"advocating" quasi-insurrectionary violence

[Abner Greene]

     I apologize for using the word "advocating" in describing Mike
Paulsen's earlier messages.  Let me reprint three parts of Mike's
messages, by way of explaining (though not justifying) why I wrote
"advocating":
     (1)  "I briefly address the question of "judicial civil disobedience" in
extraordinary cases.  I label such action "violence" (much as
noninterpretive judicial activism is *always* a species of the genus
"violence") but say that illegal violence sometimes may be morally
justified.  Without embracing abortion clinic violence, I note how it is
*explainable* as a response to the perception that we live in a system in
which a government body has usurped legitimate authority in order to
perpetrate monstrous evil, with dim chances for systemic
self-correction.  If lawful government has broken down, and we are in a
state of nature, isn't it hard to justify acquiescence to, still less complicity
in, the violent acts of a violent judiciary that has authorized private
violence against the acts of innocent persons (on this view)?"  (from a
message dated 1/24)
     (2)  "I sometimes fear that, when called back to my Creator, I will be
pointedly questioned as to why my only acts of resistance to such a
regime were the writing of law review articles, amicus briefs, and e-mail
messages."  (from the same mesage)
     (3)  "Sandy asks whether The Abortion Republic would still be morally
illegitimate, and thus justify Christian resistance (form of which left open
for discussion), if adopted by morally legitimate majoritarian deliberative
popular self-government.
            "In a nutshell:  Yes, the human law would still be monstrously
unjust, warranting resistance.  It does seem to me, however, that the
form which such resistance takes -- in particular, quasi-insurrectionary
violence against the regime, or peaceful attempts are persuasion --
depends on whether one thinks that the unjust law is the product of an
unjust process that continues to stand in the way of self-correction
through non-revolutionary means.  To me, that means that the fact of
judicial usurpation of proper constitutional governance and hijacking of
the specific provisions of the Constitution is relevant to a citizen's
consideration of his or her duty to continue to follow the "law" of the
state."  (from a message dated 1/25)
     "Quasi-insurrectionary violence against the regime" was Mike's term
to describe the form that resistance takes when the courts have coopted
politics -- and he believes that the courts have coopted politics with Roe
and Casey.  To be sure, Mike was not here, nor was he in his prior
message (1/24) "advocating" such violence.
     I wonder, though, about the relationship between providing arguments
that may be used to defend violence and advocating such violence.  The
two are not, of course, the same.  But neither are they totally unrelated.
One way to get people to burn down the governor's mansion is to exhort
a crowd of angry people with torches in front of the mansion.  That's
advocating.  Another way to get people to burn down the governor's
mansion is to exhort them, in print, to do so.  That's advocating.  A third
way to get people to burn down the governor's mansion is to lay out
reasons for doing so, without exhortation.  That isn't advocating.  (So I
was wrong to use the word "advocating.")  What is it, though?
Persuading?  Defending?  Justifying?  If enough people of stature -- say,
law professors plus clerics plus other community leaders -- provide
reasons for violence, may we at some point say that
persuading/defending/justifying has become "constructively
advocating"?  I'm not sure.  It's a hard question.
     --  Abner Greene, Fordham Univ. School of Law