I admit I have not read all the works of all the great revolutionaries and I may have forgotten most of what I have read. But I can’t recall Lenin, Mao, Gandhi, Che, Paine, Fanon, or Dellinger identifying violation of a municipal curfew as an important revolutionary tactic. Barbara Deming makes no mention of curfews in “Revolution and Equilibrium.” I don’t think Dorothy Day was ever busted for being out late after 11 pm. “Curfew vi olation” isn’t even on Gene Sharp’s famous list of 198 methods of nonviolent action (though I suppose it could be a sub-set of method 137, “refusal of an assemblage or meeting to disperse”). So the June 22 hearing at Manchester District Court could prove to be historic.

At issue was the claim of 15 Occupy NH activists that the “right to revolution” expressed in the State Constitution gave them the right — and the obligation — to violate Manchester’s city curfew last October. With the legal leadership of Barbara Keshen, staff attorney for the NH Civil Liberties Union, they made a good case.

The facts of the case are not in dispute. After several days in which Occupy activists maintained an encampment in Manchester’s Victory Park they were told by police that the City would insist on enforcing its curfew ordinance, which calls for parks to be empty of human persons between the hours of 11 pm and 7 am. On October 19, they shifted their encampment to Veterans Park, a more visible location a few blocks away. At 11 pm, police warned the activists they would be cited for violating the curfew if they refused to leave. Most of the people in the park (including me) scurried to the outside of the fence on Merrimack Street. Most of those who remained were given a summons for the curfew violation and left the park on their own steam. The few who still refused to leave were placed under arrest, charged with trespass in addition to the curfew violation, and taken to the Manchester Police Station. (See my earlier posts for details.)

The Right to Revolution

What is in dispute is whether Constitutional protections of speech and assembly trump the curfew. Also in dispute is whether Part One, Article Ten of the New Hampshire Constitution , titled “Right to Revolution,” has any bearing.

Article Ten states:

“Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.”

Once we’ve verified that “emolument” means what we think it means, it’s not hard to make the case that government is serving the private interests of a class of men, that the ends of government have been perverted, that public liberty is long past being at risk, and that conventional means of redress haven’t been all that effective, our own Constitution is telling us it’s time for action.

Defendants Will Hopkins and Matt Lawrence both testified that they have felt unable to influence government through conventional methods. Hopkins, director at NH Peace Action , explained that months of persistent work can go into getting a brief, inconsequential meeting with one of our US Senators. Occupiers are diverse in age and ideology, he said, but share the view that “we no longer have a way to seek redress of our grievances.”

Lawrence said much the same thing, while explaining how the Occupy encampment was set up to house, clothe, and feed everyone who showed up and give voice to all who wanted to participate. “I have an issue with a government that makes it possible for some people to make a ton of money while others are living in squalor,” he told John Blanchard, a Manchester prosecutor, during cross examination.

The hearing’s most dramatic movement was the introduction of proof that the Occupiers were familiar with Article Ten and in fact quite enthusiastic about it. Seth Cohn, a State Representative who identifies with both Occupy and with the Tea Party, participated in the Occupy demonstrations last fall. On the witness stand, Cohn explained that he had read the relevant constitutional passage during a Veterans Park General Assembly at which the “people’s mic” was being used as a means for sound amplification. Without objection from the prosecution, Kersten Cornell, a UNH law student doing an internship with the NH CLU, set up a laptop and video projector and popped in a DVD. Soon everyone in the courtroom could hear Rep. Cohn shouting o ut a few words at a time from Article Ten with the whole crowd repeating the words in unison. (It was hard to resist joining in, but I was pretty sure Judge Lyons would not approve.) At the end everyone cheered. Or as Cohn understated on the witness stand, “there was general agreement with that statement.”

The DVD was admitted as Defense Exhibit E.

Cohn also testified that it’s not just the federal government that is held captive to moneyed interests. After a two-year term as a State Rep (one of mine, in fact), he said that state government may appear to be accessible to citizens, but that’s because the “influence that happens because of lobbyists is invisible.” Lobbyists, of course, work for organizations and businesses that can pay them. “Ninety percent of what goes on behind the scenes is about money,” he explained.

Law Professor Speaks about Perversion (of government)

Jim Pope

Once the defense overcame prosecutors objections to his qualification as an expert witness, Jim Pope, a Rutgers University Law Professor, took the stand to make the case that the ends of government have been perverted in the interest of the rich. Using a set of slides familiar to anyone who’s been following discussions of the growing gap between the rich and everyone else, Pope illustrated the nation’s widening income gap, the change in the top marginal tax rate, the recent drop in union membership, and the share of national income claimed by the wealthiest 10% of Americans.

“Are the ends of government perverted?” Attorney Keshen asked.

“There is a gigantic shift in that direction over the last thirty years or so,” the professor responded. “Workers are getting a smaller and smaller proportion of the proceeds of industry,” he added a bit later.

“Is public liberty manifestly endangered?” Keshen asked.

“Public liberty is endangered because of the influence of money on politics,” Pope responded.

It’s not that lobbyists and contributors directly buy votes, he explained. But members of Congress spend 30% of their time raising campaign funds, he said. That means they are calling up rich people on the phone while their constituents futilely try to get their grievances redressed. And there’s little doubt that fundraising has to weigh on them during the 70% of their time they are supposed to be doing the people’s business. It’s “a pervasive kind of influence,” Pope testified.

Pope’s real area of expertise is not economics; he has studied the impact of social movements on the law. American history, he said, has seen a series of major “republican moments” (note the lower case “r”) in which people have risen up to challenge a legally protected status quo. Major examples he cited were the American Revolution, the Jacksonian period, the Civil War and Reconstruction, the Populists, the New Deal, and the Sixties.

During normal times, he said, most people stay out of politics and governments are dominated by elites. But “increasingly the citizenry begins to feel frustrated,” and eventually something happens that ignites a passionate form of politics unlike business as usual. When large numbers of people are drawn into politics and “ordinary people are doing things that are extraordinary,” that’s a “republican moment.”

Pope outlined five features of a republican moment:

Unlike normal times, large numbers of people engage in serious political discourse; Arguments are moral rather than “pecuniary,” based on the common good, not private interest; The subjects of debate are fundamental; Representative politics is overshadowed by direct participation; and Social movements displace political parties and interest groups as the most powerful actors.

Citing sit-down strikes and sit-ins of earlier periods, Pope said “occupying spaces is exactly the kind of protest tactic that this kind of movement traditionally uses.” Without commenting on how Article Ten should be interpreted (a topic the Judge had made clear was beyond the expertise Pope was entitled to draw upon), the professor reminded the court that Article Ten came from the generation which escalated its protests from peaceful petitions and boycotts to outright armed struggle.

“Is the reason to make sure power resides in the people?” Keshen asked.

Pope agreed.

I was the final witness and I didn’t take notes, so I don’t remember exactly what I said. But I did enjoy the prosecutor’s question about whether Occupy activists had marched to Mitt Romney’s campaign HQ in Manchester. I explained that this had occurred, that Romney was there, and that the activists had invited him to attend the General Assembly. (He declined.) I also affirmed that I delivered a bit of a pep talk about nonviolence and civil disobedience just at the police were moving into the park at 11 pm on October 19. A set of my photos, which appeared on this blog, was introduced as evidence by the defense.

Judge Lyons has given both parties ten days to submit legal memos. From their lines of questioning, I expect prosecutors to make a case that Occupy protesters had not exhausted their means of redress and in fact were engaged in all sorts of other actions to make their voices heard. In other words, a presence in the park between the hours of 11 pm and 7 am was not essential. The defense will presumably restate its argument that the 24-hour occupation, along with the principles of direct democracy, is a fundamental part of the social transformation sought by the occupiers, and is therefore in need of Constitutional protection.

I would not count on Judge Lyons to rule for the defense. But the defendants and their attorney are determined to take their case up the legal chain. By the time it’s over, we could see the NH Supreme Court rule that the constitutional right to revolution protects the Occupiers desire to be in a public park after curfew.

(Thanks to Kersten Cornell for the photo of me.)

IYou can also read coverage of yesterday’s hearing in the Concord Monitor and NH Union Leader , and view a story from WMUR TV .)