Summary: Moving beyond the pieties, here is a look at the issues on both sides of the kneeling NFL players. Here we see the bolts are popping out of America’s social machinery. Let’s learn how to deal with these situations, since more of these lie in our future.
The controversy over the NFL players kneeling during performance of the “Star Spangled Banner.” There are multiple threads to this kerfuffle.
“I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color. To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder.”
— San Francisco 49ers quarterback Colin Kaepernick to NFL Media on 26 August 2016. He opted out of his 49s contract in March 2017. He remains unemployed by any NFL team. Details here.
“The national anthem is and always will be a special part of the pre-game ceremony. It is an opportunity to honor our country and reflect on the great liberties we are afforded as its citizens. In respecting such American principles as freedom of religion and freedom of expression, we recognize the right of an individual to choose and participate, or not, in our celebration of the national anthem.”
First, there is the bizarre involvement of Trump, our clown president. He has gotten involved in this for the same reason President Carter scheduled the White House tennis courts (here, here) — they are lost in the job and focus on trivia that they understand. Except that Trump’s Twitter belligerence is worse than Carter’s harmless peccadillo.
Second, there is the conflict of values between NFL players (70% African-American, with incomes starting at $465,000 and soaring into the millions) and their largely white blue-collar fans (15% African-American, 26% earning $40k or less, 35% earning over $75k). Fans pay for expensive seats in stadiums built largely with their taxes – to watch political demonstrations from people with 10x their income. If this continues, the fans reaction could be big — and bad for the business of football.
Third, there is patriotism. Is this a fit subject for the president to interject himself (and so implicitly the government) into? Second, is it a good idea to make patriotic rituals — such as standing for the national anthem — be compulsory? The words of one of the Supreme Court’s landmark decisions illuminates both questions.
“Remembering, Studying, and Living Up to Barnette.“
By John Q. Barrett from his website.
Reposted with his permission.
On June 14, 2018, people in the United States — many, and indeed most, people, I hope — will mark and celebrate the 75th anniversary of the Supreme Court’s decision in West Virginia State Board of Education v. Barnette. In that landmark decision, the Court struck down as unconstitutional the State’s requirement that all public school teachers and students participate in a salute to the American flag and a recitation of the Pledge of Allegiance.
The case was brought on behalf of students who were Jehovah’s Witnesses. In deference to their belief that the Bible forbade them to bow down to graven images, they refused to salute the flag. For that refusal, they were expelled from school. Expulsion made the children unlawfully absent, subjecting them to delinquency proceedings and their parents to criminal prosecution.
The Barnette decision was announced in Justice Robert H. Jackson’s opinion for Court. He explained that the flag salute requirement violated the children’s constitutional rights, which exist to strengthen “individual freedom of mind in preference to officially disciplined uniformity…”
Although all of Justice Jackson’s Barnette opinion bears rereading, some particularly wise words to consider are his closing paragraphs:
“The case is made difficult not because the principles of its decision are obscure, but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous, instead of a compulsory routine, is to make an unflattering estimate of the appeal of our institutions to free minds.
“We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
“We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”
In the views of many, Barnette is a high point in U.S. Supreme Court history and constitutional law and one of Justice Jackson’s very finest judicial opinions. His words in Barnette continue to ring, loudly and true, to people who think them through.
One example came from the Supreme Court itself in June 2013, Barnette’s 70th anniversary year and month. In Agency for International Development v. Alliance for Open Society International, Inc., the Court struck down as unconstitutional the part of an international program to combat HIV/AIDS that required grant recipients to “pledge allegiance to the Government’s policy of eradicating prostitution”.
With regard to that government effort to compel a pledge, Chief Justice Roberts wrote for the Supreme Court that “we cannot improve upon what Justice Jackson wrote for the Court 70 years ago: ‘If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.’”
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— Seattle Seahawks (@seahawksPR) September 24, 2017
The issue of kneeling has nothing to do with race. It is about respect for our Country, Flag and National Anthem. NFL must respect this!
— Donald J. Trump (@realDonaldTrump) September 25, 2017
About the author
John Q. Barrett is a Professor of Law at St. John’s University in New York City, where he teaches Constitutional Law, Criminal Procedure and Legal History. He is a graduate of Georgetown University and Harvard Law School. Especially see his book, That Man: An Insider’s Portrait of Franklin D. Roosevelt
See his C.V. and publications, and his website.
For More Information
How we got into this mess: “It’s True, The Government Paid the NFL to Stand For the National Anthem” by Elura Nanos at Law & Crime. This also explains that NFL owners can require players to stand during the Pledge.
See this insightful column by David French at National Review: “I Understand Why They Knelt.” Also, NFL ratings have fallen 11% year over year. Especially watch next week’s ratings to see the full effect of the players’ actions.
If you liked this post, like us on Facebook and follow us on Twitter. See all posts about the Supreme Court, and especially these…
- A small incident that tells much about America – a flag gets lowered in a classroom!
- Poetic patriotic propaganda, suitable for humming while being stripped of your liberties.
- Why do we pledge allegiance to a flag, ignoring the Founders’ instructions?
See Professor Barrett’s book.
Here is an insider’s account of one of America’s greatest presidents, leading America during one of its most critical times. From the publisher…
“Robert H. Jackson was one of the giants of the Roosevelt era: an Attorney General, a still revered Supreme Court Justice and, not least important, one of Franklin Delano Roosevelt’s close friends and advisers. His intimate memoir of FDR, written in the early 1950s before Jackson’s untimely death, has remained unpublished for fifty years. Here is that newly discovered memoir.
“Written with skill and grace, this is truly a unique account of the personality, conduct, greatness of character, and common humanity of “that man in the White House,” as outraged conservatives called FDR. Jackson simply but eloquently provides an insider’s view of Roosevelt’s presidency, including such crucial events as FDR’s Court-packing plan, his battles with corporate America, his decision to seek a third term, and his bold move to aid Britain in 1940 with American destroyers.
“He also offers an intimate personal portrait of Roosevelt — on fishing trips, in late-night poker games, or approving legislation while eating breakfast in bed, where he routinely began his workday. We meet a president who is far-sighted but nimble in attacking the problems at hand; principled but flexible; charismatic and popular but unafraid to pick fights, take stands, and when necessary, make enemies.
“That Man is not simply a valuable historical document, but an engaging and insightful look at one of the most remarkable men in American history. In reading this memoir, we gain not only a new appreciation for Roosevelt, but also admiration for Jackson, who emerges as both a public servant of great integrity and skill and a wry, shrewd, and fair-minded observer of politics at the highest level.”
