During our witnessing of what appear to be democratic revolutions in Tunisia and Egypt, a law professor named Carl T. Bogus posted a comment on CNN alleging that, "[T]here's no right of revolution in a democracy." Surely such a Bogus admonition is not correct or preferable. Some revolutions occur peacefully and partially through changing patterns of generally shared expectations or changes at the ballot box. The fact that a particular change, resting on general patterns of expectation or demand, occurs within a relative democracy should not be alarming to those who favor political self-determination of peoples, human rights, and the rule of authoritative law.
Moreover, of course, it begs a question at stake whether a given governmental process is democratic. It is also worth noting that some of our Founders, who engaged in a notable revolution of their own, did not prefer that our federal government would be a direct democracy but a republic. Without, for example, the direct election of a President and with a balancing role of a Senate that is in potential opposition to a House with membership that is more directly representative of the human beings who make up our polity.
It was a Republican President in the midst of a civil war in 1861 who remarked during his First Inaugural Address that the people of the United States have a revolutionary right to overthrow their government at any time. But, he added, the Union, and not the secessionists, represented the people of the United States, or at least the majority thereof. His sentiments reflected, of course, those of the Founders of our country, especially J.Q. Adams, Hamilton, Henry, Jefferson, Madison, Paine, and Wilson, and others in the Americas who had thrown off the yoke of foreign powers.
I recall a time when Richard Nixon was on his way out, when thousands of demonstrators had already been locked up for days without trial in Washington, D.C. (something that the ACLU, which handled some of the cases, still cannot admit in view of "gag" orders imposed by the judiciary in a relative democracy). It was a time when the New York Times reported that generals in the Pentagon had decided not to push the button merely because a democratically elected President had ordered a nuclear attack. The unelected generals would decide themselves whether there was a need to use nuclear weapons - and thank goodness for common sense.
A general officer told me later that President Nixon, through his Chief of Staff, had asked the Joint Chiefs whether the military would support martial law and Nixon's retention of power, although the process of impeachment had begun. The unelected generals said, "No" - thank goodness. It had become clear that a previously democratically elected President had lost a democratically based authority to rule. It is a lesson for us that sometimes there is a need for revolutionary refusal or confrontation in a relative democracy, even against a government that had initially been democratically elected. Abraham Lincoln was correct.
And what is happening now in the Middle East, in Tunisia, Egypt, and elsewhere? What should our response be and that of the United Nations? Should we continue with an ultimately failed foreign policy that prefers stability at the expense of democratic values, political self-determination of peoples, and human rights - our cherished American values evident from the time when my ancestors fought in the Revolutionary War? Under article 55 of the United Nations Charter, every U.N. entity must promote and serve self-determination of peoples and participate in a universal respect for and observance of human rights. These same obligations are incumbent upon state members of the U.N. through article 56 of the Charter. Isn't it time for a revolutionary change in our foreign policy - one that reflects the values and hopes of the majority of our people and, quite obviously, numerous other peoples who seek to share a common dignity in an increasingly interdependent world?
Jordan J. Paust is the Mike and Teresa Baker Law Center Professor at the University of Houston and has ancestors who participated in the Revolutionary War and others who, far earlier, had signed the Magna Carta. He is the author of "The Human Right to Participate in Armed Revolution and Related Forms of Social Violence: Testing the Limits of Permissibility," 32 Emory Law Journal 545 (1983).
Suggested citation: Jordan J. Paust, Tunisia, Egypt, and Revolution in a "Democracy", JURIST - Forum, Feb. 1, 2011, http://jurist.org/forum/2010/09/tunisia-egypt-and-revolution-in-a-democracy.php