Patriots and Protesters Should Take a Knee for the Constitution

Patriots and Protesters Should Take a Knee for the Constitution

“Seems like in the past 15 years or so the idea of patriotism has changed some. More polarized, more tied to political or ideological views. I’ve never seen patriotism or the flag connected to either; I see the flag more as the symbol of a nation that allows the freedom to express those ideas. That alone deserves my respect.”— Macy Moore, U.S. Marine

By all means, let’s talk about patriotism and President Trump’s call for “respect for our Country, Flag and National Anthem.”

At a time when the American flag adorns everything from men’s boxers and women’s bikinis to beer koozies, bandannas and advertising billboards (with little outcry from the American public), and the National Anthem is sung by Pepper the Parrot during the Puppy Bowl, this conveniently timed outrage over disrespect for the country’s patriotic symbols rings somewhat hollow, detracts from more serious conversations that should be taking place about critical policy matters of state, and further divides the nation and ensures that “we the people” will not present a unified front to oppose the police state.

First off, let’s tackle this issue of respect or lack thereof for patriotic symbols.

As the U.S. Supreme Court has made clear, Americans have a right to abstain from patriotic demonstrations (West Virginia State Board of Ed. v. Barnette, 1943) and/or actively protest that demonstration, for example, by raising one’s fist during the Pledge of Allegiance (Holloman ex rel. Holloman v. Harland, 2004). These First Amendment protections also extend to military uniforms (worn to criticize the military) and military funeral protests (Snyder v. Phelps, 2011).

Likewise, Americans have a First Amendment right to display, alter or destroy the U.S. flag as acts of symbolic protest speech.

In fact, in Street v. New York (1969), the Supreme Court held that the government may not punish a person for uttering words critical of the flag, writing that “the constitutionally guaranteed ‘freedom to be intellectually . . . diverse or even contrary,’ and the ‘right to differ as to things that touch the heart of the existing order,’ encompass the freedom to express publicly one’s opinions about our flag, including those opinions which are defiant or contemptuous.”

The case arose after Sidney Street, hearing about the attempted murder of civil rights leader James Meredith in Mississippi, burned a 48-star American flag on a New York City street corner to protest what he saw as the government’s failure to protect Meredith. Upon being questioned about the flag, Street responded, “Yes; that is my flag; I burned it. If they let that happen to Meredith, we don’t need an American flag.”

In Spence v. Washington (1974), the Court ruled that the right to display the American flag with any mark or design upon it is a protected act of expression. The case involved a college student who had placed a peace symbol on a three by five foot American flag using removable black tape and displayed it upside down from his apartment window.

Finally, in Texas v. Johnson (1989), the Court held that flag burning was protected speech under the First Amendment.  The case arose from a demonstration near the site of the Republican National Convention in Dallas during which protesters marched through the streets, chanted political slogans, staged “die-ins” in front of several corporate offices to dramatize the consequences of nuclear war, and burned the flag as a means of political protest.

In other words, if freedom means anything, it means that those exercising their right to protest are showing the greatest respect for the principles on which this nation was founded: the right to free speech and the right to dissent. Clearly, the First Amendment to the Constitution assures Americans of the right to speak freely, assemble freely and protest (petition the government for a redress of grievances).

Whether those First Amendment activities take place in a courtroom or a classroom, on a football field or in front of the U.S. Supreme Court is not the issue: what matters is that Americans have a right—according to the spirit, if not always the letter, of the law—to voice their concerns without being penalized for it.

Frankly, the First Amendment does more than give us a right to criticize our country: it makes it a civic duty.

Second, let’s not confuse patriotism (love for or devotion to one’s country) with blind obedience to the government’s dictates. That is the first step towards creating an authoritarian regime.

One can be patriotic and love one’s country while at the same time disagreeing with the government or protesting government misconduct. As journalist Barbara Ehrenreich recognizes, “Dissent, rebellion, and all-around hell-raising remain the true duty of patriots.”

Indeed, I would venture to say that if you’re not speaking out or taking a stand against government wrongdoing—if you’re marching in lockstep with anything the government and its agents dole out—and if you’re prioritizing partisan politics over the principles enshrined in the Constitution, then you’re not a true patriot.

Real patriots care enough to take a stand, speak out, protest and challenge the government whenever it steps out of line.

There is nothing patriotic about the lengths to which Americans have allowed the government to go in its efforts to dismantle our constitutional republic and shift the country into a police state.

It’s not anti-American to be anti-war or anti-police misconduct or anti-racial discrimination, but it is anti-American to be anti-freedom.

I have come to realize that what many refer to as polarization—certainly, what the government refers to as “extremism”—is actually Americans challenging the status quo, especially the so-called government elite. Martin Luther King Jr. put it best when, after being accused of extremism, responded, “The question is not whether we will be extremists, but what kind of extremist will you be?”

How many times over the years have I been criticized for being anti-American and unpatriotic, reprimanded for being too negative in my views of the government, admonished to have “faith” in our leaders, and ordered to refrain from criticizing our president because Americans still live in the best country in the world?

Is this really what patriotism or loving your country is all about? If so, then the great freedom fighters of history would be considered unpatriotic.

Too many Americans seem to think that faith in the government and a positive attitude are enough to get you through the day… that you’re not a good citizen if you criticize the government… and that being a good citizen means doing one thing: voting.

The problem we face today, however, is that America requires more than voters inclined to pay lip service to a false sense of patriotism. It requires doers—a well-informed and very active group of doers—if we are to have any chance of holding the government accountable and maintaining our freedoms.

After all, it was not idle rhetoric that prompted the Framers of the Constitution to begin with the words “We the people.” In the words of Supreme Court Chief Justice Earl Warren, “there is an implicit assumption [throughout the Constitution and Bill of Rights] that we, the people, will preserve our democratic rights by acting responsibly in our enjoyment of them.”

This ultimate responsibility for maintaining our freedoms rests with the people.

Third, we need to stop acting as if showing “respect” for the country, flag and national anthem is more important than the freedoms they represent.

Listen: I served in the Army. I lived through the Civil Rights era. I came of age during the Sixties, when activists took to the streets to protest war and economic and racial injustice. As a constitutional lawyer, I defend people daily whose civil liberties are being violated, including high school students prohibited from wearing American flag t-shirts to school, allegedly out of a fear that it might be disruptive.

I understand the price that must be paid for freedom. None of the people I served with or marched with or represented put our lives or our liberties on the line for a piece of star-spangled cloth or a few bars of music: we took our stands and made our sacrifices because we believed we were fighting to maintain our freedoms and bring about justice for all Americans.

As such, responsible citizenship means being outraged at the loss of others’ freedoms, even when our own are not directly threatened.

The Framers of the Constitution knew very well that whenever and wherever democratic governments had failed, it was because the people had abdicated their responsibility as guardians of freedom. They also knew that whenever in history the people denied this responsibility, an authoritarian regime arose which eventually denied the people the right to govern themselves.

All governments fall into two classifications: those with a democratic form and those that are authoritarian, ruled by an individual or some oligarchic elite.

Acting responsibly, however, means that there are certain responsibilities and duties without which our rights would become meaningless. Duties of citizenship extend beyond the act of voting, which is only the first step in acting responsibly. Citizens must be willing to stand and fight to protect their freedoms. And if need be, it will entail criticizing the government.

This is true patriotism in action.

What this means is that we can still be patriotic and love our country while disagreeing with the government or going to court to fight for freedom. Responsible citizenship means being outraged at the loss of others’ freedoms, even when our own are not directly threatened. It also means remembering that the prime function of any free government is to protect the weak against the strong.

Love of country will sometimes entail carrying a picket sign or going to jail or taking a knee, if necessary, to preserve liberty and challenge injustice. And it will mean speaking up for those with whom you might disagree.

Tolerance for dissent, we must remember, is a vital characteristic of the citizens of a democratic society. As Supreme Court Justice Oliver Wendell Holmes said, “If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought--not free thought for those who agree with us but freedom for the thought that we hate.”

Loving your country does not mean being satisfied with the status quo or the way government is being administered. Government invariably, possibly inevitably, oversteps its authority. As human beings are not perfect, governments, because they are constructs of human beings, will necessarily be imperfect as well.

Love of country, it must be emphasized, is always strengthened by both a knowledge of history and of the Constitution and, when need be, acting on that knowledge. “If we have no appreciation of the past,” Justice Warren recognized, “we can have little understanding of the present or vision for the future.”

The problems facing our generation are numerous and are becoming incredibly complex.

Technology, which has developed at a rapid pace, offers those in power more invasive and awesome possibilities than ever before. Never in American history has there been a more pressing need to maintain the barriers in the Constitution erected by our Founders to check governmental power and abuse.

As I make clear in my book Battlefield America: The War on the American People, we’re at a very crucial crossroads in American history. We have to be well-informed, not only about current events but well-versed in the basics of our rights and duties as citizens. If not, in perceived times of crisis, we may very well find ourselves in the clutches of a governmental system that is alien to everything for which America stands. And make no mistake about it, the mass of citizens will continue to be misinformed, and as astute political leaders have recognized in the past, they can be easily led.

Therein is the menace to our freedoms.

Stop falling for the distractions. Stop allowing yourself to be fooled by propaganda and partisan politics. Stop acting as if the only thing worth getting outraged about is whether a bunch of football players stand or kneel for the National Anthem.

Stop being armchair patriots and start acting like foot soldiers for the Constitution.

Remember, it’s all a game, a ruse, a dance intended to keep you in line and marching to the government’s tune instead of freedom’s call. In this age of spin doctors and manipulation, those who question the motives of government provide a necessary counterpoint to those who would blindly follow where politicians choose to lead.

Past regimes understood well how to manipulate and maneuver. As Hermann Goering, one of Hitler’s top military leaders, remarked during the Nuremberg trials:

It is always a simple matter to drag the people along, whether it is a democracy, or a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is to tell them they are being attacked, and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same in any country.

 John W. Whitehead

Pro Deo et Constitutione –
Libertas aut Mors Semper Vigilans Fortis
Paratus et Fidelis
Joseph F Barber

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