UCLA Law Review February, 2003 50 UCLA L. Rev. 721 BY ANY MEANS NECESSARY: USING VIOLENCE AND SUBVERSION TO CHANGE UNJUST LAW Paul Butler* * Professor of Law, George Washington University. B.A., Yale; J.D., Harvard. SUMMARY: ... This Article evaluates the use of subversion and violence to change that law, when traditional methods are ineffective or too slow. ... The Court also suggested that even if race discrimination existed in the administration of criminal justice, McCleskey's proposed remedy of abolishing the Georgia death penalty law was impractical. ... Imagine that some racial critics are considering either subversion or violence to accomplish abolition of the death penalty and the end of the sentencing disparities in cocaine offenses. ... Racial realists would be suspicious of any shared precepts of morality between the majority and the minority. ... The two principal issues are these: Is the racial critics' cause - reforming the death penalty and cocaine sentencing laws - just? Are their tactics - subversion and violence - just? Each question must be answered in the affirmative before we can say that the crits' extremism is morally justifiable. ... In this part I analyze whether, under the five criteria of jus ad bellum, the racial critic's causes - ending discriminatory administration of the death penalty and cocaine laws - justify extreme methods. ... Are subversion and violence permissible, if they will lead to the abolition of race discrimination in the death penalty and cocaine sentencing laws? ... In death cases exclusively, just war doctrine would allow racial critics to use targeted violence against officials who implement race-based capital punishment. ... HIGHLIGHT: [Frederick] Douglass was great. I would rather have been taught about Toussaint L'Ouverture. We need to be taught about people who fought, who bled for freedom and made others bleed. n1 - Malcolm X Thus, the rebel can never find peace. He knows what is good and, despite himself, does evil. n2 - Albert Camus Stakes is high. n3 - De La Soul [*723] Introduction: Critical Questions About Crit Tactics There remains law in the United States that discriminates against African Americans. This Article evaluates the use of subversion and violence to change that law, when traditional methods are ineffective or too slow. In a few cases, subversion and violence are recommended. In other cases, the Article discourages those tactics, especially violence. To defeat racial discrimination, Malcolm X recommended that black people use "any means necessary." n4 Is that a moral formula, and does morality matter? This Article answers those questions "no" and "yes." There are right and wrong ways to fight injustice, including race discrimination. My thesis is that minorities should not choose "any means necessary," even if theresult is that they are prevented from doing everything they can do to eradicate discrimination. As an African American, I make this argument with trepidation, even shame, because it seems too accommodating to majoritarian constructs of morality. Living a moral life, however, is costly, as is living as an unpopular minority in a democracy. This Article examines the intersection of those costs. Morality does not, however, mandate acquiescence to discrimination. It does not even require a moderate response to discrimination. I hope to bring glad tidings to those people who are frustrated by the continued existence of discriminatory laws in the United States, especially when those laws seem likely to persist for several years. There is a great expanse between the conservative tactics with which minority groups have usually fought discrimination, and the instrumentalist approach that Malcolm X urged. A clear picture of what means minorities should not employ also will reveal a clearer picture of what means they can use. The same construct of morality that says "no" to certain ways of changing the law will say "yes" to certain others, including some radical - even illegal - methods. In this Article, I explore two methods, which I call "crit tactics" or "critical tactics," that might be employed to change certain laws that many perceive as discriminatory. The crit tactics are subversion and violence. The laws I consider are those that punish criminals with death, and those that treat crack cocaine offenses more severely than powder cocaine offenses. My conclusion is that people of color must consider the full range of their powers, but that they should be guided, and ultimately limited, by morality. I recommend that, for a useful construct of morality, American minorities [*724] consult the international law doctrine of "just war." As it now exists, the doctrine applies only to state actors. I recommend its application to private persons and nongovernmental organizations. The application of this doctrine to American race relations raises interesting questions. If, for example, the death penalty discriminates against African Americans, how far can concerned citizens go in preventing its administration? Should they lie to get on death penalty juries? Should they commit terrorist attacks against executioners? What about "lesser" discrimination, such as laws that punish people who use crack cocaine more severely than those who use powder cocaine? Would the same tactics be permissible to fight that kind of discrimination? Are some kinds of race discrimination tolerable, and others more amenable to radical challenges? After September 11, 2001, the use of violence to achieve a political objective is no longer an abstract concept in the United States. Any academic evaluation is pointless unless it acknowledges the immense suffering that violence inflicts, even in those cases in which its goals seem worthy. In this Article I examine the intersection of the suffering caused by political violence with the suffering caused by race discrimination. I submit that a balance can be struck, one that results in a net reduction of misery. This calculus sounds cold, in the way that tort theory, or the law of war, can seem heartless. n5 My goal, however, is anything but heartless. I want to end legal race discrimination, and to end it with dispatch. I have witnessed the lives that it wastes. Part I of this Article provides a brief historical analysis of the way that some discriminatory laws have been eradicated. Part II describes two criminal laws that may be unjust, and the unsuccessful (at least so