Democracy and the case for amnesty

 Front Cover
 Title Page
 Table of Contents
 1. Amnesty: Does punishment continue...
 2. Democratic loyalty
 3. Amnesty and its uses
 4. Objections to amnesty and their...
 5. The case for amnesty
 Back Matter
 Back Cover
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Title: Democracy and the case for amnesty
Physical Description: Book
Language: English
Creator: Damico, Alfonso J., 1942-
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Permanent Link: http://ufdc.ufl.edu/UF00100930/00001

Material Information

Title: Democracy and the case for amnesty
Physical Description: Book
Language: English
Creator: Damico, Alfonso J., 1942-
Publisher: University Presses of Florida
Place of Publication: Gainesville

Record Information

Source Institution: University of Florida
Holding Location: University of Florida
Rights Management: All rights reserved by the source institution and holding location.
Resource Identifier: oclc - 1339655
lccn - 75012502
isbn - 0813005272 :
System ID: UF00100930:00001

Table of Contents
    Front Cover
        Front Cover 1
        Front Cover 2
    Title Page
        Title Page 1
        Title Page 2
        Acknowledgement 1
        Acknowledgement 2
    Table of Contents
        Table of Contents 1
        Table of Contents 2
    1. Amnesty: Does punishment continue after the war?
        Page 1
        Page 2
        Page 3
        Page 4
        Page 5
        Page 6
        Page 7
        Page 8
    2. Democratic loyalty
        Page 9
        Page 10
        Page 11
        Page 12
        Page 13
        Page 14
        Page 15
        Page 16
        Page 17
        Page 18
        Page 19
        Page 20
        Page 21
        Page 22
    3. Amnesty and its uses
        Page 23
        Page 24
        Page 25
        Page 26
        Page 27
        Page 28
        Page 29
        Page 30
        Page 31
        Page 32
        Page 33
        Page 34
        Page 35
        Page 36
        Page 37
        Page 38
    4. Objections to amnesty and their fallacies
        Page 39
        Page 40
        Page 41
        Page 42
        Page 43
        Page 44
        Page 45
        Page 46
        Page 47
        Page 48
        Page 49
        Page 50
        Page 51
        Page 52
        Page 53
        Page 54
        Page 55
    5. The case for amnesty
        Page 56
        Page 57
        Page 58
        Page 59
        Page 60
        Page 61
        Page 62
        Page 63
        Page 64
        Page 65
        Page 66
        Page 67
        Page 68
        Page 69
        Page 70
        Page 71
        Page 72
        Page 73
        Page 74
        Page 75
        Page 76
        Page 77
        Page 78
    Back Matter
        Back Matter 1
        Back Matter 2
    Back Cover
        Back Cover 1
        Back Cover 2
Full Text

University of Florida Social Sciences Monograph Number 55

Democracy and the Case for Amnesty

Alfonso J. Damico

A University of Florida Book

The University Presses of Florida
Gainesville / 1975

8 o2.


Social Sciences Monographs

Center for Latin American Studies

Professor of Economics

Professor of Political Science

Professor of Sociology

Professor of Education

Associate Professor of History

Library of Congress Cataloging in Publication Data

Damico, Alfonso J. 1942-
Democracy and the case for amnesty.

(University of Florida social sciences monograph;
no. 55)
"A University of Florida book."
Includes bibliographical references.
1. Amnesty-United States. 2. Vietnamese Conflict,
1961- -United States. 3. Amnesty. I. Title.
II. Series: Florida. University, Gainesville. Uni-
versity of Florida monographs: Social sciences;
no. 55.
DS559.8.A4D35 364.6 75-12502
ISBN 0-8130-0527-2


All rights reserved



I WANT to thank the Graduate School of the University of Flor-
ida for a modest research grant that enabled me to begin this
study. Through its program of grants, the university helps to
translate research proposals into research activity. I also want
to thank Professors David Spitz and David Kettler for teaching
me that the study of political theory and a concern with the
problems of men are part of the same enterprise. At an early
stage, both of them read parts of the manuscript and encour-
aged me to continue with it. I am dedicating the study to my
son Aaron.
Additional thanks must go to the University of Florida Gradu-
ate School for making possible the publication of this monograph.


1. Amnesty: Does Punishment Continue after the War? 1
2. Democratic Loyalty 9
3. Amnesty and Its Uses 23
4. Objections to Amnesty and Their Fallacies 39
5. The Case for Amnesty 56

1. Amnesty: Does Punishment Continue
after the War?

THIS ESSAY is a study of a perennial problem in political life-
the conflict between the citizen's obligation to obey the law and
his right, indeed his duty, to resist unjust laws. This conflict is
especially acute in a democracy, since democracy alone imposes
the peculiar requirement upon citizens that they both give and
withhold their consent to authority. All men are to count equally
in the making of the laws and, thus, they are all equally re-
quired to obey those laws. At the same time, the liberal tradi-
tion within democracy affirms that the individual is the final ar-
biter of when the law has violated the principles of democracy
or a policy has transgressed the demands of decency-no matter
how procedurally correct the methods whereby the policy is
enacted. Like Thoreau, the democrat celebrates the conscien-
tious man as the last barrier to acts of political barbarism by
his government. But against Thoreau or the anarchist, the dem-
ocrat also argues the advantages that men receive from their
willingness to forgo their private decisions in favor of collec-
tive choices. By participating in the benefits made possible by
the existence of a public authority, the individual indirectly ac-
knowledges a general obligation to be law-abiding.
It is when the two goods of individual autonomy and public
authority collide that personal tragedies and public problems
occur. In America this was demonstrated by the government's
conscription of its citizens to fight an unpopular war in Viet-
nam. It is in the public's response to the situation of those
caught in the conflict between their attachment to their country
but not to a particular government policy that we discover the
character of the political community. So it is with an issue such
as amnesty.'
1. Many of the issues in the amnesty debate were raised by various groups

The conflicts surrounding an idea such as amnesty can be seen
as symbolic of certain classic and recurring problems in the life
of a political community. These include the conflicts between
conscience and law, political loyalty and other loyalties, pun-
ishment and setting aside prosecution. It is at this level of dis-
cussion that some of the deepest cleavages between philoso-
phers occur. But these divisions are often only a more rigorous
and complex reflection of the differences that divide public
opinion. Further, in taking a stand for or against amnesty, one
inevitably adopts one or another political posture-a set of be-
liefs about citizenship and authority. I have found it necessary
and helpful, therefore, to enlarge my analysis of amnesty to in-
clude a discussion of the democratic community and the nature
of loyalty to that community. Before evaluating the cases for
and against amnesty, we need first to understand what it means
to be a citizen in a democracy. For instance, underlying the
case for amnesty after the Vietnam war is a view of democratic
citizenship that can be shared by both supporters and oppo-
nents of that particular war. And although my discussion is not
limited to the arguments for and against amnesty at the close of
the Vietnam war, many of my observations are informed by
that debate. I want, in other words, to talk about both civil dis-
obedience and exiles in general, and about the American exiles
created by the Vietnam war in particular. Sometimes I will
argue for a general principle that I believe characterizes all
civil disobedience and at other times I will defend a particular
position that only applies to the actions of the Vietnam era
exiles. It is important to my thesis that the reader keep this
distinction in mind as he follows the argument.
The major political outlook embraced by amnesty's oppo-
nents is what I will call legalism.2 Legalism is a rule-of-law
model for resolving political conflicts. Its proponents teach
the citizen that it is his duty not to judge the law but to obey
it. Similarly, it requires public officials to exercise power in strict

in the public hearings before Senator Edward Kennedy's Administrative Prac-
tice and Procedure Subcommittee of the Senate Judiciary Committee, February
28-March 1, 1972 (Selective Service and Amnesty, 92d Cong., 2d sess., 1972).
2. I have borrowed this term from the book by Judith Shklar, Legalism
(Cambridge, 1964). Shklar's critical analysis of the presuppositions underlying
various philosophies of law has been of great help to me in thinking about law and
politics as alternative models of conflict resolution.

conformity to rules fixed and announced beforehand so as to
limit the arbitrary and capricious use of power. This is in many
ways a persuasive teaching, protecting us from the twin dangers
of official abuse of power and political anarchy. Legalism's major
strength is its appreciation and defense of the values associated
with being governed by laws and obligations rather than by
threats and force. Justifying any disobedience requires some
demonstration that the rule of law can, in fact, accommodate
departures from the norm of obedience without undermining
the continued vitality of that norm. Making such a justification
highlights, I believe, certain critical weaknesses in legalism. Ad-
vocates of a rule-of-law model for understanding and managing
social conflict tend to be insensitive to values other than law
enforcement and to obscure the differences between political
disputes and judicial questions by collapsing all conflicts into
a question of legal right and wrong.3
Theories of justifiable civil disobedience are a major source
of arguments supporting citizens' departures from the rule of
law, and they provide important parts of my defense of am-
nesty. But amnesty's defense requires us to go beyond the more
traditional accounts of civil disobedience. Unlike the more fa-
miliar disobedient citizen, war resisters who become exiles are
unwilling to accept the legal consequences of their refusal to
obey. Since theories of civil disobedience often differentiate
principled from nonprincipled resistance by the willingness to
accept arrest and punishment, an exile's evasion of punishment
leads critics to question his conscientiousness. By evading pun-
ishment an exile's action also occasions greater alarm because
the potential for disorder is greater when the disobedient citi-
zen also defies the state's authority to judge him. Finally, in the
case of Vietnam, those who opposed the war were selective
conscientious objectors, opposed to a particular war but not to
war in general, which means that theories justifying the con-
science of the pacifist or the religious objector do not fit their
In puzzling over these problems, I soon discovered that two
types of adjustments are necessary in the way that we normally
discuss disobedience. While it is possible to draw various dis-

3. For another study of the dangers of legalism, see Otto Kircheimer, Political
Justice: The Use of Legal Procedure for Political Ends (Princeton, 1961).

tinctions between the conscientious lawbreaker and the ordi-
nary criminal, it is finally necessary to shift our attention away
from the question of the "conscientiousness" of those who re-
sist a particular war to the political context that occasions their
resistance. When we are confronted with the individual law-
breaker such as a Thoreau or a Muhammed Ali, questions about
his sincerity are perhaps important for determining what, if
any, price he should pay for acting on his judgment. But when,
as in the case of Vietnam, we are confronted with an entire
group of dissenting citizens, the problem is less one of deter-
mining the sincerity of each and every resister than one of dis-
covering how the democratic community can make room for a
significant minority group so that the political good is so far as
possible an inclusive good. In negotiating a settlement between
a minority group-whether it is a striking labor union or a war
resistance movement-and the larger society, the lawyer's art
for assigning individual guilt or innocence is far less important
than the political art of accommodation.4
The second adjustment that the reader will notice is a simi-
larly practical or pragmatic one. Rather than attempting to con-
struct a general theory of selective conscientious objection, I
will ask if a society can grant a particular amnesty without seri-
ously undermining the authority of the state. Would amnesty
make it impossible for the society to fight future wars? Amnesty
is a political issue demanding a calculation of the costs and
benefits to the political system of withholding or granting it in a
particular instance. By shifting the debate from the level of ab-
stract legal and philosophical rules to the empirical level of
likely consequences, it is possible to allay the fears of amnesty's
opponents and to avoid those pernicious abstractions about the
absolute value of law, on the one side, or the absolute value of
conscience, on the other, that obscure the practical issue of am-
nesty's merits or drawbacks within an existing political situa-

4. See Hannah Arendt's "Civil Disobedience," in her Crises of the Republic
(New York, 1972). This essay is also in the collection of articles on obedience
and disobedience edited by Eugene V. Rostow, Is Law Dead? (New York, 1971).
See especially the comments on Arendt's essay in this volume by Edgar S. Cahn,
pp. 243-49.
5. This second adjustment is guided by Quentin L. Quade's article "Selective

The original meaning of amnesty is "forgetfulness." It comes
from the Greek word amnestia, which means the erasing from
memory of past events.6 Practically, amnesty is the legal obliv-
ion of previous offenses. Amnesties differ from pardons in sev-
eral ways. Pardons are granted on a case-by-case basis and are
a nullification of punishment after there has already been a ju-
dicial determination of a person's guilt. A pardon is clearly an
act of forgiveness; and although most amnesties have been
granted with similar emphasis upon the state's "charity," am-
nesty literally is a decision not to judge past behavior. Pardons
are normally included as part of an amnesty proclamation;
those already in prison are pardoned along with those amnes-
tied. All amnesties remove the threat of prosecution, but one
must distinguish among amnesties. They may be universal or
general, unconditional or conditional. A universal amnesty after
the Vietnam war, for instance, would include resisters, evaders,
deserters, and anyone in prison or under threat of prosecution
for acts of civil disobedience in protest of the war. Indeed, a
universal amnesty would also include a program to change the
classification of those servicemen who received a less than
honorable discharge because of their opposition to the war. In
contrast, general amnesties exclude some persons from their
benefits, although, as will be seen, the reasons for such dis-
crimination are often arbitrary and vague. While an uncondi-
tional amnesty has no strings attached, a conditional amnesty
requires the performance of some public service before the
amnesty takes legal effect.
In the American legal system, there is no question about ei-
ther the president or Congress possessing the power to extend
an amnesty. The Constitution gives the president the "power to
grant reprieves and pardons for offenses against the United
States." Although various presidents had already interpreted
the pardoning power to include the power of amnestying whole
classes of people, it was only in 1872 that the Supreme Court
ruled on the issue and agreed that the pardon power encom-

Conscientious Objection and Political Obligation," in Obligation and Dissent,
ed. Donald W. Hanson and Robert Booth Fowler (Boston, 1971), pp. 336-56.
6. Both the Encyclopedia Britannica (1969) and the Encyclopedia of the So-
cial Sciences (1930) have entries on the meaning of amnesty and some discussion
of previous uses of the amnesty power, especially following international con-

passed amnesties. The Court has also ruled that Congress has a
similar amnesty power. Under the "necessary and proper"
clause of the Constitution, Congress may enact an amnesty by
remitting the penalties incurred under other national statutes.
Presidential amnesties have been far more frequent, however,
since they are easier to enact, simply requiring an executive
proclamation. Depending upon how broadly amnesty is defined,
there have been roughly a dozen presidential amnesty procla-
mations in American history, some major and some minor.7

As early as 1968, at the height of mass protests against the Viet-
nam war, some persons were talking about the possibility of an
American amnesty at the end of that war. In December of that
year several hundred persons made an appeal to President
Johnson for a Christmas amnesty. Senator Eugene McCarthy, a
leading critic of the Vietnam war, advocated a universal am-
nesty several times during his campaign for the 1968 Democratic
presidential nomination. An antiwar group called "Clergy and
Laymen Concerned about Vietnam" saw Henry Kissinger in 1969
to press upon the administration the desirability of a postwar
It was not until the presidential election of 1972 that amnesty
became something of a national issue. The Democratic party
nominated an antiwar candidate, George McGovern, who de-
clared early in his campaign, "If I am president when the war
ends, I will extend an amnesty to those who on grounds of con-
science have refused to participate in the Vietnam tragedy."
McGovern was, however, opposed to a universal amnesty that
would include deserters. Richard Nixon, the incumbent presi-
dent who defeated McGovern in 1972, was opposed to any form
of amnesty. At his January 31, 1973, news conference, for in-
stance, he stated that the Vietnam war resisters and exiles had
to pay the price of "a criminal penalty for disobeying the laws
of the United States." By dismissing service in the Peace Corps
as a "junket," he also objected to a conditional amnesty that
would require alternative service.

7. A list of American amnesty proclamations and a summary of the Supreme
Court cases interpreting the president's pardoning power can be found in The
Constitution of the United States of America: Analysis and Interpretation, 88th
Cong., 1st sess., 1964, pp. 456-61.

Despite the opposition of President Nixon to amnesty, a con-
ditional amnesty of sorts was, in effect, operating for many of
the war's opponents after 1970. As public disenchantment with
the Vietnam war grew and the withdrawal of ground troops
proceeded, the gap between the convictions of draft resisters
and the public began to narrow. Judges around the country in-
creasingly placed draft resisters on probation as long as they
performed some alternative service. In 1967, only 10.4 per cent
of those convicted for draft resistance received probation; in
1971 the figure stood at 62.7 per cent. Similarly, the military
sharply increased its number of "general discharges" for de-
serters and soldiers refusing service in Vietnam. General dis-
charges, which are not nearly as punitive as dishonorable or
bad conduct discharges, more than doubled in the Navy be-
tween 1969 and 1972. For many of the American exiles created
by the Vietnam war, their chief crime apparently was to be
ahead of their fellow citizens in their resistance to the war.8
On September 16, 1974, President Gerald Ford announced a
general and highly conditional amnesty for those who refused
to serve in the Vietnam war. By this time America's direct mili-
tary involvement in Vietnam had ended, and the previous pres-
ident, Richard Nixon, had been forced to resign under threat of
probable impeachment for his participation in what is known
as the Watergate scandal. Under Ford's amnesty program, draft
evaders or deserters who had not been convicted were given
five months to turn themselves in to authorities, reaffirm their
allegiance to the United States, and agree to spend up to two
years in such public service jobs as hospital or conservation
work. A Clemency Review Board was set up to review the cases
of those already convicted for desertion or draft evasion to de-
termine what service, if any, they must perform.
Initial reaction among the exiles to Ford's amnesty program

8. I have not talked directly about the exiles and their lives; they have told
their own stories in a number of essays, magazines, and interviews. Roger Neville
Williams has collected many of the stories of exiles living in Canada in The
New Exiles (New York, 1971). A convenient collection of sixteen magazine
articles describing the lives of deserters living in Paris and Stockholm has been
published by Clergy and Laymen Concerned about Vietnam under the title De-
serters in Exile. For a dramatic personal account of the desertion and return of
one American soldier, see James Reston, Jr., The Amnesty of John David Hern-
don (New York, 1973). Also helpful is the magazine Amex-Canada published by
American exiles in Canada.


was largely negative; many viewed the demand for alternative
service as a form of punishment and a demand that the war's
opponents admit that they were wrong. In the month following
the amnesty proclamation, only a fraction of the evaders and
deserters elected to participate in the program. Further, a legal
oversight made it possible for deserters to avoid alternative
service; they were to be given dishonorable discharges that
would be changed to clemency discharges if they completed an
alternative service. By electing to live with a dishonorable dis-
charge, a deserter could avoid alternative service. These and
other problems could have been avoided if the president had
announced a universal and unconditional amnesty. Whether or
not such an amnesty will eventually be proclaimed is unclear
at this time, but the argument made here is that a universal and
unconditional amnesty best accords with the democratic idea
of limited loyalty to a limited state.
Amnesty is important not only for war resisters but for what
it says about a people and their government. After Vietnam,
amnesty was a chance to forget the offenses of a minority that
refused to follow the majority in a direction from which the
majority itself eventually turned away. By their actions the
draft evaders and deserters forced Americans to re-evaluate the
Vietnam adventure. Americans, like most people, have a strong
tendency to "rally 'round the flag" in times of crisis and to ac-
cept with little questioning the government's definition of a
"crisis." Minority disobedience has a role to play in changing
this unreflective and automatic public response into the more
critical and active one envisioned by the idea of democratic
politics. In short, if a democratic society loses completely the
conscience of resistance, it may lose democracy as well.

2. Democratic Loyalty

For there is a point at which a state may
attain such a degree of unity as to be no
longer a state, or at which without actually
ceasing to exist, it will become an inferior
state, like harmony passing into unison, or
rhythm which has been reduced to a single
Aristotle, Politics
A theory of limited loyalty to limited
government must recognize the sometime
value of national disloyalty.
Morton Grodzins, The Loyal and the Disloyal

THE VIETNAM war, the more militant protesters demanded,
must be brought home to America. And the war often did come
home. Dissent, political polarization, disobedience, the creation
of an exile community, even the occasional bombing of a uni-
versity building, a bank, or a Selective Service office, all must
be figured into any assessment of the Vietnam war. The govern-
ment, in turn, responded with political trials, accusations of dis-
loyalty against dissenters, and an increase in the surveillance of
vast numbers of citizens, including Congressmen. The Vietnam
war became more than a problem of American foreign policy,
it became a crisis for American democracy. Although the more
obvious signs of the domestic crisis disappeared with the aboli-
tion of conscription and the end of American military partici-
pation in Vietnam, the lessons learned from that crisis are as
important in the long run as the disappearance of the problem.
Most of the early explanations of that crisis focused upon
the prolonged nature of the war, its origins, the powers of the
president, and, more recently, the history of American cold war
policy. But our problems also have roots in the very nature of


democracy. Democracy is a form of government that rests upon
a complex network of multiple allegiance. The Vietnam war
tested and frequently divided those allegiance by setting na-
tional loyalty against important non-national loyalties. Many
citizens experienced the classical Aristotelian dilemma of how
to be a good citizen, one who obeys the laws, when being a
good man argued for disobedience to the laws. To see how this
happened and to locate the role of amnesty as a response to
such events, the idea of democracy needs to be brought out di-


What separates naked force from legitimate and authoritative
government is a widespread desire for the continuance of exist-
ing political arrangements. There must be some consensual base
upon which the political structure rests and from which it
draws support.' National loyalty is one idea that summarizes
all of the ways in which men recognize that there is something
"common" which binds them together and that membership in
the inclusive community of the state is a good. This shared
identity is easiest to achieve among small groups such as the
Greek city-state, the clan, or the tribe. Such societies are closely
integrated. The belief system is dominated by a single theology
and a public philosophy that gives every aspect of life some
meaning and defines each individual's role and place. The lim-
ited size of the population, a hunting or agricultural economy,
and the kinship system conspire to unite the individual and the
group. Whereas we confine politics to a fairly low level of im-
portance in our daily lives, Aristotle, when searching for a defi-
nition of man, could sensibly say that "Man is a creature who
lives in a polis." The polis has been described as "a living com-
munity, based on kinship, real or assumed-a kind of ex-
tended family, turning as much as possible of life into family
life."2 In circumstances of an intensive and encompassing com-
munal spirit, national loyalty is a man's exclusive loyalty since

1. The links between politics and community are examined from a variety
of angles in David W. Minar and Scott Greer, eds., The Concept of Community
(Chicago, 1969).
2. H. D. F. Kitto, The Greeks (Baltimore, 1951), p. 78.



he identifies all of the other dimensions of his life, family, re-
ligion, and work, with the nation or, more accurately, the local
geographical unit.
Man's progress has, however, been steadily in the direction
of ever widening circles of association. Rather than a tight com-
munity based upon a single theology or public belief system,
most men now live in multi-group societies with multiple-belief
systems. The arrival of the city and then the nation-state has
been accompanied by new religions, a new mobility, and com-
peting ideologies. Industrial and technological advances trans-
form the face of men's relationships as surely as they reshape
the face of nature. Ease of migration, the new facility in com-
munications, the spread of scientific, religious, economic, artis-
tic, and even recreational associations, all are signs of the new
pluralism in men's lives.
Critics often lament modern society's destruction of the seam-
less harmony of the small consensual community, labeling mod-
ern society a mass society. Such critics tend to exaggerate
greatly the idyllic character of the closely knit community and
to underestimate the immense liberation that has attended the
arrival of the complex pluralist pattern of relationships. Instead
of a life narrowly circumscribed by place and tradition (a mem-
ber of the Bedouin tribe in Jordan sees travel outside of the
tribal area as a curse descending from the forefathers to the
child), the individual now moves in a world where these ties
have loosened their grip. Similarly, authority in tribal commu-
nities is frequently rigidly hierarchical. Participatory democracy
is as infrequent in uni-group societies as in modern pluralist
ones. No modern man is, of course, totally free of tradition or
the influence of surrounding groups upon him. But now there
are many traditions and diverse groups to meet the needs and
demands of diverse kinds of men. Thus, diversity has its roots
in modern society as do the multiple loyalties that make unity
a problem.
Perhaps no writer has done as much as the sociologist and po-
litical theorist Robert Maclver to explore the connections be-
tween the pluralism of society and democracy.3 Refusing to

3. To characterize modern society as pluralist in the context of a discussion
of democracy runs some risk. Unfortunately, political scientists have often ob-
scured the character of the pluralist community by limiting their view of plu-



isolate one from the other or to insist that one causes the
other, Maclver observes that every society needs both its tech-
niques and its myths, i.e., the value-impregnated beliefs that
it lives by and for. By techniques Maclver means all of the
devices that men use to control and manipulate their natural
and social environment. They include skills for easing toil, pro-
tecting advantages, securing more satisfactions, combatting ene-
mies, and so forth. Techniques alone, however, will not ac-
count for the pattern of men's relationships. For example, both
the United States and the Soviet Union have techniques of mod-
ern industrialism, but their property, control, and reward sys-
tems differ drastically. These differences can only be accounted
for in terms of the varying myth systems that inform and sus-
tain the life of each. The family is also an institution involving
techniques of control and reward, but one myth system gives
you matriarchy and another gives you patriarchy. As tech-
niques change, men's myths change or are replaced by new
Pluralism poses a new challenge for any code of authority.
Maclver writes, "Not only under democratic conditions, but
wherever modern industrial civilization extends, the nature of
authority undergoes a transformation. A modern society, with
its complexity of organization, becomes a multi-group society.
It possesses no longer the homogeneity of culture that has per-
vaded the former types of society, even when they were sharply
divided by class and caste. There is no longer one religion, one
scale of values, one pervasive indoctrination. A multi-group so-
ciety is a multi-myth society. Its appropriate form of govern-
ment can be based only on some form of myth that accommo-
dates conflicting myths . that condition is met by the myth
of democracy."4
To appreciate the appropriateness of the nature of democracy
as a response to the rise of pluralism, it is essential to keep
clear the distinctions among society, community, and state. Yet
political philosophers have frequently been so fascinated with

ralism to the decision-making machinery of politics to the neglect of what goes
on outside of this system. Maclver has never made this error. For Maclver's
writings on democratic pluralism, see especially The Modern State (New York,
1964), The Web of Government (New York, 1965), and David Spitz, ed., Politics
and Society (New York, 1969).
4. The Web of Government, pp. 38-39.



the sovereignty of the new nation-state that these distinctions
have been ignored. The consolidation of kingly power, the
breakup of the universal church, the shifts in loyalty from fam-
ily and region to the central political power, each contributed
to the apparent moral as well as legal supremacy of the state.5
Obedience to the state was now more than a convenience; for
most men it had become a virtue. Men still suffer under the illu-
sion that it is the chief virtue. But Maclver soberly reminds us
that, "We live in communities; we do not live in states. We do
not move and have our being in states, they are not integral
things like communities. . Older languages, including ancient
Greek, had no clear separate word when the reference was not
to the state but to the community. 'Polis' meant equally the city
and the city-state. . Yet the distinction, once it is brought to
our attention, is surely obvious. Everywhere men weave a web
of relationships with their fellows, as they buy and sell, as they
worship, as they rejoice and mourn. This greater web of rela-
tionships is society, and a community is a delimited area of so-
ciety. Within this web of community are generated many con-
trols that are not governmental controls, many associations
that are not political associations, many usages and standards
of behavior that are in no sense the creation of the state. In the
community develops the law behind the law, the multi-
sanctioned law that existed before governments began and
that the law of government can never supersede. Without the
prior laws of the community all the laws of the state would be
empty formulas. Custom, the first 'king of men,' still rules. The
mores still prescribe. Manners and modes still flourish."6
Men have multiplied their associations for the simple reason
that no one group, no single organization can provide for the
needs and desires of different kinds of men. The comfort that a
man receives from his family, the satisfaction that he discovers
in his church, the comradeship offered by his club or his neigh-
borhood gang are pleasures that do not depend upon the pres-
ence of the state's power. The state's intervention in man's
communal life can easily become an unwarranted intrusion.

5. Cf. Joseph R. Strayer, On the Medieval Origins of the Modern State
(Princeton, 1970), p. 56.
6. The Web of Government, p. 145; also see Spitz, Politics and Society, pp.



Since a man lives in a network of sometimes reinforcing and
sometimes conflicting allegiance, his commitment to one group
or cause can never be complete or exclusive. A man with a
single purpose is often the stuff of the dramatist's play, but
such persons are rarely met in the world outside. Indeed, most
of us are dismayed with someone whose total surrender to one
experience leaves no room for qualified judgment or closes him
off to new and unfolding relationships. The state is, indeed,
more powerful than other groups and commonly expects of
subjects their primary loyalty. What it can never expect with-
out denying the facts of man's communal life is either that the
political excludes the other dimensions of a man or that na-
tional loyalty is the only loyalty.
MacIver recognizes that when it is said that liberal democracy
is a limited form of government something deeper is meant
than just that there are checks and balances upon its power.
Rather, democracy, and democracy alone, gives a constitutional
sanction to the distinction between the community and the
state. In such fashion democracy gives effect to the value of in-
dividuality or personality. Democracy destroys itself whenever
it demands the total absorption of the individual within the
This does not mean that democratic citizens have no attach-
ments that are more inclusive than the life of each association.
But it is an attachment and unity bred of the recognition of di-
versity as a primary good. Philosophers have frequently wor-
ried over the links between the Particular and the Universal-
the unit Man and the unity of association. Totalitarian writers
and regimes postulate a superior One outside of the Many that
annihilates the Many. Unity is sought in uniformity, order in
coordination. Democracy, in contrast, affirms the Universal within
the Particular. Maclver writes, "Not the perception of likeness,
not alone what has been called the 'consciousness of kind' but
also the way of life, the sense of common interests to be sus-
tained by common endeavor, creates the unity of any group.
The sense of the common over-rides the differences within the
group but it does not abolish them. . normally the range of
the common does not preclude the play of difference. The unity
it sustains is not all-embracing. It admits many divergences of
interest and of goal. . Since human beings are always variant
the common is likely to be more securely established if its



guardians do not demand the complete conformity that con-
tradicts or suppresses such differences as are not irreconcilable
with the basic unity. The recognition of this fact is the major
insight of democracy."7
This general will for the state is linked to many things. Partly,
it is simply a matter of economics. While the single person is
subject to the caprice of nature, together men can control the
river's flooding or regulate the economic forces of supply and
demand. Custom also plays its part. As conservatives have
often noted, time tends to wrap any government in legitimacy.
Most men obey the government because it has never crossed
their minds not to obey; habit is as great a force in political
affairs as in daily routine. Psychologically, men often identify
"I" with "We," the individual self with the nation. The comfort
provided by the habitual and familiar usually means the com-
fort resulting from the ways of the nation where we happen to
have been born. Government services and manipulation of na-
tional symbols through holidays, songs, and rituals further
tighten the knot of individual-nation identification. Finally, sheer
prudence unites some men to the nation; disobedience is costly
and exile painful.
Democratic governments can rely upon these mechanisms as
a foundation for unity as easily as any other government. But
democracy is permanently barred from attempting to return to
the uni-group society. Democracy as a form of government
means tolerance, not only of political opposition but of the as-
sociational life of man within his communities. Democracy
either finds unity in diversity or it fails.


In his helpful study The Loyal and the Disloyal, Morton Grod-
zins points out that democratic pluralism means that there is no
such thing as a direct national loyalty. He writes, "Life-
satisfactions are pursued and life-goals are achieved within
the framework of groups. . even where frames of reference
are derived from such apparent abstractions as the 'good of
mankind,' there is usually a face-to-face group in existence,

7. The Web of Government, p. 312.



functioning to define and to clarify abstract goals in terms of
day-to-day activity. These are the sources of life's principal
joys in a democratic state, and these are the objects of man's
primary loyalties. . The welter of non-national loyalties
makes a direct nation loyalty a misnomer. It does not exist.
Loyalties are to specific groups, specific goals, specific programs
of action."8
Thus we arrive at what might be considered the paradox of
democracy. On the one hand, the multiplicity of beliefs and
groups is the strength of democratic unity. Men tend to identify
the many pleasures of life-satisfactions derived from non-
national activities with the nation. But while non-national loyal-
ties, to use Grodzins' language, are the bricks of national loy-
alty, they are also the brickbats of national disloyalty. Where
men are serious members of groups other than the state, their
commitments to the life of the association may lead them to
break with the government.
Most discussions of pluralist citizenship have emphasized
how it both protects the citizen from the state and binds him
to it. The individual's membership in voluntary associations, it
is pointed out, serves a variety of political functions. Through
the sheer multiplication of numbers, it reduces the inequality
involved in any confrontation between the individual and the
state. Membership also enhances one's political skills and one's
sense of political competency. The "joiner" is more likely to see
the connections between public policies and his personal cir-
cumstances and to engage in action aimed at tipping the bal-
ance in his favor.
But group membership does more than encourage the citizen
to press his claims against the state; it ties him closer to the
state by including him, however modestly, in the public busi-
ness. John Stuart Mill long ago pointed out that giving the indi-
vidual some public function to perform or allowing him some
participation in the state's affairs increases his feeling of obli-

8. (Chicago, 1956), pp. 28-29. Grodzins' discussion of democratic loyalty par-
allels many of the themes in Maclver's theory of democracy. Grodzins is par-
ticularly concerned to show that such government policies as the internment of
Japanese-Americans during World War II can create disloyal citizens. On the
various meanings of loyalty, cf. Robert Paul Wolff, "Analysis of the Concept of
Political Loyalty," in Political Man and Social Man, ed. Robert Paul Wolff (New
York, 1966), pp. 218-40.



gation toward the state. Participation is one of the most im-
portant ways that men learn to care for the state. Recent studies
such as The Civic Culture have borne out Mill's insight by
showing that support for the state increases with group mem-
bership and the attendant feeling of political efficacy.9 Thus the
democratic state's tolerance and protection of the group life of
the community rebounds to its own advantage. The state can
rely upon the community for support.
This is the ideal, or perhaps it should be called the idyllic,
side of pluralism. For most men it is true that their associational
life rarely (perhaps never) conflicts with their duty to the state.
But there are times when a man's membership in a group, party,
or movement or his identification with some reference group
dedicated to opposition to a war can lead him to break with
the state. Indeed, some contend that if his membership is gen-
uine and his beliefs honest, he has a duty to honor these obli-
gations against the state. Michael Walzer holds that "men have
a prima facie obligation to honor the engagements they have
explicitly made, to defend the groups and uphold the ideals to
which they have committed themselves, even against the state,
so long as their disobedience of laws or legally authorized com-
mands does not threaten the very existence of the larger society
or endanger the lives of its citizens. Sometimes it is obedience
to the state, when one has a duty to disobey, that must be justi-
fied. First explanations are owed to one's brethren, colleagues,
or comrades."910 In short, as Walzer brings out, the more gen-
uine pluralism there is in a democracy and the more men value
their non-state associations and ideals, the more likely it is that
upon occasion conflicts will occur that cannot be settled in the
state's favor. Whether or not one sides with such men will de-
pend upon many things-an estimation of the seriousness of the
conflict between law and principle, command and conscience,
and some calculation of whether the good accomplished by de-
fiance of the law outweighs the good of law-abidingness. All
that I have been concerned to argue up to this point is that there
is no way for democracy to eliminate such conflicts without un-
dermining the life of democracy itself.

9. Gabriel A. Almond and Sidney Verba, The Civic Culture (Boston, 1965).
10. Obligations: Essays on Disobedience, War, and Citizenship (Cambridge,
1970), pp. 16-17.




Citizenship refers to the individual's membership in the more
inclusive community of the state. This membership generates
formal, moral, and felt obligations." Formal obligation is
legal; it refers to what the law and the constitution require of
lawmakers, judges, policemen, and private citizens. By itself
formal obligation is probably not very different from habit;
that is, proscribed acts are avoided and prescribed behavior is
forthcoming largely due to the adoption of appropriate roles.
But formal obligation never stands alone; indeed, if it did, it
would quickly collapse when faced with any challenge. Men
must also feel obligated to follow the rules laid down by formal
obligations. Formal and felt obligations are descriptive; one de-
scribes the expectations embedded in an institutional structure,
the other describes when and how men come to feel obligated.
For now, I am mainly concerned with felt obligations. But it is
worth keeping in mind that from a moral viewpoint the fact
that men feel obligated or that institutions define how public
and private persons are expected to behave does not answer the
question of whether these feelings and expectations are proper
or "fitting." Technically, it is only the third variety of obligation,
moral obligation, that appropriately refers to what a man
"ought" to do, that is, what he is "obliged" to do. In other
words, a man may feel obligated when he should not or, con-
versely, he may not feel an obligation that he morally has. And,
of course, an account of the formal structure of institutions will
tell us nothing about their justness.
Some of what has been said about democratic pluralism can
easily be reinterpreted as forces leading to felt obligations. Grat-
itude for government benefits, the identification of life-
satisfactions with the nation, participation in the political sys-
tem, and belief in the idea of democracy can generate a feeling
that compliance with the law is a duty.
Given the forces toward compliance, it is fairly simple to un-
derstand events that might lead to non-compliance. The extent
to which the law invokes new demands, departs from familiar

11. Cf. Gray L. Dorsey, "Constitutional Obligation," in J. Roland Pennock
and John W. Chapman, eds., Political and Legal Obligation (New York, 1970),
pp. 179-213.



expectations, and requires new sacrifices is, perhaps, the most
critical variable that increases the potential of non-compliance,
of which more later. Non-compliance with law also results from
conflicting obligations generated by membership in other asso-
ciations. In the case of a young person who refuses induction
or who deserts from the military for political reasons, non-
compliance appears to begin with the absence of a felt obliga-
tion. This soon combines with a sense of obligation to others
whose views the resister has come to share. He then becomes
and often feels himself a member of the community of resisters.
Non-compliance results from the feeling that personal life goals,
formed by the groups that one belongs to, and the state's goals
are totally disconnected.
Conscripting men to fight an unpopular war forces a wedge
between the individual's formal obligation to be law-abiding
and his feeling of being obligated, a feeling that formal obliga-
tions presuppose in order to be effective. For most men, con-
scription itself does not create this conflict. American govern-
ments have drafted men for military service for over a hundred
years without major difficulties. Conscription will not account
for the crisis of government authority during the Vietnam war.
It is what men are asked to fight for that, at times, leads to chal-
lenges to the state's legitimacy. The Vietnam war, for instance,
was a different type of war. Its origins for many were obscure;
the reasons for fighting it seemed to vary from official to official
and from month to month or from military campaign to military
campaign. At one time Americans were encouraged to expect a
military victory; at another moment military victory was
dropped in favor of the more ambiguous, albeit more realistic,
notion of political victory or preservation of presidential credi-
bility. Whatever one's stand on the past wisdom of the Vietnam
war, there is no longer room for dispute over the failure of the
American government to make clear either the character or the
purpose of the war. Government inconsistency breeds public
disillusionment. And conscription seemed to many young men
too high a price for citizenship when they could not see "why
this is happening to me."
The tragedy of conscription is that it forces upon the individual
an all-or-nothing choice. He must either risk dying for the state or
defy the state. Yet, in many cases if it had not been for that par-
ticular war and that specific moment of conscription, many of the



Vietnam war resisters would have remained members of the
American community. Life may be hell, to paraphrase Grodzins,
but resistance is usually the last way out.
It is important to distinguish, in other words, between two
types of resisters. There are some who press a total claim
against the state; they deny the state's primacy in any area of
their lives. These are revolutionaries. But the vast majority of
the American exiles were young men who pressed only a partial
claim against the state. They refused this service, denied the
primacy of the state's claim in this instance. These were the
rebels. Their loyalty to the state or, more precisely, to a partic-
ular government's policies was not total or unqualified. But their
disloyalty was not total either. They still gave their loyalty to
their wives, family, friends in the movement, and even the gov-
ernment in other matters. Above all, many were honoring their
commitments to ideals which seemed to them threatened by
the nation's actions. Indeed, many of the exiles relied upon
these other loyalties to maintain them in a course contrary to
the government's.
What needs to be remembered is that resistance and disobed-
ience are directions that any democratic citizen might find him-
self following. Any person can be forced at some point to
choose between the demands of his family, religion, and politi-
cal beliefs and the demands of the state. Pluralist citizenship
makes all of us obedient and disobedient, in the state and out-
side of the state.


If democratic loyalty to the state must always be a limited loy-
alty, the wise course for the government is clear. It should make
harmony and the interadjustment of men's various loyalties
easy and conflict among them difficult. The web of order charac-
teristic of democracy is most secure where the state does not
place national loyalty in competition with other loyalties.
Perhaps all of this is less true when the contest is simply be-
tween the state and a single individual. But where the number
of people opposing and disobeying government draft laws in-
creases to tens of thousands, the government has failed to un-
derstand the consensus necessary for democracy to work. The



presumption, which I normally share, that law-abidingness is
the individual's first duty can no longer be maintained when
dissent assumes the proportions of a minority group opposition.
The isolated lawbreaker casts suspicion upon himself. A com-
munity of resisters casts suspicion upon the government. This
difference was appreciated long ago by the major philosopher
of American liberal democracy, John Locke. Responding to
charges that the teaching that government derives its powers
from the consent of the governed would encourage disobedi-
ence and rebellion, Locke wrote, "To this, perhaps, it will be
said, that the people being ignorant and always discontented,
to lay the foundation of government in the unsteady opinion
and uncertain humour of the people, is to expose it to certain
ruin. ... To which I answer, quite the contrary. People are not
so easily got out of their old forms as some are apt to suggest.
They are hardly to be prevailed with to amend the acknowl-
edged faults in the frame they have been accustomed to . .
Nor let any one say that mischief can arise from hence as often
as it shall please a busy head or turbulent spirit to desire the
alteration of the government. 'Tis true such men may stir when-
ever they please, but it will be only to their own just ruin and
perdition. For till the mischiefs be grown general, and the ill
designs of the rulers become visible, or their attempts sensible
to the greater part, the people, who are more disposed to suffer
than right themselves by resistance, are not apt to stir. The ex-
amples of particular injustice or oppression of here and there
an unfortunate man moves them not. But if they universally
have a persuasion grounded upon manifest evidence that de-
signs are carrying on against their liberties, and the general
course and tendency of things cannot but give them strong sus-
picions of the evil intention of their governors, who is to be
blamed for it? Who can help it if they, who might avoid it,
bring themselves into this suspicion?"12
I have deliberately anticipated in these last few paragraphs
some of the further concerns that will arise in the discussion
of the merits of amnesty. Locke reminds us that if consent is to
be meaningful in a democracy, it must always be revocable.
Otherwise, it becomes mere custom or habit, which is an in-

12. "Second Treatise on Civil Government," in Social Contract, ed. Ernest
Barker (New York, 1969), pp. 129-33.



effective restraint upon the state's power. When consent is with-
drawn by an isolated individual here and there, it is likely to
remain a legal rather than a political and public problem. But
when consent is withdrawn by large numbers, attention must
shift from the legal forum to the political arena. Finally, Locke
cautions us against assuming that once you tell men that politi-
cal reality is a created reality or that political order is their
order, you run the risk of continuous disorder. What is impres-
sive about man's history is not how quick he is to say no, but
how tolerant he is of abuses that would often justify his refusal.
Men go to considerable lengths to smooth out any conflicts be-
tween their loyalty to the nation and other loyalties. They
grumble; they accept the state's demand as a sacrifice that they
must pay; they tell themselves that "they," meaning those in
government, know best. Men, in effect, often do ask what they
can do for the state rather than ask what the state can do for
them. Given men's aversion to disobedience, does not the gov-
ernment bear much of the burden for bringing "themselves into
this suspicion"? A major responsibility of any democratic gov-
ernment is to evaluate the likely effects of its policies upon the
social agreement necessary for the rule of law to work. When
its policies are such as to undermine the widespread public
agreement to be rule-following, it must accept much of the
blame for the divisions within the country. It must also pick up
the responsibility for reconciling those divisions.


3. Amnesty and Its Uses

THE LIFE of the individual and the life of the community are
interdependent. Both are sustained by mutual rights and duties,
mutual aid, shared beliefs, and a sense of loyalty. This network
of allegiance between the individual and the group and among
groups is often the source of men's greatest comforts and plea-
sures. Yet precisely because it is a complex and changing net-
work rather than a uniform and invariable pattern, it can be
broken. Competing religions, racial divisions, conflicting ideol-
ogies, economic crises, changing images of man himself, the
acquisition of new loyalties or changes in the old ones, all can
set individual against group or group against group.
Why men come into conflict, however, is not the topic of this
chapter. Rather, it is about the role that amnesty can play in
aiding or simply signaling the end of the conflict. Although his-
tory cannot decide political and moral arguments, it can indi-
cate what men have proven capable of in the past and show
how they have acted in circumstances that bear some rough
resemblance to our own.
In looking at previous uses of amnesty, one discovers six dif-
ferent ways that it has been employed.

After a successful political rebellion, an amnesty may be
granted to the supporters of the overthrown government.
Such an amnesty will likely exclude the leaders of the gov-
ernment from its benefits.
Military deserters may be offered amnesty upon the con-
dition that they return to their military units. Such an am-
nesty is likely to have little appeal to those who have
deserted for political reasons rather than for reasons of
personal comfort.


Peace treaties ending international conflicts normally in-
clude the extension of an amnesty by each side to the citi-
zens of the other country for offenses each has committed
against the other.
Although less frequent, a government may provide amnesty
for its own citizens compromised by their behavior during
an international conflict. When this has occurred, the am-
nesties have included forgiveness for offenses such as spying
or giving information to the enemy that are far more serious
than draft evasion or military desertion.
At the end of a civil war, the victorious government may
extend an amnesty to the former rebels.
Amnesties may or may not include pardons for those al-
ready convicted or under indictment for political offenses.
Governments normally exclude such persons from the bene-
fits of the amnesty, extending pardons to such men on a
case-by-case basis.

In most of these circumstances, amnesty is an act taken after
the military conflict has ended. When a government again feels
secure or a new one has been firmly established, attention shifts
to the problem of cementing the military resolution with a po-
litical reconciliation.


Among the earliest decisions to wipe out the recollection of
past political events, the best recorded one is the Athenian am-
nesty of 403 B.C.' It provides us with the first clear example of
the form and content of the amnesty concept. Although exact
dates and some of the details of the amnesty are in dispute, the
major events surrounding its issuance are clear enough.
In 404 B.C. an oligarchical group consisting of leaders from
the wealthiest class and the military successfully consolidated
its control of Athens' government. The oligarchs proceeded to
deal harshly with political opposition, even resorting to murder.
Political participation was restricted to members of the highest
class. Many of the democrats opposed to the government fled
1. Alfred P. Dorjohn, Political Forgiveness in Old Athens: The Amnesty of
403 B.C. (Evanston, 1946); Aristotle, Constitution of Athens, xxxvii-xxxix.



into exile in the mountains north of Athens. Civil war then
broke out between the two groups, and although each side
sought allies among the other Greek city-states, the conflict re-
mained predominantly a clash between the rebels and the state.
The government's military campaigns against the rebels were
unsuccessful, and the lack of citizen enthusiasm for the war
and the harsh rule of the government at home combined to un-
dermine the oligarchs' power. According to Aristotle, the origi-
nal Board of Ten, the governing body, was replaced by a group
committed to ending the struggle. It was at this point that the
democratic party offered an amnesty to the other side, thereby
easing the way for the government to end the fight. The grant-
ing of the amnesty and the return of the exiles apparently coin-
cided. The rebels did not desire to continue the fight beyond the
point at which the oligarchical government had to step down.
The amnesty was widely viewed as an assertion that the Athe-
nian community was finally more important than the divisions
of the war.
Initially, the amnesty was simply a political agreement be-
tween the two warring factions, although the rebels were in a
position to press for a total and punitive victory. Every Athe-
nian citizen took an oath upholding the agreement; the oath
was later supplemented by an act that made the amnesty a law.
In supporting the amnesty, leaders in the democratic party
urged citizens to abide by the spirit as well as the letter of the
law. Much of the success of the amnesty is traced to the mood
of reconciliation encouraged by Athens' new leaders.
The amnesty stated that previous political events were legally
forgotten. Specific measures provided that informers would not
be prosecuted for their behavior during the war; confiscated
property was returned, where possible, to its rightful owners;
legal action to recover money was allowed, but no suits could
be brought for damages resulting from the war. Finally, for
those still fearful or disaffected from the democratic govern-
ment, provision was made allowing them to emigrate. Although
violations did occur-for example, some persons were brought
to trial for damages-all commentaries report that the amnesty
earned the Athenians the admiration of the other Greek cities.
The Athenians operated under many advantages. The small
size of the city-state, the need to unite against outside enemies,
the short duration of the conflict, and the intense feeling of



common citizenship found among the Greeks contributed to
the success of the reconciliation. But it must also be kept in
mind that a civil war that sets "brother against brother," as one
Greek writer described the conflict, often creates greater bitter-
ness and resentments than a conflict between two countries
where brothers fight strangers.


Since the seventeenth century, amnesties have become so regu-
lar a part of the peace treaties ending international wars that
amnesty is assumed to be a part of such treaties unless provi-
sion is explicitly made to the contrary.2 There are numerous
examples of both sides in a war extending amnesty to the citi-
zens of the other. One of the last acts of business at the Con-
gress of Vienna in 1815 was an amnesty for the Poles and
Swedes. The conclusion of the war between Russia and Turkey
in 1878 had the novel feature of requiring Turkey to give am-
nesty to its own citizens who were disloyal during the war. Al-
though the treaties ending World War II did not contain gen-
eral amnesty clauses, France, Germany, Norway, the Nether-
lands, Belgium, and Japan passed amnesties for their own
citizens guilty of political offenses during the war. Such amnes-
ties freed millions from the threat of prosecution. A major blot
in the history of amnesty proclamations was the Russian gov-
ernment's execution of several sailors who took part in the Po-
temkin sailors' revolt of 1905, despite the promise of amnesty
for them.
The most recent gesture of political magnanimity by a gov-
ernment occurred after the French Algerian conflict. In the early
1960s, Europeans, especially large numbers of Frenchmen, liv-
ing in Algeria revolted against DeGaulle's plans for Algerian
independence. In 1961 four retired French generals led a three-
day revolt against the French government in Algeria, defying
DeGaulle's Algerian program. Yet DeGaulle issued an amnesty
proclamation for the supporters of the officers and later pardoned

2. See the entries on amnesty in the Encyclopedia Britannica (1969) and in
the Encyclopedia of the Social Sciences (1930).



the officers also. DeGaulle thus forgave acts far more serious than
draft evasion or nonviolent disobedience to the state.


United States presidents have issued approximately ten am-
nesty proclamations, both conditional and unconditional, some
major and some relatively minor ones.3 The first experience
with amnesty in this country dates back to the Whiskey Rebel-
lion of 1794. Farmers in western Pennsylvania refused to pay
the new whiskey excise and violently resisted the tax collec-
tors. The national government viewed resistance to the tax as a
direct challenge to its authority, a view pressed most vigorously
upon President Washington by Alexander Hamilton. Washing-
ton was persuaded to take strong measures against the farmers.
Raising an army larger than the troops he commanded during
most of the war with England and leading them himself into
Pennsylvania, Washington demonstrated the seriousness with
which the government viewed the confrontation. This show of
strength was sufficient to cause the collapse of the resistance, and
the tax soon was paid.
Having demonstrated the power of the new government,
Washington also set the precedent for political reconciliation
through amnesty. By issuing an amnesty on July 10, 1795, for
those who had defied the government, he set the tone for many
of those who have argued for amnesties for other types of po-
litical offenders: "Though I shall always think it a sacred duty
to exercise with firmness and energy the constitutional powers
with which I am vested, yet my personal feeling is to mingle in
the operations of the Government every degree of moderation
and tenderness which justice, dignity, and safety may permit."4
Four years later, President John Adams appeared to follow
Washington's example by granting "a full, free and absolute
pardon to all and every person concerned in said insurrection."
Thus, resistance to the national government, again occurring in
Pennsylvania, ended on a note of forgiveness. Adams' tone,

3. For a complete listing of presidential and Congressional acts of amnesty
and pardon, see the table in Selective Service and Amnesty, pp. 668-69.
4. James D. Richardson, A Compilation of the Messages and Papers of the
Presidents: 1789-1902 (New York, 1897-1907), 1:184; the proclamation is at p. 181.



however, was less one of reconciliation than of the charity of
the powerful toward, in his words, "the ignorant, misguided,
and misinformed in the counties [who] have returned to a
proper sense of their duty." Adams' proclamation also ex-
cluded those already tried and found guilty or those under in-
Four early presidents issued severely conditional amnesties
for American military deserters. In 1807 Jefferson granted am-
nesty to any deserters as long as they returned to their military
units within four months.6 Later, Madison, on three separate
occasions, proclaimed amnesties that employed much the same
language as Jefferson's.7 Perhaps the most unusual pardon of
military deserters was Andrew Jackson's directive to the War
Department to pardon deserters upon the condition that they
never again serve in the military.
All of these early presidential acts wandered considerably
from amnesty's literal meaning of forgetfulness. Like Adams,
Washington described the subjects of his proclamation as "mis-
guided." While the amnesties set aside legal prosecution, the
offenders were, nevertheless, pronounced guilty. Such punitive
amnesties can be contrasted with nonpunitive ones where the
government acknowledges as at least reasonable the complaints
of the dissenters. This distinction becomes clearer when these
early amnesties are compared with the amnesties issued during
the American Civil War.
The Civil War was America's first experience with large num-
bers of conscripted soldiers. During the war, Lincoln adopted
a policy toward Union deserters and resisters very similar to
those of earlier presidents.8 They were promised amnesty on
the condition that they rejoin their regiments. Lincoln's early
policy was a mixture of harsh threat and measures intended
to moderate the punishment of deserters. On one hand, he
warned deserters that failure to return would lead to strict
punishment upon their arrest. On the other, he directed the
War Department in 1864 to make sure "that the sentence of all

5. Ibid., 1:303-4.
6. Ibid., 1:425.
7. Ibid., 1:512, 514, 543.
8. An exhaustive study of amnesties and pardons during the Civil War period
is Jonathan Truman Dorris, Pardon and Amnesty under Lincoln and Johnson
(Chapel Hill, 1953).



deserters who have been condemned by court-martial to death
. . be mitigated to imprisonment during the war. . ."9 Al-
though the war was over the very existence of the Union itself,
no action was taken by Lincoln after the war against either
draft evaders or military deserters.
This policy of reconciliation was even more evident in Lin-
coln's, and later Johnson's, policies toward the participants in
the rebellion. Both found in the course of political forgetfulness
the best guarantee that bitter political differences would not
continue to threaten the nation's political health.
The Civil War did produce, however, its advocates of severe
punishment. For many, the issue was clear: the Confederates
were in open rebellion and thus guilty of treason. In contrast,
Lincoln viewed the rebellion as something more than or differ-
ent from the crime of treason.10 In rejecting the view that
defined the South's rebellion as more criminal than political,
Lincoln stated as his highest goals the preservation of the
Union and a settlement of the conflict that would bring the
South back into the Union as a working member rather than
just as a defeated enemy. Toward these ends, he issued various
amnesty proclamations for those participating directly or in-
directly in the rebellion upon the condition that they reaffirm
their allegiance to the Union." On December 8, 1863, he used
his pardoning power to declare that all prosecution of rebelling
citizens would be set aside and their property, except in slaves,
would be fully restored.12 The proclamation was not universal
in that it excepted certain classes of persons such as high mili-
tary officers and the major civil leaders of the Confederacy. But
even those persons were invited to seek pardons on a case-by-
case basis. Keeping in mind that battles were still being waged,
Lincoln's liberal use of executive pardon and amnesty stands
as a high mark in the history of political reconciliation.
Through his proclamation Lincoln did a great deal to modify
some of the more extreme measures demanded by those north-
erners who were in an avenging mood during and after the war.

9. Richardson, 6:233.
10. Dorris, p. 5. For some of the more ridiculous and inhuman proposals for
punishing the Confederate President Jefferson Davis, see ibid., pp. 282-83.
11. Richardson, 6:102-4, 188-89, 213-15.
12. Ibid., 6:213.



Whether or not Lincoln would have granted a universal am-
nesty at the close of the war cannot definitely be known. His
untimely death left the final settlement of the amnesty issue to
President Johnson, yet Lincoln evidently had such a proclama-
tion in mind. Charles Sumner, reporting on a conversation that
he had with Lincoln shortly before his death, reports that Lin-
coln "was not for a moment tempted into any remark indicating
any desire to punish even Jefferson Davis. In refutation to a
statement that Davis should be hanged Lincoln said again and
again, 'Judge not, that ye be not judged.' "13 In his last public
speech, Lincoln hinted that he was contemplating a much
broader amnesty proclamation for the South, saying that he
would act when the time seemed proper. Further, Lincoln's last
cabinet meeting, which was held to consider a general plan of
reconstruction for the South, found him in a forgiving mood.
Gideon Welles who attended the meeting wrote in his diary
that the president "was particularly desirous to avoid the shed-
ding of blood or any vindictiveness of punishment. He gave
plain notice that morning that he would have none of it. No
one need expect that he would take any part in hanging or kill-
ing these men, even the worst of them. 'Frighten them out of the
country, open the gates, let down the bars, scare them off,' said
he, throwing up his hands as if scaring sheep. 'Enough lives
have been sacrificed; we must extinguish our resentments if we
expect harmony and union.' "'1
Lincoln's course was clear-promote unity by offering to
erase the recollection of previous political events. The decision
to pursue this course was left to his successor, Andrew John-
son. What is remarkable about Johnson's decision to follow a
direction very similar to Lincoln's is that everything seemed to
indicate that he would be a vengeful president. When southern
senators made their farewell speeches upon the secession of
their states, Johnson as vice president had answered "Were I
the President .. I would do as Thomas Jefferson did in 1806
with Aaron Burr, who was charged with treason. I would have
them arrested and tried for treason; and if convicted, by the
Eternal God, I would see that they suffered the penalty of the

13. Edward L. Pierce, Memoirs and Letters of Charles Sumner (Boston, 1877-
93), 4:239.
14. Gideon Welles, Diary (New York, 1960), 2:298.



law at the hands of the executioner.''15 Yet before his term in
office was over, Johnson issued no less than four amnesty procla-
Johnson's first amnesty proclamation of 1865 was a reissuance
of Lincoln's offer of amnesty to those participating in the re-
bellion upon condition that they accept the legitimacy of the
national government. This amnesty did reflect Johnson's initially
more punitive attitude in that he greatly expanded the number
of persons excluded from it. But his next three proclamations
became increasingly more generous. At the end of the war, he
issued an amnesty sharply reducing the number of excluded
classes: only leading military and political figures were denied
its benefits. A year later the exemptions were further reduced
to exclude only those under current indictment for treason.
On December 25, 1868, after three years in office, Johnson an-
nounced to the country what has become known as the Christ-
mas amnesty. It was a universal and unconditional amnesty for
all persons who had taken part in the rebellion, and it included
a full pardon for all those imprisoned for political acts during
the war. The legal memory of the war was now officially and
totally wiped out. Johnson finally completed the purpose an-
nounced at the time of his very first proclamation. He stated,
"a retaliatory or vindictive policy attended by unnecessary dis-
qualifications, pains, penalties, confiscations and disfranchise-
ments, now as always, could only tend to hinder reconciliation
among the people and national restoration. . ."17 It took
Johnson three years, but he came to recognize that reconcilia-
tion requires an unqualified act of good faith that removes any
doubt about the intentions of the government toward its former
Many other things combined to move Johnson from his earlier
support of strict punishment to one of leniency. Lincoln's leg-
acy, the influence of Lincoln's former secretary of state and
later friend of Johnson, William Seward, and the sincerity of
the former rebels in their desire to return to the Union were
factors in Johnson's commitment to amnesty. Whatever John-

15. Congressional Globe, 36th Cong., 2d sess., pp. 1354-56, cited by Dorris,
p. 96.
16. Richardson, 6:310-12, 547-49, 655-56, 708.
17. Ibid., 6:548.



son's final reasons, there can be little doubt that his pursuit of
the course pointed by Lincoln did as much as anything else to
make the persistence of the Union a social and political fact as
well as a military one.
The Civil War experiment with amnesty provides today's cit-
izen with mixed counsel. The Vietnam war resisters, it is true,
were not in the same category as defeated combatants in a
civil war. Neither Lincoln nor Johnson extended an amnesty to
Union citizens or soldiers who disobeyed the government or
refused its support. The policy here, as has been noted, was to
offer deserters a chance to rejoin the army, and after the war
the government adopted an informal policy of simply ignoring
the whole issue of apprehending and punishing evaders and de-
serters. Thus, the Civil War does not provide us with a histori-
cal precedent for the formal removal of the threat of prosecu-
tion for citizens disobedient to the immediate government
under whose jurisdiction they find themselves.
The inexactness of the analogy must not be pushed too far.
Once the former rebels were again under the jurisdiction of the
national government, they were still amnestied. More impor-
tant, the relevance of the Civil War analogy turns upon the re-
semblance between the alternative attitudes the government
can adopt toward those who have broken with it for political
rather than criminal reasons. We have more to learn from the
spirit than from the form of the Civil War amnesty proclama-
tions. To learn this lesson it is necessary to distinguish, as did
Lincoln, between crimes and unlawful political acts. So long as
resistance is equated with ordinary crime, the language of the
law-innocence and guilt, trial and punishment-obscures the
political factors in those situations where the conflict is over
the law itself. In dealing with the criminal, the representative
of the law is accustomed to asking whether or not a law has
been broken and whether or not this person is guilty of the vio-
lation. This was, in effect, the attitude of those who criticized
Lincoln as a "pardoning president." Lincoln's leniency toward
the South, I suggest, can be accounted for by his judgment that
the rebellion was more than a crime. The illegality of the
South's secession was incidental to the political reasons behind
that secession. As president, Lincoln acted neither as a lawyer
preoccupied with rules of law nor as a judge seeking to adjudi-
cate individual blame or innocence, but as a politician attempt-



ing to negotiate a political settlement. Amnesty and pardon
were part of Lincoln's negotiating tactics. Lincoln's choice pre-
vailed over those who demanded a strict accounting before
the judge's bench. Is there anyone who doubts that his was the
proper and wiser course?


During this century, amnesty campaigns in America have been
waged following both world wars.18 Dissent during the two
wars was mainly centered among pacifist groups. The largest
number imprisoned in World War I were conscientious objec-
tors who could not meet the narrow requirement of the 1917
Selective Service Act that limited conscientious objector status
to members of a "well-recognized religious sect or organization
at present organized and existing and whose existing creed or
principles forbid its members to participate in war in any form.
. ." No provision was made for members of such sects who
might also object to noncombatant service in support of war.
Persons whose objections to war were rooted in political, philo-
sophical, or even religious principles and were not members of
a recognized peace church, were thus excluded. No exemption
was, of course, made for those whose objections were to a par-
ticular war rather than to war itself. Yet the number of objec-
tors during the war remained small. The number denied con-
scientious objector status and imprisoned in camps was around
four thousand. Others imprisoned included those who refused
to register at all, men arrested for a variety of political offenses,
including the urging of pacifist and other "radical" views, and
members of the American Socialist Party who refused to sup-
port the war effort.
The mood of the country during World War I was one of
harshness, making any form of political dissent risky. Nothing
illustrates this better than the imprisonment of Eugene Debs,
leader of the Socialist party. In 1918 Debs was convicted and
sentenced to ten years in prison for delivering a speech against
the war, a decision upheld by the Supreme Court. At the time

18. See Mulford Q. Sibley and Philip E. Jacob, Conscription of Conscience
(Ithaca, 1952), chaps. 17 and 20.



of the armistice ending the war, Debs and nine hundred others
still remained in American prisons. The goal of the amnesty
campaign that emerged following the war was to have Debs
and all other political prisoners released. Technically, it was a
struggle for pardon, since its focus was upon those already tried
and imprisoned.
The campaign was organized by the National Civil Liberties
Bureau, forerunner of the American Civil Liberties Union, and
the Socialist party. Efforts to persuade President Wilson to
grant a pardon were doomed from the outset. He viewed critics
of the war as traitors and vowed that they would never be
set free during his administration. Yet, other Allied govern-
ments began to free their political prisoners shortly after the
war's end. Italy, France, Canada, and Belgium issued formal
pardons and amnesty proclamations for opponents of the war.
England pardoned most of its prisoners, although no general
amnesty was granted. In America, however, the sixty-five-year-
old Debs was not pardoned until Christmas Day, 1921, by War-
ren Harding. Other political prisoners were not released until
pardoned by Coolidge in 1924, over six years after the war.
While the first amnesty campaign of this century succeeded
eventually in securing the release of political prisoners, it failed
to win a general amnesty for those who remained under the
threat of prosecution. Although none of the dissenters were
guilty of any crimes against persons or property, the American
public and its presidents refused to wipe from memory the po-
litical actions of those individuals whose consciences had come
into conflict with the authority of the state.
For most Americans, World War II was seen as a necessary
struggle to defeat an aggressive enemy that was a threat to
human decency as well as international peace. Enlistments were
high and support for the war overshadowed what opposition
to it did exist. Draft resistance and desertion were never major
problems. Conscientious objectors, however, still found them-
selves faced with either meeting a narrow test of religious ex-
emption or serving time for their beliefs. At the time of Japan's
surrender three thousand objectors were still in prison, and
the total number of Selective Service violators in prison at the
war's end was 15,805, a significant but small number when
compared to the number who served. An effort to win a presi-
dential amnesty for conscientious objectors was under way



shortly after the defeat of Japan. Very soon, the goal became a
general amnesty for all prisoners and those under threat of
prosecution. Although the campaign was usually fought in terms
of gaining a pardon for prisoners, an amnesty proclamation
would have freed all classes of offenders, those out of prison as
well as those already imprisoned. For two years, the struggle
was carried on through picketing, petitions, and fasts by promi-
nent leaders of the amnesty movement.
The American public, according to a Gallup poll taken in
1946, favored amnesty for conscientious objectors by a 69 per
cent majority; 23 per cent were opposed, and 8 per cent held
no opinion. Supporters of the amnesty campaign, however,
wanted all Selective Service violators amnestied. Leading news-
papers in the country supported a general amnesty and in some
cases a universal amnesty that would include deserters. There
were some papers, however, that voiced strong objections. The
Kansas City Star editorialized: "For every conscientious objec-
tor behind bars there are thousands of well-remembered graves
of American youths who died defending their country, and
other thousands of disabled men. . The men who were en-
tirely willing to sacrifice our freedom in the name of conscience
have a doubtful claim on the nation's mercy."19
President Truman ruled out the possibility of a general am-
nesty from the very beginning. He told a group of representa-
tives from the Jehovah's Witnesses that he was a "fighting man"
who had little sympathy for those who would not fight for their
country. But as support for the amnesty campaign appeared to
be gaining strength, some response was needed from the White
House. Truman finally acted by appointing a three-member Am-
nesty Board to review the cases of the political prisoners and
to make recommendations to him for executive clemency. Fol-
lowing the work of this board, Truman issued a proclamation
on December 23, 1947, that was a harsh defeat for the propo-
nents of amnesty. Truman's so-called amnesty did not pardon
all violators, not even all conscientious objectors. Rather, it was
a pardon for 1,523 of the 15,805 men in prison. The remaining
prisoners had to await their release through either parole or the
serving out of their sentences.
The 1,523 men chosen for pardon were selected by the Am-

19. Quoted ibid., p. 393.



nesty Board. There were many immediate and specific com-
plaints about its decisions. The board refused to consider the
case of any man with a previous criminal record, but it failed
to explain why such past behavior should affect a judgment
about his failure to support the war. It also automatically ex-
cluded most of the ten thousand men who were in prison for
reasons other than a denial of a request for conscientious ob-
jector status. Among conscientious objectors, it was willing to
consider only the cases of those who might meet the religious
principles test. For many of its critics, it again acted arbitrarily
in deciding which religious groups were to be recognized as
legitimate and which ones were not-excluding, for example,
Jehovah's Witnesses, many of whom were still in prison. More
broadly, critics charged the board with failing to understand
the very nature of amnesty. Instead of a case-by-case pardoning
process, amnesty is intended to apply to whole classes of peo-
ple. But neither Truman nor the board was ready to go this far.
Harold Ickes, at one time Franklin Roosevelt's secretary of the
interior, voiced the dismay of many advocates of amnesty by
writing in a New York Post column that "Like Shylock, insist-
ing upon the last shred of his pound of flesh, certain people
seem intent on inflicting on these unfortunates the last measure
of the law. I, for one, protest against such harsh inflexibility.
President Truman found it easy to pardon members of the Pen-
dergast gang who had been convicted of vote frauds in a Mis-
souri election. And after all, the theft of votes is a deadlier
assault upon American institutions than an aversion to war.
Can we no longer forgive? Has the gentle quality of mercy
dried up in our hearts?"'O
Given the experience of the Amnesty Board following World
War II, any plan for a case-by-case review of those in exile or
in prison as a consequence of their opposition to a particular
war can be expected to encounter numerous difficulties. A Clem-
ency Review Board, for example, faces the difficult task of
developing criteria for deciding to whom to grant amnesty without
working an injustice in other cases. If a demand for alternative
service varies according to mitigating factors, how does one decide
the relative weight to be assigned to the fact that a deserter has

20. November 13, 1945.



already completed a tour of military duty in a combat zone and the
fact that a draft resister has been in exile for over seven years? An
examination of men's motives, so as to discriminate between the
conscientious and nonconscientious resister, is likely to result in a
bias that favors the educated and articulate over those who cannot
intellectualize their motives. Even if a war resister states that he
deserted for personal reasons rather than because of opposition to
the war, is it clear that he would have deserted had it not been for
the climate of opinion created by widespread opposition to the war
that he was being asked to fight? A major advantage of a universal
and unconditional amnesty is that it avoids these imponderables
and a protracted administrative process that can easily delay for
years the removal of the threat of criminal prosecution from those
whose political and moral convictions were genuine.


Earlier amnesties have not affected America's subsequent abil-
ity to raise an army or to wage a war successfully. As Henry
Steele Commager has insisted, the large numbers of draft re-
sisters and deserters during the Vietnam war were less a com-
mentary upon their character than upon the nature of the
war.21 Other governments that amnestied their political pris-
oners following the world wars have experienced no weaken-
ing in national loyalty.
Any consideration of political offenses and punishment must
keep in mind that a government's decision to go to war entails
the greatest demand that it can normally make of a citizen-
asking him to risk dying for the state. As a democracy, America
should not merely tolerate but insist that the citizen ask the
state to explain clearly the connection between his potential
sacrifice and the things that he, along with other citizens, values.
Some men, of course, will always refuse the state's demand.
They are the pacifists, the philosophical anarchists, those simply
incapable of killing, and the alienated. Others will always re-
spond to the demand regardless of the conflict or the state's
reasons. They include the unreflective believers in "My country

21. "The Case for Amnesty," New York Review of Books, April 6, 1972, pp.



right or wrong" and, tragically, those for whom war is an es-
cape from the boredom of their normal lives or a chance to
prove their manliness.
Those always willing to march off to war clearly present no
problem to the state (their threat to the democratic ideal of
conscientious citizenship is another matter). Conscientious ob-
jectors to all wars are becoming less of a difficulty as the Su-
preme Court expands the test for conscientious objection to
include philosophical as well as religious beliefs. There is, how-
ever, another group of men who refuse to fight in some wars.
They do not deny that men acquire an obligation to die or kill
for the state; they only deny that that obligation is absolute.
Their opposition is not to bearing arms, but to using them
against a particular people, or in defense of an erroneous prin-
ciple or lack of principle. It is this group that raises the most
serious issues that must be confronted. Many are among de-
mocracy's most conscientious and discriminating citizens. That
is, they hold neither an indiscriminate rejection of all wars nor
an indiscriminate enthusiasm for all wars. They could agree
with the British philosopher Bertrand Russell, who, when
chided for his support of World War II since he had been im-
prisoned for his objections to World War I, stated, "I like to
choose my wars." Yet these are the people most likely to come
into conflict with the state's authority. America has increasingly
come to grips with religious and philosophical conscientious
objectors; it must now see if it can understand and make room
for political conscientious objectors.


4. Objections to Amnesty and
Their Fallacies

IN THIS chapter I will examine the case against amnesty as it
appeared, following the Vietnam war, in journals, newspapers,
and public hearings. I have, however, gone further than many
of these criticisms of amnesty by examining some of the litera-
ture on civil disobedience that seemingly supports the brief
against amnesty. Before moving to the arguments against am-
nesty, a preliminary remark might help the reader to see the
general direction to be taken. A full response to the objections
to amnesty cannot be separated from a presentation of the
reasons for amnesty. The final case for amnesty, in other words,
must be a positive one, not simply a critique of the other side.
This positive case is taken up in the next chapter, but before
that, something else needs to be done. If there were, as some
do argue, an absolute prohibition against ever breaking the
law or an absolute requirement that all instances of lawbreak-
ing be punished, then the case against extending amnesty would
be conclusive apart from any considerations that might be
pressed in its favor. What I argue in this chapter is that such a
definitive or conclusive case cannot be made. The first section
contains responses to the most common objections to setting
aside the punishment of war resisters, especially those created
by the Vietnam war, by contending that there are other values
more important than retribution, deterrence, or even law. The
argument in the second part is carried on at a somewhat more
abstract level, dealing with more technical philosophical objec-
tions to amnesty. The thesis in both sections is that politics
and law are two alternative ways of reconciling the conflicts
between men and that, finally, politics is more important than



Among the first set of reasons for rejecting amnesty, three points
recur. Failure to prosecute those who refuse to participate in a
war is an affront to the families and friends of those killed or
wounded in the war; amnesty, in this view, would "dishonor"
those who served in Vietnam. Draft evaders and resisters in-
crease the risk of military service for others by reducing the
manpower pool of potential conscripts; military deserters en-
danger the lives of other soldiers and violate their oath of serv-
ice. Granting an amnesty after any war would encourage re-
sistance and desertion in future wars, when conscription again
may be needed, by setting the harmful precedent of forgetting
and forgiving such acts.
Each of these statements is descriptive and prescriptive. That
is, each describes or predicts certain actions in such a way that
the conclusion that those actions ought to be punished seems
unavoidable. Each proposition is an attempt to justify the pun-
ishment of war resisters.
Few persons hold the harsh position that we should punish
political offenders simply to "get even." That sounds too much
like vengeance-the notion that punishment itself is a good. The
only protection against increasing suffering needlessly is to in-
sist that any increase in the amount of suffering result in some
benefit to other persons or to society.'
From this perspective, the belief that amnesty is an affront
to those who lost a son, husband, or friend in a war is the most
dismaying complaint against amnesty. As James Reston, Jr., has
argued, this complaint pits victims against victims-those who
suffer in a war and those who suffer exile.2 Nothing done to
war resisters can repair the direct personal losses that many
suffer during a war. It is conceivable that punishment of war
resisters might provide some with psychological comfort. But a
national policy that attempts to comfort grief by creating more
grief adds another cost to the price of a war. In the case of a

1. See Ted Honderich, Punishment: The Supposed Justifications (Baltimore,
1971), p. 49. I have relied heavily upon this small but thoughtful book in my re-
plies to the claims made for punishment by the critics of amnesty. More techni-
cal but also helpful is Stanley E. Grupp, ed., Theories of Punishment (Blooming-
ton, Ind., 1972).
2. In Selective Service and Amnesty, p. 654.



war such as the one in Vietnam, sentencing war resisters to
prison or the exiles to a lifetime of separation from their fam-
ilies and friends would only prolong the memories of America's
most divisive foreign war. As in every war, the present and fu-
ture have more claim to our attention than the past. It was
Aristotle who advised that "the past and present are necessary,
the future is possible."
Amnesty is an acknowledgment of the convictions of those
who refuse to serve, at least to the extent of recognizing the
doubts and controversy surrounding a particular war. If there
is reasonable doubt about a war, a sensible response is to set
aside the punishment of those who are the first to believe what
others only later come to question. Although they are unlikely
to recognize it, even those who serve in a war have an interest
in providing some alternative for those caught in the situation
of fighting in a war they consider unjust or going to jail. Every
man is a potential civil disobedient. Those who serve are quite
justified in feeling that the burden of service should be shared
equally. What is at issue is the question of whether or not fair-
ness is compromised by amnesty. If, in imagining himself in
the position of those who feel they cannot participate in a war
such as Vietnam, the reluctant conscript would want some
alternative to punishment available for himself, then I do not
think fairness is compromised by amnesty. By surrounding him-
self with a "veil of ignorance" so as to avoid knowing how
amnesty would affect his own case, the individual is better able
to limit his response to general rather than personal considera-
tions.3 Perhaps no one can truly become the impartial spec-
tator or judge hypothesized by many moral philosophers, but
amnesty must be considered from the side of both those who
fight and those who refuse to fight-from the standpoint of the
family that loses a son in the war and the family whose son is
in exile-without knowing, however, to which side or which
family one belongs.
Looking at the second objection to amnesty, the rationale for
punishing draft resisters and deserters is that they unlawfully
avoid certain duties that they equally share with others. Justice
or impartiality demands that persons with the same responsi-

3. The concepts of a "veil of ignorance" and the impartial spectator are de-
veloped by John Rawls, A Theory of Justice (Cambridge, 1971), pp. 136-42.



abilities be treated similarly if they respond equally to their du-
ties, but those who fail to respond must be punished in order
for justice to be meaningful. Punishment, then, is the fitting
dessert for the resister's action. Nothing more is needed to jus-
tify his punishment than his past behavior. Punishment is retri-
bution for that behavior.
Admittedly, deserters and draft evaders do increase other
men's odds for service under a system of conscription, but the
statistical increase is very small when the manpower pool is
large. Nor was there, to my knowledge, a single case of deser-
tion during the Vietnam war that directly exposed others to
greater danger. Most deserters were soldiers stationed at either
American bases or American installations in Europe, who fled
upon receiving orders to Vietnam. The deserters within Viet-
nam typically fled when off duty. Nevertheless, it is clear that
such men refuse a service that others perform. The point of am-
nesty is to admit, however, that such refusal, in the case of Viet-
nam, was understandable and can be tolerated. Of course, am-
nesty means treating some men differently from other men; the
case for amnesty is an argument for just such differential
Every religious conscientious objector also reduces the size
of the manpower pool; every student deferment during the Viet-
nam war increased the odds that another would be drafted.'
In recognizing the consciences of religious objectors or in
granting student deferments, the government and public treat
them differently from others. All such acts of discrimination
obviously involve a judgment that in this case there are good
reasons for setting aside the rule of impartiality. Just as there
are good reasons for exempting religious conscientious objec-
tors from service, there may be compelling reasons at times for
an amnesty that exempts the selective conscientious objector

4. The claim that the American exiles increased other men's odds for service
is true but misleading insofar as critics pretend that all eligible males were
equally vulnerable to the chance of military service. In 1968, of 20,829,000 draft
registrants aged 18% to 26, some 2.2 million had student deferments, 4,126,000
were deferred on the basis of fatherhood or hardship, 471,000 had occupational
or agricultural deferments, and some 424,000 were unclassified: Statistical Ab-
stract of the United States, 90th ed. (Washington, 1969), p. 260, Table 383; cited
by David Malament, "Selective Conscientious Objection and the Gillette Deci-
sion," Philosophy and Public Affairs 1 (Summer 1972):381-82.



from punishment. The ideal of impartiality built into the rule
of law does not prohibit us from ever calculating the unusual
case. Nor, as a special measure, does amnesty threaten the
generality of the rule of law. Since amnesty, as a law, excuses
a past offense, it in no way grants permission to break the law
in the future. Amnesty is an after-the-fact legal recognition of
the refusal of a quite specific military service. What amnesty
does deny is that there is an iron link between lawbreaking and
Granting this much of the argument, a critic of amnesty still
might warn that a government that excuses or overlooks the
offenses of some runs the risk of arbitrariness in the future with
all of the attendant dangers for unfairness toward others in the
political community. The statement that "justice is blind" nicely
captures the legalist conception of a just society. It means that
men ought to be treated equally before the law regardless of
their race, class, or income, and that those who break the law
ought to be punished out of fairness to those who obey the
law. The central fallacy behind this argument is that, first, it
treats law as something separated from the surrounding social
context. Second, it treats the values surrounding law as exclu-
sive values.5
Partiality, in contrast to the legalist conception, is on many
occasions preferable to impartiality. Cities, for example, have
found no difficulty in setting aside the letter of the law that pro-
hibits strikes by public employees so as to arrive at an agree-
ment whereby trash can be collected again, fires fought, or
streets patrolled. Nor is there anything wrong with such be-
havior unless one assumes that enforcing the law is always the
only value worth looking after. In a morally pluralistic world,
it is often more important that several different values be per-
mitted to live together in compromise, even though logically
one might exclude another. Where two goods such as the im-
partial enforcement of the law and the partiality of setting aside
punishment for the sake of reconciliation compete, there is no
iron law that dictates that the values of law must always over-
ride other values. Even when punishment is permitted by the
fact that a law has been broken, considerations of kindness,

5. Cf. Shklar, Legalism, pp. 104-7, 121-22.



doubts about the immorality of the illegal action, a desire for
unity, and many other things can easily justify the decision not
to implement the punishment. It does not follow from the fact
that a law has been broken that we are under an obligation to
punish the lawbreaker. Men have the capacity to reason pre-
cisely to protect themselves from the straitjacket of their own
The politics behind a law is easy to see whenever a city does
not prosecute a strong policemen's union for engaging in a work
stoppage. The strength of the union and the importance of the
policemen's services to the community justify the prudent de-
cision to reach an accommodation rather than to insist upon
punishment. Similarly, once the majority of the American pub-
lic recognized the questionable nature of the Vietnam war, it
was no longer fitting to punish political offenders for breaking
the law that served that war policy.6 Political judgments
should at times override legal rules.7
Selective Service Director Curtis W. Tarr reflected the third
objection to amnesty, when he testified before a Senate hearing,
that if a post-Vietnam amnesty made it possible for those who
avoided the draft "to return to the full rights of citizenship
without any penalty, then it would be difficult to justify the con-
tinuation of inductions."8 While the adoption of the all-
volunteer army has made this particular point moot, the issue
of amnesty's fairness to those who did respond to the draft
during the Vietnam war remains. There is also the broader but

6. Technically, whether or not a majority recognizes the doubtful morality of
a policy cannot be determinate in deciding when a policy is moral or immoral.
It is not right to punish even the single individual who stands against every
other man if his stand is the right one. Numbers do not make morality. Practi-
cally, numbers do matter, and it becomes all the more unjust to punish men
when their convictions are held as serious doubts by the majority. It also makes
less sense to punish them when they are, in effect, a significant minority commu-
nity within the larger democratic community.
7. A great deal about the difference between "politics" and "crime" can be
learned from the essay by Harry R. Blaine and David Kettler, "Law as a Political
Weapon," Politics and Society 1 (August 1971):479-526. Blaine and Kettler's ar-
gument that much of the student protest at Ohio State University involved an
alternative interpretation of the function of the university and that their protest
was thus political rather than simply criminal parallels part of my case for am-
nesty. The illegality of the exiles' actions must not obscure the political consid-
erations behind those actions.
8. Selective Service and Amnesty, p. 46.



more ambiguous question of whether amnesty would encourage
desertion and other forms of resistance in future wars. There
always remains the possibility that the country will again de-
cide to resort to conscription. Discussion of Tarr's statement
can be helpful, then, insofar as it reveals the dilemma that con-
scription creates for a war's opponents.
The use of conscription for any war raises a host of philo-
sophical and political problems. It is far from clear that the in-
dividual ever has an obligation to die for the state, except pos-
sibly in cases of national defense where the preservation of the
individual and the preservation of the state coincide. Various
of the social contract writers contend that consenting to be a
member of a political order entails the obligation of military
service if the state demands it. There are, however, all sorts of
difficulties surrounding the definition of consent to a political
system. Michael Walzer fairly argues that if consent includes
the duty to die for the state, consent should be more meaning-
ful than mere residency or the accident of being born in a par-
ticular country at a particular time.9 Birth alone hardly is suf-
ficient to produce the feeling that one has an obligation to risk
life itself for the state.
To meet such problems, most writers attach to the idea of
consent such requirements as the opportunity to participate
meaningfully in the politics of the community over a period of
time.10 Such participation or its availability might be taken by
the state and other citizens as a sign that one is a consenting
member of the society. But even by these fairly loose tests,
most draftees during the Vietnam war had little if any oppor-
tunity to participate in the decisions of their government. If
men must do something to acquire an obligation, it is difficult to
say that these men had a duty to serve in the military.
Perhaps all of this suggests that the most compelling reason
for doing away with conscription is that it places the individual
in an intolerable dilemma. It leaves the individual experiencing
conflicting obligations or loyalties-to the democratic state but
not to the Vietnam war-with the alternatives of exile, imprison-
ment, or fighting in a war that he considers unjust, to reconcile

9. Obligations, chaps. 4-5, passim.
10. Cf. Robert Booth Fowler, "Political Obligation and the Draft," in Hanson
and Fowler, Obligation and Dissent, pp. 46-62.



these diverse feelings. A democratic state, it cannot be argued
often enough, will always attempt to reduce the number of situa-
tions where the citizen faces such harsh choices. Adoption of the
all-volunteer army is a major step toward the awareness that
however important loyalty to the state ranks it is not an exclusive
These and related topics, however, threaten to take us too far
afield from Tarr's testimony. With Tarr's statement, the brief
against amnesty moved from the past to the future, from retri-
bution to deterrence. Does an amnesty make future war resist-
ance more likely? This question cannot be answered yes or no.
But previous amnesties have not had the effect of hampering
later war efforts. (I think this objection is a case of partisans to
a political issue exaggerating the attention that later generations
are likely to pay to what they do.) The policy of no longer
sending draftees to Vietnam was accompanied by a large drop
in the number of draft resistance and desertion cases.
Some still will insist that amnesty might make future resist-
ance more likely. Of course it might. If the United States de-
cided to pursue another war like Vietnam or to send large num-
bers of soldiers into some other part of Indochina, amnesty
might encourage resistance later. But resistance in such in-
stances is likely regardless of whether amnesty is granted or
withheld. Punishment provides little hope for discouraging war
resisters. We know that the severe penalties imposed for viola-
tions of the Selective Service Act during World War II had no
discernible effect in persuading men to comply with the law.
Courts that were strict in imposing penalties had as many
cases before them as lenient courts." The harsh penalties
given the earliest draft resisters during the Vietnam war did not
stem the rise of evasion. Aside from another Vietnam, amnesty
might just as easily have no effect upon support for future gov-
ernment policies.
What opponents of amnesty are asking us to do is to treat the
abstract possibility that amnesty might encourage future resist-
ance as though it were already an established fact and then to
use this "fact" as a reason for opposing amnesty.'2 But in cal-
culating the consequences of amnesty, as of any policy, remote

11. Sibley and Jacob, Conscription of Conscience, p. 476.
12. Quade, "Selective Conscientious Objection," p. 349.



possibilities and fears must give way to immediate benefits
where these can be had for no cost. It is as great an error to
look to the abstract future as to the agonies of the past in try-
ing to find our way toward reconciliation among citizens.


Let us recall where we are. Up to this point, discussion has
been about the most popular, that is, widespread, objections to
amnesty. These objections, I have contended, are not conclusive
in that they do not rule out setting aside punishment for politi-
cal offenses. But these objections can be strengthened in a num-
ber of ways. There is a set of more strictly philosophical com-
mentaries on the rule of law and disobedience that argues that
in the interest of the former the latter must always be punished.
And although the Vietnam war resisters did not commit civil
disobedience in the traditional sense-they did not act pub-
licly, they did not accept the legal consequences of their ac-
tions, points taken up in the next chapter-they did by their
actions affirm that other values were more important to them
than law-abidingness. It is this characteristic that their disobe-
dience shares with more familiar forms of civil disobedience.
Not surprisingly, writers who have strong reservations about
civil disobedience are either explicitly opposed to any amnesty
or their writings would logically lead them to this position.
In a contribution to a collection of essays on amnesty and in
his recent book Political Violence and Civil Disobedience, the
social philosopher Ernest van den Haag nicely outlines the po-
litical posture that I have called legalism.13 Positively, legalism
asserts rule of law, as long as there is an operating democracy,
as its highest moral principle. Negatively, legalism denies that
there is ever a "right" to disobey the law, since it defines moral
behavior as a matter of legal rule-following. The major conse-
quence of legalism that will concern me is its tendency to trans-
late all political disputes and conflicts into questions of legal
right and wrong. By translating the political question of draft

13. For van den Haag's comments on amnesty, see his contribution to Mur-
ray Polner, ed., When Can I Come Home? (New York, 1972), pp. 142-49, and the
exchange of letters with this writer in Dissent (Summer 1974), pp. 461-63. For
his views on civil disobedience, see Political Violence and Civil Disobedience
(New York, 1972).



resistance and desertion into a judicial question, the legalist at-
tempts to define the type of problem that we are required to
deal with in such a way that punishment-the judicial solution
to legal wrongdoing-appears as the most logical solution. Much
can be said for the legalist's mansion but not nearly as much
as the legalist imagines.
At the center of van den Haag's insistence upon the priority
of law-abidingness is the recognition that a democracy must
find some method for making decisions. Until the arrival of an-
archic bliss, unanimity is impossible. Indeed, unanimity would
be intolerable and oppressive. If we had to wait until every-
one agreed that a problem needs solving, a group needs help,
a minority requires protection, or a bridge needs repairing,
chaos and suffering would result. Just as a government makes
policies in these areas, so war is a policy that nations some-
times adopt; to have any policy, including the decision to go to
war, would seem to require that the minority give way to the
majority. In other words, politically counting men as equals,
democracy still needs some machinery for translating popular
sovereignty into a method of decision-making. Majority rule
whereby the decision of a majority of the lawmakers who have
in turn been elected by a majority of the public binds the entire
public is this translation mechanism. What offends van den
Haag about disobedience to the law is that it thwarts majority
rule by giving a veto power to a minority. Disobedience, he
argues, is an attack upon democracy. "In a democracy," he
writes, ". . what I am doing by not obeying the law is defying
the majority in favor of a minority view. And I am not in favor
of a minority dictatorship."14
With this objection, van den Haag falls into a pit of perni-
cious abstractions. He mistakenly equates disobedience to a
particular law or defiance of a specific policy with dictatorial
rule of the few over the many. One doubts that he would call
a country governed by a military clique a democracy if that
clique on one occasion abided by the outcome of a national
referendum. Van den Haag's argument also depends upon the
refusal to recognize the differences between rebels and revolu-
tionaries.15 Revolutionaries do indeed seek the total transfor-

14. In Polner, p. 148.
15. This confusion is evident, in my opinion, in van den Haag's concept of



mation of the state. But what evidence is there to support the
view that the exiles of the Vietnam era were fighting for such a
goal? The exiles were rebels-individuals who defied the gov-
ernment's war policy. One cannot equate this defiance with an
attack upon democracy or the larger framework of rule of law.
Van den Haag's case rests upon the assumption either that
all laws are good laws or that law-abidingness will always be
less harmful than any form of disobedience, however limited.
These assumptions are impossible to maintain. Segregation laws
are not moral simply because they are the law. And defiance of
those laws has done more to further democracy than compli-
ance ever could have done. The exiles pressed a similar case
against the laws supporting the Vietnam war. That case cannot
be dismissed merely by hyperbole that warns of minority dic-
Meriting more serious consideration is the contention that
amnesty is, in effect, a policy that sanctions selective conscien-
tious objection. Opponents of a particular war, it is argued,
pose a greater threat to the state's authority and the principles
necessary for the rule of law to work than universal conscien-
tious objectors. Van den Haag represents this position when he
writes, "it is one thing to renounce war as a means to anything,
another to spurn only a particular war-just as it is one thing
to repudiate the death penalty in principle, and another to op-
pose inflicting it on a particular defendant. Motivation may well
be moral in both instances. But the conscience which only ob-
jects to some wars or death sentences depends on judgments
of specific facts; whereas the conscience opposed, in principle,
to all wars, regardless of circumstances, or to the death penalty,
does not. The objector's judgment of specific facts (is this de-
fendant actually guilty? Is this war necessary, useful, or just?)
could not be allowed to prevail over that of courts and govern-
ments, without reducing their judgments to an opinion no more
authoritative and enforceable than his.'16 I do not want to
underestimate the forcefulness of this argument. It is one that

"coercive civil disobedience," which is equivalent to violent revolution. By plac-
ing the adjective coercive in front of civil disobedience, van den Haag confuses
the civil disobedient's resistance to a particular law and the revolutionary's ef-
fort to overthrow the entire legal order. See Political Violence and Civil Diso-
bedience, pp. 29-30.
16. Ibid., p. 5.



the Supreme Court has often endorsed in rejecting the claims
of selective conscientious objectors. In one of many cases
coming out of the Vietnam war, the Court upheld the convic-
tion of a conscientious objector not because it doubted the sin-
cerity of his objection to military service, "but because [his]
objection ran to a particular war."17 In support of its conclu-
sion, the Court reasoned that any exemption from military serv-
ice was a matter of legislative grace and not a right guaranteed
by the Constitution. Further, the Court argued that Congress has
the right to determine whether selective conscientious objec-
tion threatens other legitimate government interests, such as
the need to maintain an effective national defense. While ac-
knowledging the desirability of avoiding the coercion of con-
science, the Court reasoned that this value must be weighed
against other goods important to the political community.
Critics of the Court's decisions on selective conscientious ob-
jection have responded in a variety of ways. Locating how my
criticism differs from some of these more familiar responses
should sharpen the reasoning behind my defense of amnesty.
Briefly, most critics of the Court first complain that exempting
the universal but not the selective objector from military serv-
ice effects an arbitrary and unconstitutional discrimination. But
I know of no adequate response to the Court's argument that
exemption from military service is an act of legislative grace
rather than a right guaranteed by the First Amendment's "free
exercise of religion" clause. As long as war is recognized as a
legitimate policy that a people might adopt in the interest of
national security, then some "body" must decide when to adopt
that policy. And the very meaning of democratic politics or, in-
deed, politics of any sort is that a collective decision must over-
ride the particular preferences of individuals.
A second and more philosophical complaint made by those
who favor selective conscientious objection is that conscience
should never be coerced. In this view, "selective objection
would be a natural extension of our present recognition of the
rights of the [universal] conscientious objector."18 But this
position similarly errs in imagining that conscience, whatever
its moral standing, can be treated as an absolute political good.

17. United States v. Gillette, 401 U.S. 437 (1971), cited by Malament, p. 364.
18. Roger L. Shinn, Christianity and Crisis (April 17, 1967), pp. 73-74.



If conscience is an absolute value, then the only appeal left
when my conscience clashes with your conscience is either to
some form of force or to the state. In Gordon Schochet's words,
"my conscience and my moral commitments are entirely too
personal to provide a basis-let alone a justification-for your
behavior. ... By appealing to conscience I am running the risk
of eliminating further discussion. Having put the matter in these
terms, there is very little I can say to you if your moral intui-
tions do not correspond to mine."19 In the last resort, Hobbes
is probably correct in calling clubs trumps. But the rule of law
is intended to prevent us from reaching the last resort.
The weakness behind the case for selective conscientious ob-
jection is that its supporters have not "reconciled themselves
to a political framework for thinking and speaking on political
matters.'"2 Politics can reconcile two absolute and abstract
goods in a way that logic cannot. On one side, there is the de-
sire to permit the individual to refuse participation in a policy
that he cannot support in good faith. But opposed to this good
is the equally strong desire to maintain the authority of the
state. As long as the issue is framed as a choice between the
absolute value of conscience and the absolute good of authority,
no reconciliation of the two values is possible. But what evi-
dence is there for the proposition that we were, once the Viet-
nam war ended, in fact confronted with such a Hobbesian di-
lemma? Why not, as Quentin L. Quade has persuasively argued,
replace apocalyptic questions about conscience and authority
with the more political question of the likely consequences of
following one course of action or another?
If it is indeed possible to reconstruct the amnesty argument
around this more pragmatic basis, then van den Haag is guilty
of the same error as the advocates of selective conscientious
objection. Neither side sees issues such as exemption from serv-
ice and amnesty as practical questions about what, on balance,
should be done in a given situation. While van den Haag is
correct in holding that, in the abstract, the government's opin-
ion must take precedence over the selective objector's opinion,

19. "From Dissent to Disobedience: A Justification of Rational Protest," Politics
and Society 1 (February 1971):246-47. Also cf. his "Morality of Resisting the
Penalty," in Virginia Held, Kai Nielson, and Charles Parsons, eds., Philosophy and
Political Action (New York, 1972), pp. 175-96.
20. Quade, p. 343.



it is the very abstractness of his contention that is unsatisfac-
tory. As I have argued elsewhere,21 what this position cannot
show is whether in any particular situation we are in fact faced
with endorsing one value, the respect for conscience, at the ex-
pense of another, the state's authority. In the case of Vietnam,
once the war was over, conscription abolished, and illegal po-
litical resistance ended, there was little risk to the norm of obe-
dience- in a decision to grant amnesty. The greater risk is the
attitude that makes state authority a good that must always
supersede all others. Rather than a logical juxtaposition of ab-
stract values, what is needed is a political judgment about the
costs and benefits of amnesty in a specific situation.
I confess that my discussion of the issue of selective con-
scientious objection was, in part, a detour, one that I judged
worth making so as to clarify my thesis that it is possible to
favor amnesty in particular without arguing for selective con-
scientious objection in general. The arguments against the lat-
ter, which I find persuasive, simply do not touch the case for
amnesty. Legalism and moralism advocate different final goods,
but both assume what politics attempts to discover-the appro-
priate and shifting priority among values in a world where no
fixed hierarchy of ends is possible. Rather than equating justice
with law or, conversely, the right to disobey, justice must be
seen as a balancing of men's competing obligations. Equating
law with justice encourages the harmful illusion that indiscrim-
inate obedience to the law insures a just order. Equating the
right to disobey with justice blinds us to Hobbes' warning that
where every man is a law unto himself justice has no place.
The legalist, who now interests me more than the moralist,
can fall back upon different ground to buttress his weakening
position. Granting that specific acts of disobedience do not fore-
bode catastrophe for the rule of law, the legalist can still deny
that the individual has a "right" to oppose the majority by il-
legal means and that if he does so he must accept his punish-
ment. The political theorist Harry Jaffa puts it this way: "To
abide by majority rule does not mean resigning our consciences.
It means rather that we have, as citizens, surrendered our nat-
ural freedom to act independently, in order that we may have
the cooperation of other men who have equally surrendered

21. See my "In Defense of Amnesty," Dissent (Winter 1974):90-94.



their natural freedom to act independently. We have made a
bargain with others, and as honest men we have a duty to keep
that bargain-so long, at least, as good faith is kept with us.'"'
As a general observation about fidelity to law and orderliness
in society, this statement invites acceptance. Each individual
does benefit considerably from the general law-abidingness of
others. They, in turn, have every reason to expect him to obey
the laws for their sake. Reciprocity, whether in respect for
others' rights or common support of the law, is a critical part
of what is meant by the teaching that men are political equals.
The law helps men to predict each other's behavior by narrow-
ing the area of random actions. It is thus an important source
of that trust among men which makes the benefits of coopera-
tion possible. Within the framework of a shared legal system,
no two men are complete strangers; each already knows a great
deal of what to expect from the other. From this perspective,
it is argued that the individual who deserts or avoids the draft
does more than commit a technical offense. Rather, he violates
his moral covenant with other citizens. By punishing defiance
of the law, the state encourages men to keep their bargain and
thereby reaffirms the importance of trust and cooperation in
men's affairs.
I have no quarrel with Professor Jaffa's defense of the con-
tribution that a system of law can make to social trust and har-
mony. Nor would I object to the contention that men are under
an obligation to keep faith with each other. But this social-
contract model of law argues something much more difficult to
maintain. The contention is that there is never a moral right to
defy the law in a democracy, since the individual breaks his
promise by defying a law that has been passed by democratic
Between the premise-men have formed a social pact-and
the conclusion-breaking the law is immoral-three major dif-
ficulties intervene. First, there is the question of what constitutes
a sign that an individual has been made a partner in the demo-
cratic lawmaking procedures. At the minimum, I argued earlier
that one wants to say that where individuals have not had any

22. "Reflections on Thoreau and Lincoln: Civil Disobedience and the Ameri-
can Tradition," in Robert A. Goldwin, ed., On Civil Disobedience (Chicago,
1968), p. 38 (my emphasis).



meaningful chance to take part in the political affairs of their
government, they are not yet part of the social compact. Disaf-
fected groups-whether blacks denied access to the political
system, the poor without the resources of time, knowledge, and
influence to have a share in the public's business, or the alien-
ated youth dismayed by policies such as Vietnam made long
before many of them reached political maturity-stand outside
of the social compact. No one has struck a bargain with them.
Second, the model oversimplifies and distorts the reality of
men's obligations or promises. Loyalty to the state exists among
a multitude of loyalties. The obligation to obey the law must
compete with loyalties to family, friends, and even class. Nor
do these competing loyalties derive merely from interpersonal
relations with others. We are quite accustomed to speaking of a
man who is faithful to a cause, his beliefs, or a political pro-
gram opposed to the government's. The proposition that men
are bound as honest men to keep their bargains is not by itself
sufficient to dictate which bargain, promise, or commitment must
be honored.
Even if these objections could be met, there remains a third
difficulty with Jaffa's argument that most clearly applies to the
circumstances of war resisters of the Vietnam era. Recalling
the social contract argument, it makes obedience to the law
conditional upon faith being kept with the citizens. But we had
numerous examples pointing to a government pattern of bad
faith.23 The publication of the Pentagon Papers revealed the
efforts of various administrations to cover up and distort the

23. In this connection, one must cite The Pentagon Papers, which reveal at
least three types of systematic deception by various administrations. Beginning
with President Eisenhower, the American government authorized various secret
military raids headed by the Central Intelligence Agency within Vietnam, in di-
rect opposition to the announced support of the Geneva agreements. A second
major form of deception was to ask the American public for support after a set
of commitments had been made or some action taken. Thus, Kennedy intro-
duced military forces into Vietnam under the guise of flood relief assistance.
Subsequently, the American public was asked to support its men serving in
Vietnam. Finally, Lyndon Johnson perfected the art of half-truths whereby the
public was told that the United States sought no wider war, which was true
but irrelevant since the government had concluded that it was being "forced"
into a wider war, a point kept from the public. On the manipulation of Con-
gressional opinion, see John Galloway, The Gulf of Tonkin Resolution (Ruther-
ford, N.J., 1970); a later Congress withdrew this resolution, convinced that the
earlier Congress had been deceived.



origins and nature of American fighting in Vietnam. Whenever
the national government lies to the public, attempts to manipu-
late the news, and vigorously discourages dissent at home, it is
the government, not the exiles, that has broken faith with the
conditions necessary for the democratic rule of law to work.
It is this deception by the government that is most directly
relevant to the issue of whether or not the American exiles vio-
lated their obligations to the state in refusing military service.
Obligations cannot exist in an atmosphere of bad faith and
lying in politics. Charges of bad faith against the exiles or that
they turned their backs upon America are simply wide of the
mark. The government turned its back upon its own citizens,
and this is only one more factor supporting the exiles' belief
that the government's claim upon their service was illegitimate
and justly rejected.


The legal language of crime and punishment obscures the far
more important political issue of responsible and irresponsible
government power. Government policies in a democracy are
only authoritative when they are made by leaders subject to
public pressure. Policies must be made within an order charac-
terized by openness, that is, the opportunity for citizen influ-
ence upon the policy makers. This does not mean that every
policy must be every citizen's policy; political participation
does not guarantee that one will always win. What political
openness does insure is that public influence will be one of the
chief factors that will enter into the calculations of leaders
choosing a course of action that commits the resources and
even the lives of the public. Setting aside the punishment of
those forced into exile or imprisoned by their opposition to a
policy evolved in deceit can be a step toward a public and of-
ficial renewal of the commitment to the politics of openness and
a step away from the closed politics of manipulation and


5. The Case for Amnesty

In the mixed society of coercion and nature,
our characteristic act is Drawing the Line,
beyond which we cannot co-operate. All
the heart-searching and purgatorial anxiety
concerns this question, Where to draw the
line? ... Well! there is a boyish joke I
like to tell. Tom says to Jerry: "Do you
want to fight? Cross that line!" and Jerry
does. "Now," cries Tom, "you're on my side!"
We draw the line in their conditions; we
proceed on our conditions.
Paul Goodman, Drawing the Line

ORDINARY politics means such things as lobbying, campaigning,
and voting. But at times the political stakes are raised and di-
visions of opinion give rise to extraordinary political actions
involving disobedience to the law or political offenses. Two
types of extraordinary political protests are widely accepted
today-breaking the law to test its constitutionality, and defiance
of the law even after it has been ruled constitutional, as long
as the disobedient accepts the legal consequences of his actions.
The Vietnam war produced a new type of extraordinary politi-
cal opposition. By refusing to accept imprisonment for their
disobedience, the exiles went beyond traditional forms of civil
disobedience and conscientious refusal. Also, they were as con-
cerned about the political and moral failures of the war as its
legal or constitutional faults. That is, their protest was against
a political or policy decision of their government rather than
against a particular law. While some of the war's opponents did
challenge the constitutionality of the war, the exiles sought to
evade a policy rather than to bring a court test of some law.
But whatever specific form disobedience assumes-resistance,
evasion, desertion-it is an assertion by an individual that at


this point he must draw the line between what the state de-
mands and what he can accept. His act of refusal sets him
against other men; but that same act, if it affirms important val-
ues, lays the groundwork for a new unity in which those values
are more secure. This chapter begins with a review of extra-
ordinary political actions and the types of considerations that
justify drawing the line. It ends in a defense of the values af-
firmed by the exiles' actions.
Political offenses are criminal acts, but they can easily be dis-
tinguished from nonpolitical criminal acts. A burglar, for ex-
ample, steals for private gain, but the legendary Robin Hood
who robbed the rich to aid the poor was not only a criminal but
also a political rebel. The person who falsifies his income tax
statement so as to increase his wealth commits a nonpolitical
crime. In contrast, the man who announces his intention not to
pay his federal income tax as a protest against a war is a politi-
cal offender. A pacifist who refuses to comply with an induction
notice is similarly a political actor. What sets off political of-
fenses from other offenses is that the law is broken not merely
to seek personal advantage but either to change the law or, less
optimistically, to refuse participation in a policy of question-
able constitutionality, morality, or simple wisdom. Political of-
fenses are direct challenges to the government's authority. In
nonpolitical crimes against private persons or property the gov-
ernment exercises its police power to protect one person from
another; political contests find the government itself as the party
against whom the offense is committed.
At their most dramatic, political offenses include such acts
as treason, rebellion, assassination, and mutiny. Governments
can also be guilty of political crimes such as violations of civil
rights, bribery, vote fraud, and any other act that undermines
the basic principles of the political order. Since the exiles cre-
ated by the Vietnam war did not commit violent acts, discus-
sion here is limited to nonviolent disobedience of the law-
draft resistance, desertion, and peaceful but illegal protest
against the Vietnam war. Considering the justification of these
acts will involve, in turn, charges that the government was
guilty of such political offenses as waging an unconstitutional
war and violating the rules of war. The comments throughout
are, of course, limited to a society that aspires to achieve the
ideals of a democratic community.



What intensifies the conflict between the government and its
opponents during an extraordinary political contest is that each
side charges the other with committing politically criminal acts.
A resister defies a law because he believes that it is unconstitu-
tional or immoral. The government, he charges, is the wrong-
doer. The government, on the other hand, insists upon obedi-
ence to the law as an affirmation of its own legitimacy. Even
when the Supreme Court rules on the constitutional issue, there
is no guarantee that the struggle will end. The government, if
the ruling goes against it, may be lax in enforcing the new law
of the land. If the ruling goes against the citizen, he may con-
tinue his defiance on the basis that the Court has erred.
No government can tolerate violent resistance to its laws or
policies. The state's monopoly of coercive force is too central to
the existence and integrity of the state to make room for the
private use of violence. But there are at least two forms of non-
violent political disobedience that the democratic state can ac-
commodate-civil disobedience and conscientious refusal. By
accommodation, I mean a decision not to prosecute such defi-
ance of the law. A violation of the law, it will be recalled, is a
necessary condition permitting the government to punish
someone, but it does not follow that the government must exer-
cise this permission. All sorts of other values may lead to the
judgment that setting aside prosecution is the wiser and fairer
course. There are a number of familiar, albeit rather insignifi-
cant, examples that illustrate this point. A city decides to take
no action against a large crowd celebrating a football victory
even though it is blocking traffic in violation of a city ordinance.
A city does not invoke the laws against marijuana smoking for
a crowd at a rock concert. In either case, the judgment is the
same. Public tranquility is best served by not attempting to
punish violations of the law. To always insist that "the law is
the law" is to fly into a realm of abstraction completely di-
vorced from the realities of human situations.'

1. The rule-of-law model also conflicts with the realities of the legal system.
The model argues that there can never be a legitimate, i.e., legal, departure from
the requirement to follow the law. But, in fact, the legal system sanctions sev-
eral types of legitimate rule departures. Juries, for example, have the discretion-
ary power to deliver a verdict contrary to the law if they judge that there are
other more important considerations, and the legal system indirectly acknowl-
edges this power in that there is no method for holding the jurors to account or



Normally, the decision not to prosecute is an informal one;
simply no action is taken by the government. But amnesty is a
legal measure that enables the government to nullify officially
the penalties attached to some law. Since governments are al-
ways imbued with the values of legalism, one of the merits of
amnesty is that it is a legal measure for dealing with the legal-
ist's value of law enforcement. The law can be both honored
and set aside.
The fact that the state can tolerate certain instances of dis-
obedience does not solve the problem of when it should be tol-
erant. Some argue that it must never tolerate lawbreaking. If
one person or group, it is argued, is permitted to defy the law,
there is nothing to prevent other groups from defying laws that
displease them. This is the domestic version of the domino the-
ory. Just as the fall of one government is supposed to lead to the
toppling of other governments, so specific acts of disobedience
supposedly lead to general disobedience.
The practical response to such reasoning is that there is as
much difficulty in finding evidence to support a domestic domino
theory as there is for one in international relations. If it were
true that disobedience in one case encourages disobedience in
many more cases, there should be no difficulty in documenting
such experiences. Howard Zinn has fairly argued that if these
fears were true, "we might expect either that persons engaging
in civil disobedience become general law violators, or that other
persons are encouraged by these acts to become indiscriminate
violators of law. There is no indication that this has happened.
For instance, Negroes in the south who began to violate segre-
gation laws in organized campaigns of civil disobedience did
not at the same time become general lawbreakers, nor did this
lead to a larger crime rate among others in the population. In-
deed, it was found in Albany, Georgia, that during the mass
demonstrations and the mass disobedience there in 1961 and
1962, the general crime rate declined."2
There is, however, more involved here than just the domino

any way to punish them. Similarly, prosecutors are largely immune from pun-
ishment when they exercise their discretion to decide when and whom to indict
or whether to indict at all. For a systematic treatment of these and other legal
departures from the letter of the law, see Mortimer R. Kadish and Sanford H.
Kadish, Discretion to Disobey (Stanford, 1973).
2. Disobedience and Democracy (New York, 1968), pp. 12-13.



theory. Even if it could be proven that the failure to punish a
bank robber does not lead to a rise in the number of bank rob-
beries, no one would advocate freeing all bank robbers. In ad-
dition to distinguishing political offenses from ordinary crimes,
a distinction must be made between principled and nonprin-
cipled resistance. Such a distinction will carry us some way in
showing that just because one favors some forms of disobedi-
ence, it does not follow that he is committed to favoring any
form of disobedience. One might, for example, approve a reli-
gious community's disobedience of a law requiring it to send
its children to a public school, disobedience that has now been
ruled constitutional by the Supreme Court. But approval of this
disobedience might very easily be accompanied by disapproval
of a religious group's disobedience of a law requiring children
to be inoculated against a polio epidemic. It is a theory in sup-
port of discriminate disobedience rather than indiscriminate
disobedience that is needed.
Once we possess a theory of principled disobedience, there
still remains the task of deciding whether or not the disobedi-
ents' principles or convictions are capable of becoming our
principles or convictions. A segregationist might well disobey
civil rights laws out of a sincere and principled conviction that
they are harmful to a traditional way of life. At this point, the
substantive evaluation of what it is that the segregationist values
must replace the discussion of whether or not his disobedience
meets the procedural criteria of principled resistance. That is
why it is necessary to talk about the origin, constitutionality,
and prosecution of the Vietnam war. It is not enough to show
that the exiles were sincere in their opposition; sincerity as an
issue must be replaced or, more exactly, complemented by the
issue of the war.


One of the most widely held definitions of civil disobedience is
that offered by Hugo A. Bedau: "Any one commits an act of
civil disobedience if and only if he acts illegally, publicly, non-
violently, and conscientiously with the intent to frustrate [one
of] the laws, policies, or decisions of his government."3 The

3. "On Civil Disobedience," Journal of Philosophy 58 (October 12, 1961):661.



illegality of the action is what most obviously separates civil
disobedience from ordinary politics. For a long time the pre-
vailing view has restricted justifiable disobedience to acts aimed
at testing the constitutionality of some law. If the court agrees
with the challenge, the citizen is said, retrospectively, not to
have acted illegally. But if the court rejects his challenge, the
citizen is then expected to accept the legal judgment, even
though he may still hold the moral judgment that the law is
wrong. This teaching on civil disobedience has been given new
currency by a former justice of the Supreme Court, Abe Fortas,
who writes in a short book, "The motive of civil disobedience,
whatever its type, does not confer immunity for law violation.
... If he is properly arrested, charged, and convicted, he should
be punished by fine or imprisonment, or both, in accordance
with the provisions of the law, unless the law is invalid in gen-
eral or as applied. He may be motivated by the highest moral
principles. He may be passionately inspired. He may, indeed,
be right in the eyes of history or morality or philosophy. These
are not controlling. It is the state's duty to arrest and punish
those who violate the laws designed to protect private safety
and public order."4 Fortas, a legalist, makes many of the
errors of legalism in this short paragraph. He assumes through-
out his essay that "safety" and "order" as defined by the govern-
ment are always preferable to the values represented by illegal
protest. He neglects the distinction between the permission to
punish an offense and the issue of whether or not it is desirable
to exercise that permission. His teaching excludes conscientious
refusal that aims not as much at testing the constitutionality of
some law as at refusing to participate in an unjust policy, how-
ever acceptable the legal processes by which it is made. He
sees no distinction between ordinary and extraordinary politi-
cal contests but only the distinction between legal and illegal
whereby extraordinary politics becomes just another form of
crime. Most tragically, he encourages the mystification of gov-
ernment power by arguing that no matter how bad the law is,
any toleration of disobedience must be a worse evil. What
chance is there for political improvement if the government is
urged, despite the advice of history, morality, and philosophy,
never to doubt the sanctity of a particular law or policy?

4. Concerning Dissent and Civil Disobedience (New York, 1968), p. 32.



A more recent view that this essay builds upon holds that
certain acts of disobedience and refusal deserve lenient treat-
ment and, indeed, ought not to be prosecuted where the doubts,
constitutional and moral, surrounding some law or policy are so
serious that no legal ruling can be considered conclusive. Speak-
ing directly about draft resisters, Ronald Dworkin has provided
an apt response to Fortas' rigid position: "The argument that be-
cause the government believes a man has committed a crime, it
must prosecute him is much weaker than it seems. Society 'can-
not endure' if it tolerates all disobedience; it does not follow,
however, nor is there evidence, that it will collapse if it toler-
ates some. In the United States prosecutors have discretion
whether to enforce criminal laws in particular cases. A prosecu-
tor may properly decide not to press charges if the law breaker
is young, or inexperienced, or the sole support of a family, or
is repentant, or turns state's evidence, or if the law is unpopular
or unworkable or generally disobeyed, or if the courts are
clogged with more important cases, or for dozens of other rea-
sons. This discretion is not license-we expect prosecutors to
have good reasons for exercising it-but there are, at least prima
facie, some good reasons for not prosecuting those who disobey
draft laws out of conscience. One is the obvious reason that
they act out of better motives than those who break the law out
of greed or a desire to subvert the government. Another is the
practical reason that our society suffers a loss if it punishes a
group that includes-as the group of draft dissenters does-some
of its most thoughtful and loyal citizens. Jailing such men solid-
ifies their alienation from society, and alienates many like them
who are deterred by the threat."5 This is the modest case for
extending amnesty to those who opposed the Vietnam war; it
argues that, in this instance, there are "good reasons" for re-
specting the conscience of the disobedient citizen. Such good
reasons include the questionable constitutionality of the war
and the manner in which it was prosecuted, of which more
The other requirements built into Bedau's definition are in-
tended to distinguish civil disobedience from other methods of
illegal opposition. Nonviolence is essential since the purpose of

5. "On Not Prosecuting Civil Disobedience," The New York Review of Books,
June 6, 1968, p. 14.



disobedience is to persuade others by example. Violence, what-
ever can be said for its tactical strengths and weaknesses, is not
an art of persuasion but a method of coercion. Thus Gandhi
used to insist that "To use brute force, to use gunpowder, is
contrary to passive resistance, for it means that we want our
opponent to do by force that which we desire but he does not.
And if such a use of force is justifiable, surely he is entitled to
do likewise by us. And so we should never come to an agree-
ment."6 It is the resister's desire to "come to an agreement"
that precludes his use of violence. Nonviolence is a sign of his
belief that he and the majority still share a moral code that can
harmonize their disagreement. His appeal is to that shared code.
This also explains the public character of his action; he does
not want simply to evade the law but to confront it, and thus
force others to confront the meaning of their obedience. To ac-
complish its purpose civil disobedience must be open, not
The final criterion of civil disobedience, that it be undertaken
conscientiously, has been interpreted to demand several things.
All other methods of political or legal appeal must first be ex-
hausted. For example, civil disobedience is more defensible
when it can be shown that a person or group has been system-
atically prevented from participating in the normal political
process of, say, voting. Additionally, many would include the
demand that the lawbreaker accept the legal consequences of
his action as a further sign of his moral seriousness. The ex-
ample of Socrates, who refused to obey the laws of his society
but willingly accepted punishment, is often cited as an instance
of disobedience to a law combined with fidelity to the larger so-
cial order. Taking the consequences is considered the price a
man must pay to convince others of his conscientiousness and
to encourage their identification with the beliefs that prompted
his defiance of the law.
Interpreted in this fashion, civil disobedience is most likely
where an individual or group retains some belief that the po-
litical system is open enough for a public appeal to have some
impact. The gap between the individual's convictions and the
government's actions is not yet so large that the citizen despairs
of ever closing the distance between them. But when this gap

6. M. K. Gandhi, Non-Violent Resistance (New York, 1961), p. 19.



is great or the punishment seems too harsh an alternative is
available to the citizen, conscientious refusal.
"Conscientious refusal," according to John Rawls, "is non-
compliance with a more or less direct legal injunction or ad-
ministrative order."7 Refusal to report for induction, failure to
register with a draft board, and desertion were the most frequent
forms that conscientious refusal took during the Vietnam war.
Conscientious refusal is not a direct appeal to the public; the
action is not secretive, however, since there is usually no way
to avoid discovery. But while refusal may be motivated by the
belief that a law is unconstitutional, the person does not look
for a chance to test the law directly. Rather, refusal occurs
when the law directly addresses the individual. Three factors,
I believe, made such refusal more common than civil disobedi-
ence as a way of opposing the Vietnam war. First, many of the
exiles were pessimistic about the chances of influencing either
the government or the public through civil disobedience. Where
hostility and divisions of opinion are intense, public debate-
and Rawls aptly calls civil disobedience a form of public ad-
dress-is simply futile. Second, many of the exiles opposed the
war policy as immoral. They were not interested in testing the
issue in the courts, although, as will be seen, some did resort to
the courts. Finally, many of the exiles rejected the notion that
one must accept the legal consequences of disobedience.
This third feature of the exiles' refusal, the unwillingness to
accept punishment, evidently dismayed many persons who
otherwise sympathized with that refusal. It is a point that I
will want to return to in discussing the view that alternative
service must be linked to amnesty, but there are several things
that need to be said at once.
Three points are normally made to support the demand that
the resister accept punishment. First, such submission is con-
sidered a sign of the resister's acceptance of the legal frame-
work within which his resistance occurs. His refusal to comply
with a particular law is clearly distinguished from the revolu-
tionary's rejection of the state's authority as such. Second, it
signals an absence of criminal motive; the resister informs the
community that he recognizes his responsibility to be law-

7. A Theory of Justice, p. 368.



abiding at the same time that he announces his unwillingness
to comply with this particular law. Finally, by accepting pun-
ishment the resister makes an appeal from the law to the con-
science of the community, an appeal more likely to succeed
when punishment is not evaded.
I have already explained why I think the American exiles
chose not to make the familiar "public appeal" of civil disobedi-
ence. The other two claims for acceptance of punishment are, I
believe, too sweeping and beg the question, i.e., whether or not
resistance that evades punishment can be justified. If noncom-
pliance with a particular law can be distinguished from the
anarchist's rejection of all law, why equate the refusal to accept
punishment for one act with a refusal to acknowledge the state's
right to punish any acts? If the acceptance of punishment is
being insisted upon as a demonstration of fidelity to the general
system of law, are there not signs other than the acceptance of
a particular punishment that indicate such fidelity? If an exile
has a history of obeying all the laws of his society except the
law that made him choose exile, this would seem to count as
evidence of his general acceptance of the norm of obedience. As
far as I know, the Vietnam war resisters were neither more nor
less law-abiding than other citizens. The resister is as capable
and may be as willing as any other citizen to pay his taxes,
obey the laws against theft, support the civic life of his com-
munity, and in general acknowledge his legal obligations. To in-
sist always that a political offender "pay a price" as a way of
demonstrating his acceptance of the state's authority in general
is to demand a price that he may reject and that we often do
not need.
The closely related claim that acceptance of punishment in-
dicates conscientiousness or sincerity is probably true, but it
does not automatically follow that evasion of punishment dem-
onstrates a lack of serious political and moral commitment.
Many writers, including Abe Fortas, are mistaken in holding
that no disobedience which evades punishment can be justified.
By a sleight of hand that makes submission to arrest and pun-
ishment a necessary feature of justifiable civil disobedience,
they then conclude that any resistance lacking this necessary
feature is unjustifiable. But this begs the issue; it predetermines
by strictly formal criteria what disobedience can or cannot be



morally justified.8 Must a black who believes, perhaps with
good reason, that he cannot receive a fair trial from a white
jury accept arrest and punishment before we can even begin to
talk about the possible justification of his disobedience? What
about those persons who defied the fugitive slave law by trans-
porting southern slaves to freedom in the North by the under-
ground railroad? Is their disobedience morally unjustified be-
cause they evaded arrest and punishment? Clearly, there are
occasions where the very act of disobedience entails evasion
of punishment.
Because we are most accustomed to the resister who makes a
public appeal to the conscience of the community by submitting
to arrest and punishment, we are unaccustomed to acts of dis-
obedience that have a more private purpose. While the exiles'
actions clearly had a public impact, they sought a private rather
than a public solution to their dilemma. They chose to go into
exile rather than to stay and fight for a change in policy or law
at home. From this perspective, accepting the legal conse-
quences can be seen for what it is-a tactical, not a principled,
Nothing said so far relieves the resister of the responsibility
of overcoming the presumption in favor of obeying the law. To
overcome that presumption it must be shown that the state's
claim on a person's service is rightly rejected because the
method and substance of that claim violates important moral
or political principles. The case for amnesty must concentrate
on those objections to the government's policy with which
other members of the community can identify, at least to the
point that they can appreciate and consequently tolerate the
convictions that have made some men disobedients and exiles.


"This is really war." Thus President Lyndon Johnson announced
his decision on July 28, 1965, to send 50,000 soldiers to Vietnam.
"The Congress shall have Power to declare War . ." (Article
I, Section 8, Clause 11, of the Constitution).
The illegality of America's military presence in Vietnam was

8. Cf. Robert T. Hall, The Morality of Civil Disobedience (New York, 1971), pp.



an argument pressed by draft resisters and soldiers refusing
service in Vietnam as early as 1965. The story of this legal
struggle and the case against the war's constitutionality has
been argued by Leon Friedman and Burt Neuborne in their
book, Unquestioning Obedience to the President.9 I do not
want to repeat the debate over the war's constitutionality here.
Rather, I want to suggest the political significance of that debate
for the amnesty issue.
Doubts about the legal formality of the Vietnam war cannot
be separated from the feeling among many of the exiles that
the Vietnam war was "Johnson's war" or "Nixon's war." For-
malism, the following of legally prescribed procedures sanc-
tioned by custom, is what often separates might from right,
"Nixon's war" from America's war. When men express confi-
dence in the judicial system, they believe that due process is
being followed; when men accept the outcome of an election
even though they lose, they believe that it has been procedur-
ally fair and open. Legitimacy and authority are created by re-
quiring power to flow within the channels marked out by con-
stitutional forms and the democratic ethos. Loyalty, obedience
to the government, the general will for the rule of law are
largely a matter of power conforming to the widely shared ex-
pectations about how power will be exercised. Conformity to
these expectations becomes more, not less, critical when gov-
ernment policies make new and heavy demands upon citizens.
Changing the condition of the country from a state of peace to
a state of war is always accompanied by potential divisions of
opinion. Such divisions are intensified whenever men are left
with the feeling that the government's decisions are in no way
their decisions. It is not a question of having one's view prevail,
but the awareness that it matters that one has a view.
The requirement that Congress "declare" war is one way of
increasing the probability that the concerns and interests of the
public will be one of the pressures that enters into the calcula-
tions of the government. It is the only way of obtaining an un-
ambiguous statement of the public will whereby the govern-
ment's decision also becomes the public's decision. Political
norms and procedures make the government responsible to the

9. (New York, 1972). Also see Alexander Bickel, "The Constitution and the
War," Commentary 54 (July 1972):49-55.



governed and increase the probability that the governed will
support the government. The general will for the rule of law is
not the product of a decision here and there but of the wide-
spread belief that decisions are being made according to cus-
tomary and constitutional patterns. Looking at the pattern by
which the government made the war policy in Vietnam highlights
the extent to which new and demanding policies departed from
democratic expectations. Consistent administration under-
statements about the nature and costs of American involvement in
Vietnam, the proclamation of major policy decisions by the
president without any public knowledge of the multiplying con-
sequences of those decisions, and the passage of congressional
resolutions that resolved nothing-these were the techniques sub-
stituted for the formal constitutional procedures for committing
the country to war.
Widespread resistance to the war was practically guaranteed
by the methods used to commit the country to war. In such cir-
cumstances, the price of law enforcement becomes too high-
increased antagonism between the government and its critics
and, finally, between citizen and citizen, antagonisms that re-
quire unity to be held together by force rather than by a sense
of shared interests. Far from being a threat to the basic order
of American democracy, the acts of the exiles opened up a
needed public debate on how far the government had wandered
from the basic constitutional order. This debate is far from
ended, but it is wise to agree with Dworkin that "When the law
is uncertain, in the sense that a plausible case can be made on
both sides, then a citizen who follows his own judgment is not
behaving unfairly. Our practices permit and encourage him to
follow his own judgment in such cases. For that reason, our
government has a special responsibility to try to protect him,
and soften his predicament, whenever it can do so without
great damage to other policies . the path of fairness lies in
The way back to democratic acceptance of the rule of law
begins with the recognition of the suspicions surrounding the
war's origins and the integrity of those whose actions served as
a catalyst for those suspicions. An amnesty for those who re-
fused to submit to a policy that they were never given the op-

10. Page 14.



portunity to make their policy should, if nonpunitive, restore in
some small measure the exiles' and, equally important, our con-
fidence in American democracy. Amnesty can smooth out not
only the plight of the exiles but the plight of the American po-
litical community.


American involvement in the Vietnam war produced more pro-
found moral discourse about the terms upon which this country
goes to war and its methods of warfare than perhaps any other
war in its history. It is fairly easy to account for this. There
was, first, never a clear decision to go to war. Involvement in
Vietnam was drawn out over a large number of years, and
each step was attended by increasing criticism. Also, the gov-
ernment invented a whole new vocabulary, for describing the
war, that was so corrupt or, at best, so deceptive that the citizen
had to labor at deciphering just what the government's actions
amounted to. American troops entering Laos became "check-
ers"; bombing was "protective reaction"; refugee camps were
"pacification centers"; indiscriminate shooting was a "free-fire
zone"; and a sunk sampan became a "waterborne logistic craft."
The spiraling nature of the war was accompanied by spiraling
statements about American objectives. Aid to a friendly power
became a struggle against North Vietnamese and then Chinese
"aggression." The high point of the war was a contest for de-
mocracy (a notion that always was a mockery- and is now
mocked by President Thieu). Was the Vietnam war, the Ameri-
can citizen might well wonder, a war of national liberation, a
revolutionary movement, a communist movement, a civil war,
a war pitting China and/or the Soviet Union against the
United States? The clash of responses to the war-support and
opposition, service and exile-reflected the clash of ideas about
the war.
Whatever might be said about the Vietnam war, the United
States was not under direct attack from an outside aggressor.
Any American national interest in South Vietnam had to be in-
ferred from some interpretation of the Vietnamese political sit-
uation. But there was no agreement about which interpretation
was most adequate, and this created the roots of resistance to



government policy. The most consistent interpretation offered
by American governments argued that Vietnam was a "testing
ground." Communist success in Vietnam, it was argued, would
encourage further acts of aggression elsewhere. Every judgment
in this rationale for our massive commitment in Vietnam is
open to serious debate. Critics" have made five particular
In a large part of the world, where nation-building is still
taking place, revolutionary conditions exist that it is impossible
to completely suppress. Any revolutionary movement today is
likely to have an element of communist ideology. If the United
States always takes a stand against communism, it will con-
stantly be on the side of the status quo. But the status quo in
many of these countries is usually contrary to the ideals that
America traditionally encouraged, e.g., reduction of economic
inequalities and the overthrow of politically repressive govern-
America's Vietnam policy assumed that communism is a
monolithic force and that communist insurrections are somehow
orchestrated by China or the Soviet Union. But it is not clear
that a communist "victory" in South Vietnam would in fact
enlarge the power of Russia and/or China. Such a victory might
simply contribute to the balkanization or pluralism of com-
munism. Indeed, if communist movements do not act in con-
cert, it is in the United States' interest to encourage this balkan-
ization. Yet American intervention in South Vietnam made the
Vietnamese revolutionary movement more rather than less de-
pendent upon China.
It is only a guess that an American "victory" in South Viet-
nam would have discouraged revolutionary outbreaks in other

11. Cf. Quentin L. Quade, "The United States and Wars of National Libera-
tion," in Richard A. Falk, ed., The Vietnam War and International Law (Prince-
ton, 1968), 1:102-26. On American just war doctrine, see Robert Tucker, The
Just War (Baltimore, 1960). A more philosophical inquiry into the differences
between just and unjust methods of warfare is undertaken by Thomas Nagel,
"War and Massacre," Philosophy and Public Affairs 1 (Winter 1972):123-44. On
the questionable legality of American methods of warfare in Vietnam and the
issue of war crimes, see Erwin Knoll and Judith Nies McFadden, eds., War
Crimes and the American Conscience (New York, 1970). The direction that Con-
gress might go in recapturing some role in the making of war policy is suggested
by the hearings before the Senate Foreign Relations Committee, War Powers
Legislation, 92d Cong., 1st sess., 1971.



countries. Even if it deterred developments comparable to Viet-
nam in some countries, how many such outbreaks could the
United States successfully become engaged in without further
damage to itself?
Given the difficulties of fighting a guerrilla war, could the
United States have achieved its limited political objective of a
stable Saigon government without using military tactics that
violated many of the other values Americans profess? Was the
American government willing to purchase such an objective
even at the cost of agreeing with the American officer who stated
that "It was necessary to destroy the village in order to save it"?
This was a policy that equated desolation with peace.
The argument that America had to stick it out in Vietnam so
as not to lose credibility with its other allies was particularly
disingenuous. No major Western European country traditionally
allied with the United States gave full support to our effort in
Vietnam. Indeed, many of these countries became critical of
the United States because of Vietnam.
Men who shared these particular criticisms of America's
errand in Vietnam, whether they were draft evaders or desert-
ers, acted responsibly in refusing to serve. It is never easy to
break attachments to family, friends, and nation. Even for those
exiles who successfully adjusted to their new lives in a strange
country, it is not easy to accept the fact that "you can never
go home again." Writing in a Canadian newspaper a young de-
serter described this feeling:

The question is always asked in innocence, always framed
in a voice of concern, always with a gently painful naivete.
Every Canadian I've met gets around to it sooner or later.
"You can never go back, can you?" they ask. . The ques-
tion pulls out images topsy-turvy, a mixed bag of memories
good and bad: flashes of a tiny Nebraska town tucked
away in the western badlands, of early years yearning for
the uniform of an American soldier, of an Air Force Acad-
emy appointment declined, of fruitless protest marches and
finally the induction notice and the brief fling with the com-
promise in the U.S. Army. And underneath, the persistent
refrain: "You can't go home again .... "

Home-the U.S.-is a jangled chaos, a great nation writhing
in contradictions, groping for a solution through force or



flowers. But it's still home, still a magnet whose force field
cannot be ignored, even by the thousands of young men
like myself who have chosen to reject it rather than par-
ticipate in what we consider its greatest folly. . [There] is
a fear that most of us will carry into middle age, a fear
born of being wanted for a crime we do not consider a
crime. We will carry this, and the desire to go home just
once, and the labels "draft dodger" and "deserter" and we
will always answer the innocent question: "you can never
go home, can you? . ." History may judge us as cowards
or heroes, but we are simply young men caught in a vortex
of events whirling beyond our control. We had a choice-
war, prison or exile-we made it, and we will make
the best of it.12

Unless one naively assumes that the world is the best of all
possible worlds or despairingly believes that everything in the
world is a necessary evil, there will always be occasion for ac-
tions aimed at closing the distance between what power decrees
and justice demands. Awareness of the tension between power
and morality concludes this part of the case for amnesty.
Namely, we should demand that men respond to their sense of
decency rather than power whenever their principles and con-
victions are ideals that we can sympathize with and thus tolerate.
When men behave as we think that citizens like them ought to
behave, it is not fitting to punish their actions.'"


The rule of law has come to stand for many things. In interna-
tional relations it means the replacement of force by legal
methods as a way of settling disputes. At other times, it sum-

12. Cited in Williams, The New Exiles, pp. 327-28.
13. This is the central argument of Ronald Dworkin's essay "On Not Prose-
cuting Civil Disobedience." Dworkin ties his case for setting aside prosecution
to the belief implicit in any act of civil disobedience that the challenged law is
not valid law, that is, constitutional. My argument goes somewhat beyond this
position, that in the case of the exiles punishment should also be set aside for
disobedience to a policy of doubtful morality. Perhaps it should also be added
that both Dworkin's thesis and the brief for amnesty depend upon the conclu-
sion that punishment would serve no practical purpose and would negate other
worthwhile values. This, of course, was the argument of the preceding chapter.



marizes the basic rights of citizens guaranteed by a written or
an unwritten constitution. Directed at officials, the rule of law
commands them to govern according to fixed rules rather than
by personal will. Addressed to the citizen, it reminds him that
the law must be obeyed and that no man is to be judge in his
own case.
Common to all of these meanings is an agreement to be rule-
following. What the legalist and many others are apt to forget
is that that agreement is a precondition of the rule of law, not
something created by it. Without such agreement the law is a
"homeless ghost.""14 What lies beyond the law are those con-
ditions within which the agreement to be rule-following is
forged. The stability and worth of democratic government de-
mands something more than the state's power to punish. There
must exist a tacit agreement, what de Tocqueville called a con-
sensus universalis, to abide by the social compact that creates
a government of laws, not men. This social compact includes
more than majority rule or electoral politics, features of the
democratic rule of law. The success of the contract depends
upon a widespread belief that the benefits of membership in the
political community outweigh the burdens. The core of this be-
lief is the feeling of reciprocity-the confidence that, as regards
our rights and duties, good faith is being kept with us.
Obedience to government and acceptance of the prevailing
notion of rule of law are as much products of habit as anything
else. Time tends to wrap any state in the cloth of legitimacy.
But at two points in the life of any state, habit is not sufficient-
at the birth of a state and when the state begins to make on its
citizens new demands which depart from the expectations em-
bedded in its political traditions.15 The thesis here is that
American policy in Vietnam represented a departure from
American political traditions about how rulers will exercise
their power and that that policy imposed new burdens without
a satisfactory corresponding account of the benefits.
Amnesty has as much, indeed more, to do with the nature of
American society and the terms upon which political authority
will be renegotiated as it does with the fate of the exiles. Am-

14. M. R. Cohen, Reason and Law (Glencoe, Ill., 1950), p. 80.
15. Cf. John H. Schaar, "Legitimacy in the Modern State," in Philip Green
and Sanford Levinson, eds., Power and Community (New York, 1970), p. 287.



nesty is one of the possible terms that can become part of the
new social contract. I see no evidence for either the warning
that the American social fabric could not mend without the
exiles or the fear that amnesty would irreparably embitter
some. The point is simply that a country is one type of society
when it grants amnesty and another type when it does not.
Those who worry about the sincerity of political offenders or
fear that shirkers can escape under an amnesty proclamation
divert attention from the substantive historical and political
conditions that give rise to a war resistance movement. The
trouble with most civil disobedience theory is that it encour-
ages precisely this sort of speculation. The assumption is that
one is dealing with an individual who has perhaps conscien-
tiously defied the state's law. To deal with this problem, we are
told to evaluate his conscientiousness and then to decide what
cost, if any, he should pay for his disobedience. But this is a
misstatement of what happened in America during the Vietnam
war. No one has seen this more clearly than Hannah Arendt:
"The greatest fallacy in the present debate seems to me that
assumption that we are dealing with individuals, who pit them-
selves subjectively and conscientiously against the laws and
customs of the community-an assumption that is shared by
the defenders and detractors of civil disobedience. The fact is
that we are dealing with organized minorities, who stand
against assumed and nonvocal, though hardly 'silent,' majorities,
and I think it is undeniable that these majorities have changed
in mood and opinion to an astounding degree under the pressure
of the minorities. It has been the misfortune of recent debates
that they have been dominated largely by jurists-lawyers,
judges, and other men of law-for they must find it difficult to
recognize the civil disobedient as a member of a group rather
than to see him as an individual lawbreaker, and hence a po-
tential defendant in court."16 Just as determining individual
blame or innocence was obviously irrelevant to the reconcilia-
tion of the North and South after the Civil War, so the problem
at the end of the Vietnam war was not mainly one of individual
blame but a matter of renegotiating the political good so that
it could as far as possible become a common good. When a
large segment of the population dissents, through draft evasion,

16. "Civil Disobedience," pp. 98-99.



desertion, or illegal protest, the courtroom or review board is
the wrong place for rediscovering that democratic pluralism
which makes room for diversity within unity, dissent within
To be more specific, the demand for alternative service or for
exiles to "earn their way home" as a condition of amnesty looks
mainly to the past in search of individual guilt or innocence
when what is needed is an accommodation that makes room
for a whole group of dissenting citizens. The demand for a pen-
alty undermines all of the major values that make amnesty a
worthy experiment.7 Amnesty means something more than
setting aside prosecution and punishment; it means forgoing
recriminations and denunciations. Amnesty is an assertion
that the divisions over the Vietnam war were so deeply rooted
that assigning guilt or innocence to draft evaders or deserters
was never the main problem. Amnesty does not foreclose con-
tinued controversy about either the wisdom or the folly of the
Vietnam war or the responsibilities of those in and out of gov-
ernment, but it recognizes that the controversy has two sides.
Peter Steinfels describes the risks with which both government
and citizens are confronted by the issue of amnesty: "In one
case, amnesty implies a recognition of a certain justice in the
cause of those being amnestied. In another case, it implies no
such thing, but rather reflects the power and virtue of those
granting the amnesty. In short, the whole thing is pretty am-
biguous, and many zealous people on the left, perhaps some of
the war resisters themselves, can make as good a case against
amnesty from their perspective as can the conservatives on the
right. Amnesty will render certain benefits to both parties in the
current profound dispute among American citizens; in the same
way it requires certain concessions from both parties. . Some

17. It is clear that the advocates of alternative service or "earned re-entry"
consider such service as punitive. Thus, Senator Taft, in introducing his condi-
tional amnesty bill in the Senate, approvingly quoted the sentiments of one of
his constituents who had written: "It is my contention that many of these young
men could be induced or persuaded to return to their native land to assume
their responsibilities and become useful citizens again. I do not mean grant them
amnesty, but they must earn their return and regain their normal heritage and
birthright through hard work and proof that they are honest, sincere, and thank-
ful to be re-accepted by the land of their birth": Congressional Record, 92d
Cong., 1st sess., December 14, 1971. I suspect that men ready to admit every-
thing this statement demands would never have become exiles in the first place.



would argue against amnesty on the basis that it would involve
a kind of national confession of guilt on the question of the
war. . On the other hand, amnesty also involves a certain
recognition by the people being granted amnesty of the unity
of our society and the ties that bind them to it. Accepting am-
nesty does imply, on their part, a nebulous willingness to get
on with business within our society, even if that business is
only to continue their debate over American foreign policy."18
Amnesty involves risks on both sides; but these risks are worth
taking so as to return to the exiles the freedom of living or
traveling in America and to reaffirm public acceptance of the
democratic ideal of limited loyalty to a limited state.


A universal and unconditional amnesty should be granted, by
Congress or the president, to all of those who felt that their
first duty was to stop contributing to the disfigurement of the
world in Vietnam. Among those who merit amnesty are per-
sons who refused to serve in the military in support of the
Vietnam war, whether they are in prison or in exile; soldiers
who refused either to go to Vietnam or, as in the case of Dr.
Levy, to train others for service in Vietnam; soldiers who de-
serted because of their aversion to the war, and soldiers who
received a less than honorable discharge because of their oppo-
sition to the war; civilians who took part in nonviolent protests
against the war, including the destroying of draft files and
counseling draft resistance. Some would distinguish among
these groups, granting amnesty, for example, to draft resisters
but not to deserters. This is the case with both of the amnesty
bills first introduced in Congress-one sponsored by Representa-
tive Edward I. Koch, a Democrat, and the other sponsored by
Senator Robert Taft, Jr., a Republican. The main reason offered
for discriminating between resisters and deserters is the con-
tention that soldiers have a special obligation since they take
an oath of service. But any oath or promise is qualified by sub-
sequent circumstances. A soldier who refuses patently illegal
or immoral commands is not thought to have broken his prom-

18. In Polner, When Can I Come Home?, pp. 124-25.



ise. Conscientious desertion differs from such a case in that
there is argument and counterargument about the legality or
morality of the demanded service. But it is the existence of this
controversy and the resister's dilemma in choosing between
competing promises or loyalties that amnesty is intended to ac-
knowledge. A deserter may act out of the same motives of op-
position to a war as someone who evades the draft. The major
difference between them is the circumstances in which they
find themselves at the moment their abhorrence of a war
occurs. Both are confronted with the same problem: whether
to submit to the law and defy their consciences or affirm their
consciences and defy the law. The timing and circumstances
surrounding that problem do not change its basic character. An
amnesty that excludes some from its benefits is arbitrary, setting
aside the punishment for some but not for others sharing the
same convictions. And while statistics are difficult to find, some
impressions do emerge from the reports of those who visited
the American exile communities in Canada, France, and Swe-
den. Deserters were more likely than draft resisters to come from
the lower economic and blue-collar groups. They were less likely
to be college educated; many reported that they were unfamiliar
with ways to avoid the draft. In short, an amnesty that excludes
deserters penalizes them both for the timing of their resistance and
their lesser political sophistication. What happens to political
offenders should not be determined by the chance of timing or the
accident of education.
Although conscientious refusal to serve in a war appears pri-
marily as negative, since it is a denial of a duty expected by
the state, it may also be an affirmation of that which is valuable
in every man and essential to democracy-conscientious citi-
zenship. War resisters' actions may be a positive force in other
ways. During the Vietnam war, the exiles reminded us how far
American governments had departed from constitutional ideals
and the democratic ethos in committing America to war with-
out an open public debate. The American exiles affirmed that life
is too valuable to be spent for, at best, marginal national interests,
as was the case in the Vietnamese war. Such men are not very
far from Albert Camus' rebel, about whom Camus wrote, "The
logic of the rebel is to want to serve justice so as not to add to the
injustice of the human condition, to insist on plain language so as


not to increase the universal falsehood, and to wager, in spite of
human misery, for happiness."19
The American exiles never needed our forgiveness nor should
we forget the tensions between power and decency represented
by their actions. Amnesty is a way of returning to society men
who, when we look closer, are friends rather than enemies of
the democratic community.
19. The Rebel (New York, 1956), p. 285.


Social Sciences

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by Herbert J. Doherty, Jr.
2. Austrian Catholics and the Social
Question, 1918-1933, by Alfred Dia-
3. The Siege of St. Augustine in 1702,
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4. New Light on Early and Medieval
Japanese Historiography, by John A.
5. The Swiss Press and Foreign Af-
fairs in World War II, by Frederick H.
6. The American Militia: Decade of
Decision, 1789-1800, by John K.
7. The Foundation of Jacques Mari-
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Yol Jung
8. Latin American Population Studies,
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9. Jacksonian Democracy on the Flor-
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10. Holman Versus Hughes: Extension
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12. Tribune of the Slavophiles: Kon-
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17. The Origins of Hamilton's Fiscal
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18. Criminal Asylum in Anglo-Saxon
Law, by Charles H. Riggs, Jr.
19. Colonia Bar6n Hirsch, A Jewish
Agricultural Colony in Argentina, by
Morton D. Winsberg
20. Time Deposits in Present-Day
Commercial Banking, by Lawrence
L. Crum
21. The Eastern Greenland Case in
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22. Jacksonian Democracy and the
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23. The Rise of the American Chem-
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ward H. Beardsley
24. Aymara Communities and the Bo-
livian Agrarian Reform, by William
E. Carter
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by Norman M. Wilensky
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of the Territorial Sea, by Teruo Ko-
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and Monetary Economics, by William
J. Frazer, Jr.
28. Russo-Persian Commercial Rela-
tions, 1828-1914, by Marvin L. Entner
29. The Imperial Policy of Sir Robert
Borden, by Harold A. Wilson

30. The Association of Income and
Educational Achievement, by Roy L.
Lassiter, Jr.
31. Relation of the People to the Land
in Southern Iraq, by Fuad Baali
32. The Price Theory of Value in
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33. The Process of Rural Develop-
ment in Latin America, by T. Lynn
34. To Be or Not to Be . Existen-
tial-Psychological Perspectives on the
Self, edited by Sidney M. Jourard
35. Politics in a Mexican Community,
by Lawrence S. Graham
36. A Two-Sector Model of Economic
Growth with Technological Progress,
by Frederick Owen Goddard
37. Florida Studies in the Helping
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Iberian Peninsula, by Don A. Hal-
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ward French
40. Congressional Oversight of Exec-
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42. Welfare Economics and Peak
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43. Factor Analysis in International
Relations: Interpretation, Problem

Areas, and an Application, by Jack
E. Vincent
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French Scientist's Image of German
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46. Human Capital, Technology, and
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national Trade, by John F. Morrall III
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of 1812, by Edward K. Eckert
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Process, by William L. Shade
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The University Presses of Florida