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Sedition and Anthem Protests

by Tony M.

Colin Kaepernick and other NFL players used the moment of the national anthem, in their respective games in NFL opening games, to make political “statements”. Kaepernick sat for the anthem. Four Dolphins took a knee. Various Patriots and Chiefs raised a fist during the anthem. Kaepernich, particularly, also added to his actions a testament to say why he did this:

"I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color," Kaepernick told NFL Media in an exclusive interview after the game. "To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder."

Not surprisingly, these actions induced a heated response against the players. People thought these actions were disrespectful, and weren’t shy about saying so.

Not surprisingly, the left wing of the “anything that attacks my country is fine with me” crowd reacted to the reaction with their own misplaced anger, like so, by Nancy Armour:

NFL players protest on 9/11, and that's fine… On 9/11, of all days, there were some who wanted to dictate what’s “appropriate” when it comes to respecting this country. Who decided symbols are more important than what they actually represent. …[snip]… Peters and the Dolphins players stood during the 9/11 observance shown in all stadiums. Their signs of protest came after, during the anthem, a nuance that is sure to be lost on those who criticize them. They did not disrespect those who lost their lives 15 years ago and, even when they raised a fist or took a knee, they did not disrespect those who served or their country, either.

No, they disrespected the nation, instead.

What I want to point out is that Armour makes a really basic mistake. Freedom of speech laws, and Constitutional provisions, don’t make speech free in every sense. They mean that the subject speech is free from LEGAL penalty. That’s all. No more than that.

There is no power on Earth that can make objectionable speech free from social penalty. If you say things people don’t like, they will react with scorn, disdain, insult, and with other things that have more power to affect you, such as: they won’t play with you, they won’t contract with you, they won’t do business with you, they won’t even speak to you. You can’t stop these responses. And they are not a matter of law at all, they are social behavior. And responses like this are perfectly appropriate to socially disgusting actions. It’s WRONG to say that disgusting actions “are fine with me”, even when your major premise is the true statement “they aren’t illegal”. We ought to not be fine with disgusting legal behavior, we ought to react to it with disgust.

The Constitution, which forbids that Congress shall make laws restricting free speech, does not forbid private corporations and businesses from imposing commercial penalties on your speech that they don’t like. The NFL regularly penalizes athletes who put unauthorized words on their uniforms, and nobody thinks that this is an illegal penalty. If you are an athlete who doesn’t like having your speech limited so, don’t play in the NFL. It’s simple. The NBA already has a rule about standing for the anthem. There is no outcry that this is unconstitutional.

My second point is that the “speech” Kaepernick and the others were engaging in (if you even want to call it speech and have it addressed by the Free Speech Clause) is incredibly ill-chosen (so-called) speech. Here’s the thing: actual speech is a LOT more capable of nuance and specificity than actions and gestures, for carrying thought or sentiment. If someone asks you “in what direction is the ball park”, and you point rightwards, your gesture might mean that the ball park is directly in that specific direction as the crow flies, or you might mean that the road you want to take to get there is the one rightwards even though it takes several more turns to get there, or you might mean that (either of) these are roughly rightwards, within 20 or 30 degrees of angle. The mere gesture cannot distinguish between these intentions. Words can.

A flag, or an anthem, stands implicitly for many, many things, truths, sentiments, ideas, realities. They stand for them on many different levels, with varying priorities, in different senses (literal, metaphorical, mythic, spiritual). An act or a gesture that repudiates a flag or an anthem cannot, on its own, distinguish what, specifically, you are repudiating out of all these meanings – or whether you are repudiating ALL of them together. As communication, it is wholesale, not retail. OK, you have registered antipathy, but to which meaning, on what level, with what object? More importantly, is there any reason that we should take your action other than as a repudiation of the whole set of meanings, on all levels? Why shouldn’t we? If you are going to CHOOSE an act that you know beforehand is completely indiscriminate, aren’t we justified in thinking that your object is, also, indiscriminate?

Jonah Goldberg has this to say:

Kaepernick isn't being asked to salute rogue cops, or even cops generally. He's being asked to show respect not just to the flag but to a nonpartisan custom. Instead he offers a blanket indictment of America itself and vows to hold his compliance hostage to his personal assessment of complicated social issues.

Typically, these people don’t actually object to every facet of America. Kaepernick later said so. They don’t seem to object to the NFL, for example, which, let me remind you, is the National Football League. So, their actions were stupidly chosen.

But that’s not all. We know about the actual intentions only because we have (at least from Kaepernick), words as well explaining his behavior. And those indicate a person both befuddled and ill-willed: Befuddled because he is apparently incapable of discerning distinctions that are necessary for right thinking and right behavior. Ill-willed, because he has chosen to regard his nation as evil in ways that it is not, and this stems from a choice to disregard the natural motives to respect and love his nation. It is a lack of piety. Even a nation imperfect (as every nation ever on earth has been) is to be respected and loved properly.

[Summa Theologica, IIa IIae, Q. 101, A.1 ] On the contrary, Tully says (De Invent. Rhet. ii) that "it is by piety that we do our duty towards our kindred and well-wishers of our country and render them faithful service.”

I answer that, Man becomes a debtor to other men in various ways, according to their various excellence and the various benefits received from them. on both counts God holds first place, for He is supremely excellent, and is for us the first principle of being and government. In the second place, the principles of our being and government are our parents and our country, that have given us birth and nourishment. Consequently man is debtor chiefly to his parents and his country, after God. Wherefore just as it belongs to religion to give worship to God, so does it belong to piety, in the second place, to give worship to one's parents and one's country.

These men misunderstand the implications of this social virtue. I would enjoy seeing the NFL impose rules that require athletes to stand for the anthem, with a sliding scale of fines (graded to salary). Not because I think such rules will accomplish getting disaffected athletes to think more properly about the nation, but because by imposing fines with real teeth, we could more easily distinguish between those who in it for principle, and those who are mere dilettantes and fashionistas. What I would like even more, is for people to start giving Kaepernick the finger everywhere he goes, for sales of his jersey to plummet, for his ads to flop and for his promotion offers to dry up: for people to show they won’t abide a player like that using his platform to publicly disrespect what they love, and what he too ought to love. LSU’s Delta Kappa Epsilon provides an example of what I mean. And you have to laugh at the contortions the lily-livered liberals have to put themselves through to pretend not to object to their "right to comment" but still try to suppress their comments.

The third issue is more problematic: some people would like to see laws forbidding direct disrespect to the flag and the anthem: Anti-sedition laws. I am of two minds about this. On the one hand, in the current climate, any attempt at such laws would founder in about 10 minutes at the Supreme Court. The effort would be wasted unless there was a Constitutional amendment. Which is not going to happen. And even if it did happen, one would have to worry about the trend this set, given the degenerate moral climate, possibly leading to government intrusion into other speech (and actions) that should not be touched.

On the other hand, I do think that the principles underlying anti-sedition laws are wrongly understood and wrongly adjudicated in prior precedent. I think it is reasonable to ask whether we have found the right basis for speech rights and their limits IN GENERAL: can a good political order have and enforce anti-sedition laws of any sort, and if so, what are the limits?

Those who have followed my comments over the years can predict my answer: yes. In principle. First, recall that “free” speech rights are not unbounded, they don’t extend to libel, fraud, inducement to public disorder (starting a riot, “fighting words”, or lies such as yelling “fire” in a crowded theater). Nor are the limits based solely on falsehood: they do not extend to giving out critical truths to our national enemy in war (espionage laws forbid this).

Each of these examples are well-debated matters, and even in our lax society the SC upholds all of these restrictions on free speech. To state it simply: the common good REQUIRES that the state act to limit speech damaging to the common good.

In principle, this truth also can be used to justify laws prohibiting sedition under certain conditions, for certain limited sorts of seditious acts. The SC has required that the prospective damage be not just speculative or remote, but more determinate:

The trial judge instructed the jury that they could not convict unless they found that petitioners intended to overthrow the Government "as speedily as circumstances would permit," but that, if they so found, then, as a matter of law, there was sufficient danger of a substantive evil that Congress has a right to prevent to justify application of the statute under the First Amendment.

However, I distinguish speech or actions that DIRECTLY attacks or contemns the US, the whole nation, the whole public order, the whole polity: these are not aimed at some part of us that is in need of reform, or something that can be “fixed” if we pay attention to this guy, they are aimed at the very reality of the state and the social entity. Nor are these acts indicative of future acts that may damage, they ARE, themselves, evils perpetrated upon the common good. Every natural entity that has a right to exist has a right to protect itself from attack, and reacting by legal means to this kind of attack is just the proper response for a state – in the right conditions. These acts are not wrong because they might lead others to violence and criminal acts, they are wrong because they are impious in and of themselves. [Speech that directly attacks narrower targets, such as “this government” (e.g. “the Bush Administration” or “the Obama Administration”, or even “the current Constitution”) are not the same thing and have moral defenses that the former do not.] I don’t want to get deep into the nitty-gritty and the ins and outs of when and how much. Suffice it to say that if laws restricting free speech to prevent riots and to prevent espionage are rightful ways of state protecting the common good, then in principle there are also limited times and ways in which it is possible for impiety to be a sufficient evil to target, a sufficient matter for law to defend the common good against: there is no principle that makes it that such laws are always more damaging to the common good than tolerating the behavior is. And that’s all you need to make such laws appropriate in principle.

So this would theoretically permit criminalizing explicit acts of impiety to the US as such, on the primary level. Secondarily: The flag, for example, is a formally enacted symbol of the whole United States (unlike many other symbols). As support of the public virtue of piety, the nation and polity are entitled to at least not to be mocked and contemned by its own citizens, and mocking the official symbol of it does just that. So, acts that consist of publicly rejecting the flag would justify the state publicly repudiating the person: take away his citizenship, or legal residence (i.e. banishment), or similar responses. “Hey, if you think the US is so awful that you think you should repudiate the WHOLE ENCHILADA, you can damn well do without it: Get out.” Or (what would be perhaps even worse, but only indirectly so), withdraw the protections of the law for such an offender – he can no longer use law to sue for infringement of rights, for example. These are some of the natural implications of taking his behavior seriously.

These would be very onerous penalties to most people. But if we were to take these people at their own word, such penalties would not be all that horrible to them: they already repudiated us and our nation. Alternatively, you could allow for a more lenient penalty if the person simply apologies (in just as public and fulsome a manner as the original act) for his impiety. Oh, you didn’t mean you were repudiating America? Well, say so, and we’ll reduce your penalty accordingly.

Comments (46)

Good post, Tony. Most societies include a set of beliefs or tenets, which are defended as orthodoxy, to the decisive detriment of those who traduce the beliefs. Kaepernick has kind of set off a mini revolution here. Is there an orthodoxy, of even the thinnest variety, which can claim the assent of all Americans? Or does all it take to expose our irresistible divisions is a backup QB to protest the Anthem in San Francisco?

Thought experiment. What if a player refused to stand in protest of the Supreme Court's indefensible jurisprudence by which 80% of the states' marriage statutes were thrown out to accommodate the latest fashion in liberal sexual ethics?

Or what if someone had the temerity not to bake a cake? It seems that American liberals are perfectly prepared to use force of law to defend some orthodoxy or national morality which they believe in.

Kaepernick's displays are clearly ones of self-righteous grandstanding--as a Christian presumably he is opposed to the wholesale slaughter of black babies yet we don't find him protesting the republic's official legal position on abortion. No, attacking "police brutality" without context (in a country where black men are wildly over-represented as violent criminals) plays better on ESPiN and Commie News Network than a pro-life message would.

Most normal Americans (i.e. moderates and everyone to their right) intuit Kaepernick to be a self-promoter and take his protest to be phony. Kaepernick may very well be a phony, but given the current socio-political environment I don't doubt he feels strongly about the non-problem of rampant police violence. In other words, he's a useful idiot. What is phony is the entire "debate"--the left uses its media/government/corporate hegemony to sow discord and move the nation leftward. It exploits the naive earnestness of normal Americans who don't want to see sports or national customs politicized. It defends free speech for anyone alien values but seeks to restrict speech for anyone defending traditionalism. Tebow was criticized for a harmless Super Bowl ad which promoted motherhood since it came from pro-life sentiments; Beyonce was praised for her vulgar and racially-motivated halftime show. Brandon Marshall can take a knee to protest cops; the Cowboys cannot wear a helmet decal to honor cops. Because reasons.

The end of the essay entertained how to punish people who openly defied symbols of national unity. This isn't too relevant since we're not in any power (vote Trump and that will start to change), but it also introduces a Catch-22 situation. The time when these penalties are truly needed are times when the political climate ensures they won't be enforceable, and when these penalties are enforceable it will be when openly defying national symbols is a counter-productive political strategy and thus the law won't really be necessary. For now its best to take the mockery approach (as the LSU frat did) and then double-down when the inevitable hysterical push back comes. Turning off the NFL is also a positive step.

“Hey, if you think the US is so awful that you think you should repudiate the WHOLE ENCHILADA, you can damn well do without it: Get out.”

Nobody else has to take him.


Or (what would be perhaps even worse, but only indirectly so), withdraw the protections of the law for such an offender – he can no longer use law to sue for infringement of rights, for example.

Um, no, under no circumstances. Fraid I have to object rather loudly here. The Constitution rightly guarantees the protection of the laws to "any person," that is, any person living within the U.S., not even just citizens.

The state may execute a person who has been duly tried for a capital crime. But that isn't just declaring a free-for-all on that person from private actors. That is the abrogation of the rule of law as such, not merely a set punishment of a person for a crime of which he has been duly convicted.

Turning off the NFL is also a positive step.

I prefer more targeted actions, like repudiating all Kaepernick's promotion products - and letting the sellers know, of course.

The time when these penalties are truly needed are times when the political climate ensures they won't be enforceable, and when these penalties are enforceable it will be when openly defying national symbols is a counter-productive political strategy and thus the law won't really be necessary.

Plausibly, there must have been a cross-over period from one to the other, where it should have been possible to do, and would have been beneficial. But we're almost certainly past that.

There is, quite literally, no crime in the entire history of the United States, no matter how heinous, the penalty for which is "withdrawing the protections of the law." Nor should there be. That isn't a penalty. It's an invitation to a lynching.

I mean, I'm sorry to speak so strongly, but that's just not a good proposal.

Now, there are ways in which a person can be subjected to meta-penalties by way of ordinary criminal penalties. For example: If a person has to register as a sex offender for the rest of his life, he can (probably) be discriminated against in jobs, refused housing rental, etc. If a person is convicted of a felony, employers are permitted not to hire him on that basis, and in many states he cannot vote.

If you want to make sedition a felony, and if you want to make some kind of anti-US symbolic act into sedition (all issues that are dicey and have to be discussed in their own right), and if you convict someone of sedition via an anti-US symbolic act, then he will not be "protected in law" from job discrimination on the basis of his having been convicted of a felony. But then again, there isn't any such protection in law for _any_ felon.

Perhaps you would want to propose a "sedition registry" like the sex offender registry, for which people would be registered if convicted of sedition. Then, as in the case of the sex offender registry, there would be certain social penalties that could be imposed upon them without recourse, so long as they were imposed *on the grounds of* their being entered into the "sedition registry" (not on some other grounds prohibited in applicable law).

I don't recommend that, but at least it would be an orderly process and a specific sentence.

But it would be an extremely *poor* way to characterize even such a "sedition registry" proposal as "withdrawing the protections of law from the offender." For example, even a person on the lifetime sex offender registry can (in principle) use the law for *many* purposes, from suing in small claims court to get payment for a service to suing the police for brutality.

And rightly so.

The Constitution rightly guarantees the protection of the laws to "any person," that is, any person living within the U.S., not even just citizens.

You're right. Sorry, I should have been more specific. Many rights exist under the natural law or are provided by the Constitution. I didn't mean those ones. I meant the specifically statutory rights in particular venues: statutory rights for particular types of damage claims, which would not exist without the statute. Those kinds. Use the law to limit these so that they don't apply to people who repudiate our country (and, implicitly, our laws). And of course, being statutory, we can pick and choose which ones we think should be withheld.

I'm trying to think of an example. Would it be some sort of idea like this? If you are convicted of sedition, and the laws of your state allow you to sue a doctor for malpractice and recover damages, part of your sentence when convicted of sedition is that, for the rest of your life or perhaps for some x number of years, you can never bring a malpractice suit?

I mean, I just find that really bizarre. And I'm afraid I still find it quite ill-conceived. I've never heard of any such penalty before, and it strikes me as an *extremely* bad idea. If some private actor does some harm to a person who has previously been convicted of a crime--measurable harm, for which the person harmed would normally be able to recover damages--it seems an incredibly bad idea to make it impossible for the person to recover damages. I suspect it would be deemed unconstitutional on 14th amendment grounds, and I'm afraid in this case, originalist hawk though I am, I would be inclined to agree with that judgement.

Even if the claim is set up by statutory law, still, it is a claim for a harm done, and there seems to be a big problem with saying, "Okay, part of the sentence for having committed this crime is that it's now open season for private actors to commit this harm against you without recourse."

I understand that you didn't mean harms of the level of lynching. I get that.

But even so, there is something _extremely_ legally problematic even about saying that a person convicted of such-and-such a crime, when he gets out, can, I dunno, be subject to having his property damaged, his contracts not honored, or be the victim of medical malpractice, or similar things that law gives recourse to damages for, and he has no recourse as a matter of sentencing for his crime.

The _farthest_ I can get is the example I gave in my previous comment: That people might be allowed (perhaps even explicitly in statutory law) to hold it against the person in housing, employment, etc., that he has been convicted of this crime. As with the sex offender registry.

But I'm really having trouble of thinking of any other damage claims that might be disallowed as part of sentencing.

And I'm afraid I still find it quite ill-conceived. I've never heard of any such penalty before, and it strikes me as an *extremely* bad idea.

Well, I have heard of the idea, in at least 2 contexts: early (and probably primitive) societies treating a person as if they were a non-entity ("from here on out you are nothing to us."); and in futuristic fiction as an extreme form of making a person an outcast - more or less as a kind of precursor to (self) banishment, since they are almost certain to depart if everybody treats him as a pariah. The idea is similar to banishment, just less forceful. "We won't actual march over the border - but you'll go pretty soon anyway." The underlying concept is to take away the privileges that have accrued to them merely from being participants of our nation and polity, since they don't appreciate them.

If you are convicted of sedition, and the laws of your state allow you to sue a doctor for malpractice and recover damages, part of your sentence when convicted of sedition is that, for the rest of your life or perhaps for some x number of years, you can never bring a malpractice suit?

Here's an example: in pension law, retirees have certain rights to sue for redress merely from the existence of the pension contract itself. However, pension law ALSO provides certain rights that wouldn't otherwise obtain: standing to sue that wouldn't obtain but for the pension law, and certain kinds of punitive claims beyond actual damages that wouldn't obtain but for the special grant of the law.

Hey, it was almost a throw-away line. It's nothing critical to my point. If it's a bad idea, it's a bad idea. Don't worry about it.

As support of the public virtue of piety, the nation and polity are entitled to at least not to be mocked and contemned by its own citizens, and mocking the official symbol of it does just that.

As far as I know, the only enforcement of the United States Flag Code is for those in military uniform. For everyone else the First Amendment has basically overturned the law, although it still has a lot of social force as traditional formal ritual.

Speech that directly attacks narrower targets, such as “this government” (e.g. “the Bush Administration” or “the Obama Administration”, or even “the current Constitution”) are not the same thing and have moral defenses that the former do not.

The history of sedition laws doesn't support this interpretation very well. Specifically, President John Adams crafted the first sedition laws to use as a political weapon against his main opponent, his own Vice President Jefferson.

As support of the public virtue of piety, the nation and polity are entitled to at least not to be mocked and condemned by its own citizens, and mocking the official symbol of it does just that.

Failing to honor the flag is not really comparable to mocking it or condemning it. Kaepernick is not flipping off the flag, nor going sovereign citizen and proclaiming the government null and void, he is shunning a social ritual as a type of protest. If there are social and economic consequences from his inaction those are also protected under the law, but as in all things they should be comparable to his offense of relatively mild disrespect.

(vote Trump and that will start to change)

The subject is about honoring the American flag not the Russian flag. Any strong sedition law would have landed Trump in jail multiple times.

he is apparently incapable of discerning distinctions that are necessary for right thinking and right behavior. Ill-willed, because he has chosen to regard his nation as evil

There is a mistaken assumption here.

It is not Kaepernick's nation.

from Latin nation-, natio birth, race, nation

Although he is a mulatto, he does not identify as white but as black. Same as Obama. The people who made this a "nation" are of white European (mostly English to begin) origin. His "nation" is not the same as mine, no more than an Indian Nation is the same as mine which I will call American.

He is quite correct, in his way, to make public his repudiation of "this" nation and express his hostility to its flag which stands for white America.

Like many, he is a citizen, but not an American, just as St. Paul was a Roman citizen, but not Roman.

It's time to get over this nonsense about a proposition nation. A nation is a people, not an idea or group of ideas. Destroy the people and you have no nation, no America. You only have a place. The West is white people, white culture.

The Left has done us a favor by helping to make this clear again.

About half of Americans born at the turn of the 20th century had blue eyes, according to a 2002 Loyola University study in Chicago. By mid-century that number had dropped to a third. Today only about one 1 of every 6 Americans has blue eyes

Our ruling elites are destroying us. It's time to fight back. We're going to fight back at some point, anyway. The sooner the better.

The history of sedition laws doesn't support this interpretation very well. Specifically, President John Adams crafted the first sedition laws to use as a political weapon against his main opponent, his own Vice President Jefferson.

Step2, there are various ways of approaching this. One is to say that Adams clearly overstepped valid principles with his law, and that's part of why it was killed in the very next administration. As far as I can tell, we went from Jefferson to Wilson without such laws, in 1917 to 1920 there were a number of laws made against sedition, by 1930 many of those were repealed, and by 1950 court decisions had scaled the effect of the remaining ones back to nearly present day standards. The "history" is not uniform.

I have yet to see a court decision (or a law) that distinguishes between direct attacks on America per se, versus attacks on the government, the military, etc. So I don't think the history is clear on the difference. Though even if someone were to attempt a law that made the former illegal and not the latter, I don't expect the current federal courts to "get" the distinction, or to get the difference between offenses that are, themselves, the harm that the law is about, rather than acts that encourage future evils like attacks on the government.

Specifically, President John Adams crafted the first sedition laws to use as a political weapon against his main opponent, his own Vice President Jefferson.

That's a tendentious characterization, Step2, but an all-too-common one. The 1798 Sedition Act cannot be properly understood in a purely national context. It makes no sense if we fail to widen the lens to compass what was going on in Europe -- particularly France -- at the time. Consider: The French Revolutionary regime had made dissent tantamount to treason, and punishable by death without trial, without legal defense, and supported only by secret evidence. This regime was at that very time flinging its radicalism around the world, and marching its armies across Europe. The idea that the Sedition Act arose simply out of the Jefferson-Adams antagonism is myopic.

Moving on. Contrary to what GW says, police violence, far from being a "non-problem," is in fact a very serious one: and indeed one worthy of strong and decisive protest. There appears to have grown up an kind of unwritten Contempt of Cop statute, whereby any failure to be perfectly respectful or complaint with police instructions authorizes lethal force. A free people cannot abide this. It is indeed wise to always comply with police instructions; but it is not a requirement of law, punishable by death. There is also the parallel humiliation of prosecutors abusing their authority with impunity. Kaepernick and Brandon Marshall have naturally emphasized the racial component to this putrefaction of our legal system; but the problem spreads wider than that.

The situation is combustible, as Charlotte discovered last night. There can be no doubt that dangerous radical elements would like nothing more than to make use of the tension and bitterness for their own nefarious purposes. Moreover, the supreme awfulness of the two major party candidates, their cynicism and the ugliness of their partisans, exacerbates the whole problem. We struggle against despair. But, speaking only for myself, I can't blame Brandon Marshall for his frustration, expressed yesterday, with people caring "more about the flag than their fellow man."

My own take is that Kaepernick's gesture of disrespect for the country amply warrants social penalties, loss of sponsorship, etc., but that it is a bad idea for gestures of disrespect to the country to be subject to criminal penalties, much less severe ones.

However, if local governments don't want to allow their space (say, a public park) to be used for, say, formal flag burnings or signs saying "!@#$% America" or whatever, I imagine we could come up with rationales against that.

Moreover, I don't base my opposition to laws against gestures of disrespect per se upon the First Amendment. I can imagine that the authors of the First Amendment would not have believed that it protected flag burning.

For the record, I actually also think flag burning is worse than what Kaepernick did.

Always interesting and amusing when The Left complains about societal standards that are seen as reverent. They have a gift for using the scare quotes.

"normal"
"appropriate"
"moral"

Well I never said police violence was a non-problem, I said rampant police violence was a non-problem. Either way, my point was about self-righteous leftwing protesters and the media propagandizing a Marxist narrative to agitate against the norms of everyday apolitical America. If we wish to change the subject, let’s do better than a thought-exercise on when justifiable lethal force may or may not be used by law enforcement while blithely ignoring the political and racial aspects of the situation. The so-called police state is a direct response to black criminality, exploding Muslim immigration, restrictions against racial profiling, lenient sentencing for violent crimes, and federally-enforced desegregation. It is a direct mark of a low-trust and atomized society where sensible laws maintaining social order are invalidated by outside federal bureaucracies run under Marxist assumptions of race. Aggressive policing is the last remaining tool maintaining civilization and order in heavily diverse cities because the next option is something akin to South Africa.

BLM protesters will garnish sympathy about blacks being shot by white cops after they disassociate from white society and maintain their own neighborhoods/cities without our help, don’t demand affirmative action benefits in schooling or employment, refuse welfare provided by tax payers who are mostly white, and end the rioting and looting.

Aggressive policing is the last remaining tool maintaining civilization and order in heavily diverse cities

Yeah, because shooting people who are under arrest and not posing a threat is obviously a grrreat way to maintain civilization and order.

GW, with friends like you, who needs enemies? One fact overlooked by BLM is that plenty of white people get shot by trigger-happy police as well. The racial story overlooks the fact that we have a _broader_ problem with trigger-happy police and even with official police policies that show preference for shooting people dead over not shooting people dead. (I recently read a story about a policeman who got fired for _not_ killing a suicidal man after the policeman judged that the suicidal man was not a threat to anyone but himself and was attempting to get himself killed by police. The man killed happened to be black, but the issue wasn't a racial issue but rather the department _policy_ that anyone with a gun was a threat *to the police* and must be killed.) Now someone like you wants to come along and _affirm_ the racial story but from the other side--namely, implying that it really is all about race but that that's legit since police trigger-happiness is just a natural reaction to "black criminality."

Thanks for nothin'.

In fact, I'd go so far to say that we may have a bigger problem in our police forces with gun-o-phobia and with policies that enshrine excessive force in the presence or even barely suspected presence of a gun than with racism or race sensitivity.

I know I shouldn't feed the trolls, but I just wanted someone from W4 to be on record to rebuke the (mostly) nonsense comment from mark b.

I actually dealt with this very topic a couple of months ago in this post:

http://whatswrongwiththeworld.net/2016/06/ideas_versus_identity_1.html

mark is wrong as a factual matter to claim the flag and American identity for only one racial group, even if as a historical matter our founders were European. There were black citizens at America's birth and the distinction he makes between an "American" and an "American citizen" is a silly one. And I say this as someone who is sympathetic to the idea that America as a country did indeed benefit from a mostly Anglo founding racial heritage and as someone who believes that culture/ethnic/racial background matters when it comes to thinking about assimilation and immigration.

I just totally reject the idea that it is impossible for someone who is not European to be a citizen of a Western country or think of themselves as part of the West.

The idea that the Sedition Act arose simply out of the Jefferson-Adams antagonism is myopic.

True, but it seems myopic because I phrased my comment poorly in response to a very specific point. I'm sure Adams was trying to instill a sense of public piety towards the fairly new national government and to disrupt French radicalization, but the point of Tony's I was pushing back against was that sedition laws will not be narrowly politicized. His proposal was based upon the idea that even a slightly narrower version of dissent, against a particular government or particular part of the Constitution, would be unaffected by sedition laws. Adams showed us that sedition laws can in fact be weaponized to such a degree as to make a particular office and individual vulnerable to malicious attacks while giving blanket legal immunity to his slanderers.

I can imagine that the authors of the First Amendment would not have believed that it protected flag burning.

As a symbolic act, burning the flag is both extremely violent and absolutely condemning. So yes, flag burning is an entirely different category. When it comes to something in-between like mocking the flag, there are so many ways it can be done with various degrees of nuance and subtlety, so I can understand why the courts would be hesitant to open up that Pandora's box.

In fact, I'd go so far to say that we may have a bigger problem in our police forces with gun-o-phobia and with policies that enshrine excessive force in the presence or even barely suspected presence of a gun than with racism or race sensitivity.

Just this past weekend, I was telling one of my gun owning friends who carries it with him nearly all the time, "If you get pulled over, you should refuse to take your hands off the wheel." I really don't know how else you are supposed to survive an encounter with the police if you tell them you have a gun. Apparently as soon as they see it they are legally justified in shooting you, and even if they suspect there is a gun nearby you might be toast. That caretaker who was on the ground with his hands up, pleading with police that his autistic patient didn't have a gun, still got shot. It was insane.

Just this past weekend, I was telling one of my gun owning friends who carries it with him nearly all the time, "If you get pulled over, you should refuse to take your hands off the wheel." I really don't know how else you are supposed to survive an encounter with the police if you tell them you have a gun.

I'm very concerned about that for friends who have a CPL. They assure me that the CPL instructors give you a specific "script" to go through so you won't get shot, and I have heard of cases where someone was lucky enough to know the script and went through it very precisely, the police had him get out and disarmed him, and everything was fine. But it's still frightening. You shouldn't have to know a script.

Add to that the fact that even white-collar crime suspects are now routinely subjected to heavy-handed SWAT raids, in the middle of the night. The Wisconsin Democrats cut loose with small a reign of terror against Scott Walker allies some years back, campaign finance stuff, with the charges eventually dismissed but never justly requiring assault rifles and body-armor accompanying search warrants. Low-level distributors of pot, moonshine and psychedelics, likewise, are often arrested by nothing less than infantry squads.

A couple of detectives with a hard-nosed street patrol backup can't subdue a bunch of stoners? Please.

Violence against police is also exaggerated. Yes, there have been several horrifying acts of assassination. Wicked acts. And yes, we all agree that walking a beat or driving a patrol, in any big city in America, is far from easy work; it's a tough work for sure. That's what we so highly honor those who do it well.

So the honor is high and well-deserved. But the honor of the good work can never justify bad work. And bad work in cops is a serious and ever-persistent problem. "Rampant" is a fair characterization.

True, but it seems myopic because I phrased my comment poorly in response to a very specific point. I'm sure Adams was trying to instill a sense of public piety towards the fairly new national government and to disrupt French radicalization, but the point of Tony's I was pushing back against was that sedition laws will not be narrowly politicized. His proposal was based upon the idea that even a slightly narrower version of dissent, against a particular government or particular part of the Constitution, would be unaffected by sedition laws.

Jeepers, Step2. How many times do I have to qualify my comment before you get the fact that I was speaking theoretically and in principle? To my count, I used such constructions 7 times explicitly, and about 3 or 4 more implicitly. But just so I am not misunderstood yet again: I am saying that "IN PRINCIPLE" a law forbidding the specific kind of sedition that is a direct attack on the nation as a whole is not wrong as such. Not evil law, in itself. Not per se bad law regardless of circumstances and conditions.

It may, however, be imprudent, for any number of reasons. It may be imprudent because bad men will twist that law to evil purposes. It may be bad because bad men will use it as the camel's nose to get other, more extensive laws forbidding acts that we shouldn't have laws about because they would prohibit acts that are not always wrong. It may be bad because it will lead men to make other bad laws - not about sedition - regarding other kinds of behavior the government doesn't like, to which the government has no business objecting. It may be imprudent given a particular history or set of customs, or a particular people's vices (or virtues). Your point that "sedition laws will not be narrowly politicized" may speak to the prudence or imprudence of such a law, it does not speak to whether the subject is in principle beyond the bounds of good law.

Jeff,

You don’t care to face facts and human reality. That’s fine. You’re free to do so, but you fail to mention who it is that created the American flag and identity? Americans have a number of identities they put in various order. Moving to The South would not make me a Southerner, nor does an Alabaman become a Mississippian by transferring himself there. But a White man can travel throughout the US and even Canada and feel a more general affinity and easy intercourse with all the people who look like him than he can when he travels through the black ghetto, Latino barrio, China- or Korea-town in his own city.

Now, exactly what other racial group was it that also created our national symbols and identity (had a significant hand in their formation)?

I play in a poker league and various Meet-Ups a few times a week and encounter a cross section of our diverse population and I can assure you that none of the Blacks, Chinese, Japanese, Indian, Arab, Hispanics, Russians and other “American” peoples I encounter conceive of the United States as this descendant of Puritans who settled in Massachusetts in 1630, and whose ancestors fought and died in its earliest wars until today.

If asked, these folks I meet don’t conceive of America as a proposition nation created out of Enlightenment philosophy, that all people are created equal and have the inalienable rights of Englishmen, Anglo-Saxon traditions and common law.

The Blacks and Hispanics (mestizos, not Spaniards) are mentally and culturally incapable of creating and sustaining a thriving Western civilization. The Chinese, Korean, Vietnamese are only capable of creating Oriental societies, and so forth.

Many of these people have served in the armed forces, work in government, and would identify themselves as Americans. But that’s simply because they find themselves living in America and being awash in its culture. Otherwise, they overwhelmingly play identity politics and hardly give a crap about the Common Good of all. They’re out for themselves and their own people. Why? That’s their tradition, their culture, and a People doesn’t cast it off because they've moved to another land.

Right now, Whites in America are crossing their own ethnic lines and parties, and identifying as white Americans being in the same sinking ship rather than as Italians, Irish, Polish, German, etc., much as they did when serving in the armed forces and major wars.

I can also guarantee you that Black people, as a group, do not conceive of themselves as Americans just like Whites do. They are very aware they can’t compete as equals with whites (or Asians) in anything but sports (where they think they are superior even though their athleticism usually or often fails against smarter athletic Whites who know how to play as a team, and generate better tactics and strategies).

That there were Black citizens (and Indians) at our birth is simply insignificant, and although Blacks like to remind Whites of that, it doesn’t reconcile them to their continuing alienation from this nation; from White society.

What disgusting bilge. mark b, this is your one and only warning: do not put your vile race comments up on this site. We won't tolerate this.

I'll have to take Tony's word for it that there were blacks who were American citizens at the time of the founding. I'd love to see a percentage on that from historical scholarship, as I suspect it's so low as to be statistically negligible. Whatever the case, I do hope Tony and others will take a quick look at the following brief Wikipedia article:

https://en.wikipedia.org/wiki/Naturalization_Act_of_1790

The article offers a succinct overview of the gradual extension of U.S. citizenship to non-whites after the founding, a process that occurred over a period of approximately 150 years. From 1790 until the immediate aftermath of the Civil War, however, U.S. law stipulated that only "free whites" were eligible to be U.S. citizens.

It is also certainly the case that "U.S. citizen" and "American" are distinct and separable notions, and I seem to recall reading somewhere not very long ago that, even after the first granting of eligibility for U.S. citizenship to blacks after the Civil War, a legal definition of "American" persisted into the early twentieth century that defined Americans--as distinct from holders of U.S. citizenship--as whites only. If I'm wrong about that, I'm perfectly willing to stand corrected.

mark b's contention that whites, blacks, etc. are not of the same "nation", with all the inherent and unavoidable tension and conflict that that difference of national interest entails--as each one of us is seeing very clearly with his own eyes with every passing day--is a truth so elemental that I would argue its acknowledgement to be a well-nigh essential feature of any mind that might be characterized as exemplifying the love of the truth.

Jeff,

“I just totally reject the idea that it is impossible for someone who is not European to be a citizen of a Western country or think of themselves as part of the West.”

So do I when it comes to individuals, but not when it comes to groups. A Japanese fellow I regularly play poker with (around my age in his 60’s) got into a discussion with a few younger Chinese players about identity of all things, and Dan declared in contradiction to their own declared Chinese identity (overall) that, “the only time I don’t think of myself as White is when I look in the mirror. Otherwise, I eat White, I talk White, I think White. I just think of myself as White as any White man.”

To me, Dan is basically a White American. I have no problem with that. But if you talk to the young Chinese men I play with, their strongest sense of identity is to China and each other, their shared experience, cultural traits, and understandings. What power they intend to glean from identity politics is intended for their own group’s benefit and no one else’s. They aren’t Democrats or Republicans or Libertarians or whatever. They are Han, first and foremost. They have a very long historical memory of how tribalism and the clan are essential to survival in this world above all else. Other ideologies and propositions are worthless in the long run. Survival is all that matters (and they are crazy for gambling. It’s part of how they cope with the onerous suppression of their individuality for the clan’s sake).

Western Civilization is the expression of Northern European peoples who evolved and developed a unique set of characteristics over thousands of years distinct from other races or groups. Greece and Rome were the products of fair skinned, red, blond, and browned haired, blue, green, gray, and brown eyed people from the North, although Athens remained primarily Pelasgian rather than Ionian or Dorian. You’d have a hard time finding such people in present day Greece and Rome, same as in India and Persia where Indo-Europeans conquered and settled.

You cannot replace Western peoples with different peoples and expect such civilization to sustain itself. As has oft been stated: Diversity + Proximity = War.

St. Thomas Aquinas in his Summa Theologica studied the problem: “Man’s relations with foreigners are twofold: peaceful, and hostile: and in directing both kinds of relation the Law contained suitable precepts.”

http://www.returntoorder.org/2014/07/saint-thomas-say-immigration-2/

****

A casual perusal of Christians illustrates how the Body of Christ prefers to divide itself by ethnicity and race, and they do so without hostility to each other so much as personal preference in communion with others most like themselves in appearance, custom, and culture. (But, of course, the divisions often prove hostile and violent).

****

Tony,

Is it nice to go through life not noticing things like race, ethnicity, tribalism, cultures, and yes, stereotypes. Do you understand that stereotypes exist for a reason and are generally accurate? God exists (partly) to save individuals from themselves, and not, necessarily, nations from each other, or to blend them into one Body on this Earth.

As Aquinas wrote, “A disordered mind is its own punishment.” So, too, a disordered nation and State. And this country and States are highly disordered. Diversity in cultures and races is a large part of that (among other things).

Do you really think it is vile to notice that the great majority of White people are most comfortable and at home with other White people, and that’s how they want to have it? And it is not unChristian at all to want or prefer that, but God’s will in order that we and our children may best thrive. A man’s duty is to God, his family, and his natural community. Not to abstract notions about equality or some other secular principle, however worthy it may otherwise appear.

mark b,
It is an open question as well that whites turned away from the Christian faith are "mentally and culturally incapable of creating and sustaining a thriving Western civilization.".
You have a misplaced emphasis on blood, along with your poker buddies. If you read Kipling's poem The Stranger, the point is of the stranger's mind and the strange gods he worships. Simply put, a stranger is the one that worships a strange god.

Is one really expected to display "piety" towards a flag and a nation? I thought that was reserved for God. To demand piety towards a secular institution is idolatry, pure and simple.

It may be imprudent given a particular history or set of customs, or a particular people's vices (or virtues).

There is any doubt about the vices of politicians and political parties during this elections season? C'mon Tony, even if history may occasionally provide a glimpse of true civic virtue it isn't here or now. You don't have to be as cynical about politics and politicians as I am but you can't be completely naive either.

But a White man can travel throughout the US and even Canada and feel a more general affinity and easy intercourse with all the people who look like him than he can when he travels through the black ghetto, Latino barrio, China- or Korea-town in his own city.

Your list of poor, cramped areas seems to be missing white trailer parks. I do not feel a general affinity with other white people in trailer parks. I will not under any circumstances visit one at night and am cautious about doing so even during the day.

I'll have to take Tony's word for it that there were blacks who were American citizens at the time of the founding.

In many ways it depends on how you interpret the Dred Scott case as retroactively determining the citizenship of free blacks at the time of the founding. Considering that it is widely regarded as the worst judicial decision in US legal history and also served as a catalyst for the Civil War which effectively repealed it in law and practice, it shouldn't be given any credence at all. However, even if you take a different view the presumably small number of free black colonialist immigrants were not affected by the decision.

In case anyone is wondering, mark b and Wade McKenzie will no longer be joining us for obvious reasons.

It may be imprudent given a particular history or set of customs, or a particular people's vices (or virtues).

There is any doubt about the vices of politicians and political parties during this elections season? C'mon Tony, even if history may occasionally provide a glimpse of true civic virtue it isn't here or now. You don't have to be as cynical about politics and politicians as I am but you can't be completely naive either.

Step2, I wasn't calling for a change in the law here.

In many ways it depends on how you interpret the Dred Scott case as retroactively determining the citizenship of free blacks at the time of the founding.

Exactly step2. Here's a very interested take on it that from what I know has some credibility.

That's a remarkable work of legal history by Stanton Krauss. Thanks.

The Krauss piece discusses whether they were considered so from the perspective of the Constitution. Here's another piece that complements it I think and gives further context to the Dred Scott decision.

Apparently there clearly were free black citizens in the eyes of their states of residence in least five of the states at the time of the Founding in the 1780s.

Things like this tend to show that racism isn't a natural thing as is being suspicious of outsiders or other such things. It has to be taught and reinforced; it has a history. Not going to argue for it here, but just saying the evidence is abundant if one looks.

That fits with material I have seen elsewhere: in the 1780s, there were in some states free blacks who had citizenship rights.

One thing I keep seeing over and over is the failure to distinguish between recognized as a citizen, and having ALL the rights that any could have. That just wasn't the meaning of citizen. There were lots and lots of free white men who could not vote, who were citizens. The women could not vote, but they were citizens.

The Naturalization Act of 1790 was an act made pursuant to the power, stated in the Constitution, granted to Congress to set terms for naturalization. The term doesn't mean "identifying who is a citizen", but "stating how one who is NOT a citizen may become one." It didn't speak to the condition of those who were already citizens by 1790, it had no bearing on them. Arguably, every citizen of the several states became a citizen of the US at the ratification of the Constitution, and Congress had no writ of authority from the Constitution to undo that.

One thing I keep seeing over and over is the failure to distinguish between recognized as a citizen, and having ALL the rights that any could have.

I'm not qualified to speak on rights, but as far as privileges or advantages it sounds like you're describing the handiwork of certain neo-Kantians. It is lamentable that so many see such views as part of the Founders view and understanding, rather than an aberration from it.

Mark, I wasn't trying to justify any sort of standard here about what rights really are rights, I was trying to state an observation about what conditions actually obtained: a free white man without property was unable to vote, but was considered to be a citizen. This condition had been true in most of the colonies in the 1730s, well before Kant's philosophy, so I strongly doubt that any of the people who created that arrangement justified it by Kantianism, much less by neo-Kantianism. Whatever we can or cannot derive from these facts I am not sure, but it seems clear that at least in the minds of the people of the 1700s, "to be a citizen" was not co-extensive with "to have the right to vote".

Well then Tony it's pretty clear we're talking about entirely different things, so continuing to rate my response by a standard appropriate for a different answer isn't going to work. I was referring to the tendency now to project into the past current (I would say mistaken) understandings of what equality means.

But yes, clearly voting isn't coextensive with citizenship. Intent even counted for something in some states. In the Midwest after 1840, a number of states allowed immigrants who intended to become citizens to vote. That's pretty loose.

Pressure for voting right came from propertyless men (which could be tradesmen and such), territories eager to attract settlers, and from political parties seeking to broaden their base.

Tony,
Citizens belong to republics. How appropriate is the term "citizen" for the colonial period, when the said "citizens" were actually subjects of the British Crown?

A citizen is defined as a legally recognized subject. It was as legitimate for a loyalist to think himself a British citizen as it was Paul a citizen of Rome. Or New Yorkers to think themselves citizens of the state of New York.

Bedarz asks

Citizens belong to republics. How appropriate is the term "citizen" for the colonial period, when the said "citizens" were actually subjects of the British Crown?

Mark replies

A citizen is defined as a legally recognized subject.

That's close enough. The 14th amendment says

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.

And Title 8 of the US Code carries that over to statute:

§1401. Nationals and citizens of United States at birth The following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof;

Effectively, a person who is "subject to our laws" in the sense intended is a citizen (here) or a subject (in a monarcy). Which gets at the essential point: for THIS purpose, "citizen" in a Republic is not fundamentally different from "subject" of Great Britain. They are neither of them (a) aliens, nor (b) visitors, nor (c) temporary residents (like students), nor permanent residents (like immigrants who have not yet achieved naturalized status), nor illegal aliens. They have the RIGHT to remain without any special permission. They are "subject" to these laws; they are not subject to some OTHER country's laws.

The same people who were subjects of Britain in 1775 in America were also citizens of the several states in 1776 and citizens of the United States in 1789, without any naturalization process.

Very elegantly stated. Minor quibble would be that being subject to the laws isn't linked to a right to remain without any special permission. They are subject to the laws by their physical presence. Of course exceptions to punishment for violations of law by a judge or jury can always be made if their presence in a foreign land was unknown or accidental (accidental border crossing isn't rare) and the infraction were minor. But in any case persons are subject to the law where they are.

They are subject to the laws by their physical presence.

This is certainly true, as I mentioned back when I was discussing Ted Cruz's citizenship. But for the purposes of the 14th Amendment and for Title 8 section 1401, it has to mean something more than the sort of subjection that applies MERELY from physical presence.

A person who is an alien visiting here on a 2-week vacation is subject to all sorts of laws here: they have to drive on the right side of the road, they have to obey the laws about murder and theft, etc.

But there are also laws that don't apply to them: they don't have to pay income taxes here, they don't have to register for jury duty, they don't have to register for the draft. They ARE subject to the laws of their home country on those matters even while they are physically here. This, presumably, is the point of the phrase "subject to our laws" in the amendment and the statute, otherwise you could cease to be a citizen just by being physically in another country.

Good point

Tony,
Missing in your reading of citizens and subjects are the important categories of slaves and of native aliens i.e. the Indians. Were they British subjects in 1775?

They were subjugated peoples, if that's what you are getting at. So, yes, subject in that sense.

Of course, in Britain in 1775 there were neither a slave population nor native alien population.

I was not making an inference that "subject to British law in 1775" is congruent to "a citizen of Virginia in 1776". The relevant qualifier was "in the sense intended". When a British grocer in Salisbury exclaimed "confound it, I am a British subject, I have rights!", he didn't mean "British subject" in the exact same sense that an educated slave in Virginia would have said "I am subject to the laws of Britain". But whatever that grocer meant by it in demanding his rights, was very similar to the meaning of a Virginian in 1776 saying "I am a Virginia citizen, I have rights" in 1776. In both cases, they would mean something like a "full member", one who is fully participating in the nation and polity.

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