Monday, May 10, 2021

The Revolution in Burma and the Burmese Ethnic Identity Crisis

Beginning in 1962, when General Ne Win led a military coup that overthrew the fledgling democracy in Burma, there has been a long history of attempts to topple the Burmese military dictatorship and restore democracy through nonviolent resistance.  In 1962, Tin Maung Win and other students at Rangoon University went into the streets to protest the military coup.  They hoped that a Gandhi-style nonviolent resistance movement could restore democracy.  This has never succeeded in Burma, however, because the nonviolent movements have turned to violent rebellions that have failed to bring down the military dictators.

In 1962, Ne Win and the military established what was called "The Burmese Way to Socialism," which became a one-party socialist state under a military dictatorship.  Thousands of private businesses were nationalized.  Burma became one of the poorest, most dictatorial, and most isolated nations in the world.

We have to ask whether a nonviolent revolution can ever work in Burma (or elsewhere).  Or whether there must be a violent revolution instead, if we think successful revolutions are usually violent.  Or is it possible to combine the two, so that mostly nonviolent protesters are protected by armed defenders?  

These questions have become urgent over the past three months in Burma with the new popular protest movement against the military dictatorship that was declared on February 1.  The protesters have been nonviolent.  But in recent weeks, some have engaged in unarmed violence.  And now some of the ethnic armed insurgents who have fought against the government for decades are becoming allies of the protest movement, offering to provide protection against the government's brutal attacks on the nonviolent protesters.

There are also some more expansive questions here about whether the Burmese revolution can be rightly seen as an expression of a world-wide movement rooted in a natural desire for and a historical trend towards liberty.  I will take up these larger questions in a subsequent post.


In Gene Sharp: How to Start a Revolution (2020), Ruaridh Arrow has provided a good history of how Gene Sharp and his associates tried to teach some of the soldiers in the Karen National Liberation Army (KNLA) how to launch a nonviolent revolution against the Burmese military dictatorship.  

The Karen are the third largest ethnic group in Burma.  In 1949, after achieving independence from British rule, Burma saw conflict between the majority Bamar ethnic group and minorities like the Karen.  The Karen began an armed rebellion seeking independence from Burma.  In 1976, the Karen National Union changed its position to ask for a federal form of government in which the Karen would have their own regional government within Burma.  Most of the Karen live in the Kayin state of Burma along the border with Thailand.  This armed conflict between the Bamar-dominated government of Burma and the KNLA has become one of the longest running civil wars in the world. 

                                              Kayin State in Burma, On the Border with Thailand

From 1976 to 2000, the KNLA was led by General Saw Bo Mya, who had begun his battlefield experience fighting with the British against the Japanese in World War Two.  He was known for his toughness and wild temper.  So when Bob Helvey went to Burma to meet Bo Mya and to try to persuade him to adopt Gene Sharp's methods of nonviolence, Helvey knew he had a hard job.  Helvey could hope, however, that his own military experience might impress Bo Mya.  Helvey had been a decorated U.S. platoon commander in the Vietnam War in 1968, who had risen in the ranks to become a Colonel and a Defense Attache to Burma in 1983.  When the military sent him to Harvard University for a year as a senior fellow, he heard Sharp lecture on nonviolence, and he was converted.  He has said that his experience in Vietnam convinced him that there had to be an alternative to killing people.  And after hearing Sharp, he decided that he could combine a military style strategic planning with Sharp's nonviolent methods to bring down the military dictatorship in Burma through a plan of strategic nonviolence.

Helvey and Sharp wanted to teach the Burmese resistance movement to avoid the mistakes of the uprising in 1988.  In March of that year, a student was killed by riot police.  When more students took to the streets to protest the killing, the security forces killed hundreds of them.  Thousands of people were arrested, and the universities were closed.

On June 21 of that year, the nonviolent protesters turned violent.  The students killed 20 riot police, and the police killed 80 students.  The government responded with repressive measures, but protests continued to spread throughout the country.  As the military junta began to fear that they were losing control of the country, General Ne Win resigned as socialist party chairman and called for a referendum on establishing a multi-party democracy.

The protesters called for a general strike on August 8, 1988.  Hundreds of thousands of people took to the streets.  Some began to march towards the City Hall of Rangoon.  Soldiers opened fire on them, killing hundreds.  The nonviolent protesters responded with violence and attacked the police and soldiers, even beheading some of them.  Over the next three days, over a thousand people died on both sides of the uprising.  The military dictatorship prevailed, under the command of General Ne Win, but it did announce that there would be a general election in 1990.

In January 1989, two leaders of the failed uprising--Tin Maung Win and Ye Kyaw Thu--traveled to Boston to see Gene Sharp and ask for his advice.  They agreed with him that one of the reasons the uprising had failed was that they had not imposed enough nonviolent discipline, and that their brutal violence (such as the beheading of soldiers) had justified the police in firing into the crowds of protesters.

In May of 1990, Aung San Suu Kyi, who had called for a nonviolent transition to democracy, led her party--the National League for Democracy--to victory in the general election.  But then the military annulled the election and put her under house arrest.  She would be under house arrest for 15 of the next 21 years.  She was awarded the Nobel Peace Prize in 1991 for her efforts in the nonviolent struggle for democracy.

Drawing lessons from this history, Helvey in 1991 explained to Bo Mya how a new strategy for nonviolent struggle could finally overturn the dictatorship.  But after Helvey gave his first briefing on nonviolent resistance to Bo Mya, the general walked out of the room without saying anything.  Helvey talked with one of the general's political officers, who suggested requesting another meeting with the general.  "But this time," he said, "don't use the word nonviolent!"

The next morning, Helvey repeated his briefing for the general, but he replaced the word "nonviolent" with the word "political defiance."  This time, Bo Mya was impressed, and he asked Helvey to give this course to some of his soldiers--as long as he never used the word "nonviolence."  Within a few weeks, new recruits joining the Karen National Liberation Army were being taught not only military instruction but also "political defiance."

In 1992 and 1993, Sharp travelled twice to Manerplaw--the village on the Moei River that was the headquarters of KNLA and proposed capital for an independent Karen state.  He explained his new curriculum for teaching a strategic nonviolent action.  He proposed a "Political Defiance Committee" (PDC) with a grand strategy for a nonviolent revolution in Burma to overthrow the military regime.

The strategy document for the PDC planned three phases of action.  In the first phase, the national and regional political defiance committees would provide courses for teaching political defiance; and they would report on the regime's human rights violations.  There would be planning for how to respond to contingent events that would create the conditions for revolution: "The national command is responsible for developing contingency plans for the release of Aung San Suu Kyi, her death at the hands of SLORC [the "State Law and Order Restoration Council," the name for the ruling government], the death of Ne Win, or a spontaneous uprising" (Arrow 2020, 163).

For the second phase, there were plans for how to lead the nonviolent revolution through protests, strikes, and efforts to recruit people in the government to defect.  These plans included organizing a parallel government in liberated areas of the country and holding elections.

The third phase would be responding to the collapse of the government, including installing Aung San Suu Kyi and establishing democratic government.  

Here was the most blatant weakness in their plan: they simply assumed that if Aung San Suu Kyi took power through popular elections that would automatically bring democracy to Burma.  They didn't explain how this was to happen.  And they don't show any knowledge of the history of Burma or of the current cultural and political circumstances in Burma that might hinder the success of democracy there.  Most importantly, they did not think about how a country with over 100 distinct ethnic groups that were often in violent conflicts with one another could achieve a conception of democratic citizenship in which all citizens have equal rights.  This problem should have been clear to them from the simple fact that they were working with the Karen National Liberation Army, which had been at war for over 40 years in fighting for the Karen ethnic group.

To reach final agreement on putting their plans into effect, Bo Mya flew to Boston to meet with Sharp and Helvey.  At their first meeting, Bo Mya made a shocking announcement: he had decided that he could not give up his military actions, and so the nonviolent strategy would have to be combined with military force.  Sharp and Helvey tried to persuade him that nonviolence could not work if it was combined with violence--that this was like putting water into the gas tank of a gasoline engine.

In his guide for political defiance instructors, Sharp had written:

"Violence is the most serious contaminant to the success of political defiance (nonviolent struggle). . . . violence by the political defiance organization may give the oppressor the public justification it needs to commit additional atrocities against the public. . . . political defiance attempts to move the struggle away from the oppressor's strong points to areas where he is weak.  We should never seek to fight on his terms."

This is what Sharp and Helvey called "political jujitsu."

Bo Mya disagreed:

"The general argued back that the regime was intent on genocide in the minority areas.  There was no possibility that they could lay down their arms and risk total annihilation.  Instead, he agreed to give up plans for bombings and assassinations in the cities and keep the military forces in a purely defensive posture to protect the ethnic minority areas from government attack.  The military forces would hold onto the territory and buy time for the Political Defiance Committee to move enough trained nonviolent resistance operators into the cities to start the uprisings and overthrow the regime" (Arrow 2020, 165).

Sharp responded to this by arguing that the experience of the Palestinians in the "intifada" of 1987-1990 showed that nonviolent resistance could not succeed if it was combined with violent actions.  Sharp had advised some Palestinians who wanted to apply his methods in a nonviolent campaign to overthrow the Israeli occupation of the West Bank and the Gaza Strip.  They wrote manuals of nonviolent actions based on Sharp's ideas that were widely distributed among Palestinians, although the Israelis made these manuals illegal.  Sharp met with Yasir Arafat, the head of the Palestinian Liberation Organization (PLO), in Tunisia; and he tried, but failed, to persuade Arafat to adopt a purely nonviolent strategy.  When the first intifada began in 1987, it was understood to mean an aggressive but nonviolent struggle against the Israeli occupation.  But while most of the intifada was nonviolent, there was some violence--particularly, rock-throwing by young men.  Sharp had warned against this:

"Although stone-throwing is very limited violence in comparison with other options and expresses Palestinian rage and pain, it is almost guaranteed to produce--as it has done--high Palestinian casualties and to alienate Israeli public opinion among the population and soldiers. . . . I have found it extremely difficult to find a Palestinian justification for this heavy price in terms of instrumental effectiveness of that type of action. . . . If you want to alienate Israelis and have them not listen to your demands, then all you have to do is threaten them.  Even if it is with stones, because stones hurt badly" (Arrow 2020, 99).l

And, indeed, the rock-throwing was used by the Israeli propaganda campaign to portray the intifada movement as violent and to argue that it would have been even more violent if the protesters had had access to lethal weapons.  Eventually, the intifada was suppressed.

Sharp's arguments were not persuasive with Bo Mya, however.  And Sharp finally conceded by accepting some combination of nonviolent and violence in the planning for the Burmese resistance movement, although he hoped that over time there would be less recourse to violence. 

Helvey and Sharp knew that their Burmese students of nonviolence would need a textbook, a clear and concise manual on how to move from dictatorship to democracy through nonviolent struggle.  So, in the summer and fall of 1993, Sharp wrote From Dictatorship to Democracy, which was a 90-page distillation of his 900-page Politics of Nonviolent Action.  It was translated into Burmese and into the minority languages of Karen, Mon, Chin, and Jingh Paw.  It was widely distributed to Burmese activists.

When the Burmese intelligence services recognized the influence of this book, they made the penalty for possessing this book imprisonment for up to 7 years.  Foreign Minister U Ohn Gyaw called a press conference to denounce this book and to charge that Aung Sang Suu Kyi was under the influence of subversive Americans such a Bob Helvey and Gene Sharp.  In fact, Suu Kyi had read the book, and she endorsed it as a good statement of her own nonviolent strategy.

The book shows both the strength and the weakness of Sharp's teaching.  It's strength is that it is written in generic terms so that it appeals to nonviolent resistance to oppression as a propensity of a universal human nature.  As Arrow says, "by omitting any reference to particular countries, religions, or cultures, it would become applicable anywhere, by anyone in the world" (168).  

But this is also its weakness, because it does not consider how this universal propensity to resist oppression must be diversely expressed in different historical conditions.  So that any attempt to move from dictatorship to democracy through nonviolent action in Burma will have to be adapted to the peculiar cultural and political circumstances of Burma.  We need to understand not only the human nature of nonviolent resistance but also its human history.

We also need to understand how the success of any revolution--nonviolent or violent--depends on the actions of human individuals.  So, for example, in Burma, Aung San Suu Kyi emerged as the one person most likely to lead a revolution in Burma; and thus a lot has depended on the peculiarities of her character, her judgment, and her circumstances.  (I have written about "biopolitical science" as moving through three levels of analysis: natural history, cultural history, and individual history.)

After a few years of waiting for those unpredictable historical events or individual actions that might create the conditions for revolution, Helvey and Sharp finally decided to end their involvement in Burma at the end of 1998.  Their biggest setback had come early in 1995 when the Burmese army gathered for their final attack on Manerplaw, and Bo Mya was forced to retreat across the river to Thailand.  Then, in 1997, the Thai government turned against the resistance movement in Burma; and so Helvey and Sharp were no longer safe to travel through Thailand.


In contrast to Aung San Suu Kyi and her National League for Democracy, who hoped for a revolutionary transformation that would establish a democracy, some Burmese political thinkers--like Thant Myint-U (2021)--have thought that while a revolution was unlikely, the Constitution of 2008 offered the possibility of a gradual evolution of liberalizing reforms that might eventually bring full democracy.  The prospects for this looked good, particularly when Suu Kyi was released from house arrest and allowed to lead her party in campaigning for seats in the new parliament, and then when her party won a majority in parliament in the free elections of 2015.  But now it seems that this progress towards liberal democracy under the new constitution has been suddenly reversed by the military coup of February 1.

The Constitution combined a semi-elected parliament with military rule.  The army remained autonomous under its own commander-in-chief, who appointed 25 percent of the seats in a two-chamber parliament.  The other 75 percent of the parliamentary seats were filled by elections.  The parliament appointed the president, and the president appointed ministers.  But the ministers of defense, border affairs, and home affairs (in charge of the police and local administration) would be military men nominated by the commander-in-chief.  The president appointed the chief ministers in charge of the country's fourteen states and regions.  Anyone with family members with foreign citizenship were prohibited from being president, which disqualified Aung San Suu Kyi, because her husband and two children were foreign citizens.

In many ways, this Constitution of 2008 resembles the United States Constitution.  There is a separation of powers between the legislature, the executive, and the judiciary.  The selection of the president is made by a "Presidential Electoral College."  The "Fundamental Rights and Duties of the Citizens" (Chapter VIII) include many of the rights protected in the United States Constitution.  The "Basic Principles of the Union" (Chapter I) include "the eternal principles of Justice, Liberty, and Equality in the Union" (sec. 6).

On November 7, 2010, the first elections under the Constitution were held.  Suu Kyi and her National League for Democracy boycotted the election because they refused to accept the Constitution.  This made it easy for the military's Union Solidarity and Development Party to win the election by a landslide, which was probably helped by some vote rigging.  One week after the election, Suu Kyi was released from house arrest.

In the history of this period by Thant Myint-U, Than Shwe, the head of the military forces (called the Tatmadaw), is portrayed as the statesman who planned a transition from oppressive military strongman rule to a divided and balanced structure of power that would be more popularly acceptable (Thant Myint-U 2021, 67-68, 78-80, 109-10, 126, 133, 135, 221).  In 2010, Than Shwe was 78 years old, and he was planning for his retirement, so that he would not be replaced by another military dictator.  He retired many of the older generals and put in their place a new generation of younger officers who would be loyal to him; and he told them that they were to be the guardians of the new constitution.  

In the first few months of 2011, Than Shwe promoted the selection of Thein Sein as President.  Thein Sein had chaired the Constitutional Convention that wrote the Constitution of 2008.  Then Than Shwe abolished the military junta, formally retired, and appointed General Min Aung Hlaing as the new head of the military.

President Thein Sein promoted some liberal reforms that moved towards greater economic and political freedom.  The United States and other countries began to open up to Burma.  In December of 2011, Hillary Clinton became the first U.S. Secretary of State to visit Burma since John Foster Dulles in 1955. 

Thein Sein approved a bill amending the party registration law that allowed the National League for Democracy to become a legal political party.  Aung San Suu Kyi and other NLD leaders agreed to register under the law, which meant that they had accepted the new constitution.  On April 1, 2012, the first by-elections were held, and the NLD won their first seats in the parliament.  In response to these changes, the United States and European countries began to lift the economic and political sanctions on Burma that had been imposed to punish the military rulers.

In 2015, in the first fully free and fair election since 1960, the NLD won 86 percent of the seats being contested.  Although Suu Kyi could not constitutionally become president, she selected Htin Kyaw to be the president, while making it clear that she would be the true leader of the country.  The parliament passed a law to create the new position of State Counsellor for Suu Kyi.  She took other positions as well, becoming minister for foreign affairs, education, electric power, and energy.

In June of 2012, two months after the NLD had won the by-elections, Suu Kyi launched a world tour--her first trip outside of Burma since 1987--that became a worldwide celebration of her triumph.  She flew to Oslo to finally accept in person her 1991 Nobel Peace Prize.  She flew to London to give a speech to both houses of Parliament.  She flew to Washington to meet President Obama at the White House and then to accept the Congressional Gold Medal in the Rotunda of the Capitol, packed with political leaders who cheered her.  In her speech, she acknowledged "the reform measures instituted by President U Thein Sein."  After she had returned home, in November, Obama became the first sitting U.S. president to visit Burma.  Two years later, he visited a second time.

But then, beginning in 2017, the Western world's adulation of Suu Kyi was replaced by dismay and shock in response to the Burmese army's brutal attacks on the Rohingya and Suu Kyi's refusal to criticize those attacks.  The Rohingya are a Muslim people who live in the Arakan state of western Burma on the border of Bangladesh.  There is a long history of violent conflict between these people and the Burmese Buddhist people who live near them.  Many Burmese say that the Rohingya are a foreign "Bengali" people and not one of the "national races" (taingyintha) of Burma.  

There have been many Muslim insurgencies in Arakan, the first one in 1948.  After rioting between Muslims and Buddhists in 2012, and a harsh operation by the Burmese army to put down the rioting, some Rohingya exiles in Saudi Arabia formed the Arakan Rohingya Salvation Army (ARSA), which recruited young men for an armed insurrection.  In 2016, ARSA led some Rohingya men in an attack on some police posts in an Arakan township near the Bangladesh border.  In the following months, the Burmese army attacked the insurgents, which forced as many as 70,000 Rohingya to flee the violence and seek refuge in Bangladesh.  As ARSA continued its attacks on Buddhist villages, the army responded with merciless massacres.  By the end of 2017, there were over 700,000 Rohingya refugees in Bangladesh.  The conflict continued into 2018.  Western leaders and human rights agencies condemned the Burmese military for "genocide" or "ethnic cleansing."  In 2019, the government of Burma was charged with genocide before the International Court of Justice in the Hague.  Aung San Suu Kyi traveled to the Hague to lead the defense of Burma against the charges.  Many of her supporters were stunned that she was apparently defending the atrocities committed by the Burmese army.

This conflict between Muslim and Buddhist groups in Arakan is only one of hundreds of ethnic conflicts in Burma, which arise from a continuing dispute over the ethnic, racial, or cultural identity of Burma--the question being who belongs to the Burmese nation, and who is an alien?  This question runs deep through the history of Burma.  When the British ruled Burma as a colony, they called the country "a zone of racial instability."

The Burmese state recognizes 135 distinct ethnic groups, but this list is confusing because the distinctions are not really fixed: based on their diverse ancestry, intermarriage, and migration, people can belong to different ethnic groups as defined by race, culture, or language (Cheesman 2017; International Crisis Group 2020).  For example, even Aung San Suu Kyi, who identifies herself as belonging to the Bamar majority, is part Karen.

Insofar as these ethnic groups see themselves as competing for resources and power within Burma, they are thrown into political and military conflict.  Of the almost 100 registered political parties, the majority seek to represent the interests of a specific ethnic group.  Much of the political system is organized around diverse ethnic interests.  The Constitution provides that the most politically and dominant ethnic groups have their own eponymous states: the seven states of Kachin, Kayah, Kayin, Chin, Mon, Rakhine, and Shan.  The Constitution also recognizes six other ethnic groups with geographically concentrated populations their own self-administered areas.  There are also a small number of elected seats in state and regional parliaments that are reserved for ethnic groups.

Burma has some of the longest-running armed conflicts in the world, some of which began over 70 years ago, and most of these conflicts arise from ethnicity.  These ethnic military groups include some twenty "ethnic armed groups," such as the Karen National Liberation Army, some hundreds or even thousands of armed militias, and twenty-three "Border Guard Forces" who operate under Tatmadaw control in areas close to Burma's international borders.

Some ethno-nationalists would say that what we see here is an expression of a natural human desire for ethnic identity that leads to unremitting conflict in an ethnically diverse country like Burma.  To achieve some harmony, they would say, Burma needs to establish a homogeneous Burmese ethnic identity that would exclude all foreign ethnic groups as aliens.  But it's not clear how this could be done.

In previous post, I have disagreed with the ethno-nationalists by arguing that while our evolved human nature is inclined to tribalism, in that we naturally look for cues of coalitional affiliation by which we set "us" against "them," the content of those cues depends on social learning and cultural history.  And consequently people in multi-racial/multi-ethnic societies can be taught to be cooperative.  A country as culturally and ethnically diverse as Burma could achieve this if it were to become a fully liberal open society, in which people would see themselves as equal in their political rights as citizens while being diverse in their social identities as belonging to different ethnic groups.

The Burmese Constitution actually affirms the principle of equal citizenship, but this seems to be contradicted by the Constitution's affirmation of the multiplicity of ethnic identities.  The "Basic Principles of the Union" include the declaration that "the State is where multi-National races [taingyintha] collectively reside" (sec. 3).  But this is immediately followed by the declaration that "the Sovereign power of the Union is derived from the citizens and is in force in the entire country" (sec. 4).  Is Burma a community of equal citizens?  Or is it an amalgamation of "multi-National races"?

The Constitution's "Fundamental Rights and Duties" are said to belong not to "national races" but to "the citizens."  All citizens "enjoy equal rights before the law" (sec. 347).  And "the Union shall not discriminate against any citizen of the Republic of the Union of Myanmar, based on race, birth, religion, official position, status, culture, sex, and wealth" (sec. 348).   The equal rights of all citizens include the right "to develop their language, literature, culture they cherish, religion they profess, and customs, without prejudice to the relations between one national race and another or among national races and to other faiths" (sec. 354).

The Constitution does recognize the "special position of Buddhism as the faith professed by the great majority of the citizens of the Union" (sec. 361).  But it also recognizes "Christianity, Islam, Hinduism, and Animism as the religions existing in the Union" (sec. 362).  This affirms religious liberty and religious pluralism, by which all citizens are free to profess and practice their religion in any way that does not infringe on the religious liberty of others.

The Constitution declares: "The abuse of religion for political purposes is forbidden.  Moreover, any act which is intended or is likely to promote feelings of hatred, enmity, or discord between racial or religious communities or sects is contrary to this Constitution" (sec. 364).

According to these constitutional principles, the Rohingya Muslims should have the same equal rights as citizens as the Arakanese Buddhists.  In fact, President Thein Sein suggested this in 2012 when he said that the Rohingya Muslims were entitled to equal Burmese citizenship, except for those who had illegally entered the country since 1948.  And some Burmese ministers had said that less than 20 percent of the Rohingya were illegal immigrants (Thant Myint-U 2021, 183).


Despite this history of conflict between Burma's diverse ethnic, racial, and religious groups, all of these groups are now united in opposition to the military junta that seized power 100 days ago on February 1.  One of the favorite slogans for the protesting crowds has been: "We won't let you govern us at all."  People cannot be governed if they do not consent to government.  But then people must decide the best way to express their withdrawal of consent--either through nonviolent resistance or violent retaliation or some mixture of nonviolent and violent actions.

Sometimes a government can be overthrown by a nonviolent revolution before the revolutionaries engage in any violence.  That's what happened in the American Revolution.  In a letter to Thomas Jefferson (August 24, 1815), John Adams wrote:  "What do We mean by the Revolution?  The War?  That was no part of the Revolution.  It was only an Effect and Consequence of it.  The Revolution was in the Minds of the People, and this was effected, from 1760 to 1775, in the course of fifteen Years before a drop of blood was drawn at Lexington."  Adams elaborated that idea in two other letters to Jedidiah Morse (November 29, 1815) and Hezekiah Niles (February 13, 1818).

The American colonists' methods of nonviolent resistance included boycotts of British goods, refusal to export American raw materials to Britain, refusing to serve on juries under Crown-appointed judges, and creating their own parallel economic, judicial, and political institutions (such as the Continental Congress).  Before the bloody violence at Lexington in 1775 and the authorization of a Continental Army in 1776, the American colonies were already independent of the British Government.  Gene Sharp helped to edit a history of this nonviolent American Revolution (Conser et al. 1986).

Similar methods of nonviolent resistance are now being used by the "Civil Disobedience Movement" in Burma, which is attempting to overthrow the military junta that took power on February 1.  In addition to the massive street protests across Burma, people have launched nation-wide economic boycotts, and they have refused to do any work for the government or pay their taxes.  Bureaucrats, teachers, doctors, and other professionals have refused to work.  There are reports that many government agencies cannot operate because so few people are working for them.  Some police and military people are defecting from the government.  The National Unity Government (NUG) of Myanmar was formed on April 16 claiming that it is the legitimate government of Myanmar, which creates a parallel government similar to the American Continental Congress.

The military junta has responded to this with violent repression--killing as many as 770 people, arresting at least 5,000 people, and brutally attacking and torturing many people.  It's natural for people who have suffered such violence to want to defend themselves with retaliatory violence.  But the proponents of nonviolent resistance--like Maria Stephan (2021)--are arguing that this would be a mistake because it plays into the hands of the military dictators: violent resistance against dictators strikes them where they are strongest; nonviolent resistance strikes them where they are weakest.  Dictators like to point to the violence of anti-government protesters because this justifies their own violence--weakening public support for the protesters and making it less likely that police and soldiers will defect from the government.  Stephan cites the quantitative evidence supporting this argument.  Over the past 120 years, nonviolent revolutions have succeeded about 50% of the time, while violent revolutions have succeeded only about 25% of the time.  Successful nonviolent campaigns have taken on average about three years to prevail, while successful violent campaigns have lasted about nine years.

Such arguments have not been persuasive with those many protesters in Burma who have begun using whatever weapons they have, such as slingshots and homemade air guns (Paddock 2021).   In recent weeks, many protesters from the cities have gone into the forests for training in warfare and sabotage (Beech 2021a).  Now the "ethnic armed organizations" (EAOs) that have been fighting the government for decades are now supporting the protest movement (The Irrawaddy 2021).  They do this in two ways.  By attacking the Burmese military in the border areas, they force the government to deploy more troops to the frontlines, which leaves fewer troops for attacking urban protesters.  They also provide a refuge for protesters fleeing the cities and going underground, while being trained in guerrilla warfare by the EAOs.

Remarkably, perhaps for the first time in the history of Burma, all of the ethnic groups in Burma are united in cooperating to resist the military junta.  More than a third of Burma's population is composed of hundreds of ethnic minorities, many of whom have fought insurgencies against the Burmese military, without any support from the Bamar ethnic majority.  But now many people in the Bamar majority see themselves fighting alongside the ethnic minorities against the military.  One Bamar elementary-school teacher was quoted as saying that she now understands the suffering of the Rohingya:  "After the coup, I saw soldiers and police killing and torturing people in the cities.  Then I started to feel empathy for Rohingya and ethnic people who have been suffering worse than us for many years" (Beech 2021b).  

The National Unity Government has proposed a new constitution that will establish a federal system in which regions with large minority ethnic groups--the Karen, the Kachin, and others--will have some political autonomy.  This has been the major demand of the EAOs for decades.

This conception of Burma as a multi-ethnic state, in which all citizens have equal rights under the law regardless of their ethnic identity, could eliminate the governmental persecution of minority groups like the Rohingya, which would break away from the policies of Aung San Suu Kyi and her National League for Democracy.  Aung San Suu Kyi's government has persecuted minority ethnic groups.  In the 2020 election, for example, many polls in Burma's frontier lands where the ethnic minorities are concentrated were closed before election day.  Out of an electorate of about 37 million people, 1.5 million registered voters were disenfranchised.  And this is not counting the one million Rohingya now living in refugee camps in Bangladesh because they were forced to leave Burma (Beech and Nang 2021aBeech and Nang 2021b).

For now, we must wait to see whether the resistance movement can succeed in overthrowing the military dictatorship, and whether a successful movement is nonviolent or violent.


Arrow, Ruaridh. 2020. Gene Sharp: How to Start a Revolution. London: Big Indy Books.

Beech, Hannah. 2021a. "'I Will Die Protecting My Country': In Myanmar, a New Resistance Rises." The New York Times, March 24.

Beech, Hannah. 2021b. "'Now We Are United': Myanmar's Ethnic Divisions Soften After Coup." The New York Times, April 30.

Beech, Hannah, and Saw Nang. 2020a. "'This Is Not a Democracy':  Myanmar Prepares for a Troubled Election."  The New York Times, November 6.

Beech, Hannah, and Saw Nang. 2020b. "Myanmar Election Delivers Another Decisive Win for Aung San Suu Kyi." The New York Times, November 11.

Cheesman, Nick. 2017. "How in Myanmar 'National Races' Came to Surpass Citizenship and Exclude Rohingya." Journal of Contemporary Asia 47: 461-483.

Conser, Walter H., Ronald McCarthy, David Toscano, and Gene Sharp, eds. 1986. Resistance, Politics, and the American Struggle for Independence, 1765-1775. Boulder, CO: Lynne Rienner Publishers.

International Crisis Group. 2020. "Identity Crisis: Ethnicity and Conflict in Myanmar." Asia Report Number 312. August 28.

The Irrawaddy. "Ethnic Armed Groups Unite With Anti-Coup Protesters Against Myanmar Junta." April 30.

Paddock, Richard. 2021. "Myanmar's Protesters Face Down the Military With Slingshots and Rocks." The New York Times, April 17.

Sharp, Gene. 2012. From Dictatorship to Democracy: A Conceptual Framework for Liberation. New York: The New Press.

Stephan, Maria J. 2021. "Myanmar's Protesters Have Achieved Significant Victories--Now Is the Time to Double Down on Nonviolent Resistance." Waging Nonviolence, March 24.

Thant Myint-U. 2021. The Hidden History of Burma: Race, Capitalism, and the Crisis of Democracy in the 21st Century. New York: W. W. Norton.

Thursday, April 29, 2021

The Lockean Evolution of Nonviolent Revolution

Myanmar Protesters Recently Using the Three-Finger Salute from "The Hunger Games."  The Military Dictatorship Has Banned This Salute.

Over the past three months, we have seen in Burma (Myanmar) what could have happened in the United States if Donald Trump had overturned the presidential election of 2020 and declared his right to rule under martial law.  In November, Burma's National League for Democracy led by Daw Aung San Suu Kyi won by a landslide the elections for Parliament.  On February 1, only a few hours before the new Parliament was to meet, the Burmese military (the Tatmadaw)--under the commander in chief, General Min Aung Hiaing--announced that because the elections had been fraudulent, the Parliament would be abolished, and the military would take power over the country under a one-year declaration of emergency.  Aung San Suu Kyi and other members of Parliament were arrested.  Almost immediately, protesters marched across the country, launching a nonviolent resistance campaign to overthrow the military dictatorship and restore parliamentary democracy.

Many Americans have feared that something like this could have happened in the United States.  Before the election of 2020, Trump indicated that he might refuse to accept the outcome of the election if he lost.  After he lost the election, he insisted that the election had been rigged against him, and so he might refuse to leave office.  Some of Trump's supporters--including Michael Flynn, speaking after he was pardoned by Trump--said that Trump should declare martial law and suspend the Constitution so that he could rule as a military dictator.  On January 6, Trump ordered his supporters to march to the Capitol to stop the Senate from authorizing the stealing of the election, which led to insurrectionary violence in the Capitol Building.

Before the election, thousands of Americans had agreed to an elaborate plan of action for a nonviolent resistance movement to stop any such military coup by Trump.  This plan--"Hold the Line: A Guide to Defending Democracy"--was based on the theory and practice of nonviolent civil resistance to overthrow dictatorships, particularly as studied by scholars like Gene Sharp and Erica Chenoweth (Marantz 2020; Merriman et al. 2020).  

The fundamental idea behind this plan is Lockean--that governmental power depends on popular consent and that the people have the natural right to overthrow an oppressive government by withdrawing their consent.  This revolutionary overthrow of government can be either violent or nonviolent.  The proponents of nonviolent resistance argue that the nonviolent methods of revolution are more likely to succeed and cause less suffering than are the violent methods, and there is some historical evidence to confirm this.  

Over the past 120 years, this history shows a Darwinian cultural evolution of nonviolent revolution, in which there has been an evolutionary process of variation and selective retention, so that methods of nonviolence that have succeeded in one country are transmitted by imitation in other countries.  In this evolutionary diffusion of ideas, scholars like Sharp and Chenoweth have provided instruction through the collection and analysis of the historical data for comparing violent and nonviolent revolutions.  (I have written some posts on this process of Darwinian cultural group selection.)


One historical example of how nonviolent resistance can overthrow a dictator who is trying to overturn an election is Serbia in 2000.  Slobodan Milosevic had been President of Serbia since 1989, whose authoritarian power was based on electoral fraud, suppressing freedom of the press, police brutality against his opponents, and political assassinations.  University students had formed an organization named Otpor (Serbian for "resistance") in 1998 devoted to overthrowing Milosevic through nonviolent resistance.  Their resistance movement was guided by the writings of Gene Sharp--particularly his book From Dictatorship to Democracy (2012)--which presented 198 methods of nonviolent revolutionary struggle  to overturn a dictatorship and establish a democracy in its place.  Sharp's book was translated into Serbian, and thousands of copies were distributed to political activists around Serbia (Arrow 2020, 176-92).  This book was an abbreviated version of his long magnum opus--The Politics of Nonviolent Action (1973), which originally was his dissertation at Oxford University.  (I have written some previous posts on nonviolent resistance here and here.)

Sharp taught them that every dictatorship--like every government--depends on "pillars of support" or key institutions that sustain the power of the dictatorship.  They might include the police, the military, governmental bureaucrats, businessmen, and religious organizations.  If enough people in those groups can be persuaded to defect--to withdraw their support--the dictatorship will collapse.  This could be explained by the idea of "minimal winning coalitions": no ruler can rule alone, because even an absolute dictator needs the loyal support of a coalition of powerful people, and when those people withdraw their consent to the government, the rulers become powerless.  (I have written about this in another post.)

Sharp thought that this dependence of rulers on popular consent was recognized by Niccolo Machiavelli when he said that the prince "who has the public as a whole for his enemy can never make himself secure; and the greater his cruelty, the weaker does his regime become" (The Discourses, I.16.5).  Sharp has been called "the Machiavelli of nonviolence," because of his Machiavellian toughness in explaining the strategy and tactics of nonviolent resistance as a form of revolutionary warfare.

In his public lectures, Sharp would often employ aggressive language.  He would begin by saying: "My name is Gene Sharp, and we're here today to discuss how to seize political power and deny it to others.  I say nonviolent struggle is armed struggle!  And we have to take back that term from those advocates of violence who try to justify with pretty words that kind of combat.  With this kind of struggle, one fights with psychological weapons, social weapons, economic weapons, and political weapons.  This is ultimately more powerful against oppression, injustice, and tyranny than is violence."

                                                A Clenched Fist Was the Symbol of Otpor

The Otpor leadership identified the police and the army as the most important pillars of support for Milosevic, and they began infiltrating these organizations through personal contacts.  Otpor members wrote letters to every police station in Serbia.  The letters warned them that they should think about their life after the end of the Milosevic regime.  They also said: "You are our friend.  Your kids are in Otpor.  If you hurt them, your fellow citizens will shun you."

Otpor organized massive protest marches across Serbia.  To keep the marches nonviolent, they had trained people as marshals who would direct the protests and isolate any individuals who became violent.  They anticipated that Milosevic's security forces would plant provocateurs in their marches to initiate violence, so that Milosevic could then identify Otpor as a terrorist organization.  The protesters would lose public approval, and the police would support the regime.

Over the summer of 2000, many members of Otpor were arrested by the police, beaten, and imprisoned.

An election was coming on September 24, 2000.  The opposition parties agreed to run a single candidate--Vojislav Kostunica--to maximize their chance of defeating Milosevic.

Anticipating that Milosevic would try to steal the election, the opposition organized an elaborate exit polling system for counting the votes.  When they reported that Kostunica had won the election, Milosevic's party announced that no party had won a majority, and so there would have to be a run-off election.  The opposition declared that this was a lie, and that the people should prepare for a general strike and mass protests against Milosevic.  Soon the entire country was shut down by the strike.

On the morning of October 5th, convoys of people from around Serbia began to move towards Belgrade, the capital, where they were to meet at 3 p.m. outside the parliament building.  The plan was to take control of the building.  Milosevic deployed his police around the edges of Belgrade to enforce roadblocks.  But when the convoys reached the roadblocks, the police stood aside, and the convoys moved through.  When the convoys reached the square outside the parliament building, the people were singing and chanting, "Gotov Je! Gotov Je!" ("He's finished!").

The police and the army were ordered to clear the square and to fire into the crowd of protesters.  But that order was not carried out.  Later, it was reported that those in command refused the order to fire because they knew members of their own families were in the crowd.

But at this point, by the evening of October 5th, the disciplined nonviolent movement began to lose control of the crowd.  The parliament building was on fire, and word got out that some people were breaking into Milosevic's Socialist Party Building, planning to burn it down.  When the leaders at the Otpor office heard about this, they gathered volunteers and rushed to the building to drag the provocateurs out.  They surrounded the building to protect it and to prevent any outbreak of violence.

Late that night of October 5, Milosevic announced he was resigning.  All across Serbia, and even elsewhere around the world, crowds of people celebrated.

One of the leaders of Otpor--Srdja Popovic--has said that one of the most important lessons taught to them by Gene Sharp was the need to maintain nonviolence, because if protestors had turned to violence, this would have provided an excuse for the military to launch a coup to restore order, and thus a new dictatorship would have taken control.

The other important lesson from Sharp illustrated in this successful nonviolent movement in Serbia was that mass protest marches are not enough to succeed.  Watching the CNN coverage of the crowds around the Parliament Building, it was easy to conclude that such a movement needs only to attract mobs of people to flood the streets, and then the government collapses over night.

That's not true, because Otpor had been training their people and organizing their movement for years, and mass public protests were only one of many methods they used.  That's the point of Sharp's 198 methods of nonviolence--that to succeed, nonviolence must flexibly employ many techniques over a long time.  

The failure of the Tiananmen Square protests in China in 1989 illustrates this point.  The Chinese students in this movement had not read Sharp's books.  Nor had they studied any of the history of nonviolent resistance.  They were not organized or trained.  They relied on only one method--occupy the Square in Beijing.  It was easy then for the Chinese military to end the movement by sweeping into the Square and firing in the crowds.

By 2000 in Serbia, the cultural evolution of nonviolence had spread knowledge of nonviolent methods around the world; and the leaders of Otpor had deliberately studied Sharp's books to learn how best to organize their movement.  In subsequent years, those who had led Otpor could spread the knowledge of their practical experience and transmit Sharp's books to other countries engaged in nonviolent struggles to overthrow authoritarian regimes--such as the "Rose Revolution" in Georgia (a former Soviet state) and the "Orange Revolution" in the Ukraine.


In 2011, the revolutionary uprisings of what came to be called the "Arab Spring" began in January and February.  Mass public protests in Tunisia forced President Zine Abdine Ben Ali to flee the country after 23 years in power.  Similar protests in Egypt forced President Hosni Mubarak to resign after 30 years in power.  In Libya, a revolution began the overthrow of Muammar Gaddafi, who had ruled for 34 years.

It seemed that Syria might follow a similar revolutionary path in March when a civil uprising began to challenge the rule of Bashar al-Assad, who had governed as a dictatorial president for 11 years, preceded by 30 years of rule by his father Hafez al-Assad.  This uprising began as a nonviolent resistance movement led by some Syrians who were following Gene Sharp's teaching.  But by the middle of the summer, the opponents of the regime turned to armed warfare, and from that point to the present, Syria has been in a civil war.  Today, nearing the 10th anniversary of the beginning of the civil war, large parts of Syria are under the control of rebel factions or foreign powers, but al-Assad seems to have largely won the war.

Authoritarian dictators can point to this example of Syria as showing the foolishness of nonviolent resistance to tyranny, because it soon becomes violent, which leads to a destructive civil war that is worse than any tyrannical government.  But, actually, Sharp himself warned his Syrian followers to remain nonviolent, and he accurately predicted that if the Syrian protesters became violent, this would provoke a civil war that they were unlikely to win (Arrow 2020, 267-286).

Some of the Syrians who were leading the revolution in Syria early in 2011--such as Ausama Monajed and Mohammed Alaa Ghanem--had studied Sharp's books, and they developed a strategy for nonviolent resistance derived from his teaching.  They launched a campaign to attack Assad's "pillars of support" by selecting slogans that challenged Assad's legitimacy to rule, by persuading those in the military to defect, and by calling on Syrians to boycott the products of those in the business community supporting Assad.  All of this was directed to demanding Assad's resignation and the establishment of a truly democratic regime.  In April, in an interview in London, Ausama Monajed said: "Gene Sharp's tactics and theories are being practiced on the streets of Syria as we speak now."

By late April, it appeared that the nonviolent movement against Assad was winning.  Assad ordered his soldiers to arrest, torture, and kill the protesters.  But the atrocities committed against civilians was provoking popular disgust with the regime.  Soldiers were starting to defect because they did not want to shoot into crowds of people that might include members of their own families.

Far from stopping the atrocities, however, Assad increased them.  He had learned from his father the lesson that it was better to be feared than loved--that princes can secure their power against opponents through "cruelty well-used."  The most infamous example of this from his father, Hafez al-Assad, was the massacre in 1982 in the town of Hama.  For 6 years, the Muslim Brotherhood had led an Islamist violent insurgency against al-Assad, which included attempts to assassinate him.  Then, in response to an uprising in Hama, al-Assad ordered that over 12,000 troops surround the town and then destroy it.  The fight continued for over three weeks.  The town was virtually leveled.  The rebels were killed.  And thousands of civilians were massacred, perhaps as many as 20,000 to 40,000.  It has been described as the deadliest attack by an Arab government against its own people.  This ended the Islamist rebellion against al-Assad and secured his rule and the rule of his son for another 30 years.

Imitating his father's cruelty, Bashar al-Assad ordered his soldiers to shoot the protesters, and those who refused the orders or who defected were shot by snipers placed behind the regular soldiers.  He recruited violent criminals and others to move through the country without uniforms to murder and rape the protesters.  They posed as Alawite Muslims killing Sunni Muslims, or as Sunnis killing Alawites.  He wanted to sow sectarian hatred.  He also wanted to provoke the nonviolent protesters into becoming armed insurgents, because then he could identify them as terrorists, and his soldiers would be motivated to fight against them rather than defecting.

He succeeded.  On July 29, 2011, seven officers who had left the Syrian Armed Forces to join the resistance announced the formation of the Free Syrian Army.  Later, other armies and militias to fight against Assad were formed.  These rebel soldiers said that they would protect the nonviolent protesters from the violence of Assad's troops.

When Gene Sharp was told about this, he warned that this was a mistake that would destroy the nonviolent movement and favor the triumph of Assad, because he would always have military superiority.  He was asked about this in an email from Mohammed Ghanem, who signed off as "The Sleepless Syrian."  Sharp wrote back in a letter called "Letter to a Sleepless Syrian" (Arrow 2020, 283-84):
"The present unease of the troops in obeying orders is clear.  Otherwise he regime would have no need to order immediate killing of disobeying soldiers.  That is strong evidence that the reliability of the army is very shaky and possibly on the verge of collapse.  That means that wise resistance actions are crucial to take the army away from the regime. . . . The regime clearly is desperate.  They may intend for their brutalities to enrage protesters so much that they resort to violence.  The protesters should not be tricked into that.  Significant protest violence would guarantee the army's loyalty and the defeat of the revolution."

Sharp warned against the offer of armed protection for the protesters from the army defectors:

"This supposed major help can dramatically change the conflict so that the regime's still overwhelming superior military capacity will shape the course of the continuing conflict.  Then, without major external military intervention, the dictatorship is likely to triumph.  Inevitable major casualties are likely to vastly exceed even exceptionally high casualties in a nonviolent struggle conflict.  The nonviolent resisters are likely to become irrelevant to shaping the future of their country."

So here, as he had often done, Sharp claimed that nonviolent revolutionary movements are better than violent revolutionary movement in at least two respects:  nonviolent movements have a lower death rate and a higher success rate than violent movements.  In his writings, he cited many historical cases to support this claim (Sharp 1973).  But he never did a systematic quantitative analysis of the historical data that would conclusively demonstrate this. 


In recent years, Erica Chenoweth and her colleagues have collected the historical data for over 627 nonviolent and violent revolutionary campaigns from 1900 to 2019, and they done a quantitative analysis of that data to compare the outcomes (success or failure) of these movements.  They have found that Sharp is right about the superiority of nonviolent movements over violent movements (Chenoweth 2021).  (I have written about Chenoweth's research here and here.)

If we define the success of a revolutionary campaign as the overthrow of a government or territorial independence achieved because of the campaign, then over 50% of the nonviolent revolutions from 1900 to 2019 have succeeded, while only about 26% of the violent revolutions have succeeded.  So nonviolent revolutions do not always succeed.  They do not even succeed most of the time.  But at least they succeed about half of the time, which is to say they succeed as often as they fail.  Or if you see that the glass is half empty, they fail as often as they succeed. That makes nonviolent revolutions almost twice as successful as violent revolutions.

Nonviolent resistance is risky, in that governments can respond to a nonviolent resistance movement by killing unarmed civilians.  But nonviolent resistance is less risky than violent resistance.  If "mass killings" are defined as state violence in which at least one thousand unarmed civilians are killed, about 23% of nonviolent revolutions have suffered mass killings.  By comparison, about 70% of violent revolutions have had mass killings, in which governments kill civilians suspected of supporting the armed insurgents.

We might say that nonviolent resistance is more risky than obedience.  But even obedience is risky if it means obeying a brutal government.  Chenoweth has found that the strongest predictor of nonviolent revolution is a government's violations of human rights: when a government is arbitrarily imprisoning, torturing, and killing people, then people can decide that they have no choice but to rebel.  This was Locke's point: people will suffer a bad government while its evils are sufferable, but they are inclined to revolt when governmental cruelty becomes unbearable.

We might wonder, however, whether it is reasonable to compare violent and nonviolent movements given the fact that nonviolent resistance is often combined with some violence.  And we might suspect that the success of nonviolent resistance movements often depends on the movement becoming violent or at least threatening violence.

How we answer this question will depend on how we define violence.  Chenoweth defines it as "an action or practice that physically harms or threatens to physically harm another person" (Chenoweth 2021, 145).  Even when a resistance movement is predominantly nonviolent, it can have "violent flanks"--some people in the movement who use violence along with the mostly nonviolent campaign.  These violent flanks can be either armed (people taking up arms such as guns) or unarmed  (people fighting in the streets or throwing rocks and other projectiles or destroying property).

In her database of nonviolent revolutionary campaigns, Chenoweth found that over 60% had no armed factions.  But she also found that over 80% of the nonviolent revolutionary movements had some unarmed violence such as street fighting and destroying property.

She noted, however, that authoritarian rulers threatened by nonviolent resistance want to provoke nonviolent protesters into becoming violent, because this allows the rulers to justify the violent repression of the resisters as the proper punishment of violent criminals.  When nonviolent protests become violent, this reduces public support for the protest movement, while at the same time the police and the military are less likely to defect.  Her historical data confirm this: while 65% of the nonviolent revolutions that had no fringe violence were successful, only 35% of the nonviolent revolutions that had some fringe violence were successful.

So why then do nonviolent resistance movements so often turn to violence?  The answer from Sharp and Chenoweth is that when nonviolent resisters rely exclusively on concentrated street protests, they expose themselves to violent attacks from the government; and this will often provoke many of them to defend themselves with violence.  Their mistake is in failing to see that there are many methods of nonviolent resistance that are less risky than visible street protests--such as stay-at-home strikes, boycotts, and other forms of noncooperation--that are effective in weakening a dictatorship.

So how does this apply to the current situation in Burma?  Can the nonviolent resistance against the military dictatorship remain nonviolent?  Or will the movement be provoked by the government into violence?  I will turn to those questions in my next post.


Arrow, Ruaridh. 2020. Gene Sharp: How to Start a Revolution. London: Big Indy Books.

Chenoweth, Erica. 2021. Civil Resistance: What Everyone Needs to Know. New York: Oxford University Press.

Marantz, Andrew. 2020. "How to Stop a Power Grab." The New Yorker. November 16.

Merriman, Hardy, Ankur Asthana, Marium Navid, and Kifah Shah. 2020. Hold the Line: A Guide to Defending Democracy.  Washington, DC: International Center on Nonviolent Conflict.

Sharp, Gene. 1973. The Politics of Nonviolent Action. Boston: Porter Sargent Publishers.

Sharp, Gene. 2012. From Dictatorship to Democracy: A Conceptual Framework for Liberation. New York: The New Press.

Saturday, April 24, 2021

Conservative Confusion About Constitutional Originalism

Until recently, the conservatives who supported Donald Trump agreed on one main point in their conservative case for Trump:  Trump's appointment of federal judges recommended by the Federalist Society would promote the conservative legal movement by appointing only judges who adhere to the original meaning of the Constitution and the clear textual meaning of the laws.  That 28% of those actively serving on the federal bench today--including three of the nine Supreme Court Justices--were appointed by Trump must therefore be a great success for conservative jurisprudence.  But now Trumpian conservatives cannot agree about this.

The problem began in June of last year when Neil Gorsuch wrote the majority opinion (six justices) in Bostock v. Clayton County, holding that the Civil Rights Act of 1964 forbids employment discrimination against homosexuals and transgender people, because Title VII of that Act makes it unlawful "to discriminate against any individual . . . because of . . . sex."  Conservatives were shocked that Trump's first Supreme Court appointee, who filled the vacancy created by Antonin Scalia's death, would write such an opinion.  They were particularly shocked that Gorsuch justified his opinion as grounded in a strict Scalian textualist interpretation of the law: according to the literal meaning of the text of the law, discriminating against individuals because they are homosexual or transgender discriminates against them because of their sex, which therefore violates Title VII.  

Some religious conservatives (like Senator Josh Hawley) declared that this showed that their bargain with Trump and the conservative legal movement had failed, because a textualist originalism was supporting liberal policies.  (I have written previously about Gorsuch's opinion in Bostock.)


Some conservatives (like Adrian Vermeule) say that this shows the failure of originalist jurisprudence to support conservative morality.  Instead of originalism, Vermeule argues, conservatives should embrace a "common good constitutionalism" or "substantive moral constitutionalism."  "This approach should take as its starting point substantive moral principles that conduce to the common good," Vermeule explains, "principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution."  This would mean a recognition of the fact that those who have social authority--including judges--must "legislate morality."

Vermeule acknowledges that in making this argument he is following the lead of Ronald Dworkin, who was well known for claiming that we need "moral readings of the Constitution"--that interpreting the Constitution is an exercise in moral philosophizing.  But while common-good constitutionalism is "methodologically Dworkinian," Vermeule observes, it "advocates a very different set of substantive moral commitments and priorities from Dworkin's, which were of a conventionally left-liberal bent."  But some conservatives will object: if we are going to allow conservative judges to develop conservative "moral readings of the Constitution," how can conservatives deny the freedom of liberal judges to read the Constitution as teaching a liberal morality?


This objection has led some conservatives to contend that while we should agree with Dworkin in finding moral philosophy in the Constitution, we should insist that this be the original moral philosophy of the Founders who framed and ratified the Constitution, with the assumption that this original moral philosophy of the Founders was a conservative moral philosophy.  This seems to be the position of Hadley Arkes, Josh Hammer, Matthew Peterson, and Garrett Snedeker in their essay "A Better Originalism," who argue for a "common good originalism."

They recognize that textualist originalism can correctly interpret the literal meaning of the legal texts, as Gorsuch did in Bostock.  But this mistakenly ignores the moral meaning of the laws by assuming a narrow positivist jurisprudence, according to which the validity of the law as whatever the lawmaker says it is has nothing to do with its morality.

Against such positivist originalism, they affirm four principles of an originalism based on moral and natural law:

1. We hold that moral truth is inseparable from legal interpretation.

2. We hold that the Anglo-American legal order is inherently oriented toward human flourishing, justice, and the common good.

3. We reject literalist legal interpretation and hold to the common sense jurisprudence of the founders.

4. We believe in a jurisprudence that is, in the truest and most profound sense of the term, conservative, in preserving the moral ground of a classic jurisprudence.

They believe that these principles are implicitly affirmed in the Declaration of Independence and in the Preamble of the Constitution.  The Declaration appealed to "the Laws of Nature and of Nature's God."  That provided a moral ground for a shared commitment to natural rights secured by government, so that the "just powers" of government are directed to the "Safety and Happiness" of the people, for whom law is "wholesome and necessary for the public good."

The Preamble enumerated the substantive ends of the Constitution: "a more perfect Union," "Justice," "domestic Tranquility," "the common defence," "the general Welfare," and "the Blessings of Liberty."  Consequently, a constitutional originalist must interpret the clauses of the Constitution as directed to these substantive moral ends as "the telos, or purpose, for which those clauses have been formed."

They recognize the most common conservative objection to their position, mentioned above, that affirming the moral meaning of the Constitution will allow liberal judges to find liberal morality in the Constitution.  They respond: "If our friends claim that judges on the Left will take this as a new license for moral reasoning untethered, our answer is: why do we suppose that we cannot tell the difference between arguments that are plausible or specious?  The answer to the Left is to show why their reasoning is false; it is not to end all moral reasoning and disarm conservative judges."  

So like Vermeule, their constitutional jurisprudence is "methodologically Dworkinian," in looking for a moral reading of the Constitution, but they are confident that correct moral reasoning will persuasively support a conservative morality for the Constitution and refute the left-liberal morality that Dworkin claimed to find in the Constitution.

Arkes and his colleagues seem to be speaking for the Claremont Institute in their critique of positivist originalism.  After all, their arguments sound a lot like those made by Harry Jaffa against Rehnquist, Bork, and Scalia.  

But that creates a problem for the Claremont Institute's support for Trump.  If Trump's judicial appointees belong to the positivist jurisprudence championed by the Progressives (such as Oliver Wendell Holmes), doesn't this mean that Trump has promoted the overturning of the Founders' Constitution?  Doesn't this contradict the Claremont Institute's claim that it supports the natural rights/natural law tradition of the Founding against the positivism of the Progressives?  (That Scalia's positivist jurisprudence was rooted in the progressive legal tradition of Holmes has been well argued by George Anastaplo.)


The best conservative critique of this conservative moral originalism has been written by John Grove for the Liberty Fund's Law & Liberty website.  Josh Hammer--one of the coauthors of "A Better Originalism"--has identified Grove's essay as "the most thorough response" to their argument.

Grove makes two general claims.  First, the text of the Constitution enumerates and organizes the powers of government, but it "neither answers nor empowers judges to answer the great moral questions of public life for us."  Second, Burkean conservatives should know that it would be dangerous to allow judges to act as moral arbiters, because to allow powerful people to impose on society their personal conceptions of morality would lead to tyranny.

While Arkes and his colleagues assert that "the Constitution's preamble enumerates substantive ends," Grove quotes from the Constitutional Convention's Committee of Detail's Report the statement that the Preamble was "not for the purpose of designating the ends of government and human polities."  Moreover, Grove notes that this was no recorded debate on the language of the Preamble--"a silence that would be shocking if any of the delegates thought the passage infused a great moral telos into the document."  Hammer admits: "Grove scores some clever points in his favor, especially with respect to the Constitutional Convention's Committee on Style, which drafted the Preamble without leaving behind any notes or recorded debate."

Nevertheless, Hammer insists that "Grove outright misses the mark," when he says that the Constitution does not "authorize the importation by judges of moral content . . . on which the Constitution is not indeterminate but utterly silent."  Hammer says that this begs the question at issue, which is "whether the Constitution is actually silent on the matter if it is properly understood and construed."  But isn't this a remarkably weak argument--to say that if the Constitution "is properly understood and construed," we can read moral language into the Constitution, although the Constitution never actually uses moral language?


It is surprising that while both sides in this debate refer to the Constitution as ratified in 1789, both sides are silent about the Constitution of 1791 (with the ratification of the first ten amendments) and the Constitution of 1870 (with the ratification of the13th, 14th, and 15th amendments).  And it's in those amendments that one sees the moral language of rights, including those rights "retained by the people" prior to government.

The Constitution of 1789 uses the word "right" only once, in enumerating the power of Congress to secure "for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" (Art. I, section 8, clause 8).  In the amended Constitution, the word "right" appears 12 times in the amendments.

To show that Alexander Hamilton recognized the "limited purpose" of the Constitution that did not require moral principles, Grove quotes Hamilton's observation that the long bills of rights often included in the state constitutions "would sound much better in a treatise of ethics than in a constitution of government."  This remark is from Federalist number 84, in which Hamilton defended the Constitution of 1789 against the objection that it had no bill of rights.  But Grove says nothing about the decision of James Madison and other founders in 1789 to amend the Constitution by adding a bill of rights.  Did this make the Constitution sound like a "treatise of ethics"?

In his speech to the House of Representatives explaining his proposed amendments, on June 8, 1789,  James Madison argued that although the Constitution had been ratified without a bill of rights, it would be good to satisfy that great body of the people that wanted such a bill of rights in the Constitution.  "We ought not to disregard their inclination, but, on principles of amity and moderation, conform to their wishes, and expressly declare the great rights of mankind secured under this constitution."  He indicated that the proposed list of rights included both "natural rights" such as freedom of speech and "positive rights" such as trial by jury.

"If they are incorporated into the constitution," he explained, "independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights."

He thought that such a bill of rights would guide judges in protecting the rights of the minority from being violated by a powerful majority:

"In a Government modified like this of the United States, the great danger lies rather in the abuse of the community than in the legislative body.  The prescriptions in favor of liberty ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power.  But this is not found in either the executive or legislative departments of Government, but in the body of the people, operating by the majority against the minority."

That this list of rights included natural rights that existed prior to government was indicated by the 9th Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."

That this idea of rights "retained by the people" pointed to natural rights in the state of nature before the establishment of government was clear in Roger Sherman's draft of the Bill of Rights: "The people have certain natural rights which are retained by them when they enter into Society."

So what would Grove say about the 9th Amendment?  Since he quotes approvingly from Robert Bork, I wonder whether he would agree with what Bork said in his 1987 testimony before the Senate Judiciary Committee that was considering his nomination to the Supreme Court by President Reagan:

"I do not think you can use the Ninth Amendment unless you know something of what it means.  For example, if you had an amendment that says 'Congress shall make no' and then there is an inkblot, and you cannot read the rest of it, and that is the only copy you have, I do not think the court can make up what might be under the inkblot."

Would Grove agree that the 9th Amendment is a meaningless inkblot that should be ignored? 

I also wonder how Grove would read Section 1 of the 14th Amendment: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

This language was originally drafted by Congressman John Bingham from Ohio.  In his final speech in support of the 14th Amendment in May of 1866, he said that its purpose was to provide a check against the "many instances of State injustice and oppression" and "to protect by national law the privileges or immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction whenever the same shall be abridged or denied by the unconstitutional acts of any State."

This is the moral language of Lockean classical liberalism--affirming natural human rights that must be secured by any just government.  That neither Arkes and his colleagues nor Grove acknowledge this language in the Constitution's amendments suggests their agreement in their rejection of this Lockean constitutional morality.


Returning to Gorsuch's opinion in the Bostock case, which prompted this whole debate over conservative originalist jurisprudence, I have to wonder whether a Scalian originalist like Grove would agree with Gorsuch's reasoning.  Gorsuch's credentials as a Scalian textualist are unimpeachable.  And in this case, Gorsuch relies on the strict meaning of the legal text in Title VII of the Civil Rights Act of 1964 to conclude that discrimination against homosexuals or transgender people is illegal because it is discrimination against them because of their sex.  Would Grove say that this is good positivist originalism, because it adheres to the literal meaning of the law as written by the lawmakers, without invoking Gorsuch's personal beliefs in any "moral truth" or "natural law" behind or above the legal text?

Perhaps Grove would agree with Justice Alito that Gorsuch's textualism is fraudulent.  In his dissenting opinion in the Bostock decision, Alito warns that Gorsuch's opinion is legislation disguised as a judicial opinion interpreting a statute, and therefore it is not really anything like Scalia's textualism.

"The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled.  The Court's opinion is like a pirate ship.  It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated--the theory that courts should 'update' old statutes so that they better reflect the current values of society." 

Gorsuch emphatically asserts that he is following Scalia's textualist approach in grounding his legal interpretation in the text of the law and nothing else.  "When the express terms of a statute give us one answer and extratextual considerations suggest another, it's no contest.  Only the written word is the law, and all persons are entitled to its benefit."

Remarkably, Justice Kavanaugh concedes that "as a very literal matter," Justice Gorsuch's interpretation of the legal text is correct! But Kavanaugh argues that as a sound principle of judicial interpretation, the "ordinary meaning" of a legal phrase is to be preferred over the "literal" meaning.  So while Gorsuch is right that the literal meaning of discrimination because of sex includes discrimination against homosexuals and transgender people, the ordinary meaning accepted by reasonable people--legislators, judges, and citizens--is that prohibiting discrimination because of sex means equal treatment for men and women, which does not require prohibiting discrimination based on sexual orientation or gender identity.  Kavanaugh says that Scalia would not have accepted Gorsuch's literal interpretation of "because of sex."  After all, Scalia himself once said that "the good textualist is not a literalist."  

And yet Gorsuch relies heavily on a crucial interpretation of Title VII by Scalia in his opinion, writing for a unanimous court, in Oncale v. Sundowner Offshore Services (1998).  Joseph Oncale alleged that he was forced to quit his job working on an oil platform in the Gulf of Mexica because he had been sexually harassed by other men in the crew.  Oncale said that he would not have been harassed by these men if he had been a female, and therefore he had been discriminated against because of his sex, which was prohibited by the language of Title VII.

When the Congress wrote and approved Title VII in 1964, probably no one anticipated that the language of the text would prohibit the sexual harassment of men by other men in the workplace.  This was not part of Congress's original intent.  But still, Scalia concluded, if the literal interpretation of Title VII protected men from such harassment, then this was part of the original meaning of the statute, even if that meaning was not understood in 1964.

The same literal reading of "because of sex" applied here, Gorsuch observes, also applies to employment discrimination based on the homosexuality or transgender status of employees.

This is what Walter Olson at the Cato Institute calls a "surprise plain meaning" reading of the law.  Sometimes a strict textualist reading of the law can turn up a meaning that surprises the jurisprudential textualists, a meaning that might even contradict the conservative policy preferences of the textualists.

Isn't that good for textualism, because it refutes the claim of textualism's critics that textualists use the supposed objectivity of textualism to read their own conservative ideology into the text of the law?  If textualism reveals in an unbiased way what the law really says, then one should expect that what is found in the law will sometimes surprise or even disappoint the conservative textualists.

That is the case with Gorsuch's reading of Title VII as expanding LGBT rights, against the desire of religious conservatives that those rights should be narrowed.  Similarly, as I have argued in a previous post, one can make a good textualist argument for concluding that the original meaning of the 14th Amendment supports same-sex marriage, which would provide a textualist justification for Justice Kennedy's opinion in Obergefell.  That argument has been well made by William Eskridge and Steven Calabresi in their amici curiae brief in the Obergefell case.  Eskridge and Andrew Koppelman made a similar textualist argument supporting Gorsuch's opinion in Bostock in their amici curiae brief in that case.

Now a positivist originalist like Grove might object that a decision like Bostock allows the Supreme Court to usurp the lawmaking powers of Congress.  But we should keep in mind that the Congress has the power to overturn or revise the Supreme Court's interpretation of the law in Bostock by legislating a congressional interpretation of Title VII.  Congress has all the constitutional powers to be the supreme branch of the national government, even if it often refuses to exercise those powers.