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02/10/2014

The Right of Rebellion

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In political philosophy, the right of rebellion (or right of revolution) is the right or duty, variously stated throughout history, of the people of a nation to overthrow a government that acts against their common interests. Belief in this right extends back to ancient China, and it has been used throughout history to justify various rebellions, including the American Revolution and the French Revolution.

The storming of the BastilleThe storming of the Bastille

The Right of Revolution as an individual or collective right

Although some explanations of the right of revolution leave open the possibility of its exercise as an individual right, it was clearly understood to be collective right under English constitutional and political theory.[5] As Pauline Maier has noted in her study From Resistance to Revolution, "[p]rivate individuals were forbidden to take force against their rulers either for malice or because of private injuries...."[6] Instead, "not just a few individuals, but the 'Body of the People' had to feel concerned" before the right of revolution was justified and with most writers speaking of a " 'whole people who are the Publick,' or the body of the people acting in their 'public Authority,' indicating a broad consensus involving all ranks of society."[7]

The concept of the right of revolution was also taken up by John Locke in Two Treatises of Government as part of his social contract theory. Locke declared that under natural law, all people have the right to life, liberty, and estate; under the social contract, the people could instigate a revolution against the government when it acted against the interests of citizens, to replace the government with one that served the interests of citizens. In some cases, Locke deemed revolution an obligation. The right of revolution thus essentially acted as a safeguard against tyranny.

Duty versus right

Some philosophers argue that it is not only the right of a people to overthrow an oppressive government but also their duty to do so. Howard Evans Kiefer opines, "It seems to me that the duty to rebel is much more understandable than that right to rebel, because the right to rebellion ruins the order of power, whereas the duty to rebel goes beyond and breaks it."[8]

Morton White writes of the American revolutionaries, "The notion that they had a duty to rebel is extremely important to stress, for it shows that they thought they were complying with the commands of natural law and of nature's God when they threw off absolute despotism."[9] The U.S. Declaration of Independence states that "when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government" (emphasis added). Martin Luther King likewise held that it is the duty of the people to resist unjust laws.

Preconditions to the right of revolution

Some theories of the right of revolution imposed significant preconditions on its exercise, limiting its invocation to the most dire circumstances. In the American Revolutionary context, one finds expressions of the right of revolution both as subject to precondition and as unrestrained by conditions.

On the eve of the American Revolution, for example, Americans considered their plight to justify exercise of the right of revolution. Alexander Hamilton justified American resistance as an expression of "the law of nature" redressing violations of "the first principles of civil society" and invasions of "the rights of a whole people."[10] For Thomas Jefferson the Declaration was the last-ditch effort of an oppressed people—the position many Americans saw themselves in 1776. Jefferson's litany of colonial grievances was an effort to establish that Americans met their burden to exercise the natural law right of revolution.

Certain scholars, such as Christian Fritz, have written that with the end of the Revolution, Americans did not renounce the right of revolution. In fact they codified it in their new constitutions.[11] For instance, constitutions considered to be "conservative," such as those of post-revolutionary Massachusetts in 1780, preserved the people's right "to reform, alter, or totally change" government not only for their protection or safety but also whenever their "prosperity and happiness reduire[d] it."[12] This expression was not unusual in the early American constitutions. Connecticut's 1818 constitution articulated the people's right "at all times" to alter government "in such a manner as they may think expedient."[13]

Legal historian Christian Fritz in American Sovereigns: The People and America's Constitutional Tradition Before the Civil War, describes a duality in American views on preconditions to the right of revolution: "Some of the first state constitutions included 'alter or abolish' provisions that mirrored the traditional right of revolution" in that they required dire preconditions to its exercise.[14] Maryland's 1776 constitution and New Hampshire's 1784 constitutions required the perversion of the ends of government and the endangering of public liberty and that all other means of redress were to no avail.[15] But in contrast, other states dispensed with the onerous preconditions on the exercise of the right. In the 1776 Virginia constitution the right would arise simply if government was "inadequate" and Pennsylvania's 1776 constitution required only that the people considered a change to be "most conducive" to the public welfare.[16]

Natural law or positive law

Descriptions of the Right of Revolution also differ in whether that right is considered to be a natural law (a law whose content is set by nature and that therefore has validity everywhere) or positive law (law enacted or adopted by proper authority for governing of the state).

An example of the dual nature of the right of revolution as both a natural law and as positive law is found in the American revolutionary context. Although the American Declaration of Independence invoked the natural law right of revolution, natural law was not the sole justification for American independence. English constitutional doctrine also supported the colonists' actions. By the 1760s, English law recognized what William Blackstone's Commentaries on the Laws of England called "the law of redress against public oppression."[17] Like the natural law's right of revolution, this constitutional law of redress justified the people resisting the sovereign. This law of redress arose from a contract between the people and the king to preserve the public welfare. This original contract was "a central dogma in English and British constitutional law" since "time immemorial."[18] The Declaration's long list of grievances demonstrated that this bargain had been breached.[19]

This well-accepted law of redress justified a people resisting unconstitutional acts of government. Liberty depended upon the people's "ultimate" right to resist. Unconstitutional commands breaching the "voluntary compact between the rulers and the ruled" could be "ignored" and arbitrary commands opposed with force.[20] This right implied a duty on the part of the people to resist unconstitutional acts. As Alexander Hamilton noted in 1775, government exercised powers to protect "the absolute rights" of the people and government forfeited those powers and the people could reclaim them if government breached this constitutional contract.[21]

The law of redress had limits like the right of revolution under natural law. The law of redress, like the right of revolution, was not an individual right. It belonged to the community as a whole, as one of the parties to the original constitutional contract.[22] It was not a means of first resort, or response to trivial or casual errors of government.[23] Blackstone's Commentaries suggested that using the law of redress would be "extraordinary," for example if the king broke the original contract, violated "the fundamental laws," or abandoned the kingdom.[24] During the Stamp Act crisis of the 1760s the Massachusetts Provincial Congress considered resistance to the king justified if freedom came under attack from "the hand of oppression" and "the merciless feet of tyranny."[25] A decade later the "indictment" of George III in the Declaration of Independence sought to end his sovereign reign over the colonies because he violated the original constitutional contract.[26]

As explained in legal historian Christian Fritz's description of the role of the right of revolution in American Revolution, American independence was justified by conventional theories under Anglo-American constitutional thought at the time about the people's collective right to cast off an arbitrary king. "Both natural law and English constitutional doctrine gave the colonists a right to revolt against the sovereign's oppression."[27] But these understandings about the right of revolution on the eve of the American Revolution rested on a traditional model of government. That model posited the existence of a hypothetical bargain struck in the mists of antiquity between a king and a people. "In this bargain, the people were protected by the monarch in exchange for the people giving the king allegiance. This was a contractual relationship. American revolutionaries accused George III of breaching his implied duty of protection under that contract, thereby releasing the people in the colonies from their allegiance. The sovereign's breach of the hypothetical contract gave rise to the subjects' right of revolution"—grounded on both natural law and English constitutional doctrine."[28]

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NOTES:

[5] See Christian G. Fritz, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (Cambridge Univ. Press, 2008), 14 (noting that under English constitutional law the right of revolution "belonged to the community as a whole, as one of the parties to the original constitutional contract"). See also John Phillip Reid, Constitutional History of the American Revolution (4 vols., University of Wisconsin Press, 1986-1993), I:111 (identifying the collective right of the people "to preserve their rights by force and even rebellion against constituted authority"), III:427n31 (quoting Viscount Bolingbroke that the "collective Body of the People" had the right to "break the Bargain between the King and the Nation").

[6] Pauline Maier, From Resistance to Revolution: Colonial Radicals and the Development of American Opposition to Britain, 1765-1776 (Alfred A. Knopf, 1972), 33.

[7] Maier, From Resistance to Revolution, 35-36.

[8] http://books.google.com/books?id=1R8bi1m9NvIC&pg=PA327&lpg=PA327&dq=%22duty+to+rebel%22&source=web&ots=xdUGaHk_fz&sig=KbTANyl6oRDdLrb736Hq1iK017s&hl=en&sa=X&oi=book_result&resnum=3&ct=result#PPA327,M1

[9] http://books.google.com/books?id=z0thewbdTMsC&pg=PA48&lpg=PA48&dq=%22duty+to+rebel%22&source=web&ots=AmncN84fAl&sig=f9RHPgKdL2XXRekmS6OXc2-gcgg&hl=en&sa=X&oi=book_result&resnum=9&ct=result

[10] Alexander Hamilton, The Farmer Refuted, [Feb. 23], 1775, The Papers of Alexander Hamilton, I:136

[11] See Christian G. Fritz, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (In Chapter 2, entitled "Revolutionary Constitutionalism," Professor Fritz notes that after the Revolution, "[i]ncreasingly, as Americans included it in their constitutions, the right of revolution came to be seen as a constitutional principle permitting the people as the sovereign to control government and revise their constitutions without limit.")(Cambridge University Press, 2008) at p. 25 [ISBN 978-0-521-88188-3

[12] Massachusetts 1780 Constitution, Bill of Rights, Art. 7.

[13] Connecticut 1818 Constitution, Bill of Rights, Sec. 2.

[14] Christian G. Fritz, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (Cambridge Univ. Press, 2008), 24.

[15] See Maryland 1776 Constitution, Bill of Rights, Sec. 4; New Hampshire 1784 Constitution, Bill of Rights, Art. 10.

[16] Virginia 1776 Constitution, Bill of Rights, Sec. 3; Pennsylvania 1776 Constitution, Bill of Rights, Sec. 5.

[17] William Blackstone, Commentaries on the Laws of England (4 vols., Oxford, 1765-1769, Facsimile ed., repr., 1979), I:238.

[18] John Phillip Reid, "The Irrelevance of the Declaration," in Hendrik Hartog, ed., Law in the American Revolution and the Revolution in the Law (1981), 72.

[19] New Jersey 1776 Constitution, Preamble in Francis Newton Thorpe, ed., The Federal and State Constitutions Colonial Charters, and Other Organic Laws of the ... United States of America, V:2594 (noting that the King breached his contract with the people).

[20] John Phillip Reid, Constitutional History of the American Revolution (4 vols., 1986-1993), III:140.

[21] Alexander Hamilton, "The Farmer Refuted," [Feb. 23], 1775, The Papers of Alexander Hamilton, I:88.

[22] See Reid, Constitutional History, I:111 (identifying the collective right of the people "to preserve their rights by force and even rebellion against constituted authority"), III:427n31 (quoting Viscount Bolingbroke that the "collective Body of the People" had the right to "break the Bargain between the King and the Nation"); Pauline Maier, From Resistance to Revolution: Colonial Radicals and the Development of American Opposition to Britain, 1765-1776, 33-34 ("Private individuals were forbidden to take force against their rulers either for malice or because of private injuries, even if no redress for their grievances were afforded by the regularly constituted government").

[23] Some commentators endorsed the right of resistance if Parliament "jeopardized the constitution," but most identified the need for oppression and tyranny before its exercise. See Reid, Constitutional History, III:121, 427n31; Maier, Resistance, 33-35.

[24] Blackstone, Commentaries, I:243 and 238.

[25] Reid, Constitutional History, I:112

[26] Reid, "Irrelevance of the Declaration," 84.

[27] Fritz, American Sovereigns, 14.

[28] Fritz, American Sovereigns, 13.