President Trump’s criticism of the NFL football players who took to their knees during the playing of our national anthem continues to reverberate. Almost all the commentary from the chattering class is critical of the president, and almost all of it assumes that if there is speech taking place of which we are critical, the remedy is more speech, not the disparagement of those with whom we disagree, as President Trump is said to have done.
We’re told that showing contempt for America is a form of patriotism. It’s not. It’s showing contempt for America. Stranger still is the idea that, if football players have the right to their political opinions, the team owners don’t have the right to fire them. Or that television viewers don’t have the right to tune out the games and switch to curling.
All this recalls the Supreme Court’s startling 1989 decision in Texas v. Johnson, which held our Congress could not, consistently with our First Amendment, punish those who physically desecrate the flag. The Supreme Court held that burning the flag, or even defecating on that venerated national symbol, was simply “speech,” and, as such, could not be regulated by Congress, since the First Amendment’s text explicitly states that Congress “shall make no law . . . abridging the freedom of speech.”
Those of us who thought the Supreme Court’s majority got it wrong pointed out that flag desecration was not “speech,” but was a physical act harmful in its consequences to others, and could properly be banned. We believed (and President Trump appears to share this belief) that with membership in the community comes duties as well as rights, and that there are some things in our society worthy of reverence, a reverence which can even be enforced by law or by private remedies asserted against those who show their contempt for America.
This is not the prevailing opinion, of course, in the American academy, or even in much of American entertainment, or the American press. We’ve too often forgotten, what our Founders knew, that the country cannot long endure without a virtuous people. And in particular we’ve lost the knowledge that virtue — the aspiration to build a society in which we carry out our responsibilities to each other, and in which the highest goal is not the gratification of selfish desires — can only be sustained through morality and religion.
The importance of virtue, the reality of the indispensable role of adhering to Judeo-Christian morality and religion in our tradition, means relatively little to those who see this nation as one in which minorities are oppressed, and who seek to maintain political or economic power by encouraging demands for redistribution based on past abuses. The reality is, of course, that there will always be individual human errors that lead to injustices, but, overall, this remains a land of economic opportunity, and compared to most other nations, ours is a much more fluid society in which effort is rewarded and one is generally judged by what one contributes and not by accidents of birth.
The most fundamental principle of conservative thought, from Edmund Burke through the time of the drafting of the Declaration of Independence, though the framing of our Constitution, and right into our own time, is that we are all equal in the sight of God, and that we all ought to be accorded the respect that flows from the benevolence of our Creator towards us. This kind of equality, however, is perfectly consistent with differences in abilities, differences in the quality of our conduct, and differences in what we can accomplish and the rewards that flow from such accomplishments. Those differences are the diversity that we should actually celebrate, as they lend richness, excitement, and dynamism to life, and not the diversity of ascription that confers arbitrary privilege based on race, gender, or sexual orientation.
The celebration and the building of community, the furthering of virtue (not virtue signaling), the respect for service in the nation’s military, and even the desire to preserve our national symbols and our heritage of fighting for freedom are all worthy goals. It is completely appropriate, as the president has sought to do, to remind those who disparage these goals and who constantly seek to divide us, of their error.
Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). To read more of his reports — Click Here Now.
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