Forms of Protest
In this nation, there are four levels of political protest. The first, oratorical and written “speech”, was exactly what the authors of the Bill of Rights wished to protect. Free speech in writing is steeped in American protest history; from Thomas Paine’s Common Sense to the abolitionist newspapers of Frederick Douglass and William Lloyd Garrison. And free speech in oratory is also part of the American protest tradition, from Patrick Henry’s “Give me liberty, or give me death”, to Martin Luther King’s “I have a Dream”.
The second, mass protest, is also an American tradition, as American as the American revolution itself. Mass protests of taxes in Boston led to the Boston Massacre. There have been “marches on” Washington for labor, for veterans, for civil rights, and against wars and political changes. While they sometimes degenerate into riots, like the labor protest that became the Haymarket Riot in Chicago in 1886, they all began as peaceful demonstrations of mass protest.
Both of those forms of protest were clearly envisioned in the First Amendment. “Congress shall make no law…abridging the freedom of speech, or of the press, or the right of the people to assemble and to petition the Government for a redress of grievances.”
Against the Law
Civil disobedience, the intentional act of breaking a law in order to demonstrate its inequity, is not a “free speech” right. That’s what makes it so powerful. When a young John Lewis joined the “Freedom Riders” to take integrated public transportation into segregated southern bus stations, he knew he was breaking “the law”. There was no “Constitutional protection” for that, just the moral authority of demonstrating how unfair Jim Crow laws were. “Good Trouble”, as Lewis called it, was risky. It put the protestors in open defiance of the authorities, and, after arrest, in total control of those same authorities.
And the fourth level of protest is violence. That sadly is also an American tradition. The Whiskey Rebellion, where tax collectors were tarred and feathered (stripped, burned in hot tar, then covered with feathers) happened in the first years of the Washington Administration. The President nationalized the state militias and marched them towards Western Pennsylvania, but the rebellion petered out before a set battle was fought.
Burn Baby, Burn
John Brown’s raid on Harper’s Ferry was protesting slavery. The historic view of Brown himself has gone from a crazy radical villain to a hero as Americans look back on enslavement in our past. Radicals against the Vietnam war burned ROTC buildings on college campuses and protests that became riots were common in the late 1960’s. And of course, the Capitol was defiled on January 6th.
In our form of political democracy, we legally protect the right to disagree – to an extent.
The laws are in juxtaposition: the First Amendment versus the government duty to maintain “law and order”. The right to assemble is guaranteed, but so is the “right” to travel on the roads, without thousands of marchers in the streets. Truckers can “convoy” in protest, but they can’t block commerce. Protest outside of the Federal Court House in Portland are legal, but don’t burn it down.
Laws and Norms
But the United States has also had “norms”; rules that apply but are not codified into law. Martin Luther King Jr was held in jail multiple times. The “authorities” had total control of him. But he remained unharmed there, instead killed by an assassin’s bullet on the balcony of his hotel room in Memphis.
Even politicians had “norms”. President Adams truly thought Thomas Jefferson was the worst person to become President in 1801. Yet he still turned the government over to him on inauguration day, and left early to his home in Braintree. Even as the nation divided after the election of Abraham Lincoln in 1861, the Congress, with many soon to be Confederates participating, still certified his electoral vote.
Senator Tom Cotton of Arkansas demands that Federal police arrest protestors outside of the homes of Supreme Court Justices. But that same Senator cheered on protestors outside of the homes of county board of elections officials who refused to change the vote in 2020. Perhaps the “norm” once was that officials got “privacy” at home, but it was never the law.
Senator Rand Paul used his authority as a single Senator to personally stop aid to Ukraine in their battle against Russian aggression. It was the “norm” that US internal political dissension stopped “at the shoreline”. But even though the vast majority of his own political party voted for the aid, Paul used his authority to delay its passage.
The End of Norms
We are a nation of laws, and a nation of “norms”. And we have depended on those unwritten norms to take us through some of our most perilous times.
But recently, the Republican Party has been totally open about breaking norms, without breaking laws. And the Democratic Party continues to be reticent to break similar norms. In the language of war, it’s an asymmetric fight, with the Republicans using weapons the Democrats refuse to employ. So it’s disingenuous to hear the cries of Cotton about the “unfairness” of protests, when he and his party has so often used them in the recent past.
It puts Democrats in a strange position. President Biden was elected to “return the nation to normalcy”. It’s why Biden was chosen out of the variety of Democratic candidates for President, and it’s why he won millions of votes more than Trump. The nation wanted to go back to normal. But, to paraphrase Patrick Henry, “There is no normalcy. The war has already begun”. Because there are no longer a set of common norms, only the laws.
And our laws are not enough to keep our national traditions intact. That’s the dilemma Democrats are facing today. There is intense pressure to “even up” the “war”, and employ the same kinds of “norm-breaking” actions that the Republicans have used so effectively. Breaking the filibuster, or putting additional Justices on the Supreme Court, would be two of those.
Knife to a Gunfight
But other Democrats argue that each time one more norm is broken, the United States moves farther from its traditions, and becomes a nation without norms, without normal.
On any given day, I find myself on either side of that argument. On the one hand, Democrats are “bringing a knife to a gunfight” on so many levels. We cannot achieve what we believe without change, and the weapons on the battlefield of ideas have radically changed. How can we not attack the norms that keep our nation from realizing the dream of full democratic representation, and full personal freedom.
And yet the vast majority of our nation wants things “back to normal”. And the “norms” are what normal is.
I do not believe the United States can be a nation of laws without norms. But the norms are changing: we Democrats better figure out how to keep up with that. Because it we don’t, someone else will re-write the norms into something that resembles the early 1950’s.
And the struggle to overcome that may require more than our Republic can bear.
