Donald Trump might think that he is the law, that his will dictates what Americans can say or do. He might consider his tweets edicts from on high, and that his values are our values because he says it’s so.
But he’s wrong.
We are a nation of laws, and those laws have evolved over many years, sparked by people more courageous than Donald Trump, finessed by legislators more diligent than Donald Trump, and weighed by judges far smarter than Donald Trump.
Take the NFL protest. The key to that situation is found, not in the president’s latest tweet but in the actions of a pair of schoolgirls during World War II.
Marie and Gathie Barnett were 8 and 9 years old. They attended a four-room schoolhouse in Charleston, West Virginia. The sisters were Jehovah’s Witnesses. So when it came time to salute the flag, they refused, since their faith considered that akin to worship of a graven image. This had become an issue in the 1930s as American states, catching the nationalism bug contorting Europe, began mandating that schools recite the Pledge of Allegiance.
The school expelled the girls. According to a 1941 West Virginia law, their parents faced 30 days in jail and a $50 fine for raising children who refused to salute the flag.
Their father, Walter, sued, citing Exodus 20:4: “Thou shall not make unto thee any graven image.”
The Barnetts won in state court, a judge observing, “tyrannies of majorities over the rights of individuals or helpless minorities has always been recognized as one of the great dangers of popular government.”
The school board appealed. The case found its way to the U.S. Supreme Court as West Virginia Board of Education v. Barnette after an inattentive clerk added an “e.”
The 1943 case was decided 6-3 in favor of the Barnetts, the majority opinion remembered — by too few of us, alas — for its power and clarity.
“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,” wrote Justice Robert H. Jackson.
This speaks directly to the NFL protests, where players have quietly knelt during the national anthem. This supposedly outrages Donald Trump who, like the demagogue he is, has been casting the protests as an affront to the flag and the military, as if our soldiers were fighting to live in a country that enforces mandatory patriotic display, a tactic of the dictatorships we supposedly abhor.
But maybe, you’re thinking, little girls registering belief in a rural schoolhouse is one thing; pro athletes on television is something else. Justice Jackson was a step ahead of you.
“Freedom to differ is not limited to things that do not matter much,” he wrote. “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.”
The bottom line can’t be said too clearly. When NFL players decline to stand during the national anthem, they are exercising hard-won rights as Americans. When Donald Trump threatens to change the NFL’s tax status, as he did last week, or pressures owners to force players to stand, he is acting unconstitutionally as a government official. The NFL has the right to dictate what players do before a game.
Imagine how you would react if your employer said, “Saw you at the game Sunday, Bob, checking your phone when you should have been singing. Next time I want you standing at attention, belting out the national anthem. Or else don’t show up for work Monday.”
Americans know right and wrong, most of them. And we know in our hearts that what Donald Trump is doing is just plain wrong: immoral, very likely illegal and certainly un-American.
Let Justice Jackson have the last word:
“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.”