Civil Disobedience and the Spirit of American Democracy
04-20-2025Roger Berkowitz
Hannah Arendt wrote that, “Dissent implies consent, and is the hallmark of free government.” We are at a moment when dissent is required if we are to preserve our freedoms. The difficulty is that President Trump has made dissent more painful than usual. Threats of reprisal and punishment are real. Fear is palpable. What this means is that dissent, if it is to be meaningful, must be collective. As Arendt understood, dissent by meaningful minorities is the greatest safeguard of democratic and constitutional government. There is power in numbers. To mobilize the power of civil disobedience, however, we must first come to terms with the fact that the guardrails of democratic restraint are in danger of buckling.
In an appearance on Lara Trump’s television show, New York City’s now-Independent Mayor Eric Adams defended the legitimacy of ICE, insisting that deporting undocumented immigrants who commit violent crimes is a patriotic necessity. “ICE is not a criminal organization,” Adams said. “We have to get bad, dangerous people off our streets.” He added: “People want to turn this into a political agenda. I’m focused on New Yorkers. 80% of New Yorkers are stating those who commit dangerous acts, that are undocumented, after they are convicted and serve their time, they should be deported,”
In normal political times, Adams would be right. In a democracy, respecting elected officials, upholding the law, and removing violent criminals should not be controversial. But these are not normal political times. Today, ICE and the broader immigration enforcement apparatus are being used not merely to police the border or to remove criminals, but to test and remove the limits of executive power—and to wage an ideological war against dissent, pluralism, and the rule of law.
It is time to recognize that what once seemed exceptional is becoming routine. It is one thing for ICE to seek out and deport those in the country illegally who have committed crimes. But that is not what is happening. We must recognize that the assault on legal immigrants of all kinds is actually part of a larger and more insidious assault on the very fabric of our constitutional society.
It is not only violent and criminal non-citizens who are under threat. We are seeing attacks on legal immigrants, on citizens, on law firms, and on universities; even on elected politicians are being threatened with investigations—President Trump’s hand picked U.S. Attorney in New Jersey has opened an investigation into the New Jersey governor. Lisa Murkowski, the U.S. Senator from Alaska, admitted to her constituents this week that she and all her colleagues in the U.S. Senate are scared of doing anything to oppose President Trump.
Even corporate titans and CEOs are running scared. Stuart Kirk writes that “The silence of CEOs in the face of Donald Trump’s tariff chaos is one of the biggest failures of leadership in corporate history.”'It’s quite a statement,' she continued after a long pause. 'We’re in a time and place where — I don’t know, I certainly have not — I have not been here before. And I’ll tell you, I’m oftentimes very anxious myself about using my voice because retaliation is real. And that’s not right. But that’s what you’ve asked me to do and so I’m going to use my voice to the best of my ability.'
The fear of retaliation for even token resistance to President Trump is real. As David Brin writes, fear of blackmail is an old and trusted political technique. And these efforts by President Trump to deploy political retaliation are not isolated incidents. There is a concerted effort to undermine political and cultural institutions that could offer resistance to the President’s power.
Civil Disobedience in Uncivil Times
Resistance to President Trump needs to be organized and not simply isolated. As David Brooks writes:
Brooks is right to recognize that we are in a battle for power, and to stop the effort of a president who would be a tyrant from accumulating unfettered and unconstitutional absolute power. As I wrote in two recent posts, Hannah Arendt understood that “It’s Political Power, Stupid,” and that “only power can check power.” Power comes from acting together. Collective action is what we need today.So far, we have treated the various assaults of President Trump and the acolytes in his administration as a series of different attacks. In one lane they are going after law firms. In another they savaged U.S.A.I.D. In another they’re attacking our universities. On yet another front they’re undermining NATO and on another they’re upending global trade.
This is a single effort to undo the parts of the civilizational order that might restrain Trump’s acquisition of power. And it will take a concerted response to beat it back.
So far, each sector Trump has assaulted has responded independently — the law firms seek to protect themselves, the universities, separately, try to do the same. Yes, a group of firms banded together in support of the firm Perkins Coie, but in other cases it’s individual law firms trying to secure their separate peace with Trump. Yes, Harvard eventually drew a line in the sand, but Columbia cut a deal. This is a disastrous strategy that ensures that Trump will trample on one victim after another. He divides and conquers.
Slowly, many of us are realizing that we need to band together. But even these efforts are insular and fragmented. Several members of the Big Ten conference are working on forming an alliance to defend academic freedom. Good. But that would be 18 schools out of roughly 4,000 degree-granting American colleges and universities…
What is happening now is not normal politics. We’re seeing an assault on the fundamental institutions of our civic life, things we should all swear loyalty to — Democrat, independent or Republican.
It’s time for a comprehensive national civic uprising. It’s time for Americans in universities, law, business, nonprofits and the scientific community, and civil servants and beyond to form one coordinated mass movement. Trump is about power. The only way he’s going to be stopped is if he’s confronted by some movement that possesses rival power.
Arendt’s constitutionalism begins with a stark premise: law will fail, in the end, to constrain political power. Courts have no armies or power over the purse. Constitutional rights, once guaranteed, are not self-executing. When freedom is under threat, only organized power—plural, public, and institutionalized—can resist domination. At a time when many still cling to the idea that constitutional doctrines and rights declarations are sufficient guardians of freedom, Arendt reminds us that any meaningful defense of freedom needs to be political. Her constitutionalism insists that the fundamental thrust of the United States Constitution is its federalist spirit, which aims to cultivate multiple sources of power in the ultimate hope of restraining the dictatorial concentration of power.
Aside from federalism, Arendt also named “civil disobedience” as one of the core constituent powers that could restrain tyranny in the United States. In her essay "Civil Disobedience," she imagines civil disobedience to be a uniquely American invention, in accordance with the spirit of American constitutional democracy. The essence of civil disobedience is not breaking the law. It is acting collectively to protect the law. The spirit of American democracy, Arendt argues, is consent. But consent also implies the right to dissent. And civil disobedience is a phenomenon of group dissent. It arises when a “significant number of citizens become convinced either that the normal channels of change no longer function, and grievances will not be heard or acted upon, or that, on the contrary, the government is about to change and has embarked upon and persists in modes of action whose legality and constitutionality are open to grave doubt.” It is in moments like these that civil disobedience emerges as movements of “organized minorities” to take a “stand against the government’s policies even if they have reason to assume that these policies are backed by a majority.”
I’ve recently published a short book On Civil Disobedience: Henry David Thoreau and Hannah Arendt. I hoped that it would not be so timely, but feared that it might. Arendt wrote: “Dissent implies consent, and is the hallmark of free government; one who knows that he may dissent knows that he somehow consents when does not dissent.” What both Arendt and Thoreau understood is that majority rule is not the sum total of American democracy. There are times when democracy will bend towards tyranny. Which is why democracy requires of its citizens more than simply voting every two or four years. Thoreau and Arendt both hold up civil disobedience as a way of inspiring in citizens the virtue necessary to resist the conformity and passivity of the tyrannical moments of democratic majority rule.
The New Deportation Regime
It is unlikely that President Trump’s assault on citizens, legal residents, law firms, universities, and politicians have the support of the majority. Or so I hope. But the Trump administration is attacking so many people and institutions with such alacrity that it is hard to stop and see the big picture; it is hard, at times, to see the extent of the threat to our constitutional government. But that is what we must seek to do in order to understand the profundity of the challenge to the constitutional order. We need to see how extensive these attacks are so that we understand the need to begin to band together in organized minorities to democratically and peacefully employ civil disobedience to resist an unjust democratically-elected government. Reports of each individual case risk losing the forest for the trees. In what follows, I begin the effort to offer a fuller account of what is happening in the effort to arrest, detain, and deport law-abiding people in the United States.
Some of us focus on the case of Mahmoud Khalil, a Columbia University student and controversial leader of the pro-Palestinian protests. As Victoria Albert and Mariah Timms write: “The Trump administration says it can deport Khalil, a green-card holder, under a rarely used section of the Immigration and Nationality Act that allows it to remove a person it has a reasonable ground to believe is a foreign-policy threat.”
Others focus on Kilmar Abrego Garcia (and others like the minor named in documents simply Y.S.M) who had a legal work permit and was deported without due process to a prison in El Salvador. The Trump administration has admitted that Garcia was deported in error, but is now justifying the deportation by arguing that he is a member of a violent gang. Judge J. Harvie Wilkinson III, who was nominated by Republican President Ronald Reagan, summed up the issue in stark terms:
It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting a right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order. Further, it claims in essence that because it has rid itself of custody that there is nothing that can be done.
This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.
It is not clear that most Americans find the effort to deport Garcia without due process so shocking. President Trump and his team believe that they are on the winning side of this issue in the court of public opinion. As Peter Baker writes that while “liberal and conservative judges” are convinced that the President broke the rules by deporting Kilmar Armando Abrego Garcia, the general populace is less concerned. And the President is convinced that the issue is “a political winner with the vast majority of voters, an “80-20 issue,” as his adviser Stephen Miller puts it, referring to theoretical percentages.” By doubling down on the deportation, “Mr. Trump bolsters his credentials as a scourge of evil immigrants while asserting that his critics care more about foreign-born murderers and thugs than they do about law-abiding Americans.”
Many students are concerned about the case of Rumeysa Ozturk, a Tufts University Ph.D. student on a legal visa who has committed no crimes, was arrested on a dark street at night and rapidly transported to an ICE detention facility in Louisiana. Her ACLU lawyers report that one of the ICE officers turned to Ozturk in the van and said: “We are not monsters. We are just doing as we are told.”
It is easy enough for students of Hannah Arendt to think back to her claim that Adolf Eichmann was not a monster. More to the point, however, is Arendt’s more controversial insight, that Eichmann had been shielded from reality by a society that agreed with him, that he had never once witnessed anyone push back against the orders he had been given. Arendt gave so much attention to the few acts of resistance that did emerge in Nazi Germany because she saw that for someone like Eichmann, the fact that he never once encountered someone who questioned his work made it so much easier for him to justify doing his job. The lesson Arendt drew from her experience of the Eichmann trial is that acts of resistance matter:
For the lesson of such stories is simple and within everybody's grasp. Politically speaking, it is that under conditions of terror most people will comply, but some people will not, just as the lesson of the countries to which the Final Solution was proposed is that 'it could happen' in most places but it did not happen everywhere.
Some of the targeted visa holders are people who have committed minor misdemeanors, ranging from traffic violations to decades-old drug-possession charges. One person—a computer science Ph.D. student at Brigham Young University and father of five—was apparently stripped of his visa and ordered to leave the country because six years ago on a church fishing trip he had caught too many fish. Thankfully, in this case, resistance made the idiocy of this governmental action obvious and it was remedied and his visa was reinstated. (See more: ABC4, Deseret, KSL, @aravosis.)
Consider what happened at Old McDonald’s Farm in Sackets Harbor, NY. Three students from the Sackets Harbor school system were detained and disappeared along with their mother. ICE was reportedly targeting a South African man wanted on suspicion of trafficking child pornography, but while at the farm on March 27th, ICE agents questioned, and arrested seven others (including the children), claiming they were in the country illegally. News reports suggest that the family was correctly navigating the immigration system, though ICE has denied that. In any case, they certainly were not dangerous criminals and were apparently beloved members of their community. In this instance, ICE. was reportedly targeting a South African man wanted on suspicion of trafficking child pornography, but while at the farm they arrested seven others (including the children), claiming they were in the country illegally (CBS). The children were then transported from their small village in New York to an ICE detention facility in Texas.
Luckily, the community rallied around the family and protested, including the school principal and superintendent. As a result, the “disappeared” children were located and returned. Jennifer L. Gaffney, Superintendent of the Sackets Harbor Central School District, issued this statement:
My colleagues and I are thrilled to announce that after ten days of uncertainty, our students and their mother are returning home. We are committed to providing the care, understanding, and sensitivity necessary for our students and staff to begin the healing process from this traumatic experience. In this difficult time, the strength and compassion of our community have shone through to support our missing family and the entire school community. We are deeply grateful to everyone who has reached out with kindness and offered their support. We are now asking the community and media to respect the family’s privacy at this time.
Then there is the case of Emine Emanet who was removed in handcuffs from her Haddon Township restaurant. After two weeks in detention, Emanet was finally released and she was met by windows of her restaurant covered in colorful paper hearts, by bright flowers, and by the abiding affection of her neighbors. “The same God created us,” Emine Emanet said to friends and to TV cameras, her words translated from Turkish by her husband. “God created us to love each other, not to fight each other," (ABC).
There are a few lessons to be learned from what happened in Sackets Harbor, Haddon Township, and at Brigham Young University. First, resistance to idiotic, cruel, and illegal overreach by ICE and the executive branch is still possible and can be effective. We are still living in a vibrant democratic country. What the people think, say, and do still matters. We still have the right and even the responsibility to pay attention and to let our voices be heard, and our voices can still be impactful. That is why organized resistance matters.
Second, the avalanche of these instances must teach us that what is happening in the United States of America is not simply an effort to police the border or protect us from dangerous criminals. There is an ideological battle underway to claim for the executive branch of our government full and unconstrained power to arrest and deport people for whatever reasons they want.
Take, for example, the case of Dr. Khan Suri. “Suri, a postdoctoral fellow at Georgetown and an Indian national, was arrested by masked federal agents following a Ramadan iftar in March.” He was in the U.S. legally under a J-1 visa, which according to the U.S. Citizenship and Immigration Services, is for people who take part in approved programs of teaching, studying, training and research. Suri is accused of no crime. But officials in the executive branch claim that he has spread Hamas propaganda, a claim he and his lawyers deny. A Department of Homeland Security official said, on X, Secretary of State that Secretary of State Marco Rubio determined that Suri's "activities and presence in the United States rendered him deportable under INA section 237(a)(4)(C)(i). The Trump administration is using the same "rarely used" federal provision to attempt to remove Suri as they did in the case of Khalil, the former Columbia student, according to the professor's lawyers,” (NPR).
As this video posted by his ACLU lawyer makes clear, the lesson to be learned here is that people in the United States legally are being targeted, arrested, and disappeared because the government doesn’t like their views. This is not normal in the United States.
The good news is that there is resistance to such a blatant power grab by the President.We still have a functioning legal system, and the ACLU is representing and fighting for Dr. Suri’s constitutional right to due process, which applies to all people living in the United States. (See more: BBC, CNN, NBC, NPR.)
The frenzy to arrest and deport people the executive branch does not like is leading to wild abuses of power and indiscriminate actions even against U.S. Citizens. Bachir Atallah and his wife, Jessica Fakhri, both U.S. citizens, say they were stopped by U.S. Customs and Border Protection (CBP) in Vermont on Sunday while returning from a brief family trip. The agents demanded to see their phones and when Atallah refused because he is an attorney and cited attorney client privilege, they, according to Atallah, forced him under duress to sign a statement that he gave them permission to search his phone (Newsweek).
In another case, Jensy Machado, a naturalized citizen and Trump voter, said he was in a car stopped by agents while on his way to work in Manassas, in the D.C. suburbs. He was handcuffed at gunpoint.
After that, he told me to get out of the car and put the handcuffs on me. And then he went to me and said how did I get into this country and if I was waiting for a court date or if I have any case.I told him I was an American citizen, and he looked at his other partner like, you know, smiling, like saying, can you believe this guy? Because he asked the other guy, 'Do you believe him?'... I voted for Trump last election, but, because I thought it was going to be the things, you know, like... just go against criminals, not every Hispanic looking, like, that they will assume that we are all illegals, (Newsweek).
We do still live under a government of law and U.S. citizens are still afforded due process. That said, President Trump has made it clear he would like those rights to be limited.
“I’d like to go a step further,” Trump claimed at a press conference with Salvadoran president Nayib Bukele on Monday. “I don’t know what the laws are — we always have to obey the laws — but we also have homegrown criminals that push people into subways, that hit elderly ladies on the back of the head with a baseball bat when they’re not looking, that are absolute monsters. I’d like to include them in the group of people to get them out of the country, but you’ll have to be looking at the laws on that,” (Verge, NPR).
The sky is not falling. Or at least it has not yet fallen. We are not living under tyranny. We are certainly not living in a fascist or totalitarian state. It is irresponsible to say such things, and also ineffective. The President is not yet prepared to throw aside the law. We still have our rights. We still live in one of the greatest and freest democracies in the history of the world.
But what guarantees our democracy is not merely a written constitution. It is the spirit of consent and the spirit of dissent. It is our fundamental belief in our right to self-government and our willingness to fight for that right. The way to fight for our rights is through civil disobedience and the organization of collective minorities who are willing to organize their dissent in order to protect free and constitutional government.