I am 70 years old, a white man of Eastern European Jewish background, upper middle class upbringing, a somewhat elite education starting in superb public school system in Mamaroneck NY.
I served in the US Marines during the 1960s, even thought I opposed the war in Vietnam.
I first became aware of segregration and related issues when I was ten on a trip to Miami where I first saw segregated bathrooms, and have been aware of and working to change discrimination ever since.
I went to school at the time of a mandatory prayer written by the New York State Regents which I stopped saying in 10th grade and which was eventually ruled unconstitutional by the Supreme Court in Engel v Vitale.
J have not recited the Pledge of Allegiance since I was 15, including when I was an active duty Marine, where I could while in uniform be compelled to stand in attention.
I have not sung the Star Spangled Banner from the same time — no mandatory prayer, no Pledge, no Anthem.
As a teacher in public schools I have NEVER made my students even stand for the Pledge. When one principal sent an assistant to try to persuade me not to explain to my students their rights under West Virginia V Barnette, I told that assistant the principal could say it to my face, in which case my next phone call would be to the American Civil Liberties Union. She backed off.
If the Pledge comes on if I am standing I stay standing, if sitting I remain sitting. My loyalty is to the Constitution first, not to the flag that may be intended to represent it.
In the past my practice on Star Spangled Banner has been similar — if standing would remain standing, if sitting would remain sitting.
As of now my practice has changed, at least for the Anthem — if possible I will sit.
I am a veteran, albeit non-combat.
All Americans have that right.
I will sit in solidarity with my fellow veterans, in support of any who chose to so express themselves.
That includes a student in a classroom, or an NFL player.
But there is more:
I mentioned West Virginia v Barnette. It is one of the most important Supreme Court decisions ever, and the opinion of the Court was written by Robert Jackson, later to serve as chief prosecutor at the Nuremberg War Crimes Trials. He was the last Justice of the Supreme Court to have read for the law rather than attend law school, is considered by many to be the finest writer of opinions in the history of the Court and I can remember Sandra Day O’Connor wondering in a public forum in response to something I had asked her whether their might be a connection.
His opinion in Barnette is considered one of his three greatest — along with his concurrence in Youngstown (the steel seizure case) in which he outlined a standard for adjudicating disputes between the other two branches upon which the Court continues to rely, and his scathing dissent in Korematsu, the case involving the internment of those of Japanese heritage during World War II.
I have written about Barnette on this blog several times in the past.
I believe the case, and the opinion, ought to be taught to all Americans.
In 1940 the Supreme Court had in the Gobitis case allowed by an 8-1 vote a Jehovah’s Witness to be expelled for refusing to say the Pledge. We were not yet at war.
In 1943, by a 6-3 vote in the opinion written by Jackson, the Court reversed itself.
It was not merely on the grounds of religious liberty — after all, Jehovah’s Witnesses view the pledge as violating the Biblical injunction against false images.
It was on the far broader basis of free speech, including the notion the freedom of speech effectively means one can choose NOT to speak.
Allow me to offer a few selection from Jackson’s magnificent opinion.
It is also to be noted that the compulsory flag salute and pledge requires affirmation of a belief and an attitude of mind. It is not clear whether the regulation contemplates that pupils forego any contrary convictions of their own and become unwilling converts to the prescribed ceremony, or whether it will be acceptable if they simulate assent by words without belief, and by a gesture barren of meaning…. To sustain the compulsory flag salute, we are required to say that a Bill of Rights which guards the individual's right to speak his own mind left it open to public authorities to compel him to utter what is not in his mind.
Whether the First Amendment to the Constitution will permit officials to order observance of ritual of this nature does not depend upon whether as a voluntary exercise we would think it to be good, bad or merely innocuous. Any credo of nationalism is likely to include what some disapprove or to omit what others think essential, and to give off different overtones as it takes on different accents or interpretations.
Note the recognition of key points by Jackson
- the idea the authorities can compel us to utter what we do not believe
- whether or not we think the ritual is good, bad, or innocuous
- the diversity of beliefs one can have and still be patriotic (substituting that word for nationalism)
Nor does the issue, as we see it, turn on one's possession of particular religious views or the sincerity with which they are held…. It is not necessary to inquire whether nonconformist beliefs will exempt from the duty to salute unless we first find power to make the salute a legal duty.
As a side note, this is a very different way of reaching a conclusion than we saw in the Roberts Court in the Hobby Lobby case. First it wants to examine whether the government has the appropriate power — if it does not, then no religious exemption is necessary. If it does, then the balancing between what the government must do and the protection of individual liberty including that based on free exercise of religion comes into play. But remember — free exercise is never absolute: in Reynolds v United States in 1870 the Supreme Court ruled that it did not protect a Mormon from being prosecuted under bigamy laws, and it would certainly not protect human sacrifice.
Government of limited power need not be anemic government. Assurance that rights are secure tends to diminish fear and jealousy of strong government, and, by making us feel safe to live under it, makes for its better support. Without promise of a limiting Bill of Rights, it is doubtful if our Constitution could have mustered enough strength to enable its ratification. To enforce those rights today is not to choose weak government over strong government. It is only to adhere as a means of strength to individual freedom of mind in preference to officially disciplined uniformity for which history indicates a disappointing and disastrous end.
Here Jackson reminds us of the foundational importance of the Bill of Rights, and begins to point in the direction against compelled conformity.
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
Here Jackson reaffirms the importance of protection of minority and/or unpopular views, the entire notion of fundamental rights.
National unity, as an end which officials may foster by persuasion and example, is not in question. The problem is whether, under our Constitution, compulsion as here employed is a permissible means for its achievement.
Again, the issue is compulsion by governmental authority.
Now let me make a discursus if I could. One could argue that professional sports teams, being private entities, and sports leagues, are NOT covered by the First Amendment. To a degree that is true, that is, what they choose to require of employees is not necessarily a violation of individual rights, although over the years the Courts have limited how far even private employees can go in restricting some of the individual rights of their employees. In the case of Colin Kaepernick, neither his team nor the NFL require a player to stand for the Star Spangled Banner, so that does not become relevant.
But it is also the case in understanding that the government cannot compel patriotic actions serves as an indication of what is intended in providing the protections of individual liberty.
It is exceedingly hard to excerpt from the rest of Jackson’s opinion. Let me offer a couple of snippets, even as I urge you to find the paragraph in the block quote above, and read the rest of the opinion to the end.
Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good, as well as by evil, men. Nationalism is a relatively recent phenomenon, but, at other times and places, the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity.
Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.
It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings.
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.
And now, two paragraphs before the final paragrapof this opinion, offered immediately before Jackson announces that the Court is reversing its decision from three years before in Gobitis. The first of these two paragraphs are a clarion call, and words we should all remember, not merely in terms of actions of governments, but as a warning against the kinds of actions we have seen directed at Colin Kaepernick:
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.
The opinion and the decision officially apply only to governmental action.
The spirit of the opinion should inform us all.
Again, I sit with Colin Kaepernick,