More on Encouraging Patriotism: A Further Response to Kent Greenfield

James E. Fleming & Linda C. McClain

In his further response to our book, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013), and our post, Kent Greenfield says that he is “surprised that Jim and Linda come down on the pledge requirement where they do.” He continues: “I would have thought that they, in Catherine’s words, would have seen it [as] inconsistent with their ‘framework that incorporates critical thinking with mindful patriotism in which thinking students can challenge the ideas presented.’” As a normative matter, we do indeed see a pledge requirement just as Catherine Ross has put it.

We write to clarify where we “come down on the pledge requirement” in our previous post. We did not say that we proposed or supported Greenfield’s hypothetical law that “any school receiving federal funds is required to begin the school day with a Pledge of Allegiance, in assembly, led by the Principal or her designee.” We simply said two things. One, such a law is constitutionally permissible under our analysis of current Supreme Court doctrine concerning “unconstitutional conditions” (doctrine we ourselves do not wholly endorse). And two, such a law would not amount to coercing “mandatory patriotism” because it would not be coercing any students actually to say the pledge, much less actually coercing their beliefs. It would come within encouraging patriotism. We maintain this even though we, like Greenfield, appreciate Justice Kennedy’s opinion in the school prayer case of Lee v. Weisman. But there are differences between a school’s holding prayers during school or school-sponsored events, as in Lee, and a school’s beginning the day with the opportunity to say the pledge of allegiance, differences rooted in concern for freedom of religion and recognition of the inappropriateness of governmental persuasion concerning religious belief.

We appreciate Max Eichner’s distinction between Constitution Day and a pledge requirement. Still, we would argue that even when people say the pledge of allegiance, they are not being coerced into “mandatory patriotism.” (That was Greenfield’s term, not ours.) When we say the pledge of allegiance, we do so with considerable “critical thinking” about our Constitution and our country. We pledge allegiance “to the republic” and to “one nation, indivisible, with liberty and justice for all” as we conceive it, understood critically but in its best light, not as an external authority conceives it. We would not deny that devotion and reverence are appropriate elements of patriotism and constitutional faith. At the same time, so too is the willingness to examine critically the gap between constitutional ideals and practices and to try to close that gap (what Jack Balkin refers to as the intergenerational project of “constitutional redemption”). The form of civic education that we support, and that Catherine and Max also support, aims to provide people with the skills to do so.

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