Dow Shalt Not Kill

by Howard Zinn, 1967

excerpted from the Zinn Reader

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Robber Barons

The doctrine that the "civil liberties" of corporations are violated by regulatory laws was predominant in this country during the age of the "Robber Barons," and was constitutionally sanctioned for about fifty years, until 1938. Then, a sharply-worded opinion by Justice Black (Connecticut General Life Insurance Co. v. Johnson) declared that corporations should no longer be considered "persons" to be protected by the due process clause of the 14th Amendment. It soon became established in constitutional law that the regulation of business was not a deprivation of a civil liberty, that what is known as "substantive due process" would apply only to cases where real persons were being deprived of their rights of free expression. Today, it is well-established constitutionally that the U.S. government could make illegal the manufacture of napalm, and charge any persons recruiting for a napalm-manufacturing company with conspiring to violate the law.

But there is no such law. Indeed, the government itself has ordered the napalm manufactured by Dow, and is using it to burn and kill Vietnamese peasants. Should private citizens (students and faculty-in this instance) act themselves, by physical interposition, against Dow Chemical's business activities?

To do so would be to "take the law into your own hands." That is exactly what civil disobedience is: the temporary taking of the law into one's own hands, in order to declare what the law should be. It is a declaration that there is an incongruence between the law and humane values, and that sometimes this can only be publicized by breaking the law.

Civil disobedience can take two forms: violating a law which is obnoxious; or symbolically enacting a law which is urgently needed. When Negroes sat-in at lunch counters, they were engaging in both forms: they violated state laws on segregation and trespassing; they were also symbolically enacting a public accommodations law even before it was written into the Civil Rights Act of 1964.

Most of us, I assume, would support civil disobedience under some circumstances: we would commend those who defied the Fugitive Slave Act by harboring a Negro slave, and those who symbolically enacted emancipation by trying to prevent soldiers in Boston from returning Anthony Burns to his master. Otherwise, to declare that the law in all circumstances is to be obeyed, is to suppress the very spirit of democracy, to surrender individual conscience to an omnipotent state. Thus, the issue becomes: under what circumstances is civil disobedience justified and is the Dow Chemical situation one of those circumstances?

It seems to me there are two essential conditions for the right to civil disobedience. One is that the human value at stake must involve fundamental rights, like life, health, and liberty. There is no real cause, for instance, to disobey a traffic light because it is inconveniently long. But human slavery, or racism, or war-these are overwhelmingly important. Thus, the argument "what if everyone disobeyed the law every time it displeased them" falls before the observable fact that those who engage in civil disobedience are almost always law-abiding citizens who on certain very important issues deliberately, openly, temporarily violate the law to communicate a vital message to their fellow citizens.

What of Dow Chemical and napalm? Four American physicians, in a report, "Medical Problems of South Vietnam," have written: "Napalm is a highly sticky inflammable jelly which clings to anything it touches and burns with such heat that all oxygen in the area is exhausted within moments. Death is either by roasting or by suffocation. Napalm wounds are often fatal (estimates are 90 percent). Those who survive face a living death. The victims are frequently children." Napalm is dropped daily on the villages, the forests, the people of Vietnam by American bombers; the saturation bombing of that tiny country is one of the cruelest acts perpetrated by any nation in modern history; it ranks with the destruction of Lidice by the Germans, the crushing of the Hungarian rebellion by the Russians, or the recent mass slaughter in Indonesia. Dr. Richard E. Perry, an American physician, wrote in Redbook in January 1967, on his return from Vietnam: "I have been an orthopedic surgeon for a good number of years, with rather a wide range of medical experience. But nothing could have prepared me for my encounters with Vietnamese women and children burned by napalm. It was shocking and sickening, even for a physician, to see and smell the blackened flesh."

We are not, then, dealing with trivialities, but with monstrous deeds. This fact somehow becomes lost in the bland, reasoned talk of businessmen and university officials, who speak as if Dow were just another business firm, recruiting for some innocuous purpose, making radios or toothpaste. The root issue, it should be clear, is not simply napalm; it is the Vietnam war as a whole, in which a far-off country is being systematically destroyed, and its population decimated, by the greatest military power on earth. The war itself is the object of the civil disobedience; the use of napalm is one particularly bestial tactic in this war.

This brings us to the second condition for civil disobedience: the inadequacy of legal channels for redressing the grievance. This is manifestly true in the case of the Vietnam war, which is being waged completely outside the American constitutional process, by the President and a handful of advisers. Congress is troubled, but follows sheep-like what the White House decrees. The Supreme Court, by tradition, leaves foreign policy questions to the "political" branches of government (the President and Congress) but recently one of its more conservative members, Justice Potter Stewart, said that perhaps the Court should review the constitutionality of the war. This, after 100,000 American casualties! Citizens have taken to the auditoriums and to the streets precisely because they have no other way to protest; yet both President and Vice-President declare with the brazenness of petty dictators that no civic outcry will change their policy. If ever there was an issue which called for civil disobedience, it is this run-away war.

Then why do we become uneasy when students interfere with Dow Chemical? Occasionally, we read of housewives blocking off a busy inter section because children have been killed there as a result of a lack of traffic lights. These housewives thereby interfere with the freedom of automobiles and of pedestrians, in order to temporarily regulate, or even disrupt, traffic, on behalf of the lives of children-hoping this will lead to the permanent regulation of traffic by government. (Those are not the automobiles that killed the child, anymore than this Dow Chemical representative, or the student he is recruiting, is actually dropping the napalm bomb.)

Why do we so easily sympathize with actions like that, where perhaps one child was killed, and not with actions against Dow Chemical, where countless children have been victims? Is it possible that we sub consciously distinguish between the identifiable children down the street (who move us), and the faceless children of that remote Asian land (who do not)? It is possible also that the well-dressed, harassed representative of Dow Chemical is more human, therefore more an object of sympathy, to the well-dressed, harassed officials of the University (and to us), than the burning, bleeding, blurred faces of the Vietnamese?

There is a common argument which says: but where will these student actions lead? If we justify one act of civil disobedience, must we not justify them all? Do they then have a right to disobey the Civil Rights Acts? Where does it stop? That argument withers away, however, once we recognize the distinction between free speech, where absolute toleration is a social good, and free action, where the existence of values other than free speech demands that we choose right over wrong-and respond accordingly. We should remember that the social utility of free speech is in giving us the informational base from which we can then make social choices. To refrain from making choices is to say that beyond the issue of free speech we have no substantive values which we will express in action. If we do not discriminate in the actions we support or oppose, we cannot rectify the terrible injustices of the present world

Whether the issue of the Vietnam war is more effectively presented by protest and demonstration (that is, the exercise of speech, press, assembly) rather than by civil disobedience, is a question of tactic, and varies with each specific situation. Different student groups (at Harvard and MIT, for instance) have used one or another against Dow recruitment, and each tactic has its own advantages. I tend to favor the protest tactic as keeping the central issue of the war clearer. But, if students or faculty engaged in civil disobedience, I would consider that morally defensible.

So much for student-faculty action-but what of the University administration? The University's acceptance of Dow Chemical recruiting as just another business transaction is especially disheartening, because it is the University which tells students repeatedly on ceremonial occasions that it hopes students will be more than fact-absorbing automatons, that they will choose humane values, and stand up for them courageously. For the University to sponsor Dow Chemical activities as a protective civil liberty means that the University (despite its courses in Constitutional Law) still accepts the nineteenth century definition of substantive due process as defending corporations against regulation, that (despite a library with books on civil liberties) the University still does not understand what civil liberties are, that (despite its entrance requirement of literacy) the University has not read in the newspapers of the terrible damage our napalm bombs have done to innocent people.

The fact that there is only an indirect connection between Dow recruiting students and napalm dropped on Vietnamese villages, does not vitiate the moral issue. It is precisely the nature of modern mass murder that it is not visibly direct like individual murder, but takes on a corporate character, where every participant has limited liability. The total effect, however, is a thousand times more pernicious, than that of the individual entrepreneur of violence. If the world is destroyed, it will be a white-collar crime, done in a business-like way, by large numbers of individuals involved in a chain of actions, each one having a touch of innocence.

Sometimes the University speaks of the "right of recruitment." There is no absolute right of recruitment, however, because (beyond the package of civil liberties connected with free expression and procedural guarantees, which are the closest we can get to "absolute" right) all rights are relative. I doubt that Boston University would open its offices to the Ku Klux Klan for recruiting, or that it would apply an absolute right of private enterprise to peddlers selling poisonous food on campus. When the University of Pennsylvania announced it would end its germ-warfare research project, it was saying that there is no absolute right to do research on anything, for any purpose.

The existence of University "security" men (once known as cam pus police) testifies that all actions on campus are not equally tolerable. The University makes moral choices all the time. If it can regulate the movement of men into women's dormitories (in a firm stand for chastity), then why cannot it regulate the coming and going of corporations into the university, where the value is human life, and the issue is human suffering?
And if students are willing to take the risks of civil disobedience, to declare themselves for the dying people of Vietnam, cannot the University take a milder step, but one which makes the same declaration-and cancel the invitation to Dow Chemical? Why cannot the University-so much more secure-show a measure of social commitment, a bit of moral courage? Should not the University, which speaks so often about students having "values," declare some of its own? It is writ ten on no tablets handed down from heaven that the officials of a University may not express themselves on public issues. It is time (if not now, when? asks the Old Testament) for a University to forsake the neutrality of the IBM machines, and join the human race.

Zinn Reader