Wednesday, October 19, 2016

Colin Kaepernick and the Meaning of Patriotism

by Michael Dorf

My Verdict column for this week examines Justice Ruth Bader Ginsburg's criticism of Colin Kaepernick's refusal to stand for the national anthem. Interviewed by Katie Couric, Ginsburg called Kaepernick's ongoing boycott--which protests police brutality and racism--"dumb" and "disrespectful," even as she acknowledged that he cannot be criminally charged for his freedom of speech. I argue that while Ginsburg or any other justice can say this sort of thing without violating any judicial code of ethics (and not just because none applies to Supreme Court justices), she was unjustified in criticizing Kaepernick.

I drafted the column on Friday of last week, and by the end of the day, Justice Ginsburg had announced that she regretted the criticism. Thus, I edited the column (before publication) to make it less a critique of Ginsburg's initial criticism of Kaepernick and more of an exploration of why she was right to rescind her criticism.

My column explains why kneeling to protest the national anthem is roughly equivalent to sitting or standing quietly during the Pledge of Allegiance. Because liberals generally don't think there is anything wrong with the latter, we also shouldn't think there's anything "dumb" or "disrespectful" about the former. The column also explores the possibility that Ginsburg was making a comment about the content rather than the form of Kaepernick's protest, but I rule that out as well, because Kaepernick is raising consciousness about important issues.

Here I want to suggest and then reject a way of seeing the initial Ginsburg/Kaepernick split through the familiar lens of reformer-versus-radical. We might be tempted to think of Ginsburg as following in the footsteps of Frederick Douglass, who (in an 1860 speech in Glasgow) acknowledged that the (pre-Civil War) Constitution may have been intended by some and had been construed by many as pro-slavery, but that given its most natural meaning, the Constitution was anti-slavery. Meanwhile, we can think of Kaepernick as walking the same path as William Lloyd Garrison, who condemned the Constitution as a "covenant with death" and "an agreement with hell." Or, if you prefer a more recent dichotomy, Ginsburg was Thurgood Marshall and MLK, while Kaepernick was Malcolm X and Huey Newton.

This comparison resonates with an intriguing take of recent activism. I recently read a draft of an excellent paper (and heard a likewise fascinating presentation) by Ohio State Law Professor Amna Akbar, in which she contrasts the reformist vision for policing that one sees in the Justice Department's reports on policing practices in Ferguson and in Baltimore with what she calls the "abolitionist" approach to policing minority communities set forth in the Black Lives Matter Platform. (The paper is still in the development stage and thus not yet publicly available on SSRN or otherwise, but Prof. Akbar graciously granted permission to me to discuss it here.) She argues persuasively that the vision articulated in the BLM Platform "echoes earlier platforms of the Black Panther Party and the Chicano Young Lords." If the DOJ has a mainstream civil rights focus that grows out of the Marshall/King vision, then, to an extent not widely appreciated, Black Lives Matter has a Black Power focus that grows out of the Malcolm X/Huey Newton vision. And the closeness of Kaepernick's protest to the activism of Black Lives Matter thus reinforces the (initial) distance between Ginsburg and Kaepernick as a manifestation of a long-running split between reformers and radicals.

And yet, there is something about these comparisons that seems to get Kaepernick wrong. Kaepernick is not demanding change by any means necessary. He is engaging in wholly peaceful protest. His is not even an act of civil disobedience, as he has no legal obligation to stand for the national anthem.

Nor is it evident that Kaepernick's substantive goals are radical, rather than reformist. Back in late August, Kaepernick explained that he would stand for the national anthem when he feels "like that flag represents what it's supposed to represent, and this country is representing people the way it's supposed to." In an important sense, that is the Frederick Douglass view of the Constitution: Best understood, it advances liberty and equality; it's not being understood that way now; let's work to redeem it.

In light of the mildness of Kaepernick's means and ends, the reaction against Kaepernick by various commentators and current and former athletes is interesting. A great many have been supportive, but some have been quite critical. Some of that criticism has been mindless, as when Ted Cruz called Kaepernick "spoiled" (and attacked President Obama for supporting Kaepernick's right to free speech).

But there has also been some thoughtful disagreement with Kaepernick. The most interesting I have seen came from Baltimore Ravens tight end Benjamin Watson. While defending Kaepernick's right to free speech and pretty much agreeing with Kaepernick about the issues of racial justice Kaepernick cares about, Watson argued that one can stand for the national anthem as a kind of mindful (as opposed to mindless) patriotism. (I say this even though Watson's views on a number of issues differ from mine. E.g., he is pro-life and he thinks that "religious freedom is increasingly under attack.)

There is a sense in which both men are right. Watson is obviously right that if any problems at all precluded participation in the national anthem, then no one could ever stand for the song, because our country is not and never will be perfect. But I take Watson to be making more than that trivial point. I take him to be saying that we are not merely imperfect; we are deeply troubled still by our original sin, just as Kaepernick argues. And even so, Watson thinks that the right answer is to engage in the collective patriotic ritual.

There is no doubt something to that--especially when coupled with a defense of the right of Kaepernick and others to dissent. But even so, I think the very thoughtfulness of Watson's defense of mindful patriotism shows the efficacy of Kaepernick's protest. Kaepernick has succeeded in refusing to accept racial injustice as normal, but in doing that he joins a chorus of many voices, including other athletes (like NBA stars Lebron James, Chris Paul, and Carmelo Anthony). What Kaepernick almost alone has done is to spark a renewed conversation about the meaning of patriotism.


Shag from Brookline said...

I appreciate this well done post. Forms of patriotism in America are not universal, sort of like beauty in the eye of the beholder. Regarding Frederick Douglass' 1860 Glasgow speech, he was influenced by Lysander Spooner's 1840s articles to the effect that slavery was unconstitutional. Abolitionist and attorney Wendell Phillips strongly critiqued Spooner's views with timely dissents. If Spooner was an originalist, what might that say about today's originalism?

Joe said...

I concur in the appreciation.

Reading RBG's "My Own Words," it was noted her mother was concerned about her being a lady and RBG in general is a reserved person. I think that might factor in to her response. I agree, and I saw the explanation elsewhere, that kneeling is a respectful approach that is not the same as something in your face / disrespectful like flag burning. Also, a sportswriter in my local paper noted the protests seems to be working:

I think reasonable people can disagree on proper means, some people who agree with his statement of the problems opposed to his means. And, there is always competing visions there that hopefully in the end work together to advance justice. It is useful to remember that Thurgood Marshall was wary of public action like sit-ins too. RBG sees him as a role model, so again her reaction is not too surprising.

(Her apology was more of the sort that she was uninformed and shouldn't have mentioned it. Like for the Trump statement, probably not really her saying she changed the mind on the substance.)

Joe said...

ETA: It might not "warrant" it, but from the coverage and reactions, it does seem some take his actions to be disrespectful. Note, e.g., Scalia's dissent in Lee v. Weisman where he seemed to accept it appropriate to require respectful standing during the pledge, not some sort of kneeling protest.

MMS said...

Mike - Appreciate the subject of this post. I'd humbly suggest the following highly related points are getting insufficient attention, not just with CK’s protest, but with contemporary protest movements in general (Bernie-bros to BLM). It is easy to use these protests as conversation starters for questions like what is patriotism, is it OK to offend the military for a “good cause”, what is the national anthem for?

1) There is a difference between raising awareness and affecting change. Early concerns, subsequently discredited, surrounding the Ice Bucket Challenge had this flavor.

2) In this vein: a valid protest can be a bad idea if its effect (reasonably estimable ex-ante) is to make the changes one is seeking harder. It is still early, and the cascade of athletes supporting and joining in CK's protest is still growing, but polling on this particular matter does not appear to suggest it is doing much of anything to actually change people's minds. Worse, it could be (i) entrenching previously held bigotry, and, more pervasively, (ii) making a swatch of the public that was previously indifferent to CK's underlying cause, now (mildly) antagonistic. A historical analog could be the effect the tactics employed by the Yippies, Weather Underground and SDS had on coalescing the “Silent Majority” that gave Nixon such massive electoral majorities, hurting the very causes for which those groups were advocating. I agree with much of the concerns raised by CK, but worry that 10 years down the road, this will be seen as much as a step backwards as forwards.

3) Positive social change takes a depressingly long time. It takes coalition building, grit, patience, compromise, and decades of sacrifice. The pace of such change does not seem to have radically changed since we have moved into the twitter society; human nature remains what it is. The pace of change in the gay rights movement still seems the exception to the rule. And, the “T” of the LGBT faces arguably growing challenges (because it was made salient to many otherwise indifferent folks?).

4) I think the expectations for how quickly change should take place, have in fact made effectuating social change with broad social support, harder. A change now mentality, its with-us-or-against-us Manicheanism, does not auger for the investments in changing the minds of the indifferent and opposed. It does not spend time in the slogs of legislative halls doing the hard work of slowly changing laws, incrementally, and where possible. BLM and CK has the effect of highlighting differences to most people, not shared similarities.

People willing to endure that slog, like the one-man justice machine, Bryan Stevenson, have made a tremendous impact on African Americans in the criminal justice system. People from within the system, with the credibility of bipartisanship, like Alex Kozinski (e.g., have changed minds.

CK is not a lawyer, or judge, or senator, but he has a big audience. That’s why I think the most legitimate criticism is the simple question: you had the national stage, and this is what you chose to do?

Would appreciate any thoughts you or readers have.

Joe said...

MMS' discussion is appreciated for its in depth intelligent analysis but not sure it really alters much from the professor's basic comments.

A couple things. Why wasn't this an appropriate use of his national stage?

He is in a small way advancing the discussion of the problems at hand, doing so in a respectful way (a positive way to dissent) and unclear what else some athlete in his position is supposed to do that would result in a better result. He follows a long practice there, celebrities repeatedly making acts of protest in various ways to bring to light the concerns of the day. I might even cite how the Quakers did things like not doffing hats to make a point about individual equality. (I don't mean to fully express their beliefs there, so know that is a rough summary.)

And, since change does take time, it is hard to determine now what effects it would have, which works both ways, including critiquing him. But, my link alone suggests there has been some positive results. Ultimately, it's only one person. Others can do other things.

Reference is made to the gay rights movement being an exception. I don't really think so. Recent advancements were the result of decades of activity.

Thomas Lively said...

Okay, but why do we even have to have the National Anthem played at sporting events. It seems like it is an inappropriate place to force everyone to show our allegiance to our country?

Michael C. Dorf said...

Thanks for all of these thoughtful comments. A couple of quick thoughts:

1) Shag: You are right about Spooner. Randy Barnett wrote a very interesting piece some years ago trying to recover the Spooner branch of the abolitionist movement to shed light on the original meaning of the Fourteenth Amendment.

2) Everyone else: I think that at least in her original comment RBG may have been conflating the sort of protest with which she is uncomfortable on a personal level with what is appropriate. Speaking for myself, I have never been much of an in-the-streets activist, preferring the written word or the politeness of a formal debate (not of the Presidential variety!). But I realize that these are matters of personal style, not basic limits on what one can or should do as political activism.