On Civic Virtue and Encouraging Patriotism: Response to Kent Greenfield

James E. Fleming & Linda C. McClain

We are deeply grateful to Danielle Keats Citron for organizing this symposium on our book, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013). We look forward to the exchanges with the many thoughtful scholars she has assembled for this occasion.

We appreciate Kent Greenfield’s kind words about our book in his post “on civic virtue and mandatory patriotism.” As Greenfield acknowledges, we do not view his bête noire, Constitution Day, as “coerced patriotism” and he is right that we think civic education concerning the Constitution is generally a good thing. At the same time, in our discussion of civic education, we make clear that we support “critical reading” and a “warts and all,” “teach the conflicts” approach to the study of the Constitution and the teaching of American history. (123) Even though we ourselves take such an approach to the Constitution, we would no more object to the fact that most observances of Constitution Day on September 17 “in fact do so with celebratory rather than critical curricula” than we would object to the fact that most government-supported observations of Independence Day on July 4 are celebratory rather than critical.

Greenfield poses the question, “Does our judgment of what constitutes a valid exercise of the federal government’s power to encourage civic virtue depend on the content of what is being encouraged?” Our answer is, yes, it most certainly does. As we put it, quoting the Supreme Court, government may “inculcate fundamental values necessary to the maintenance of a democratic political system.” (120) (We would add that much civic education is carried out by state governments, not the federal government.)

In his first hypothetical, Greenfield asks: “If Congress passed a law saying ‘no school receiving federal funds is permitted to offer a course about Islam,’ wouldn’t it be clearly unconstitutional?” This is a puzzling question, given that our book supports government carrying out civic education to prepare children for good citizenship as well as success in life (alluding to Brown v. Board of Education). Thus, a school could, consistent with constitutional restrictions on the separation of church and state, offer a course that taught students “about” religions, although it could not have a civics curriculum that insisted that all students learn and affirm a Biblical model of good citizenship.

Beyond that, his first hypothetical statute would clearly run afoul of commitments to teaching tolerance and respect for diversity and to securing equal citizenship for all. A law banning a course “about” a particular religion evokes the “anti-Sharia laws” that some states adopted and others have considered. For example, the sponsor of Oklahoma’s now-defunct referendum banning Sharia law explained that the ban was necessary because of “a war for the survival of America” and that “Oklahomans recognize that America was founded on Judeo-Christian principles.” Seventy percent of Oklahoma citizens voted in favor of a state constitutional amendment providing: “The courts shall not look to the legal precepts of other nations and cultures. Specifically, the courts shall not consider international law or Sharia Law.” The Tenth Circuit upheld the federal district court in enjoining the amendment, pointing out that it singles out “only one form of religious law – Sharia law,” and thus “discriminates among religions.” (After the Tenth Circuit ruling, some states have considered or passed laws that do not single out any particular religious law, but instead provide that courts shall not consider or apply a rule of comity if foreign law conflicts with public policy or impairs rights that residents have under the state or federal constitution.)

Greenfield’s second hypothetical – requiring schools receiving federal funds “to begin the school day with a Pledge of Allegiance, in assembly, led by the Principal or her designee” – would be permissible under our analysis. The law would be conditioning federal funding on the schools’ beginning the school day with a pledge of allegiance, but it would not be coercing any students actually to say the pledge, much less actually coercing their beliefs. (We should reiterate what we said in the book, that we do not wholly endorse the Supreme Court’s First Amendment doctrine concerning “unconstitutional conditions.” (114))

We are unclear whether Greenfield thinks that civic education is a “bad thing,” or why he would think that it is in conflict with the teachings of West Virginia Board of Education v. Barnette. That case leaves the government considerable latitude to encourage – through instruction and persuasion – though not to coerce civic virtues.

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