Guest post by Aaron Worthing. Follow me by Twitter @AaronWorthing.]
Update: Instalink! And I went over it again, made corrections and generally spiffed it up.
Okay, here comes another long one.
Via Volokh, I learned this morning of a case that should make your blood boil, if you are either 1) patriotic, or 2) just a believer in freedom of speech. And of course many of us are 1) patriotic precisely because this is a nation that 2) believes in free speech—the two viewpoints are not neatly segregated. In the case of Dariano v. Morgan Hill Unified Sch. Dist., the court held that if a school believes that a certain symbol will so enrage students that any person wearing it is likely to be attacked, they can ban students from wearing that symbol. This is, frankly, a fairly straightforward application of the principles set down in Tinker, where the Court said that speech could be suppressed based on “facts which might have reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.” As the Dariano court correctly noted, this is a much lower standard justifying a ban in school than government could get away with in dealing with an ordinary citizen walking down the street. As it stands right now, the government cannot ban a drawing of Mohammed in a newspaper; but it probably could ban it in a student newspaper, or even just on a student’s T-shirt.
So three students decided to wear this symbol on a T-shirt to their school on May 5, 2010, and were told to turn their shirts inside out or go home. The court reasoned that the symbol was so offensive to some students that you could expect those students wearing it to be attacked, and school officials could not, or would not, effectively protect the students. And what was this symbol that is so offensive that other students can be expected to fly into a rage at the mere sight of it?
The American Flag.
Because of course it was the Fifth of May, a.k.a. Cinco de Mayo, and thus it is a great affront to some people to see an American flag that day.
There is an impression in the desk before me where I have banged my head into it. The more I think about this case, the more I think it is like Jefferson’s fire bell in the night—a sign that something has gone seriously wrong, here.
The correct answer is simply this. First, the school get enough control over its student body that it can stand to be offended without lashing out. Second, the school has to make a concerted effort to instill pride in America in its students of all races and nationalities. That is their job. And applied to immigrants and the descendants of immigrants, you teach them that while they might trace their lineage to another country, and indeed they might have been born in this other country, America is their homeland, now, and the American flag is their symbol as much as it is any one else. And we do a terrible job of teaching that to immigrants these days although it’s not entirely the fault of those who are supposed to be teaching this.
It was with some pain that I admit that when I first met my wife (who is mostly Filipina), she used the term “American” as synonymous with “white.” As in, saying about a couple, “he is Korean and she is an American”—when in fact, he was born in America and she was white. One of the most invidious stereotypes attached to some ethnic groups is that they are “perpetual foreigners.” I knew a man of hispanic descent who complained to me once, “why does everyone assume I can speak Spanish?” This happens to people of Asian descent and Hispanic descent more than most, but it is safe to say almost every ethnic group besides the English themselves have suffered from some of this at one time or another. For instance, about one hundred and fifty years ago it was considered a grave insult to refer to a black person as an African American, because it was seen as an effort to imply that somehow they were not full Americans. So it was a dismaying example of a minority (my wife) actually absorbing the stereotype of the majority held against her, and being the history geek I am I said something along the lines of what I am about to say to you to convince her not to do that anymore.
I cannot tell you how profoundly un-American that attitude is. But in order to explain this, I have to talk about the original meaning of a word that we in America have profoundly muddled: nationalism. Originally, up until around the 1840’s, nationalism was a happy-face word for racism (and back then what we would refer to as different ethnicities—i.e. Scottish, French, etc.—were referred to as separate “races”). It was commonly believed that the most perfect form for a country was the “nation state” that is a country whose borders fit neatly with the ethnic identity of its citizens. It was believed simultaneously that states tended to be organized along ethnic lines, and that when countries were established encompassing more than one ethnicity, it led inherently to instability. A state without a strong national (ethnic) identity, it was believed, could not survive.
But a number of philosophers in the 1840’s, particularly Americans of German descent (because of their affinity to America and Germany), were confronted with two examples that seemed to defy these “laws” of political organization. The first was Germany, which many people felt should have been a nation at that point in time, but instead was a balkanized mess. The second was America, a country of multiple ethnicities even then, which to most observers seemed to be defying the laws of political gravity. Further, in the case of America, it was slowly tearing itself apart at that time. And so to explain this contradictory phenomenon, they redefined the word “nation.”
Where other nations were defined by common language, ethnicity and faith, they reasoned, America was bound by something else: its ideals. It was our shared belief in what America stood for as a “nation” that provided the glue that ethnicity, language and so on provided in other countries. And as we approached the Civil War, it was precisely because of a disagreement about those ideals that we were being torn apart as a country. There was one part that believed that all men were created equal, that all men* of all colors and ethnicities were equal not in a literal sense of having the same inborn abilities, but in having the same right to freedom, democracy and to profit from one’s own labor. And there was another part that believed that this only applied to white men—and maybe not even all ethnicities who were considered “white.”
Lincoln reflected the first view when he made this comment about the meaning of the Declaration of Independence:
Now, it happens that we meet together once every year, sometimes about the 4th of July, for some reason or other. These 4th of July gatherings I suppose have their uses. If you will indulge me, I will state what I suppose to be some of them.
We are now a mighty nation; we are thirty or about thirty millions of people, and we own and inhabit about one fifteenth part of the dry land of the whole earth. We run our memory back over the pages of history for about eighty-two years, and we discover that we were then a very small people in point of numbers, vastly inferior to what we are now, with a vastly less extent of country, with vastly less of everything we deem desirable among men; we look upon the change as exceedingly advantageous to us and to our posterity, and we fix upon something that happened away back, as in some way or other being connected with this rise of prosperity.
We find a race of men living in that day whom we claim as our fathers and grandfathers; they were iron men; they fought for the principle that they were contending for; and we understood that by what they then did it has followed that the degree of prosperity which we now enjoy has come to us. We hold this annual celebration to remind ourselves of all the good done in this process of time, of how it was done and who did it, and how we are historically connected with it; and we go from these meetings in better humor with ourselves, we feel more attached the one to the other, and more firmly bound to the country we inhabit. In every way we are better men in the age and race and country in which we live, for these celebrations. But after we have done all this we have not yet reached the whole. There is something else connected with it. We have–besides these, men descended by blood from our ancestors–among us perhaps half our people who are not descendants at all of these men; they are men who have come from Europe, German, Irish, French, and Scandinavian,–men that have come from Europe themselves, or whose ancestors have come hither and settled here, finding themselves our equals in all things. If they look back through this history to trace their connection with those days by blood, they find they have none, they cannot carry themselves back into that glorious epoch and make themselves feel that they are part of us; but when they look through that old Declaration of Independence, they find that those old men say that “We hold these truths to be self-evident, that all men are created equal”; and then they feel that that moral sentiment, taught in that day, evidences their relation to those men, that it is the father of all moral principle in them, and that they have a right to claim it as though they were blood of the blood, and flesh of the flesh, of the men who wrote that Declaration; and so they are. That is the electric cord in that Declaration that links the hearts of patriotic and liberty-loving men together, that will link those patriotic hearts as long as the love of freedom exists in the minds of men throughout the world.
And Lincoln then showed how pernicious and dangerous it was to limit the Declaration’s principles to white people:
Now, sirs, for the purpose of squaring things with this idea of “don’t care if slavery is voted up or voted down,” for sustaining the Dred Scott decision, for holding that the Declaration of Independence did not mean anything at all, we have Judge Douglas giving his exposition of what the Declaration of Independence means, and we have him saying that the people of America are equal to the people of England. According to his construction, you Germans are not connected with it. Now, I ask you in all soberness if all these things, if indulged in, if ratified, if confirmed and indorsed, if taught to our children, and repeated to them, do not tend to rub out the sentiment of liberty in the country, and to transform this government into a government of some other form. Those arguments that are made, that the inferior race are to be treated with as much allowance as they are capable of enjoying; that as much is to be done for them as their condition will allow,–what are these arguments? They are the arguments that kings have made for enslaving the people in all ages of the world. You will find that all the arguments in favor of kingcraft were of this class; they always bestrode the necks of the people not that they wanted to do it, but because the people were better off for being ridden. That is their argument, and this argument of the Judge is the same old serpent that says, You work, and I eat; you toil, and I will enjoy the fruits of it. Turn in whatever way you will, whether it come from the mouth of a king, an excuse for enslaving the people of his country, or from the mouth of men of one race as a reason for enslaving the men of another race, it is all the same old serpent; and I hold, if that course of argumentation that is made for the purpose of convincing the public mind that we should not care about this should be granted, it does not stop with the negro.
I should like to know, if taking this old Declaration of Independence, which declares that all men are equal upon principle, and making exceptions to it, where will it stop? If one man says it does not mean a negro, why not another say it does not mean some other man?
By comparison, the view that the Declaration of Independence applied only to white men found its endorsement in the Dred Scott decision itself, where the Court ruled that a black person was not a citizen of the United States and could not be made a citizen of the United States, and thus could not sue in federal court by the rules of the time. After reviewing the language of the Declaration of Independence, the Court said:
The general words above quoted would seem to embrace the whole human family, and if they were used in a similar instrument at this day would be so understood. But it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration; for if the language, as understood in that day, would embrace them, the conduct of the distinguished men who framed the Declaration of Independence would have been utterly and flagrantly inconsistent with the principles they asserted; and instead of the sympathy of mankind, to which they so confidently appealed, they would have deserved and received universal rebuke and reprobation.
Yet the men who framed this declaration were great men — high in literary acquirements — high in their sense of honor, and incapable of asserting principles inconsistent with those on which they were acting. They perfectly understood the meaning of the language they used, and how it would be understood by others; and they knew that it would not in any part of the civilized world be supposed to embrace the negro race, which, by common consent, had been excluded from civilized Governments and the family of nations, and doomed to slavery. They spoke and acted according to the then established doctrines and principles, and in the ordinary language of the day, and no one misunderstood them. The unhappy black race were separated from the white by indelible marks, and laws long before established, and were never thought of or spoken of except as property, and when the claims of the owner or the profit of the trader were supposed to need protection.
So the argument was a perversion of patriotism: if the founders really meant that “all men” were created equal then they were hypocrites, but these guys were so awesome they weren’t capable of being hypocrites, so they must not have meant what they plainly said. And of course Lincoln’s narrative has its own patriotism embedded into it: the founders were so awesome that they knew to denounce even slavery, even if their deeds did not match their ideals. And in a real sense that was the core philosophical problem that tore this country apart, the conflict between those who believe that America is a “nation” in something like the traditional meaning of the term, that it was a “nation” of whites, or perhaps even of specific ethnicities among whites (let us not forget, for instance, that the Confederate flag was an “Americanization” of the Scottish flag, the St. Andrew’s Cross), and those who believed America was a nation bound not by race or ethnicity, but ideals. That is indeed the profound meaning of the first clause of the Fourteenth Amendment, which states that:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
The purpose of the Thirteen, Fourteenth and Fifteenth Amendments was to encode the ideals of this “Second American Revolution” (as many in the North called the Civil War, referring to their overthrow of slavery and the unnatural dominance its advocates enjoyed). By declaring that all persons born here (with limited exceptions) were Americans, the American people declared that Dred Scott was wrongly decided, that all citizens, whatever their race or ethnicity, were equally “Americans” and therefore we are not a “nation” bound by blood, but by ideals.
So we see in this immediate case an example of a school failing grossly in one of its primary missions. It is supposed to be preparing students to be citizens of this republic, by teaching them to embrace the ideals that unite us. Instead, we are seeing students being taught that 1) if you don’t like someone’s speech, get violent and make threats and you will be rewarded with that speech being suppressed and 2) that the American flag is the symbol of white Americans only. And when I say that second part, it is not just the children of Mexican or Hispanic descent who apparently think this is the case, but evidently some of the white kids, too. While I will not impugn the motives of the plaintiffs in this case, certainly this portion of the opinion, if true, suggests a number of other white students who got the wrong message, too:
On Cinco de Mayo in 2009, a verbal exchange and altercation arose between a group of predominantly white and a group of Mexican students. This altercation involved an exchange of profanities and threats were made. A makeshift American flag was put on one of the trees on campus. A group of Caucasian students began clapping and chanting “USA” as this flag went up. This was in response to a group of Mexican students walking around with the Mexican flag. One Mexican student shouted “fuck them white boys, fuck them white boys.” Vice Principal Rodriguez directed the minor to stop using such profanity. The minor responded by saying “But Rodriguez, they are racist. They are being racist. Fuck them white boys. Let’s fuck them up.” Vice-Principal Rodriguez removed the minor from the area.
Of course the other thing that makes it harder to instill the ideal that America and its principles are not the sole property of one ethnicity or another is the constant problem of illegal immigration. A citizen can say to a citizen of Hispanic descent that “you are just as much an American as I am.” And with a person who is a green card holder, a citizen can say, “when you become a citizen, you will be just as much of an American as I am.” But you can’t say that to an illegal immigrant, now can you, because who knows when or if that person will be a citizen?
In Plyler v. Doe, Justice Brennan wrote:
Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial “shadow population” of illegal migrants — numbering in the millions — within our borders. This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents. The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.
Justice Brennan will never make any conservative’s list of favorite Supreme Court justices (and the outcome of the case should infuriate most conservatives), but in isolation, that passage is mostly correct in identifying the problem. It is an anathema to our republic to have such a substantial portion of our population be persons who labor under conditions we generally consider too inhuman for our citizens, to have so many people living here who have no say in our government and at best a problematic affinity with the country they live in. As I just explained, a citizen can’t say to them “you are as American as I am” or that they will be someday. There are still clumsy attempts to make that argument, such as Harry Reid’s infamous description of illegal immigrants as “undocumented Americans.” And worse yet, we even count those illegal immigrants in representation, so that the power of certain politicians will be increased by people who have no say in their election. It is not unconstitutional per se to do that, but it is in profound violation of the spirit of it and closely resembles the situation that existed under the three-fifth clause before it was rendered a dead letter; a population of persons who are denied the right to vote whose bodies are used to increase the power of those who might not have their best interests at heart.
And indeed the illegal immigration problem itself may very well be put at the feet of our nanny state. It is said that illegal immigrants do jobs that Americans won’t do, but um… really? At over 9% unemployment are there really Americans who think that they are above certain jobs? Once I read of a janitorial job opening in New Jersey that had 50,000 applications. If a sizable number of Americans are out of work and able to work, and not interested in doing any honest work that is available, then you have to put that at the feet of a social safety net that lulls them into the belief that sitting on your ass is a viable lifestyle choice.
But I think bluntly we are profoundly misunderstanding the problem with illegal immigration and why it is that Americans don’t do these jobs. Everyone agrees that the illegal immigrant problem is fed by the illegal immigrant labor problem, but there is another name for the illegal immigrant labor pool: the black market for labor. These are people who are not lawfully being employed, and when they are hired, often work under conditions that would be unlawful for legal immigrants and citizens. Their wages are often below minimum wage, they are worked beyond maximum hours without overtime, they are not granted as many breaks and time off, and so on. Could it be, my liberal friends, that the existence of this black market for labor is the inevitable and predictable result of the onerous regulations placed on businesses when they hire legal workers?
Whether by choice or design, the left has perpetuated a grave injustice on this group. They have created a safety net giving some Americans the false belief that they don’t need to work. They have created regulations so onerous that businesses seek out a black market for labor, ensuring that they will be working under conditions that liberals claim is too inhuman for regular Americans. And they have blocked any effort to stop the constant flow of new laborers into that illegal work force. And we end up counting them for representation without obtaining their vote—just as we did for three-fifths of all slaves. And what do you know, the people making up this illegal work force are for the most part not white. I am not saying it is slavery—since the illegal immigrant labor force is still doing all of this voluntarily—but the resemblance to Southern slavery is creepy and alarming.
What needs to happen is that we finally solve it and do it the right way. We need to finally shut down our border to illegal immigration. If we only do that the illegal immigrant community will eventually wither away; the current “crop” of illegal immigrants will eventually pass on, and their children will be—under the Fourteenth Amendment—full citizens. I mean there will always be a few illegal immigrants, but we can cut this problem down to a more manageable size. But that’s not all that I advocate. After we successfully get control of our border, I advocate amnesty—and I am not afraid to call it amnesty. Yes, it is not fair to those who play by the rules, but what else can we do? You can’t deport them all, and you can’t make life so miserable they self-deport; you have to assimilate them. But that only works if we actually shut down the border; otherwise the moment we make the current “crop” of illegal immigrants into legal immigrants, a new crop will come in to fill the void. And finally, we need to reduce the demand for this black market for labor, by cutting back on the nanny state to more reasonable levels.
So in the end the case is a straightforward application of a bad precedent taken to the point of ridiculousness. In Barnette v. West Va State Bd of Ed. (1942), the Supreme Court said that a Jehovah’s Witness could not be forced to express his patriotism. And in Texas v. Johnson, the Supreme Court said you cannot prohibit an adult from burning an American flag, even if there is a fear of violence against the pyro. And today, we learn that an American student can be prohibited from expressing his patriotism, due to fear of violence against the student. I don’t blame the judge for it; it is the precedents he has to work with that stink, not his reasoning. And we can rationally hope that this absurdity might convince the current Supreme Court to overturn that dicta in Tinker and affirm as they did in the flag burning case that there cannot be a heckler’s veto.
But the fact we reached this point should alarm everyone. It is a sign of a decay in America’s sense of itself, a sickness in our soul. It is obviously a degradation of patriotism in this country, but more important than a lack of respect for the flag is a lack of respect for the republic for which it stands, that we are one nation, under God, indivisible with liberty and justice for all. (And it is worth remembering that not long ago the Pledge of Allegiance was actually banned in the same circuit until the Newdow case was overturned by the Supreme Court). These students are not learning that all speech must be tolerated or even to consider themselves one indivisible people. And that second unifying message is further undermined by a set of policies that have created a true segregation; a separate and unequal illegal labor pool consisting mainly of ethnic minorities, operating under conditions considered too inhuman for ordinary Americans.
So we should not read the decision and indict the judge. We should indict ourselves for letting it get to this point.
* The implied sexism of using the word “men” is meant to intentionally reflect their limited view of the rights of women. As I always say, I disagree with the use of the word “man” and would instead use the word “person” in the Declaration.
[Posted and authored by Aaron Worthing.]