Supreme Court Kneels With Colin Kaepernick

The shadow of Nazi Germany led the Supreme Court in 1943 to uphold the right of Jehovah’s Witness schoolchildren not to salute the flag. That ruling – which is “perhaps the greatest defense of freedom of expression ever formulated by a Supreme Court Justice,” writes Jeffrey Toobin for the New Yorker – is applicable today, when San Francisco 49ers quarterback Colin Kaepernick refuses to stand during the national anthem. Kaepernick’s gesture is meant to draw attention to the Black Lives Matter movement, and institutional racism. It stirred both controversy and solidarity, but “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters,” Justice Robert Jackson wrote in the ruling for West Virginia State Board of Education v. Barnette. “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.” Jackson also noted that, “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.” Toobin writes: “The phrase ‘compulsory routine’ aptly describes the current tradition of athletes standing for the national anthem. As Jackson reminds us, the ritual will actually mean more – it will not reflect the players’ affirmative belief in the United States – if athletes have the choice of whether to stand or not.”