Posted: 5 Sep 2002
This Article asks whether violence or subversion of the criminal justice system are morally acceptable tactics to change racially discriminatory laws. It examines two provisions of federal criminal law that some people perceive as discriminatory against African Americans. The relevant laws involve the death penalty and the differing punishments for crack cocaine and powder cocaine. The Article considers the permissible range of tactics that concerned citizens can use to change those laws, if the traditional methods of petitioning the political and judicial branches of government seem ineffectual, or to take too long.
The Article rejects the instrumentalist approach inherent in Malcolm X's famous recommendation that blacks use "any means necessary" to combat discrimination. It recommends that minorities consider the full range of their powers, but that they be guided, and ultimately limited, by morality. Morality does not, however, mandate acquiescence to race discrimination, or even a moderate response to it. The Article advises that, for guidance on morally appropriate tactics, minorities consult the international law doctrine of "just war."
In applying this doctrine to American race relations, interesting questions are raised. If, for example, the death penalty discriminates against African-Americans (and especially if some blacks are executed when similarly situated non-blacks are not executed), how far can concerned citizens go in preventing its administration? Should they lie to get on death penalty juries? Should they commit terrorist attacks against executioners? In the case of lesser discrimination, such as that perceived in the crack cocaine laws, would the same tactics of violence or subversion be acceptable? The Article considers whether a cost of being an unpopular minority in a democracy is that the minority must suffer some discrimination, even in those cases in which the minority believes it can end the discrimination by using radical means.
Suggested Citation: Suggested Citation
Butler, Paul, By Any Means Necessary: Using Violence and Subversion to Change Unjust Laws. UCLA Law Review, February 2003. Available at SSRN: https://ssrn.com/abstract=325320