The political thinker and Irish Member to the British Parliament Edmund Burke once famously declared the duty of a legislator as between being a delegate and doing what constituents demand versus serving them by exercising one’s best judgment. But there is at least another duty that legislators have and that is a legal if not an ethical duty to comply with their own laws and to support the government they were elected to serve.
The importance of stating this duty asks under what occasions, if any, are members of Congress permitted to disobey a law as a matter of conscience? This is the question posed by House Republican efforts to repeatedly defund the Affordable Care Act (ACA or Obamacare) and force a partial governmental shutdown. In effect, do legislators have a right to disobey and obstruct a law they do not support? Do they have a right to civil disobedience? While in general civil disobedience is an important act to test the constitutional values and justice of a society, this is not an option open to members of Congress, at least on this issue and for the reasons Republicans give.
The relationship between law, justice, and civil disobedience has a long history in the west. Sophocles’ Antigone tells the story of a woman who buried a deceased brother in defiance of the king Creon who ordered her not to do so. Her decision to defy was premised, in part, upon concepts of justice and religious grounds, contending that her duty to disobey rested upon a higher law from the gods. Similarly, Socrates’ trial and defense of his philosophizing invoked a duty to a higher law that justified defiance of human law. St. Augustine was one of the first Christian writers to argue that human laws that are unjust really are not laws. St. Thomas defined a legal tradition that declared that human law must conform with God’s natural laws of justice, inspiring a generation of political theorists including John Locke who articulated a right to revolution against governments that violated natural rights and laws. In all of these cases, civil disobedience invoked as an appeal to some higher law or rules of justice that dictated defiance of the law.
The United States as a country is a product of civil disobedience. The dumping of tea into the Boston Harbor in 1773 and the 1776 Declaration of Independence were acts of civil disobedience, providing the case for why some laws were unjust and should be ignored or defied. The abolitionists, including Henry David Thoreau and John Brown, so disliked slavery or the Fugitive Slave Act that defiance, going to jail, and even violence were viewed as proper acts of conscience. And then of course Rosa Parks, Martin Luther King, Jr., and the many African-Americans who protested segregation by sitting at “Whites’ only” lunch counters or who crossed the Edmund Pettus bridge also felt civil disobedience was an appropriate stance to take to challenge laws that thought were wrong. In all of these cases, appeals to personal conscience, personal morality, or to religious or other values dictated the choices of individuals to defy the law. But the question is, do legislators have this same right? May they defy a law they do not support? Do they have a right to shut down the government?
Think first about the right of individuals to engage in civil disobedience. Political theorist John Rawls argued that civil disobedience has a constitutional role in a just society. It is an appeal to the shared values of a community, aiming to persuade a majority that it is wrong. Civil disobedience is not an appeal to political expediency or self-interest. It is not a legal right, but an appeal to justice. Citizens have a general duty to obey the law, but in some cases some feel that the law is wrong and must defy it. But they do so first with the aim of changing the law and second, cognizant that they face legal retribution for their defiance. The act of civil disobedience has the potential to change the law because one is willing to go to jail or be punished for one’s act.
But private citizens are different than legislators and they may have less right to defy laws they dislike. First, members of Congress not only have a general duty to obey the laws they have authored, but they have taken an oath of office to obey the law. This current oath commands members of Congress to defend Constitution, accepting this obligation freely, without reservation, and with the help of God. Such an oath imposes on them a special duty-above and beyond that of a private citizen—to obey laws. Does that mean congressional members have no recourse to object to laws they dislike? Of course not. They can move to repeal the laws they dislike. House Republicans have tried that 40 plus times when it comes to Obamacare. The power to legislate and change laws gives them a tool that mere citizens lack. While one can question the political reasons or wisdom for repeated votes to repeal the ACA, do that is the right of legislators.
But there is a difference between trying to repeal a law one does not like and defying it. This is what House Republicans are doing in seeking to defund Obamacare, pushing the government in to a partial shutdown, and perhaps risking a default on America’s debts come October 17. For good or bad Obamacare is the law of the land—it has not been repealed and it has not been declared unconstitutional. Members of Congress are under a legal and moral duty to fund laws and programs that they have authorized, even if personally they voted against the laws. One of the most basic principles of American democracy is majority rule. Majorities get their way so long as they do not violate the constitutional rights of minorities. Majority rule settles decisions until such time as a majority reaches a different conclusion. Similarly, majority rule is the rule of Congress. At some point votes and elections have settled issues and it is time to move on. This is the case with Obamacare.
Moreover, Republican efforts to defund Obamacare are not premised upon shared constitutional values or principles of justice. The decision is based on dislike of the law, Obama, or government in general. Or it is based on political expediency–appealing to what their constituents want or what will appeal to their electoral base–and not on a sense of higher justice. Or perhaps it is based on private conscience or belief that the law is wrong. All these may be great reasons to seek to repeal the law, but they are not proper grounds for refusing to perform one’s specific duty to support a law that has been legally adopted in a democratic society. Contrary to what she make think, Congresswoman Michele is not Rosa Parks–her reasons for opposing Obamacare are not based on appeals to justice and higher laws, but instead on personal and political expediency.
In general members of Congress do not have a right of civil disobedience to oppose laws they have a duty to uphold. They are not like ordinary citizens exercising the right of civil disobedience. Finally, legislators who object to the ACA do not have a right to defund Obamacare and hurt the rest of the country with a government shutdown. In doing that they are not facing legal retribution for their actions as would ordinary citizens face by defying the law. These members of Congress are taking a political stand, not an ethical one, and they do not have the right to do that.