Roy Moore: NFL players who refuse to stand for the anthem are breaking the law, you know

Anyone within a mile of libertarianism on the political spectrum will dry-heave upon reading this but I admire the cunning behind his pander. Moore could have gone with a tried-and-true call to arrest all flag-burners, as there’s a large audience receptive to that argument within the GOP, but it wouldn’t have been topical. Nationalists would appreciate it but it’d have no bite. Suggesting that the Kaepernicks of the world are guilty of a federal offense while the debate over NFL anthem protests is raging, though?

That’s how the pros do it.

Wait until someone tells Trump that Moore is, in a formal sense, correct about the law here. We may be mere hours away from a presidential tweet that it’s time for Jeff Sessions to lock up Marshawn Lynch.

“It’s against the law, you know that?” [Moore] said. “It was a act of Congress that every man stand and put their hand over their heart. That’s the law.”…

“I back the President in upholding respect for the patriotism for our country, on two grounds,” he said. “One, it’s respect for the law. If we don’t respect the law, what kind of country are we going to have? Two, it’s respect for those who have fallen and given the ultimate sacrifice. I’m surprised that no one brought this up.”

He added that it’s a matter of the “the rule of law.”

“If they didn’t have it in there, it would just be tradition. But this is law,” he said. “If we disobey this, what else are we going to disobey?

If you take that logic seriously, all forms of civil disobedience are improper and deleterious to society. It’s true, though, that there’s a law on the books that says civilians “should” stand and place their right hands over their hearts when the anthem is played. There’s no penalty prescribed in the statute, which is probably why Moore never explicitly says the players should face jail or a fine for breaking it. The law is hortatory. On the other hand, he clearly thinks the fact that respect for the anthem is codified gives it some sort of legal weight. Without the statute, he notes, standing is mere tradition. This, by contrast, is law.

Even if there was a penalty attached, though, no prosecutor would try to enforce it. (Well, maybe in Alabama…) A U.S. Attorney would be laughed out of court if he charged someone and not just because it’d be an embarrassing waste of the court’s resources. It’s law, but it’s not good law. Whether or not you’re a legal eagle you’ve probably read the key paragraphs from the famous opinion in the Supreme Court’s Barnette case at some point in your life. That was decided in the middle of World War II, after West Virginia had passed a law requiring grade-school students to stand and pledge allegiance to the flag every morning. No dice, said Robert Jackson for the Court:

Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard…

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

Barnette was a case about kids, over whom the state always has more authority than it does adults. If the First Amendment prevents the government from telling a fifth-grader to say the pledge, it certainly prevents the government from telling Colin Kaepernick to stand at attention for the anthem. The majority can’t force you to express yourself in a way that violates your conscience. (Unless, perhaps, you’re a Christian baker asked to design a cake for a gay wedding. We’ll see about that in a few months.) A court would strike down the statute Moore cites as unconstitutional for exactly that reason. It’s law, but the First Amendment is higher law. Moore was a state supreme court justice for years so he surely knows that. Does he disagree?

And speaking of higher law, my pal Karl makes an excellent point:

Like all social conservatives, Roy Moore believes in natural law, the idea that our rights come from God and are merely recognized in the Constitution. Freedom of expression is a natural right. In which case what the hell is this guy doing citing federal statutory law as evidence that Kaepernick and Lynch need to get on their feet?

Exit question: Why are Mike Lee and Rand Paul endorsing Moore in Alabama’s Senate race? They’re not going to endorse the Democrat, obviously, and no one’s asking them to. But their endorsements of Moore are probably meaningless, especially relative to Trump’s, and neither one is facing another election until 2022. Normally you’d think nothing of a Republican endorsing a fellow Republican but Lee and Paul aren’t party randos. Mike Lee gave a stirring speech attacking Democrats for applying religious tests to Republican nominees a few weeks ago and Paul is the Senate’s most famous libertarian. Moore’s about as far as you can get from libertarianism within the GOP, as today’s comments remind us, and he has no problem with religious tests for office when it comes to Muslims. Lee and Paul could have sat this one out. The fact that they didn’t speaks volumes about where they think the party’s headed.