Forty-six years ago today — October 15, 1965 — David J. Miller, a 24-year old Christian pacifist of the Catholic Worker Movement, burned his draft card in Manhattan, and became the first person arrested and convicted under P.L. 89-152 (79 Stat. 586; August 31, 1965), which had altered the Selective Service statute by four words and thus made it a crime to knowingly destroy or knowingly mutilate a draft card. Three years later, in United States vs. O’Brien, the Supreme Court upheld the statute as a legitimate exercise of congressional power, and not way a violation of freedom of speech under the 1st amendment. Miller served 22 months in jail.
How should a libertarian think about all of this? Four points:
1) Conscription is fundamentally incompatible with libertarianism. I won’t go as far as to say that libertarianism fundamentally requires a pacifist orientation toward war (although I think it might, and does for me at any rate). But I’m positive it rules out conscription. The cornerstone of all civil liberties is the right to freedom of lawful movement without state interference. Without that, the citizens are nothing more than a resource of the state, their lives subsumed completely to the goal of the nation. That’s completely backwards; when we don’t like something that has that feature, we label it fascism. Any state that has the power to lawfully take complete control of an otherwise law-abiding citizen’s body against his will is, by definition, acting in something like a totalitarian manner.
That such state power is approved by a legitimate democratic legislature is of no matter. If any state, democratic or otherwise, cannot induce its citizens to defend the nation or engage in a war through a market-incentivized volunteer military, such a nation is probably not worthy of defense, or such a war is probably not worth carrying out. I consider the abolition of conscription in the United States to be the singular triumph of libertarianism in the 20th century. Whatever negative side-effects it has caused (the skewing of the military toward the poor; the consequences of war falling more unevenly upon society) are lamentable, but cannot justify a return to a policy that is fundamentally counter to any basic notion of individual freedom.
2) Civil disobedience is a legitimate way to oppose laws. For me, a legitimate act of civil disobedience requires three components: first, the law under protest must be the law that is violated; it’s not civil disobedience to protest an unjust law by throwing bricks through windows, that’s called a riot. Second, the disobedience must be carried out non-violently. This usually follows from the first component, but not always. Think about African Americans protesting segregation by sitting at lunch counters or riding in whites-only seats on buses. Carried out peacefully, this is the essence of civil disobedience; but if sitting at lunch counter requires you to violently force your way to the seat, or results in a fistfight, it will become largely counterproductive. This means, I think, that any practitioner of civil disobedience must be prepared to take a beating without retaliating, as many African Americans nobly did. Third, anyone using civil disobedience must willingly and cheerfully accept the current punishment under the unjust law. Civil disobedience cannot become an excuse for law-breaking. A fourth point is that civil disobedience is at its strongest when it is paired with unjust restrictions on access to the democratic process — think African-Americans protesting segregation or people under 21 protesting conscription prior to the 26th amendment.
3) Burning a draft card is not exactly civil disobedience, per se. Well, that’s not exactly right. If the burning was a protest against the law against burning, then it would be civil disobedience. But the burning of draft cards was a protest against conscription itself, which is kind of like not paying your property tax to protest laws that restrict lawn-watering to certain days; it’s related in a clear way, but it’s not the obvious way to go. Those opposed to conscription who wanted to use civil disobedience should have refused induction into the military, not burnt their draft cards. On the other hand, it’s not clear to me that draft card burners saw them selves as being civil disobedients; most of them challenged the law in court rather then submitting to the punishment, indicating that they did not believe the burnings to be against the law, but instead constitutionally-protected actions. Even more to the point, I’m not sure the anti-war movement in the 60′s was anti-conscription per se; maybe they just thought the Vietnam war was horrible policy that was falling on their shoulders, and that some future war might justify conscription.
4) Burning draft cards in violation of the law was probably bad strategy. No doubt, it was a dumb law. But the point of the burnings was symbolic; a public defiance of an entire system of war-making, in many cases. But such symbolism could be achieved without literal law-breaking; why not just burn your library card and pretend it’s your draft card? Or print up some fake draft cards and burn those? To me, this highlights the emotional aspect of the anti-war movement, the fueling of a political movement by powerful, but irrational, means. If people wanted to go to jail on purpose to highlight and publicize the immorality of the war, I guess that’s a fine strategy. But I think that was a flawed strategy, too. Because it made the protesters the story, rather than the war. Unlike civil rights protesters, anti-war protesters in the 60′s (save Vietnam veterans) were, almost by definition, not the objects of the unjust laws. A sizeable percentage of them were college students exempt from the draft; virtually all of them had not been drafted. That made them good candidates to carry signs and peacefully protest public policy. But to burn a draft card was to insert yourself politically into a fight that you had not yet been drawn into. Incredibly symbolic? For sure. Strategically wise? I doubt it. In fact, I would assume that the draft card burning (as opposed to the street protests) was counterproductive; it probably hardened the opinion of those who were in favor of the war and may have been responsive to simple policy arguments against it.