Peter H. Irons - The Courage of Their Convictions

FOR HOWARD ZINN

Are we historians not humans first,

and scholars because of that?

Zinn, The Politics of History

On the morning of March 29, 1965, I stepped into the witness box of the federal district court in Cincinnati, Ohio. I took the stand as a criminal defendant, charged with two counts of violating the draft law: failing to report for a physical exam, and then for induction in 1963 at Fort Knox, Kentucky. Although I had dutifully registered with my draft board in a Cincinnati suburb in 1958, two years later I returned my card to the board, with a letter which explained why I would not carry it. Unwilling to apply for exemption as a conscientious objector, I chose to risk prosecution and prison for my stand against the draft.

My noncooperation began a month after I registered, with my exposure at Antioch College to pacifists, socialists, civil-rights activists, and other critics of the Cold War America in which I was raised. But I did not share the conservative values of most of my suburban, middle-class neighborsthe values of the country club, corporate offices, and comfortable churches. Although I lived like my neighbors and looked like them, white and well-dressed, I was different in ways that made me a good candidate for conversion at Antiochonce an Underground Railroad stop in Yellow Springs, Ohioto rebellion and resistance. My family was Unitarian, from a church which stressed both tolerance and searching inquiry into ultimate questions. During a Sunday-school study of The Church Across the Street, I visited Jewish temples, black pentecostal churches, Eastern Orthodox services, and Buddhist ceremonies.

My parents also raised me (and six brothers and sisters) to abhor racism. I attended segregated schools in Delaware before the 1954 Supreme Court decision in the Brown case, and I could not understand why the kids who lived down the road in the black hamlet of Buttonwood could not attend my schools. During the Little Rock school crisis in 1957,1 wrote to a local right-wing newspaper columnisthe screamed Wake Up, Americans! every morningwho denounced the Supreme Court as Communist. I defended the Court against his Paleolithic views and suggested that the duty of the Supreme Court is to redefine the purport of the law in light of changing social trends. Much to my surprise, my letter appeared in his column, with a sinister question at the end: Obviously, this boy has been taught these things. By whom? One of my teachers wrote back this answer: He was taught by Jefferson, by Tom Paine, and by Emerson and Thoreau. The teacher did not know I wrote the letterthe columnist did not reveal my namebut he was right.

Three years later, in October 1960, I drove with several black and white friends from Washington, D.C. to Atlanta for the first national meeting of the Student Nonviolent Coordinating Committee. I had already been briefly jailed for joining sit-ins in suburban Maryland, where I worked at an Antioch co-op job and lived with black students from Howard University. The SNCC convention in Atlantamy first trip to the Deep Southmoved and inspired me. Speeches by apostles of Gandhi such as Martin Luther King, James Lawson, and Richard Gregg prompted me, once I returned to Washington, to return my draft card as a tangible symbol of a system which relied on force to defend a country still practicing legal apartheid.

Back at Antioch in 1961,1 wrote a leaflet called An Alternative to the DraftA Statement to Young Men. It urged a mass return of draft cards by students who agree with the nonviolent, direct action methods of the sit-in movement, those students who feel that a law which violates the moral precepts they hold so deeply must be broken, and the consequences accepted. Although friends and I circulated 5,000 copies to Midwest college campuses, I dont know whether anyone who read it joined my stand. But it did attract two FBI agents, who showed up at Antioch, identical in snap-brim hats and trenchcoats. They grilled me for two hours and promised to return with a warrant for my arrest on sedition charges. They never returned.

Four years later, still wondering where the FBI agents were, I went on trial before Judge John W. Peck. My lawyer advised me to waive a jury; federal jurors in Cincinnati were mostly retired American Legion members. This decision made no difference to the outcome. Judge Peck bristled with hostility. Since I did not deny my draft-law violations, I took the stand to explain why. My defense was based on my objection to the Supreme Being clause of the draft law, restricting exemption as conscientious objectors to those who swore a belief in God. I considered this unconstitutionalI had done research on Supreme Court precedentand I argued to Judge Peck that the Courts 1961 opinion in Torcaso v. Watkins had outlawed any religious tests for public office or service. Roy Torcaso had refused to affirm belief in God to obtain a Maryland notary-public commission, and the Supreme Court had upheld his objection.

Judge Peck endured my lecture on constitutional law with obvious impatience. When I finished, he looked down from the bench and asked me a scornful question: Young man, where did you attend law school? His tone, and his summary dismissal of my position, left me feeling indignant and angry. He found me guilty and sentenced me to three years in federal prison. My lawyer asked the federal appellate court to reverse Judge Peck, arguing that the Supreme Court decision in the Seeger case, issued just weeks before my trial, struck down the Supreme Being clause. The appellate judges split 2-to-1, ruling that, unlike Dan Seeger, I had refused to apply for exemption, and that therefore my reasons for objecting to the religious test were irrelevant. The lone dissenter, Judge George Edwards, suggested that my refusal had been prompted by futility, and that I should now be allowed to apply for exemption under the Seeger test.

After this defeat, I decided to serve my sentence. My lawyer held out little hope for victory in the Supreme Court; I had no funds for another appeal; the American Civil Liberties Union had refused to help me. (I have since forgiven the ACLU, and now serve on the board of its San Diego affiliate.) Between 1966 and 1969, I spent more than two years in federal prison. After my release I attended graduate school in political science at Boston University, receiving a Ph.D. in 1973. Five years later I graduated from Harvard Law School.

During my law training I sought reversal of my draft convictions: After my prison term the Supreme Court ruled that punitive inductions were unlawful, and I proved from draft-board and FBI records that mine was intended to punish me for anti-draft agitation. A federal judge in Cincinnati erased my conviction for refusing Army induction. I was still angry at Judge Peck. I wrote to him that I had graduated from Harvard Law School and that my conviction had been vacated. I asked if he had any second thoughts about my case and about Vietnam, now that the war was lost. His reply was terseno and no. One last word about Judge Peck and my trials: Indignation and anger can be valuable emotions if they are channeled into constructive outlets. I think this book is such an outlet.

I relate this personal story to help explain why I began this book; why I wanted to meet and talk with people who, unlike me, took their cases to the Supreme Court. During my law-school years I read hundreds of Supreme Court opinions, and noticed the lack of any description of the parties in most opinions. They were simply names on paper. After I began teaching law, I decided to write a book about three of the Courts worst decisions, those that upheld in 1943 and 1944 the wartime internment of Japanese Americans. I tracked down the original defendantsGordon Hirabayashi, Min Yasui, and Fred Korematsuand learned from talking with them about their courage in facing prison for resisting the concentration camps into which their families and friends had been herded at gunpoint.