Why Civil Disobedience, and Why Now?

Amy Kapczynski – 

On December 5th, I joined hundreds of people from 32 states in Washington D.C to protest the Republican tax bill.  We packed the hallways outside of the offices of seven key members of Congress, and mic-checked one another so that people’s stories about the bill’s devastating consequences could be heard.   A group of us – around 130 in total – refused to leave when the Capitol police arrived, and were arrested.

It was in many ways not an unusual act – the next day, more than 200 people were arrested in D.C. demanding a Clean Dream Act.  I’m heading back to D.C. today for another protest, joining hundreds more in a last ditch effort to head off the tax bill.*

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Many people have thanked me for what I did two weeks ago.  Perhaps it’s because I’m a law professor.  Or perhaps it’s because so many of us are wondering what more we can – or must – do to save our democracy and bring about a more equal society.

Confrontational protest and civil disobedience are an indispensable part of the answer. Here are five thoughts on why I decided to participate in the protest, and what it means to me, and what I hope it might mean to some of you.  

  1. Confrontational protests are as much about love as about anger. 

From the outside, confrontational protests often look angry.  On the inside, they are pervaded with love.  Most of us go to protests with friends or loved ones.  I’ve also made some of the closest friends of my life in settings like this, and learned that they generate a radical kind of love for the strangers who stand at your side.

Here’s the simplest reason I went to D.C.: for my friend Ady Barkan. Ady is one of the country’s most creative and powerful activists for fair employment, racial justice, and people power.  Last year, at the age of 32, Ady was diagnosed with ALS.  It’s a terrible disease.  Today, he cannot hold his young child, and talking can leave him out of breath.  In a few years, Ady will almost certainly need a ventilator.  He, like so many with disabilities, will depend on Medicare to get the care he needs, and to avoid bankrupting his family. Among the many casualties of this tax bill: $25 billion in automatic cuts to Medicare starting next year.  Ady wanted to protest for the millions of Americans whose healthcare hangs in the balance – and for himself.  A group of us organized to support him, and I went to be part of that.

Many of you now know Ady now too, because you saw his powerful plea to Senator Jeff Flake on a plane.  And his moving conversation with Chris Hayes.  And you will think that he is special.  He is, very much so.  But so too were many other people there with me that day.  My old friend Jennifer Flynn, for example – a longtime activist who I met through protests and actions demanding HIV/AIDS treatment for all.  She now works for the Center for Popular Democracy (CPD), and has been one of the key organizers of the recent protests. She is also one of the main reasons that we still have the ACA – she helped organize those protests too.  Jennifer wrote me to tell me Ady was coming and needed support.  She did this because she knows that organizing is about love, and about how we feel, and about how we want to feel.

Then there’s Megan – who I’d never met before, who flew from Ohio to be there, and who has become another powerful voice of this movement.  She has a genetic condition, spinal muscular atrophy.  She can’t get to work or roll over in bed without a home health aide. She depends on Medicaid to live, to have the things most of us take for granted.  The most radical thing about protests like these is, perhaps, the links they forge between strangers, who suddenly come to know one another in intimate ways.  Now I’d say I protested for Megan.  And for the amazing group of five women who had driven from Arkansas, who I sat next to while the cops were processing our arrests.  And the four on the other side, who had flown in from Idaho.  I know only fragments of their stories. “My granddaughter has cerebral palsy.”  “I’m a school teacher.” “The cop who arrested me leaned over as he was adjusting my cuffs said, ‘Bless you. Come back tomorrow.’”  I didn’t get to talk to many others.  But I was so grateful for them, and they, I knew, for me.

There is no way to feel more alive than to join together in moments like this, in love and in anger.  Non-violent protest comes from and produces a radical, fierce kind of love.  And that, in a way, makes participating not only life-affirming, but also among the most viscerally memorable things you may do in your short time on this earth.  It also offers a model of an ethic of care that we desperately need in these times.

  1. Protest and civil disobedience also can feel awkward and uncomfortable. That’s part of why it works.

Confrontational protests involve a lot of shouting.  I am not a shouter.  I am an intense, bookish former Supreme Court clerk who spends most of my time writing and teaching students how to break apart and build legal arguments.  I have two kids, and I am endlessly asking them to stop shouting.  And to follow the rules.  We’re all taught, by our parents and everyone around us that nice people – and especially nice girls – do not shout, do follow the rules.

Getting arrested, of course, can also be scary.  Let me be clear: Civil disobedience arrests are not like any other police encounter.  You invite arrest, with the support of others, and with awareness of the consequences.  You have also been trained, and are accompanied by legal observers who are there to try to ensure that you are treated well.  They have very little in common with the police encounters that are sites of terror every day for so many in our country and world.

That said, they can still be risky.  When you are trained, you will hear that the cops have enormous discretion.  They can put the cuffs on too tight, handle you roughly, accuse you of things like resisting arrest that may land you in jail overnight.  In large, organized protests in places like D.C., the risks are small.  But your risk, and how it lands, depends a great deal on who you are.  As our organizers also reminded us, for trans folks, for people of color, for people with a record, getting arrested involves much more risk.  (You should also never feel that you have to participate in civil disobedience – there are always other important roles.  Feeling able to choose to put yourself in the cops’ way is a form of privilege.  If you have it, one reason to use it is that many others do not enjoy it.)

Whether you’re choosing to risk arrest, or simply raising your voice, it can feel a little scary, especially the first time.  So don’t be surprised if you feel like there is something unsettling, or embarrassing, or somehow questionable about putting yourself in the way, about refusing to be polite, and about insisting on being heard.

This kind of protest works because its uncomfortable. People know that it is hard to do what you are doing. That’s part of why they pay attention.  You are taking risks.  It does take a little bravery.  (But not very much. Don’t tell anyone.)

But the rewards are immense.

This is part of why the love part is so important.  It’s part of what allows you to take risks, that makes it in the end feel more about freedom than constraint.  As Jen Flynn likes to say, getting arrested standing together for what you believe in can be one of the times when you feel most free and most alive.

That’s what that Tuesday felt like – free, and alive, and filled with love for my friends.

  1. Protest works. Bodies Matter. 

I do not know whether we will stop this tax bill.  But we have to try, and along the way make clear its grave stakes.  Protest is one of the best tools that we have to do this.  It is an incredibly potent form of political action, particularly for those who have less power in economic, social, and political terms.

I know this because I have lived it.

I have seen AIDS activist groups – some of them with just a handful of committed members – change US foreign policy, and help create programs that now keep millions of people alive, through strategic use of confrontational protest.  (Even more remarkably, AIDS activists were always inside and outside – chaining themselves to the FDA’s doors, and also serving on advisory committees inside of it. It seems incredible, but it can be done.)

Protest and civil disobedience are also a critical part of our democratic politics. They were central to the civil rights movement and the disability rights movement. In the last few years, they have been a powerful part of the movement for immigrants’ rights, of the Occupy movement, and of Black Lives Matter.

How do we reconcile this with our belief – as academics and students, as lawyers and writers –  in the power of argument?  In brief, politics and law are about more than argument.  They are also about power, and about making meaning not only with our voices but also by showing up together.

When I teach first semester Constitutional Law, for example, I take students through several arcs of constitutional change over time.  (I owe almost all of this to Reva Siegel, with whom I’ve also taught on law and social movements.)  We follow the Commerce Clause from Lochner to West Coast Hotel to Morrison and Sebelius.  We follow equal protection from Plessy to Brown to Parents Involved.  I ask my students if, after reading all of this, they can say that law stands above politics, or can deliver us from politics.

One point of the course is that is does not, and cannot.  Our Constitution changes through conflict and protest, and that is not only a bug but also a feature.  Through conflict, and forms of universalization and disagreement, constitutional law  takes the form of a never-ending question: Who are “We the People,” and what do we stand for?  In our country, protest and civil disobedience are critical to how the “part that has no part” (Ranciere) appears and demands to be heard.  They are part of how we ensure that the nature of the People always remains open.

Another point of my course is that is wrong to imagine courts as our saviors.  They are important, and we must protect them.  But our political future is not up to courts.  It is up to us. I tell my students that they should work with others to bring about the world that they want to live in, and not hope that someone else will deliver it to them.

Ady said it better.  When you join others to raise your voices, you become “part of the great American experiment with democracy.  It’s up to us to make it work.”

Protests work.  Bodies matter.  They are crucial to our democracy, and for the ability of ordinary people’s voices to be heard — especially now.

  1. Effective protests take serious organizers. If you can, support them.

Protest and civil disobedience are not a form of political magic.  It takes organization to recruit people, to transport them, to train them, and to provide them with legal support.  It takes savvy media work and strategy to translate them into political change.

You’ve probably heard Ady’s story, for example, but you probably don’t know why.  It wouldn’t have happened without all of the work CPD did to get him and others safely to, and through, the protest in the first place.  Without his partner, who supported him and took care of his son while he was gone.  Without the fact that the person sitting next to him on the plane was the videographer for People for Bernie.  She filmed the whole event, and could in moments send it out to networks reaching millions of people. CPD’s organizers and media folks helped the story keep radiating outward, onto TV and into the newspapers. Even in this age of Twitter, organizations are critical.  (For more on this, see Zeynep Tufekci’s excellent book, Twitter and Teargas.)  We cannot build power among ordinary people without building organizations to mobilize and amplify our voices, and to connect them to long-term strategies for change.

We need more organizations on the left that can build people power in this way.  CPD and Housing Works, the main groups that organized our protest, are great, and have on their staff amazing, brave, and brilliant organizers.  If you can afford it, consider donating to CPD Action and Housing Works.

  1. The best way to earn people’s respect is to act on your principles and not worry about their respect.

 This one is especially for you law students out there.  The things that have brought me some of the most important and valuable rewards, not just personally but also professionally, have been the things I did because I did not care if they earned me rewards – the things I did because I believed that they were deeply right, and because I decided that it did not matter what my teachers, my peers, or my colleagues might think.

We live in a world where we talk about people the way we talk about bank accounts: you build your capital, you invest in yourself, until one day you have enough for that down payment.  You accrue accolades and good grades, becoming more and more capable until – BOOM – one day you deploy yourself as a tactical weapon for justice.

This is not a good way to think about your life, especially if you care about justice, equality, and actual people.  Working for justice means taking risks – not just in protest, but also through friendship and work with others that may not always be valued by those in power.  How could it be any other way?  Ignore them.  They’ll come around.  Or they won’t.

It won’t matter, if you do what Ady says: Make your actions match your principles.  It is what will make your life meaningful, and yours.  If we do it together, it will make our world more just and equal too.

Amy Kapczynski (@akapczynski) is a Professor of Law at Yale Law School. On December 5, 2017 she was arrested outside Rep. Darrell Issa’s office protesting the GOP tax bill.

 

* For more on what’s in the current tax bill, see this updated WaPo story.  The NYT explains its stakes in inequality terms here. Its likely consequences for healthcare are described here. Anne Alstott also described the LPE stakes of earlier drafts here.

2 responses

  1. Thank you. Found this through Ady. Needed it laid out logically for me, and you’re so heartfelt about this as well. Thank you. Thank you.

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