Was not Jesus an extremist for love: “Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you.” Was not Amos an extremist for justice: “Let justice roll down like waters and righteousness like an ever flowing stream.” Was not Paul an extremist for the Christian gospel: “I bear in my body the marks of the Lord Jesus.” Was not Martin Luther an extremist: “Here I stand; I cannot do otherwise, so help me God.” And John Bunyan: “I will stay in jail to the end of my days before I make a butchery of my conscience.” And Abraham Lincoln: “This nation cannot survive half slave and half free.” And Thomas Jefferson: “We hold these truths to be self evident, that all men are created equal . . .” So the question is not whether we will be extremists, but what kind of extremists we will be. Will we be extremists for hate or for love? Will we be extremists for the preservation of injustice or for the extension of justice? In that dramatic scene on Calvary’s hill three men were crucified. We must never forget that all three were crucified for the same crime–the crime of extremism. Two were extremists for immorality, and thus fell below their environment. The other, Jesus Christ, was an extremist for love, truth and goodness, and thereby rose above his environment. Perhaps the South, the nation and the world are in dire need of creative extremists.

I had hoped that the white moderate would see this need. Perhaps I was too optimistic; perhaps I expected too much. I suppose I should have realized that few members of the oppressor race can understand the deep groans and passionate yearnings of the oppressed race, and still fewer have the vision to see that injustice must be rooted out by strong, persistent and determined action. I am thankful, however, that some of our white brothers in the South have grasped the meaning of this social revolution and committed themselves to it. They are still all too few in quantity, but they are big in quality. Some -such as Ralph McGill, Lillian Smith, Harry Golden, James McBride Dabbs, Ann Braden and Sarah Patton Boyle–have written about our struggle in eloquent and prophetic terms. Others have marched with us down nameless streets of the South. They have languished in filthy, roach infested jails, suffering the abuse and brutality of policemen who view them as “dirty nigger-lovers.” Unlike so many of their moderate brothers and sisters, they have recognized the urgency of the moment and sensed the need for powerful “action” antidotes to combat the disease of segregation. Let me take note of my other major disappointment. I have been so greatly disappointed with the white church and its leadership. Of course, there are some notable exceptions. I am not unmindful of the fact that each of you has taken some significant stands on this issue. I commend you, Reverend Stallings, for your Christian stand on this past Sunday, in welcoming Negroes to your worship service on a nonsegregated basis. I commend the Catholic leaders of this state for integrating Spring Hill College several years ago.

But despite these notable exceptions, I must honestly reiterate that I have been disappointed with the church. I do not say this as one of those negative critics who can always find something wrong with the church. I say this as a minister of the gospel, who loves the church; who was nurtured in its bosom; who has been sustained by its spiritual blessings and who will remain true to it as long as the cord of life shall lengthen.

When I was suddenly catapulted into the leadership of the bus protest in Montgomery, Alabama, a few years ago, I felt we would be supported by the white church. I felt that the white ministers, priests and rabbis of the South would be among our strongest allies. Instead, some have been outright opponents, refusing to understand the freedom movement and misrepresenting its leaders; all too many others have been more cautious than courageous and have remained silent behind the anesthetizing security of stained glass windows.

In spite of my shattered dreams, I came to Birmingham with the hope that the white religious leadership of this community would see the justice of our cause and, with deep moral concern, would serve as the channel through which our just grievances could reach the power structure. I had hoped that each of you would understand. But again I have been disappointed.

I have heard numerous southern religious leaders admonish their worshipers to comply with a desegregation decision because it is the law, but I have longed to hear white ministers declare: “Follow this decree because integration is morally right and because the Negro is your brother.” In the midst of blatant injustices inflicted upon the Negro, I have watched white churchmen stand on the sideline and mouth pious irrelevancies and sanctimonious trivialities. In the midst of a mighty struggle to rid our nation of racial and economic injustice, I have heard many ministers say: “Those are social issues, with which the gospel has no real concern.” And I have watched many churches commit themselves to a completely other worldly religion which makes a strange, un-Biblical distinction between body and soul, between the sacred and the secular.

I have traveled the length and breadth of Alabama, Mississippi and all the other southern states. On sweltering summer days and crisp autumn mornings I have looked at the South’s beautiful churches with their lofty spires pointing heavenward. I have beheld the impressive outlines of her massive religious education buildings. Over and over I have found myself asking: “What kind of people worship here? Who is their God? Where were their voices when the lips of Governor Barnett dripped with words of interposition and nullification? Where were they when Governor Wallace gave a clarion call for defiance and hatred? Where were their voices of support when bruised and weary Negro men and women decided to rise from the dark dungeons of complacency to the bright hills of creative protest?”

Yes, these questions are still in my mind. In deep disappointment I have wept over the laxity of the church. But be assured that my tears have been tears of love. There can be no deep disappointment where there is not deep love. Yes, I love the church. How could I do otherwise? I am in the rather unique position of being the son, the grandson and the great grandson of preachers. Yes, I see the church as the body of Christ. But, oh! How we have blemished and scarred that body through social neglect and through fear of being nonconformists.

There was a time when the church was very powerful–in the time when the early Christians rejoiced at being deemed worthy to suffer for what they believed. In those days the church was not merely a thermometer that recorded the ideas and principles of popular opinion; it was a thermostat that transformed the mores of society. Whenever the early Christians entered a town, the people in power became disturbed and immediately sought to convict the Christians for being “disturbers of the peace” and “outside agitators.”‘ But the Christians pressed on, in the conviction that they were “a colony of heaven,” called to obey God rather than man. Small in number, they were big in commitment. They were too God-intoxicated to be “astronomically intimidated.” By their effort and example they brought an end to such ancient evils as infanticide and gladiatorial contests. Things are different now. So often the contemporary church is a weak, ineffectual voice with an uncertain sound. So often it is an archdefender of the status quo. Far from being disturbed by the presence of the church, the power structure of the average community is consoled by the church’s silent–and often even vocal–sanction of things as they are.

But the judgment of God is upon the church as never before. If today’s church does not recapture the sacrificial spirit of the early church, it will lose its authenticity, forfeit the loyalty of millions, and be dismissed as an irrelevant social club with no meaning for the twentieth century. Every day I meet young people whose disappointment with the church has turned into outright disgust.

Perhaps I have once again been too optimistic. Is organized religion too inextricably bound to the status quo to save our nation and the world? Perhaps I must turn my faith to the inner spiritual church, the church within the church, as the true ekklesia and the hope of the world. But again I am thankful to God that some noble souls from the ranks of organized religion have broken loose from the paralyzing chains of conformity and joined us as active partners in the struggle for freedom. They have left their secure congregations and walked the streets of Albany, Georgia, with us. They have gone down the highways of the South on tortuous rides for freedom. Yes, they have gone to jail with us. Some have been dismissed from their churches, have lost the support of their bishops and fellow ministers. But they have acted in the faith that right defeated is stronger than evil triumphant. Their witness has been the spiritual salt that has preserved the true meaning of the gospel in these troubled times. They have carved a tunnel of hope through the dark mountain of disappointment. I hope the church as a whole will meet the challenge of this decisive hour. But even if the church does not come to the aid of justice, I have no despair about the future. I have no fear about the outcome of our struggle in Birmingham, even if our motives are at present misunderstood. We will reach the goal of freedom in Birmingham and all over the nation, because the goal of America is freedom. Abused and scorned though we may be, our destiny is tied up with America’s destiny. Before the pilgrims landed at Plymouth, we were here. Before the pen of Jefferson etched the majestic words of the Declaration of Independence across the pages of history, we were here. For more than two centuries our forebears labored in this country without wages; they made cotton king; they built the homes of their masters while suffering gross injustice and shameful humiliation -and yet out of a bottomless vitality they continued to thrive and develop. If the inexpressible cruelties of slavery could not stop us, the opposition we now face will surely fail. We will win our freedom because the sacred heritage of our nation and the eternal will of God are embodied in our echoing demands. Before closing I feel impelled to mention one other point in your statement that has troubled me profoundly. You warmly commended the Birmingham police force for keeping “order” and “preventing violence.” I doubt that you would have so warmly commended the police force if you had seen its dogs sinking their teeth into unarmed, nonviolent Negroes. I doubt that you would so quickly commend the policemen if you were to observe their ugly and inhumane treatment of Negroes here in the city jail; if you were to watch them push and curse old Negro women and young Negro girls; if you were to see them slap and kick old Negro men and young boys; if you were to observe them, as they did on two occasions, refuse to give us food because we wanted to sing our grace together. I cannot join you in your praise of the Birmingham police department.

It is true that the police have exercised a degree of discipline in handling the demonstrators. In this sense they have conducted themselves rather “nonviolently” in public. But for what purpose? To preserve the evil system of segregation. Over the past few years I have consistently preached that nonviolence demands that the means we use must be as pure as the ends we seek. I have tried to make clear that it is wrong to use immoral means to attain moral ends. But now I must affirm that it is just as wrong, or perhaps even more so, to use moral means to preserve immoral ends. Perhaps Mr. Connor and his policemen have been rather nonviolent in public, as was Chief Pritchett in Albany, Georgia, but they have used the moral means of nonviolence to maintain the immoral end of racial injustice. As T. S. Eliot has said: “The last temptation is the greatest treason: To do the right deed for the wrong reason.”

I wish you had commended the Negro sit inners and demonstrators of Birmingham for their sublime courage, their willingness to suffer and their amazing discipline in the midst of great provocation. One day the South will recognize its real heroes. They will be the James Merediths, with the noble sense of purpose that enables them to face jeering and hostile mobs, and with the agonizing loneliness that characterizes the life of the pioneer. They will be old, oppressed, battered Negro women, symbolized in a seventy two year old woman in Montgomery, Alabama, who rose up with a sense of dignity and with her people decided not to ride segregated buses, and who responded with ungrammatical profundity to one who inquired about her weariness: “My feets is tired, but my soul is at rest.” They will be the young high school and college students, the young ministers of the gospel and a host of their elders, courageously and nonviolently sitting in at lunch counters and willingly going to jail for conscience’ sake. One day the South will know that when these disinherited children of God sat down at lunch counters, they were in reality standing up for what is best in the American dream and for the most sacred values in our Judaeo Christian heritage, thereby bringing our nation back to those great wells of democracy which were dug deep by the founding fathers in their formulation of the Constitution and the Declaration of Independence.

Never before have I written so long a letter. I’m afraid it is much too long to take your precious time. I can assure you that it would have been much shorter if I had been writing from a comfortable desk, but what else can one do when he is alone in a narrow jail cell, other than write long letters, think long thoughts and pray long prayers?

If I have said anything in this letter that overstates the truth and indicates an unreasonable impatience, I beg you to forgive me. If I have said anything that understates the truth and indicates my having a patience that allows me to settle for anything less than brotherhood, I beg God to forgive me.

I hope this letter finds you strong in the faith. I also hope that circumstances will soon make it possible for me to meet each of you, not as an integrationist or a civil-rights leader but as a fellow clergyman and a Christian brother. Let us all hope that the dark clouds of racial prejudice will soon pass away and the deep fog of misunderstanding will be lifted from our fear drenched communities, and in some not too distant tomorrow the radiant stars of love and brotherhood will shine over our great nation with all their scintillating beauty.

Yours for the cause of Peace and Brotherhood, Martin Luther King, Jr.

What exactly is the rule of law?

You have heard the term “rule of law” used every day, many times a day, by lawyers and non-lawyers in these times.

You thought you knew what they meant by it, they thought they knew what they meant by it. In general, you and them may have been beneficially close to the mark. But is close enough?

Here is one of many definitions:


The rule of law is a foundational principle of governance that holds that all individuals, organizations, and government entities are equally subject to and accountable under the law. At its core, this concept ensures that laws are clear, publicly promulgated, fairly enforced, and independently adjudicated.

The rule of law encompasses several key elements:

  1. Supremacy of law – No one is above the law, including government officials, legislators, and heads of state. All are equally subject to legal constraints and consequences.
  2. Legal certainty – Laws must be clear, stable, and predictable, allowing people to understand what is permitted and prohibited.
  3. Equality before the law – All persons are treated equally regardless of social status, wealth, or political position.
  4. Separation of powers – Authority is distributed among different branches of government (typically executive, legislative, and judicial) to prevent concentration of power.
  5. Independent judiciary – Courts must be impartial and free from external influence to interpret and apply laws fairly.
  6. Due process – Legal procedures must be fair, transparent, and respect fundamental rights.
  7. Protection of human rights – Basic rights and freedoms must be enshrined in and protected by law.

Historically, the concept has evolved from ancient civilizations through documents like the Magna Carta (1215), which limited the English monarch’s power, to modern constitutional democracies. The rule of law stands in contrast to rule by law, where law becomes merely a tool for rulers to exercise power rather than a constraint on that power.

When functioning properly, the rule of law provides stability, predictability, and protection against arbitrary government action. It creates the foundation for economic development, social cohesion, and democratic governance by ensuring that power is exercised according to established rules rather than personal whim.

Claude Sonnet 3.7


My legal education began with what was essentially a philosophy course. Professors Bill Bishin and Chris Stone had created a course at USC Law, and later created a textbook, called Law, Language and Ethics (the textbook contains 1,356 pages). My law school, relatively new at the time, had the wisdom to hire Bishin and to include him and this book in our first-year curriculum.

What I learned, and have never forgotten, and what every lawyer knows or should, and what every non-lawyer who comments, knowledgeably or not, about the law knows or should: law is complex and encompasses much more than rules.


For Bishin, LL&E evinced “this law school’s determination to offer a course dramatizing the relevance and utility of significant philosophical thought in the solutions of problems faced every day by judges, lawyers, legislators. Bishin understood that in all legal contests, “disputants are really arguing about the nature of reality, the problem of knowledge, the functions of language, the requisites of morality, the meaning of the good life, the ends of society.” (USC Law Magazine)


We live in a short-form cursory culture. Those who publicly talk about the “rule of law”, no matter how brilliant, whether lawyers, politicians, analysts, don’t usually have the time to go deep. Watchers and listeners, smart or not, don’t usually have the motivation or time to go deep.

But the next time you hear or say “rule of law’ take a beat or two to think about what you do or don’t actually understand, beyond the three-word slogan.

© 2025 by Bob Schwartz

“If it please the Court”: Coyote and roadrunner defend the U.S. Constitution and the rule of law

Coyote and roadrunner defend the U.S. Constitution and the rule of law before the Supreme Court

There is no sanction for lawyers who talk nonsense. But there is accountability for misleading and lying—especially in front of the Chief Justice.

Oath on Admission to the U.S. Courts

I do solemnly swear (or affirm) that as an attorney and as a counselor of this court I will conduct myself uprightly and according to law, and that I will support the Constitution of the United States.

I regularly point out that almost two dozen of the lawyers who helped Richard Nixon execute and cover up his abuse of power and illegal schemes ended up being punished personally and professionally—from jail to disbarment to suspension. (See Lessons for Trump Attorneys: The Lawyers of Watergate)

It may seem a fine line between advocating a position and crossing the line into misconduct. But not really. Lawyers are sworn officers of the court, the law and the Constitution, given substantial power. They are commanded, by their oaths and by the rules of professional responsibility, not to mislead the court and not to lie (and obviously not to break the law).

It is the view of many, unspoken for a while but now being whispered, that various attorneys involved in Trump-related matters have put themselves on the wrong side of the professional line. I note with respect that lawyers are expert at walking up to the lines but not crossing them. Yet in high power highly-charged situations, as with Nixon, as with Trump, greater forces sometimes overwhelm even the smartest and most judicious.

We are still in the eye of the storm. After the dust settles, expect to see some of these lawyers brought before their respective bar associations for consideration of their conduct. It happened in Watergate. It will happen again.

Critical times are tough tests for lawyers. Some pass, some fail.

Lawyers are sworn officers of the courts of their respective states and federal jurisdictions. They take a solemn oath. They take that oath because as citizens we give them substantial power as officers of the court. As Spiderman (not a lawyer) reminds us, with great power comes great responsibility.

In normal times it is hard enough for lawyers to balance all the interests surrounding them—professional, personal, political. In abnormal and critical times—like these—lawyers may be pushed to pick a lane. The onerous professional demands, as embodied in the oath, may be in conflict with other interests, including ambition, success and ideology.

In previous posts, I’ve mentioned a few examples of times in which lawyers chose poorly. One is the case of attorneys involved in Watergate, almost two dozen of whom ended up being punished and sanctioned.  Another is Hans Frank, a brilliant attorney known as Hitler’s Lawyer.  There are many other infamous examples.

The number of lawyers involved in current events, as principals or as advocates, is growing exponentially. It will only expand as dark matters surrounding the president get deeper and more serious. Please keep this in mind as this drama unfolds.

Here is an example of an oath, one taken by attorneys in the State of Washington:

 

OATH OF ATTORNEY

I do solemnly declare:

I am fully subject to the laws of the State of Washington and the laws of the United States and will abide by the same.

I will support the constitution of the State of Washington and the constitution of the United States.

I will abide by the Rules of Professional Conduct approved by the Supreme Court of the State of Washington.

I will maintain the respect due to the courts of justice and judicial officers.

I will not counsel, or maintain any suit, or proceeding, which shall appear to me to be unjust, or any defense except as I believe to be honestly debatable under the law, unless it is in defense of a person charged with a public offense. I will employ for the purpose of maintaining the causes confided to me only those means consistent with truth and honor. I will never seek to mislead the judge or jury by any artifice or false statement.

I will maintain the confidence and preserve inviolate the secrets of my client, and will accept no compensation in connection with the business of my client unless this compensation is from or with the knowledge and approval of the client or with the approval of the court.

I will abstain from all offensive personalities, and advance no fact prejudicial to the honor or reputation of a party or witness unless required by the justice of the cause with which I am charged.

I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay unjustly the cause of any person.

 

Hitler’s Lawyer

“Frank was a typical example of the Nazi intellectual gangster. He had joined the party in 1927, soon after his graduation from law school, and quickly made a reputation as the legal light of the movement. Nimble-minded, energetic, well-read not only in the law but in general literature, devoted to the arts and especially to music, he became a power in the legal profession after the Nazis assumed office, serving first as Bavarian Minister of Justice, then Reichsminister without Portfolio and president of the Academy of Law and of the German Bar Association. A dark, dapper, bouncy fellow, father of five children, his intelligence and cultivation partly offset his primitive fanaticism and up to this time made him one of the least repulsive of the men around Hitler. But behind the civilized veneer of the man lay the cold killer. The forty-two-volume journal he kept of his life and works, which showed up at Nuremberg, was one of the most terrifying documents to come out of the dark Nazi world, portraying the author as an icy, efficient, ruthless, bloodthirsty man. Apparently it omitted none of his barbaric utterances.”
William L. Shirer, The Rise and Fall of the Third Reich

Hitler, like all successful tyrants, subverted the legal system to his own ends. Part of this was finding lawyers willing to switch their allegiance from law and morality to Der Fuehrer. Some switched out of fear, but many switched because they agreed with Hitler’s ideology and were passionate enablers of his plans.

Hans Frank is often called Hitler’s Lawyer. That is precisely how he began his Nazi career, going on to roles as Commissioner of Justice and Reich Law Leader and as Governor General of Poland.

Hans Frank was tried and convicted of war crimes at the Nuremberg Trials. Before his execution, he claimed contrition. Along with other Nazi war criminals, he was executed.

Following are excerpts about Hans Frank from William L. Shirer’s The Rise and Fall of the Third Reich.


In the spring of 1930 three young lieutenants, Ludin, Scheringer and Wendt, of the garrison at Ulm were arrested for spreading Nazi doctrines in the Army and for trying to induce their fellow officers to agree that in the case of an armed Nazi revolt they would not fire on the rebels….A week after the Nazi successes in the September elections of 1930, the three subalterns were arraigned before the Supreme Court at Leipzig on charges of high treason. Among their defenders were two rising Nazi lawyers, Hans Frank and Dr. Carl Sack.

But it was neither the lawyers nor the accused who occupied the limelight at the trial, but Adolf Hitler. He was called by Frank as a witness. His appearance represented a calculated risk. It would be embarrassing to disown the three lieutenants, whose activities were proof of the growth of Nazi sentiment in the Army, which he did not want to discourage. It was embarrassing that Nazi efforts to subvert the Army had been uncovered. And it was not helpful to his present tactics that the prosecution had charged the Nazi Party with being a revolutionary organization intent on overthrowing the government by force. To deny that last charge, Hitler arranged with Frank to testify for the defense. But in reality the Fuehrer had a much more important objective. That was, as leader of a movement which had just scored a stunning popular triumph at the polls, to assure the Army and especially its leading officers that National Socialism, far from posing a threat to the Reichswehr, as the case of the Nazi subalterns implied, was really its salvation and the salvation of Germany….

The Civil Service law of April 7, 1933, was made applicable to all magistrates and quickly rid the judiciary not only of Jews but of those whose Nazism was deemed questionable, or, as the law stipulated, “who indicated that he was no longer prepared to intercede at all times for the National Socialist State.” To be sure, not many judges were eliminated by this law, but they were warned where their duty lay. Just to make sure that they understood, Dr. Hans Frank, Commissioner of Justice and Reich Law Leader, told the jurists in 1936, “The National Socialist ideology is the foundation of all basic laws, especially as explained in the party program and in the speeches of the Fuehrer.” Dr. Frank went on to explain what he meant:

There is no independence of law against National Socialism. Say to yourselves at every decision which you make: “How would the Fuehrer decide in my place?” In every decision ask yourselves: “Is this decision compatible with the National Socialist conscience of the German people?” Then you will have a firm iron foundation which, allied with the unity of the National Socialist People’s State and with your recognition of the eternal nature of the will of Adolf Hitler, will endow your own sphere of decision with the authority of the Third Reich, and this for all time.

That seemed plain enough, as did a new Civil Service law of the following year (January 26, 1937), which called for the dismissal of all officials, including judges, for “political unreliability.” Furthermore, all jurists were forced to join the League of National Socialist German Jurists, in which they were often lectured on the lines of Frank’s talk….

Such was the government of the Third Reich, administered from top to bottom on the so-called leadership principle by a vast and sprawling bureaucracy, having little of the efficiency usually credited to the Germans, poisoned by graft, beset by constant confusion and cutthroat rivalries augmented by the muddling interference of party potentates and often rendered impotent by the terror of the S.S.-Gestapo.

At the top of the swarming heap stood the onetime Austrian vagabond, now become, with the exception of Stalin, the most powerful dictator on earth. As Dr. Hans Frank reminded a convention of lawyers in the spring of 1936, “There is in Germany today only one authority, and that is the authority of the Fuehrer.”….

What was left of Poland after Russia seized her share in the east and Germany formally annexed her former provinces and some additional territory in the west was designated by a decree of the Fuehrer of October 12 as the General Government of Poland and Hans Frank appointed as its Governor General, with Seyss-Inquart, the Viennese quisling, as his deputy. Frank was a typical example of the Nazi intellectual gangster. He had joined the party in 1927, soon after his graduation from law school, and quickly made a reputation as the legal light of the movement. Nimble-minded, energetic, well-read not only in the law but in general literature, devoted to the arts and especially to music, he became a power in the legal profession after the Nazis assumed office, serving first as Bavarian Minister of Justice, then Reichsminister without Portfolio and president of the Academy of Law and of the German Bar Association. A dark, dapper, bouncy fellow, father of five children, his intelligence and cultivation partly offset his primitive fanaticism and up to this time made him one of the least repulsive of the men around Hitler. But behind the civilized veneer of the man lay the cold killer. The forty-two-volume journal he kept of his life and works, which showed up at Nuremberg,* was one of the most terrifying documents to come out of the dark Nazi world, portraying the author as an icy, efficient, ruthless, bloodthirsty man. Apparently it omitted none of his barbaric utterances.

“The Poles,” he declared the day after he took his new job, “shall be the slaves of the German Reich.” When once he heard that Neurath, the “Protector” of Bohemia, had put up posters announcing the execution of seven Czech university students, Frank exclaimed to a Nazi journalist, “If I wished to order that one should hang up posters about every seven Poles shot, there would not be enough forests in Poland with which to make the paper for these posters.”

Himmler and Heydrich were assigned by Hitler to liquidate the Jews. Frank’s job, besides squeezing food and supplies and forced labor out of Poland, was to liquidate the intelligentsia. The Nazis had a beautiful code name for this operation: “Extraordinary Pacification Action” (Ausserordentliche Befriedigungsaktion, or “AB Action,” as it came to be known). It took some time for Frank to get it going. It was not until the following late spring, when the big German offensive in the West took the attention of the world from Poland, that he began to achieve results. By May 30, as his own journal shows, he could boast in a pep talk to his police aides of good progress—the lives of “some thousands” of Polish intellectuals taken, or about to be taken.

“I pray you, gentlemen,” he asked, “to take the most rigorous measures possible to help us in this task.” Confidentially he added that these were “the Fuehrer’s orders.” Hitler, he said, had expressed it this way:

“The men capable of leadership in Poland must be liquidated. Those following them… must be eliminated in their turn. There is no need to burden the Reich with this… no need to send these elements to Reich concentration camps.”

They would be put out of the way, he said, right there in Poland.

At the meeting, as Frank noted in his journal, the chief of the Security Police gave a progress report. About two thousand men and several hundred women, he said, had been apprehended “at the beginning of the Extraordinary Pacification Action.” Most of them already had been “summarily sentenced”—a Nazi euphemism for liquidation. A second batch of intellectuals was now being rounded up “for summary sentence.” Altogether “about 3,500 persons,” the most dangerous of the Polish intelligentsia, would thus be taken care of.

Frank did not neglect the Jews, even if the Gestapo had filched the direct task of extermination away from him. His journal is full of his thoughts and accomplishments on the subject. On October 7, 1940, it records a speech he made that day to a Nazi assembly in Poland summing up his first year of effort.

My dear Comrades! …I could not eliminate all lice and Jews in only one year. [“Public amused,” he notes down at this point.] But in the course of time, and if you help me, this end will be attained.

A fortnight before Christmas of the following year, Frank closed a cabinet session at Cracow, his headquarters, by saying:

As far as the Jews are concerned, I want to tell you quite frankly that they must be done away with in one way or another… Gentlemen, I must ask you to rid yourself of all feeling of pity. We must annihilate the Jews.

It was difficult, he admitted, to “shoot or poison the three and a half million Jews in the General Government, but we shall be able to take measures which will lead, somehow, to their annihilation.” This was an accurate prediction….

Everything possible was squeezed out of Poland by the greedy Nazi conquerors. “I shall endeavor,” said Dr. Frank, the Governor General, “to squeeze out of this province everything that is still possible to squeeze out.” This was at the end of 1942, and in the three years since the occupation he had already squeezed out, as he continually boasted, a great deal, especially in foodstuffs for hungry Germans in the Reich. He warned, however, that “if the new food scheme is carried out in 1943 a half-million people in Warsaw and its suburbs alone will be deprived of food.”

The nature of the New Order in Poland had been laid down as soon as the country was conquered. On October 3, 1939, Frank informed the Army of Hitler’s orders.

“Poland can only be administered by utilizing the country through means of ruthless exploitation, deportation of all supplies, raw materials, machines, factory installations, etc., which are important for the German war economy, availability of all workers for work within Germany, reduction of the entire Polish economy to absolute minimum necessary for bare existence of the population, closing of all educational institutions, especially technical schools and colleges in order to prevent the growth of the new Polish intelligentsia. Poland shall be treated as a colony. The Poles shall be the slaves of the Greater German Reich.

 

Trump Predicts Revolt If He Is Removed. Are His Words Illegal?

King Louis XV: “Après nous, le deluge.”

Barely noted yesterday, or mostly ignored because we discount just about everything that Trump says, is this from his interview with Reuters, talking about the possibility of impeachment:

“I’m not concerned, no. I think that the people would revolt if that happened.”

A President of the United States just suggested—implicitly endorsed—the possibility of revolution in the event of his ouster. Had this happened at any other time in the past two centuries, bells would be going off as if the Republic was on fire.

In the first place, it is arguably illegal:

18 U.S. Code § 2385 – Advocating Overthrow of Government

Whoever knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government…

Shall be fined under this title or imprisoned not more than twenty years, or both, and shall be ineligible for employment by the United States or any department or agency thereof, for the five years next following his conviction.

Does his interview constitute advocating or advising the desirability of overthrowing government? As a matter of crime, it might be a stretch. As a matter of civic responsibility from America’s highest public office, it is farther over the line than almost anything else Trump has said—and that is saying something.

Second—and this is the real bell ringer—he is in some sense right. The form of revolt is uncertain, but it would likely be more than angry and vicious posts on social media. Even his vacating the office through resignation or by electoral defeat in 2020 might have a similar effect.

In America’s darkest historic hour before the Civil War, in an overheated political climate, some of the greatest statesmen in our history tried to keep the lid on a boiling pot. They failed.

We are nowhere near that. But among the roster of politicians, we don’t seem to have as many genuine statesmen as we had back then—or as we had just a few decades ago. And we’ve never had a president predicting—encouraging—revolt as the consequence of his absence.

Bob Woodward and Seth Meyers have criticized CNN for suing the White House over the pulling of Jim Acosta’s press credentials. With all due respect to Woodward, you’re wrong.

Noted legal scholar Seth Meyers

The White House pulled the press credentials of CNN journalist Jim Acosta because Trump doesn’t like his questions, his attitude or him. The First Amendment does not allow this. CNN has sued.

Bob Woodward, an extraordinary and legendary journalist who has made his indelible mark on American history, has criticized CNN for feeding Trump’s appetite for lawsuits. So has Seth Meyers, an amusing entertainer legendary for nothing.

Lawyers are not that special. But lawyers are a bit more sensitive than some others to how unopposed government assaults on constitutional rights tend to gather momentum, sliding down a slippery slope. Waiting only makes things worse.

So to Bob Woodward, who deserves infinite respect for all he has done and continues to do, in this case you are wrong. And to Seth Meyers, who is well rewarded for working within the protection of the First Amendment, please remember that the First Amendment needs protection too. It is the First Amendment that allows those who are funny and sometimes ill-informed to express themselves without government interference.

The Hopeful But Limited Relief of Having the New Kavanaugh Investigation

It is good news that there will be a new FBI investigation in the Brett Kavanaugh matter. Any movement towards a return to free, open and lawful democracy is welcome.

But before we pop champagne and release balloons, a reality check. Here are some ways the investigation could have little effect on the outcome—in fact, will be designed to have little effect, besides providing cover for vulnerable and/or spineless Republicans.

1. It is a limited investigation. We don’t know the scope, which is being directed by Trump. It could be as narrow as the single incident alleged by Christine Blasey Ford, the incident that was the subject of Thursday’s hearing. This could mean simply talking to her, to Brett Kavanaugh, and to the few people who were there—only one of whom, Mark Judge, is an eyewitness.

Judge has already said that as an effect of his chronic alcoholic blackouts, going back to high school, he has no memory, one way or the other, of the incident. There is no reason he won’t say the same thing to the FBI.

The investigation could be broader. It could include other allegations that have been made. It could include everything that Ford and Kavanaugh testified to during the hearing. It could thus involve Kavanaugh’s claims about his benign behavior, claims that have been refuted by a number of people who knew him in high school and college. It could include all this, but almost certainly will not.

2. Trump controls the report of the investigation. Trump ordered the investigation. His order presumably included a specific scope of investigation for the FBI to follow. Just as importantly, the report of the investigation will go directly to Trump, who can decide how much of the investigation report can be shared and who it can be shared with.

The worst case, which would not be surprising, is that no copies of the report will be distributed. Instead, senators will be allowed to review the report in the White House. They may be allowed to take notes.

All of this—any presidential redaction and any restricted distribution—are part of the desire by some for this investigation to be “confidential”…

3. The investigation is, in some unspecified way, supposed to be “confidential”. Judge has said he wants whatever he says to be confidential. Kavanaugh has indicated he expects it to be confidential. It is unclear what this means functionally. But it is easy to see the case that would be made:

The only reason we are doing this investigation is to further inform the senators responsible for deciding on confirmation. Others, whether other members of Congress or citizens in general, may be curious, but they have no compelling reason to see the detailed report, given that it contains sensitive information.

If that reasoning sounds extreme, that is, extremely suspect, it is. But if you need a basis for it, just look at the “investigation” that went into Kavanaugh in the first place, and look at the history of the Trump administration. No twisted attempt at hiding the truth is too absurd.

Mark Judge and the Theology of Whistleblowing

Mark Judge has come up frequently in the matter of Brett Kavanaugh. Judge was a high school buddy of Kavanaugh’s, and has chronicled his own wild years as a teenage alcoholic. The question Judge can answer—but so far won’t—is whether Kavanagugh was mostly a “choir boy”, as Kavanaugh swears he was, or whether together they engaged in drunken and sometimes aggressive behavior.

Kavanaugh doesn’t want an FBI investigation, Trump will not order one, and the Senate Judiciary Committee did not subpoena Judge. At this point, the only way Judge will speak out is voluntarily. And he has made clear that he does not want to be involved, that he has no memory of the particular incident involving Christine Blasey Ford, and that given his health and his recovery from long-time alcoholism, his public involvement would be detrimental.

This is all to introduce a different light on the matter. Judge’s memoirs of his life and recovery, including a high school depiction of the thinly disguised “Bart O’Kavanagh”, have gotten the most attention. But Judge, a devout Catholic, has also written frequently about the Church and about the need for more theological education.

The involvement of the Church in the Kavanaugh nomination has been pretty straightforward. It is believed that he will help in advancing constitutional limits on or even banning of abortion, and so he is favored. The influential magazine America: The Jesuit Review enthusiastically endorsed him in July. Yet after yesterday’s hearings, where it became apparent to some that Kavanaugh may have been lying about the incident with Ms. Ford, America rescinded its endorsement:

The Editors: It is time for the Kavanaugh nomination to be withdrawn

While we previously endorsed the nomination of Judge Kavanaugh on the basis of his legal credentials and his reputation as a committed textualist, it is now clear that the nomination should be withdrawn….Judge Kavanaugh continues to enjoy a legal presumption of innocence, but the standard for a nominee to the Supreme Court is far higher; there is no presumption of confirmability….We continue to support the nomination of judges according to such principles—but Judge Kavanaugh is not the only such nominee available. For the good of the country and the future credibility of the Supreme Court in a world that is finally learning to take reports of harassment, assault and abuse seriously, it is time to find a nominee whose confirmation will not repudiate that lesson.

This is not, however, about the Catholic position on Kavanaugh. It is about whistleblowing. Mark Judge is in the position of a whistleblower. As a general matter of ethics and theology, that is a topic that has been widely discussed by Catholic theologians and philosophers. And as a specific topic, the Church is painfully familiar with keeping secrets (yes, sexual secrets) and the theology of handling those who might open a pathway to the painful truth.

Mark Judge has no doubt sought faithful guidance on how to proceed. That religious direction may be supplanted by legal process: it is almost certain that in a Democratic Congress, the Kavanaugh matter will be pursued in hearings, even as Kavanaugh sits on the Court. That will mean a subpoena for Judge.

Duty to yourself. Duty to others, especially the suffering. Duty to your faith. Duty to the truth. As a thoughtful Catholic Mark Judge knows, as every thoughtful person of faith knows, there are way more questions than answers.