The Liturgy of Dissent

It may be conventional to think of dissent in terms of the lone individual who “does not keep pace with his companions . . . because he hears a different drummer.” ¹ But dissent is a social act. It is defined by its engagement with the audience whom it confronts and hopes to convert. ² It is social, too, in the sense that it comes freighted with a cultural and historical logic. Dissent has an iconography, a mythology, and a liturgy.

By “iconography,” I mean a set of conventional images or symbols that exemplify the idea of dissent: Dr. King in front of the Lincoln Memorial, flanked by two men in white cotton caps (serving as security the day of the march) (Fig. 1); Eugene Debs gesticulating at a Milwaukee rally, the corners of his open suit jacket spread wide by the wind (Fig. 2); Jacques-Louis David’s The Death of Socrates, the subject’s index finger extended (much like Debs’s) as he reaches with his other hand for the cup of hemlock (Fig. 3). This iconography includes, as well, stories which offer striking images that crystallize values: Abraham smashing the idols in his father’s shop; Jesus driving the money changers from the Temple. ³ These tales serve as paradigms of dissent for those whom they inspire.

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Figure 1.

AP Photo (reprinted by permission).

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Figure 2.

Courtesy of Indiana State University Special Collections.

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Figure 3.

Metropolitan Museum of Art (public domain).

By “mythology,” I mean narratives or allegories that affirm a reassuring popular belief. “Let her and Falsehood grapple,” Milton averred, “who ever knew Truth put to the wors, in a free and open encounter.” ⁴ The tropes of truth struggling to get free and the vindication of those who advocate for truth both have biblical roots. ⁵ The Midrash of Abraham smashing the idols continues with his father bringing him before the king, who throws Abraham in a fiery furnace. ⁶ Abraham is miraculously saved – just as elsewhere in the Hebrew literature Shadrach, Meshach, and Abednego are spared when thrown in the furnace by Nebuchadnezzar and Daniel is saved when he is thrown in the lions’ den. ⁷ It takes courage to speak truth to power, but in these – as in many other religious tales – divine intervention assures that the righteous win out.

Justices Holmes and Brandeis play this mythological role in the American constitutional tradition. Celebrated as the Great Dissenters for their opposition to the Old Court’s conservatism, Holmes and Brandeis were viewed by many as prophets. ⁸ Karl Llewellyn wrote that “Holmes has provided every man possessing eyes with vision.” ⁹ Herbert Wechsler told my constitutional law class that, when he was a law student in the late 1920s, he and his classmates treated the latest Holmes and Brandeis dissents as virtually sacred texts to be read and studied. President Franklin Delano Roosevelt called Brandeis “Isaiah.” ¹⁰ In time, many of Holmes’s and Brandeis’s most famous dissents did have their day. In Lochner, Holmes insisted on the freedom of legislative majorities to enact social and economic policy – proclaiming that the Constitution adopts no economic theory. By mid-century, this was established constitutional orthodoxy. ¹¹ Holmes’s free speech dissents would bear fruit, first, in the Hughes and Stone Courts and, more forcefully, in the late 1960s. ¹² Brandeis’s understanding of free speech as the fundamental principle of government would become a guiding norm in the Warren Court era. ¹³ So, too, the Warren Court would vindicate Holmes’s and Brandeis’s view of wiretapping as an impermissible governmental invasion of privacy. ¹⁴

This mythological understanding of the judicial dissent – complete with its mystical overtones – is reflected in Chief Justice Hughes’s remark that: “A dissent . . . is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.” ¹⁵ So, too, Cardozo compared judicial dissenters to “prophets and martyrs” whose “eyes are fixed on the eternities.” ¹⁶

By “liturgy,” I mean solemn, even ritualized texts of remembrance, solace, and defiance. Some are actual liturgy such as the Eleh Ezkera (“These I will remember”), recited as part of the Musaf service on Yom Kippur, which recounts the martyrdom at the hands of the Romans of ten of the great Rabbis of the Mishnah. ¹⁷ Others are folk songs such as Alfred Hayes and Earl Robinson’s 1938 Joe Hill – first made famous by Paul Robeson, but perhaps best known from Joan Baez’s performance at Woodstock. The song affirms that Joe Hill – an Industrial Workers of the World or “Wobblie” organizer who was executed by the State of Utah in 1915 – lives on wherever workers organize. (“Says Joe I didn’t die/ . . . And smiling with his eyes/ Says Joe, What they can never kill/ Went on to organize.”) ¹⁸

A particularly poignant sub-genre consists of the allocutions before sentencing of celebrated political defendants. When Debs was convicted under the Espionage Act in 1918, he famously declared: “While there is a lower class, I am in it, and while there is a criminal element, I am of it, and while there is a soul in prison, I am not free.” ¹⁹ Addressing the Apartheid court that convicted him of sabotage in 1964, Nelson Mandela began with a recitation of the narratives of resistance with which he grew up:

In my youth in the Transkei I listened to the elders of my tribe telling stories of the old days. Amongst the tales they related to me were those of wars fought by our ancestors in defence of the fatherland. The names of Dingane and Bambata, Hintsa and Makana, Squngthi and Dalasile, Moshoeshoe and Sekhukhuni, were praised as the glory of the entire African nation. I hoped then that life might offer me the opportunity to serve my people and make my own humble contribution to their freedom struggle. This is what has motivated me in all that I have done in relation to the charges made against me in this case. ²⁰

In Nomos and Narrative, Robert Cover speaks of the “texts of resistance” upon which a dissenting community calls when it faces the violence of the State. There is a strong affinity between Cover’s texts of resistance and what I here identify as the liturgy of dissent, but the two are not synonymous.

For Cover, texts of resistance comprise the interpretive process by which a dissenting community comes to understand “what is right and just in the violent contexts that the group will encounter” and “limits the situations in which resistance is a legitimate response.” ²¹ Texts of resistance are a form of non-state law. ²² The Declaration of Independence is such a text because it was crafted “carefully to recount the reasons that led to the decision to resist” and “to justify [that] resistance before a common humanity.” ²³ Lillian Hellman’s celebrated letter to the House Un-American Activities Committee (HUAC) is another. After pronouncing the rules governing invocation of the Fifth Amendment privilege “very difficult for a layman to understand,” she explains her understanding of the standards governing her behavior:

[T]here is one principle that I do understand: I am not willing, now or in the future, to bring bad trouble to people who, in my past association with them, were completely innocent of any talk or any action that was disloyal or subversive. I do not like subversion or disloyalty in any form and if I had ever seen any I would have considered it my duty to have reported it to the proper authorities. But to hurt innocent people whom I knew many years ago in order to save myself is, to me, inhuman and indecent and dishonorable. I cannot and will not cut my conscience to fit this year’s fashions . . .

Hellman then invites HUAC to abide by this “simpler” standard.

It is my belief that you will agree with these simple rules of human decency and will not expect me to violate the good American tradition from which they spring. I would, therefore, like to come before you and speak of myself.

I am prepared to waive the privilege against self-incrimination and to tell you everything you wish to know about my views or actions if your committee will agree to refrain from asking me to name other people. ²⁴

In the face of official law she finds reprehensible, Hellman asserts an alternative law that defies – in her case, successfully – HUAC’s inquisitorial tactics.

The liturgy of dissent, in contrast, proposes community rather than law. It consists of texts, like the stories of Mandela’s childhood, that memorialize past contributions, fortify group identity, and inspire future sacrifice. Thus, Mandela concluded his allocution with the affirmation that:

I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die. ²⁵

Protest songs – particularly of the civil rights and anti-war movements of the 1960s and early 1970s – provide an especially rich source of texts that build community in this way: We Shall Overcome (“Oh, deep in my heart/ I do believe/ We shall overcome some day”), ²⁶ Fannie Lou Hamer’s stunning rendition of Go Tell It on the Mountain (“O, Paul and Silas bound in jail,/ Let my people go!/ O, had no money to go their bail,/ Let my people go./ . . . Who’s that yonder dressed in red?/ Let my people go,/ It must be the children that Bob Moses led/ . . . ”), ²⁷ Sam Cooke’s A Change is Gonna Come (“There have been times that I thought I couldn’t last for long/ But now I think I’m able to carry on/ It’s been a long, a long time coming/ But I know a change is gonna come . . .”), ²⁸ Neil Young’s Ohio (“What if you knew her/ And found her dead on the ground/ How can you run when you know?”), and Stephen Stills’s Find the Cost of Freedom (“Find the cost of freedom/ buried in the ground/ Mother Earth will swallow you/ lay your body down”) ²⁹ are impassioned examples. Commitment and community, empathy and identity, solidarity and sacrifice are the central themes of this sub-genre.

Despite this difference – the texts of resistance constituting law, the liturgy of dissent constituting community – the similarities between the two genres are robust. Both promote unity and aspire to motivate action. Both are normative. The texts of resistance expound the norms by which the community may “live a law” that is “self-conscious and lawful by its own lights.” ³⁰ The liturgy of dissent does so by affirming the community’s understanding of the values worth fighting and dying for. And both genres share an unflinching appreciation of the stakes. “Just as living in the economic world entails an understanding of price, so living in the normative world entails an understanding of the measures of commitment to norms in the face of contrary commitments of others.” ³¹

Thoughtful dissenters understand that their actions will be unpopular and will subject them to opprobrium, ostracism, or worse. ³² “[T]he fact is,” Socrates asserts at his trial, “that no man in the world will come off safe who honestly opposes either you or any other multitude, and tries to hinder the many unjust and illegal doings in a state.” ³³ Holmes saw such persecution as the “perfectly logical” expression of a Nietzschean will to power: “If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition.” ³⁴ But its social logic seems more persuasive from the opposite perspective. As Socrates well understood, the gadfly makes the horse uncomfortable and the most natural response is to swat at it as forcefully as possible. ³⁵ (Indeed, in The Apology, Socrates seems to want to goad the Athenian jury, first, into convicting him and, second, into sentencing him to death.)

But the texts of resistance and the liturgy of dissent take strikingly different attitudes toward these costs. For the former, the “interpretive act” of resistance includes “an awareness of the risk of pain and death.” ³⁶ The signers of the Declaration pledged their lives, their fortunes, and their sacred honor because they knew that the punishments for treason against the Crown were execution, forfeiture, and corruption of the blood. ³⁷ Different communities develop distinctive adaptations to the prospect of violence: “Religious communities have a special jurisprudence of exile and martyrdom; revolutionary cadres evolve special principles governing life in prison or on the barricades.” ³⁸ For the most part, Cover says, these “efforts to interpret the texts of resistance have a strange, almost doomed character.” ³⁹

The liturgy of dissent, in contrast, is notable for its transvaluation of suffering into normative triumph and, even, joy. In Violence and the Word, Cover discusses the martyrdom of Rabbi Akiva (in the Eleh Ezkera) as an extreme example of the violence on which legal meaning always rests. ⁴⁰ But what is most striking about this example is the way in which Rabbi Akiva transformed the meaning of that violence. As recounted in the Talmud:

It was the time of the morning Shema reading when R[abbi] Akiva was taken out to be murdered publicly. During his frightful ordeal he accepted God’s sovereignty upon himself by reciting the Shema joyously, and oblivious to the pain. Turnus Rufus, the Roman commander who ordered the barbarous executions, was flabbergasted. “Have you no feeling of pain that you can laugh in the face of such intense suffering!” he exclaimed. Even R[abbi] Akiva’s own students wondered, “Our teacher, even to this extent?”

The dying sage explained, “All my life I was concerned over a phrase of the Torah. We are taught in the Shema to accept God’s sovereignty and decrees upon ourselves , with all your soul (Deuteronomy 6:5) – this implies one must serve God even if it means forfeiting one’s life. I used to wonder if I would ever have the privilege of serving God to such a degree. Now that the chance has come to me, shall I not grasp it with joy? ⁴¹

The same sensibilities of the value of sacrifice, on one hand, and of joy and triumph, on the other, are evident in Find the Cost of Freedom and Joe Hill, respectively.

The cost of dissent looms large in the Hebrew Prophets, with Jeremiah and Jonah serving as bookends on either side of the issue. Jeremiah is the most persecuted of the prophets and the most outspoken in his complaints about his role. Because of his prophecy of defeat, destruction, and exile, there are plots against his life. ⁴² He is beaten and put in the stocks. ⁴³ The princes accuse him of discouraging the troops and cast him into a pit to die. ⁴⁴ Jeremiah reproaches God for his troubles. He complains of being isolated and in pain. ⁴⁵ He remonstrates with God for making him a laughing stock and the target of such murderous plots. ⁴⁶ He laments that he was ever born. ⁴⁷

Jonah, on the other hand, is the most stubborn and contumacious of the prophets. He refuses God’s command to preach to the Assyrians. He tries to flee, booking passage on a ship to the furthest end of known civilization – Spain’s Atlantic coast. ⁴⁸ The ship is beset by a storm. Rather than let his shipmates perish, Jonah tells them to throw him overboard. He is swallowed by a great fish from whose belly he repents. He fulfills his mission. The Assyrians atone and are saved. But Jonah is unhappy with this outcome; he is angry with God and argues with him. He asks to die. God provides him with a shade tree, but then destroys it. Jonah again asks to die. God admonishes Jonah that, if he has such pity for a tree which he did not grow, he should understand when God has mercy on his creations.

For the faithful, Jonah is a book about the duty to accept one’s calling and an affirmation of God’s compassion for all his creatures. But, even within the tradition, the question of Jonah’s motive is perplexing. The Rabbis proffer various principled reasons for his behavior – suggesting, for example, that Jonah knew the Assyrians would repent and feared that it would reflect badly on the Israelites or that he foresaw that the Assyrians would later (in Isaiah’s time) attack the Kingdom of Israel. ⁴⁹ But within the traditional framework the difficult issue is not the question of motive, but the problem of rationality. What was Jonah thinking? How does one refuse the omnipotent? How does one flee the omnipresent?

The problem of Jonah’s reasoning is yet more glaring for modern readers who expect psychological verisimilitude from the characters they encounter in literature. Jonah’s refusal and flight might make sense if he feared that, like Jeremiah, he would be persecuted and reviled. But, at the end of the book, Jonah makes clear that his concern from the start was that his mission would be successful – i.e., that the Assyrians would heed his warnings and that God would be merciful and forgive them. ⁵⁰

So, what was Jonah thinking?

The answer is that Jonah is a patriot whose overriding commitment lies with his people. We know this from three details in the story. First, arguing with God after their deliverance, Jonah pointedly proclaims that he knew – , “when I was still on my own soil” ⁵¹ – that God would forgive the Assyrians. His point of view is – in an almost literal sense – determinedly nationalistic. ⁵² This identification with and allegiance to his people outweighs his loyalty to God. When God commands him on a mission he can neither abide nor effectively contest, he runs to the end of the known world. In other words, having neither loyalty nor voice, he chooses exit. ⁵³ Not because he thinks he can hide from the all-seeing; as we shall see in a moment, he knows he cannot. Rather, he chooses not to participate because he cannot bear to break faith with his community.

Second, Jonah behaves oddly when the storm hits the ship. The sailors are all frightened and cry out to their gods. Jonah, in contrast, reacts with equanimity: He descends into the hold of the ship, lies down, and goes to sleep. The ship’s captain indignantly wakes him and asks why he is not praying to his god. When the sailors cast lots to determine the cause of the tempest and Jonah is identified as the culprit, he tells them to spare themselves by casting him into the sea. The sailors refuse, not wanting his blood on their hands, and try futilely to row to shore. Only when this fails do they relent and cast Jonah overboard. The chapter ends with the sailors’ conversion experience. Throughout the entire episode, Jonah remains calm and essentially silent. There is no point during the storm at which Jonah fears for his life or prays for deliverance. ⁵⁴ He is not trying to escape his fate. Indeed, he seems unperturbed by God’s furious reaction – as if he expected and accepted it from the start.

Third, after prophesying to the Assyrians, Jonah does not return home. Rather, he goes to the eastern edge of the city (reversing the aborted trip west to Spain) and lives in a flimsy, thatched-roofed hut – a sukkah () or booth like those the Jews lived in during the Exodus from Egypt ⁵⁵ – while he waits to see whether the Assyrians’ deliverance will be undone and the suspended judgment imposed. ⁵⁶ When it is not, Jonah remonstrates with God anew. (Which is why God must teach him yet another, hard-headed lesson.) Jonah is angry because he cannot affect his situation (voice) nor resign himself to it (loyalty). He is left only with a symbolic affirmation of identification with his community, one that underscores his status as an exile.

Where Jeremiah is a gadfly and lone critic of temporal authority, Jonah is a lone dissenter from celestial authority. Jeremiah has voice. When he complains of his mistreatment, God responds that He will protect and save him. ⁵⁷ When Jeremiah is thrown in the pit, he is rescued. ⁵⁸ For Jonah, in contrast, all exits are blocked. What little comfort he has, the shade tree, is destroyed. If Jeremiah is the most querulous of prophets, Jonah is the hardiest. Like Melville ⁵⁹ and Dostoevsky ⁶⁰ in the Nineteenth Century and Leonard Cohen in our time, ⁶¹ Jonah has the courage to quarrel with God.

It is tempting for many, even admirers, to read Jonah as insolent or impudent. ⁶² But Jonah is, I think, a modest man. ⁶³ He chooses to live on the fringes of society – Spain, the edge of the Assyrian city. He lives in a simple hut, under primitive conditions. And he is a brave man. He runs from the inescapable with full knowledge of the impotence of his act. He is preternaturally calm onboard during the storm because, like all thoughtful dissenters, he understands there is a price to pay for opposition and defiance. ⁶⁴ He is selfless; he is a patriot. ⁶⁵ Not only does he risk God’s wrath to protect his people but, like Lillian Hellman, he is not willing to let innocents suffer on his account. ⁶⁶

If Jeremiah is a study in voice and Jonah a cautionary tale of exit, Socrates in Crito provides an etude on the theme of loyalty. When your country is angry, he says, “you must either persuade her, or do what she commands.” ⁶⁷ Socrates understands, of course, that his is not really a binary choice for he was a witting player in his legal melodrama. He reminds Criton that it was open to him at trial to propose an alternative punishment. ⁶⁸ Instead, he rejected imprisonment and banishment and suggested a modest fine that he knew would be unacceptable – even offensive – to his Athenian jury. ⁶⁹ In his final words, he acknowledges to Criton that he “chose death before banishment.” ⁷⁰ For, as he argues in The Apology, it would be “strange indeed” if “where God posted me . . . with the duty to be a philosopher and to test myself and others, there I should fear either death or anything else and desert my post.” ⁷¹

Some men, Thoreau says, serve the state with their bodies: “They are the standing army, and the militia, jailers, constables, posse comitas, etc.” ⁷² Others serve the state with their heads “as most legislators, politicians, lawyers, ministers, and office-holders.” They, he says, “are as likely to serve the devil, without intending it, as God.” ⁷³ Only a handful serve the state with their consciences. They are the “heroes, patriots, martyrs, reformers in the great sense, and men” because they “necessarily resist it for the most part; and are commonly treated as enemies.” ⁷⁴

Like Socrates, Thoreau understands that dissent comes with a heavy price. The true dissenter proves his bona fides in accepting the costs with uncommon grace.