Sunday, September 24, 2017

Trump and the NFL–The Constitution Dictates no Political Orthodoxy

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.
West Virginia v. Barnette,  319 U.S. 624, 642 (1943) (Justice Robert Jackson)

As a society we owe a debt of gratitude to the Jehovah Witnesses.  They taught us that the government cannot force us to salute the flag and why.  It is their famous case of West Virginia v. Barnette  that tells us why Trump has it wrong when it comes to  hi.s fight with the NFL.
        No matter what sports teams, players, or owners do when it comes to politics, it is none of the business of President Donald Trump or the government.  This is true whether they stand, salute, kneel, or refuse to take the playing field.  It would also be the case that it is none of the government’s business what private companies or individuals believe or do when it comes to politics.  For all of them to refuse to bow to the government or to hew to orthodoxy, this is exactly what the First Amendment protects, and the Supreme Court declared such a point nearly 75 years ago.  All those who defied Trump–including Stef Curry and LeBron James–they are real patriots and deserved to be applauded.
Donald Trump’s call to fire or bench sports players who kneel during the National Anthem is simply one more instance of how he fails to understand that there is this amazing thing called the Constitution and the Bill of Rights that restrains the government.  His failure to comprehend the basics of separation of powers, checks and balances, bicameralism, and federalism are at the root of his inability to get anything done as president of the United States.  But his failure too to comprehend v that presidents are not kings, that the US is a constitutional representative democracy that respects individual rights, is also deplorable.
What does it mean to live in a constitutional democracy? Among other things, it means that the government cannot tell us what to do.  There are limits or walls that define the scope of governmental authority over private individuals or businesses.  At the end of the day, what both individuals and businesses believe and do is not something the government can or should dictate.   Freedom is freedom from external restraints, from a government telling us how to think, hope, believe, pray, and act.  This is what the US stands for, and everyone regardless of their political beliefs and ideologies should support the idea that the NFL teams, players, and owners should be free to express their beliefs, not having to fear a government or president telling them what to do.
The present fight between Trump and the NFL is reminiscent of a controversy underlying  arguably the greatest Supreme Court opinion in American history--West Virginia v. Barnette.  That 1943 case was all about a state law that compelled students to say the Pledge of Allegiance in school.  Members of the Jehovah Witnesses religion objected to the law on First Amendment grounds, and the US Supreme Court agreed with them.
Writing for the Court, Justice Robert Jackson penned two of the greatest lines in Supreme Court history, both of which captured the essence of what it means to live in a free society.  The first  was to say that:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted  to vote; they depend on the outcome of no elections (319 U.S. at 638).

No election can or should determine who has what rights.  Majorities do not get the right to tell minorities what rights they have.  The very essence of American constitutionalism is majority rule balanced by minority rights.  Not only does the Constitution restrain the ability of majorities to dictate to minorities, it more importantly restrains the ability of the government to tell people what to do.  Again, as Justice Jackson said in Barnette:

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 (319 U.S. at 642).

Barnette was about telling the government telling a religious group they had to salute the flag, and all of us should be angered by that proposition.  The same should be the case here with Donald Trump–he and the government have no right to tell an individual sports players or teams that they should salute the flag.  For if today the government can do that with sports teams and players, why not tomorrow tell Catholics, Protestants, and members of other faiths, as well as small businesses, and anyone else, what they should believe and  do.
It is the task of the government in the US to remain politically neutral when it comes to the political beliefs of individuals, respecting their right to criticize the government, even if the choice of words or views are repugnant.  Donald Trump as an individual may have his own political beliefs and he is free to express them. But as president he is not free to use the coercive power of the presidency to chill the political expression of others.


  1. 18 U.S. Code § 227 - Wrongfully influencing a private entity’s employment decisions by a Member of Congress or an officer or employee of the legislative or executive branch

    (a) Whoever, being a covered government person, with the intent to influence, solely on the basis of partisan political affiliation, an employment decision or employment practice of any private entity—
    (1) takes or withholds, or offers or threatens to take or withhold, an official act, or
    (2) influences, or offers or threatens to influence, the official act of another,
    shall be fined under this title or imprisoned for not more than 15 years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.
    (b) In this section, the term “covered government person” means—
    (1) a Senator or Representative in, or a Delegate or Resident Commissioner to, the Congress;
    (2) an employee of either House of Congress; or
    (3) the President, Vice President, an employee of the United States Postal Service or the Postal Regulatory Commission, or any other executive branch employee (as such term is defined under section 2105 of title 5, United States Code).
    (Added Pub. L. 110–81, title I, § 102(a), Sept. 14, 2007, 121 Stat. 739; amended Pub. L. 112–105, § 18(a), Apr. 4, 2012, 126 Stat. 304.)

  2. The players need to stand. It is disrespectful. Yes there is free speech and if the players care about justice they would go about it in different ways. Trump is right.

    1. Your post makes me smile. When you are at home watching football do you stand for the National Anthem? Does your company play the National Anthem before you can go to work? If either of these is answered no then you are a hypocrite. You find nothing wrong with expecting something from others that you are not willing to do. I expect you to go into work tomorrow and demand your company play the National Anthem before work everyday and you will tell them you are going to quit because it is so important to you.