The Constitution’s Perennial Promise of Liberty

San Francisco 49ers quarterback Colin Kaepernick’s recent refusal to stand for the playing of the national anthem has sparked an intense backlash. Much of the debate has focused on the question of whether his actions are un-American.

Kaepernick couldn’t have been more eloquent when he gave his reasons for refusing to stand. And they had much more to do with a love and respect for American principles of equal justice and liberty than a hatred or disrespect of the American flag.

Kaepernick’s silent protest against the lack of accountability for police shootings of African-Americans is meant to shake Americans awake so that they recognize the magnitude of a problem that too many people refuse to acknowledge.

“(T)his country stands for liberty, freedom, justice for all,” Kaepernick told journalists last Sunday. “And it’s not happening for all right now.”

While Kaepernick’s protest is about police brutality in America today, it is also firmly rooted in the past. “These aren’t new situations,” he said. “This isn’t new ground. There are things that have gone on in this country for years and years and have never been addressed, and they need to be.”

The abolitionists frequently used what Frederick Douglass called “scorching irony” to call out the hypocrisy of honoring patriotic iconography in a country whose actions were at odds with its founding principles. On July 5, 1852, Douglass gave an Independence Day address in Rochester, New York, titled “The Meaning of July Fourth for the Negro.”

“Americans! Your republican politics, not less than your republican religion, are flagrantly inconsistent,” Douglass told his audience. “You boast of your love of liberty, your superior civilization and your pure Christianity, while the whole political power of the nation (as embodied in the two great political parties) is solemnly pledged to support and perpetuate the enslavement of three million of your countrymen.”

Douglass was not accusing America’s founding documents of inconsistent hypocrisy, only the men and government that refused to abide by the promises contained in those documents.

“(I)nterpreted as it ought to be interpreted, the Constitution is a glorious liberty document,” Douglass said.

And for all his righteous outrage, Douglass was not a pessimist. “(N)othwithstanding the dark picture I have this day presented … I do not despair of this country,” he said. “I, therefore, leave off where I began, with hope … drawing encouragement from the Declaration of Independence, the great principles it contains, and the genius of American institutions.”

Some may dismiss Frederick Douglass’ address as an incident from our ancient past with little relevance for today. But in the grand scheme of human history, Douglass’ address was spoken but a blink of an eye from the present day. For some Americans still alive, it is less than one lifetime since former slaves walked among us. As a young man in Boston, Nat met a former slave, while his wife, Margot, remembers watching Civil War veterans riding in Memorial Day parades as a young child.

While the American flag flew over the battlefields of the Civil War that ended slavery, it also flew over the Jim Crow courtrooms that denied so many African-Americans the equal justice and liberty promised in America’s founding documents.

One of Nat’s favorite books, among the thousands he has owned in his lifetime, is Justice William O. Douglas’ An Almanac of Liberty. Published in 1954 at the height of Sen. Joseph McCarthy’s crusade against dissent and the beginning of the civil rights movement, Justice Douglas’ Almanac devoted a one-page essay on an event in the history of liberty for every day of the year.

“(T)hese are trying times … partly because of the internal strains and stresses that threaten a deep cleavage among us,” he wrote in the introduction. “No cleavage will occur if we remember our spiritual heritage and are true to it.”

Douglas called upon Americans to “redeem that democratic faith,” which, he observed, had been allowed to “fall to a low estate … Our freedom and liberty will be easy to redeem if we remember the fundamentals.”

Reformers like Colin Kaepernick are the vehicles for the redemption urged by Justice Douglas when they force us to acknowledge the government’s betrayal of our “democratic faith.”

The American Republic was designed so that each succeeding generation would challenge its present government to abide by the Constitution’s perennial promise of liberty. Like the grain of sand that provokes the oyster to produce its pearl, protests that irritate the body politic are essential for the gradual but eventual expansion of equal justice and liberty to all Americans.

Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press, and the Cato Institute, where he is a senior fellow. Nick Hentoff is a criminal defense and civil liberties attorney in New York.