A Law Higher than the Law

Law, law, law. The other day I published an essay about the renegade lawyer William Stringfellow. Today I’ve got a new one at Harper’s exploring what Occupy Wall Street has to do, if anything at all, with the First Amendment. Most people think it does, and I think they’re mostly wrong. Here’s a bit of it:

As the movement matured, … it became common practice for occupiers to make reference to the guarantees of the First Amendment as they justified their actions to the public. The “Declaration of the Occupation of New York City,” passed by the General Assembly on September 29, states, “We have peaceably assembled here, as is our right.” It further calls on “the people of the world” to “exercise your right to peaceably assemble; occupy public space; create a process to address the problems we face, and generate solutions accessible to everyone.” The “Statement of Autonomy” passed on November 1 described the occupation as “a forum for peaceful assembly.” Meanwhile, lawyers working on behalf of the movement were trying to establish, on First Amendment grounds, the occupations’ legal right to exist — even as the constant police presence around the occupiers suggested that they had none. The “right” the legal documents spoke of were more an aspiration than a reality.

Ultimately, however, the struggle didn’t play out on legal grounds; Zuccotti Park remained occupied mostly thanks to extra-legal pressures. When the city proposed to clean the park on October 14 — effectively a forcible removal — thousands of people arrived before dawn to stand in the way. A month later, when the eviction finally came, it was as a surprise in the middle of the night. The difference wasn’t so much legal as tactical.

In the end, I think the “peaceable assembly” this movement is doing is less about the letter of the law than about a law inscribed in us elsewhere—in the conscience. Call be a bad lawyer. Or maybe just go ahead and call me an anarchist.