How to Change Laws You Don't Like

CONSTITUTIONAL LAW How to Change Laws You Don't Like "It is the law," said Louisiana's Democratic Senator Allen J. Ellender of the Civil Rights Act of 1964 that he had opposed so stubbornly. Any Southern resistance. Ellender warned, "must be within the framework of the orderly processes established by law." Any other course "is foolhardy and indefensible," including the doctrine of civil disobedience, which has "no more credence now than it did before."

From a longtime segregationist, that was a statement of stunning reasonableness. Every thoughtful lawyer, whatever his stand on the race problem, is disquieted by civil disobedience, even in the name of what Martin Luther King calls "the moral law or the law of God." To lawyers, divine code is too vague for the earthly task of preserving peace and good order here and now. Were all men free to act out their individual "consciences"--as diehard segregationists still insist--victory would simply go to those with the most power, the most guns. By contrast, the rule of law provides enforceable standards--and machinery to change them.

Guerrilla Warfare. Those lawyers who condone civil disobedience do so on very narrow grounds. Civil disobedience is "just" only when all legal redress has been closed--a position taken last week by the Lutheran Church in America at its biennial convention in Pittsburgh. "If and when the means of legal recourse have been exhausted or have been demonstrably inadequate," resolved the church, "Christians may then choose to serve the cause of racial justice by disobeying a law that clearly involves the violation of their obligations as Christians."

Even so, the burden of moral proof is heavily on the disobedient to show good faith by nonviolence, meaningful protest and willingness to accept the penalty for their actions. And the basic aim is always the same as regular litigation--to get the challenged law tested by the orderly processes of law.

It is one thing to hold such meaningful protests as restaurant sit-ins, challenging laws that may never be tested in court until they are violated. It is quite another thing to hold indiscriminate demonstrations, such as highway stall-ins, that merely protest grievances in general. Such actions are simply guerrilla warfare. Alabama's Governor Wallace, when he "stood in the school-house door" at Tuscaloosa, was acting not only in defiance of a court order, but after the validity of desegregation orders had already been thoroughly established in the courts.

Standing & Ripeness. Getting unjust laws repealed in the legislature is infinitely more desirable than "just" civil disobedience. But if political persuasion fails, how to change a law in the courts? Article III of the Constitution empowers the federal judiciary to hear "cases" and "controversies," and though the courts can reject many kinds of cases, they are unlikely to turn down any genuine conflicts involving practical consequences that demand constitutional interpretation.

Those who challenge a law must have "standing" or personal involvement in the conflict. If a man disputes public school prayers, for example, he has standing only if his own children are affected. If his children are not yet involved in the prayers, or have already left the school, his standing is insufficient to build a case. Further, his case must have "ripeness," meaning that he must be able to show real injury at the time he sues. If the school board is only thinking about starting prayers, the case is not yet ripe.

$1 1 Million Loss. In the first major test of the new Civil Rights Act, the lily-white Heart of Atlanta Motel has just sued the U.S. and Attorney General Robert F. Kennedy with a claim that probably has sufficient conflict, standing and ripeness. Along with seeking a declaratory judgment (court opinion on the law's validity), the motel's lawyer-president, Moreton Rolleston Jr., asked for an injunction to prevent Kennedy from enforcing the act on the ground that it violates the Fifth Amendment's guarantees of due process and just compensation for private property taken for public use. Claimed damages: $1,000,000 for deprivation of property rights (lost business if Negroes register) and $10 million for Rolleston's alleged loss of "liberty" to refuse service.

Rolleston's prospects of winning seem slight. For one thing, he is fighting a law that got the most painstaking constitutional examination by a lawyer-dominated Congress sworn to uphold the Constitution just as fervently as the Supreme Court. What is nonetheless admirable is Rolleston's decision to test the law in court rather than to break it simply because he dislikes it. If his action sets a new tone for Southern resistance, it is good news for U.S. law.

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