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Teaching Patriotism: Love and Critical Freedom
Martha C. Nussbaum
Hail the flag of America on land or on sea,
Hail the Revolutionary war which made us free.
The British proceeded into the hills of Danbury,
But soon their army was as small as a cranberry.
Remember the brave soldiers who toiled and fought;
Bravery is a lesson to be taught.
—Martha Louise Craven1
I. THE JANUS-FACED NATURE OF PATRIOTISM
In 1892, a World’s Fair, called the “Columbian Exposition,”2 was
scheduled to take place in Chicago. Clearly it was gearing up to be a
celebration of unfettered greed and egoism. Industry and innovation
† Ernst Freund Distinguished Service Professor of Law and Ethics, University of
Chicago.
For a symposium on Understanding Education in the United States, University of Chicago
Law School, June 17–18, 2011. This paper recasts a chapter in my book Political Emotions
(under contract to Harvard University Press), and so I am indebted to all those who have
commented on that manuscript, who are too numerous to list here. I am grateful to Jonathan
Masur for helpful comments. This paper is an abbreviated version of Teaching Patriotism:
Love and Critical Freedom (University of Chicago Public Law and Legal Theory Working
Paper No 357, July 2011), online at http://papers.ssrn.com/sol3/papers.cfm
?abstract_id=1898313 (visited Oct 28, 2011).
1 This poem was “written” by me at age six and a half, according to its label and date; it
was typed up by my mother (I recognize her paper and font), and I found it in her family
album. I am not sure what my contribution to its composition really was, or whether it had
anything to do with a school assignment. But it was clearly a collaborative exercise, and one
from which my mother thought that I would gain something. The general zeal for the
Revolution was certainly my own. At that time I was obsessed with a children’s book called
Ride for Freedom, about a girl named Sybil Ludington (1761–1839), who, on April 26, 1777,
rode out to warn colonial forces of the approach of British troops—riding forty miles over hilly
terrain, a longer distance than Paul Revere, and at the age of only sixteen. See Judy Hominick
and Jeanne Spreier, Ride for Freedom: The Story of Sybil Ludington (Silver Moon 2001). I
remember requiring my parents to act out the story in our basement, using various objects
stored down there as horses. (My colleagues will recognize that the tendency to inveigle others
into dramatic performance exists innately and by nature, and cannot be either altered or
denied.) The “Danbury–cranberry” rhyme is also likely to have been my own, since I loved
visiting my grandparents in Danbury (the town Sybil was really trying to save).
2 Because it celebrated the four-hundredth anniversary of Columbus’s discovery of the
New World. Erik Larson, The Devil in the White City: Murder, Magic, and Madness at the Fair
that Changed America 4 (Crown 2003).
216 The University of Chicago Law Review [79:215
were to be its central foci, as America planned to welcome the world
with displays of technological prowess and material enrichment.
Gross inequalities of opportunity in the nation and in the city were
to be masked by the glowing exterior of the pure white Beaux-Arts
style buildings, right next door to the University of Chicago, that
came to be called “the White City.”3 The architectural choices of the
exhibition’s designers, Daniel Burnham and Daniel Chester French,
expressed the idea that America rivals Europe in grandeur and
nobility. Everything funny, chaotic, and noisy was relegated to the
Midway, outside the precincts of the exhibition: the first Ferris
Wheel, Buffalo Bill’s Wild West Show, children, racial and ethnic
differences, bright colors, poor people. Instead of real human bodies,
disturbing in their heterogeneity and their frailty, the exhibit put
forward the gilded “Statue of the Republic,” a sixty-five-foot-tall
gilded statue of a woman holding a scepter and orb, a smaller replica
of which, only twenty-four feet high, created in 1918 to
commemorate the Exposition, now stands at Hayes Drive and
Cornell.4 The Chicago Tribune wrote, “It impresses by its grand
presence, its serene and noble face, and its perfect harmony with its
magnificent surroundings, by its wonderful fitness.”5
Advocates for the poor, increasingly upset by the plan, got
together to think how the celebration might incorporate ideas of
equal opportunity and sacrifice. A group of Christian socialists
finally went to President Benjamin Harrison with an idea: at the
Exposition the President would introduce a new public ritual of
patriotism, a pledge of allegiance to the flag that would place the
accent squarely on the nation’s core moral values, include all
Americans as equals, and rededicate the nation to something more
than individual greed. The words that were concocted to express this
sentiment were: “I pledge allegiance to the flag of the United States
of America, and to the republic for which it stands: one nation,
indivisible, with liberty and justice for all.”6 At the same time,
Youth’s Companion, a magazine run by two leading advocates for a
Pledge of Allegiance, began an aggressive campaign to promote the
use of the Pledge, along with the flag salute, in the nation’s schools.
3 All of this is well portrayed in Erik Larson’s novel, The Devil in the White City (cited
in note 2).
4 City of Chicago, Explore Chicago: Statue of the Republic (in Jackson Park), online at
http://www.explorechicago.org/city/en/things_see_do/attractions/park_district/statue_of_the_re
public.html (visited Oct 28, 2011).
5 Is a Model of Art, Chi Daily Trib 36 (Jan 29, 1893).
6 For an exhaustive documentation of the history of the Pledge, see generally Richard J.
Ellis, To the Flag: The Unlikely History of the Pledge of Allegiance (Kansas 2005). The words
“under God” were added to the Pledge in 1954, during the Cold War. Id at 136–37.
2012] Teaching Patriotism 217
As so often happens with patriotic sentiment, however, the
Pledge soon proved a formula of both inclusion and exclusion.
Francis Bellamy, the Pledge’s author, was himself both a socialist
and a xenophobe, who feared that our national values were being
undermined by the flood of new immigrants from southern Europe.
By the 1940s, required by law as a daily recitation in schools in
many states, the Pledge became a litmus test for the “good
American,” and those who flunked the test faced both exclusion
and violence. Jehovah’s Witnesses, who refused to recite the Pledge
for religious reasons, seeing it as a form of idolatry, soon found
their children expelled from school for noncompliance. Then, in a
wonderful catch-22, the parents were fined or jailed for
“contributing to the delinquency of a minor” because their children
were not in school!7 The idea grew in the public mind that
Jehovah’s Witnesses were a danger: a “fifth column” subverting
Americans’ values in the lead-up to the war against Germany and
Japan. Accused of German sympathies (despite the fact that
Jehovah’s Witnesses were being persecuted under the Third Reich
for similar reasons and had to wear a purple triangle in the camps),
Witnesses faced widespread public violence, including numerous
lynchings—particularly after the US Supreme Court had upheld the
compulsory flag salute as a legitimate expression of devotion to the
national security.8
Patriotism is Janus-faced. It faces outward, calling the self, at
times, to duties toward others, to the need to sacrifice for a common
good. And yet, just as clearly, it also faces inward, inviting those who
consider themselves “good” or “true” Americans to distinguish
themselves from outsiders and subversives, and then excluding those
outsiders. Just as dangerous, it serves to define the nation against its
foreign rivals and foes, whipping up warlike sentiments against them.
(It was for precisely this reason that Jean-Jacques Rousseau thought
that a good nation needed a patriotic “civil religion” in place of the
dogmas of Christianity, which he found too meek and pacifistic.)9
The story of the Pledge, to which I shall return, shows us that
quite a few different things can go wrong when a nation sets out to
inspire strong emotions with itself as the object, all of which are
pertinent to the project of teaching patriotism in the schools. The
Burnham plan for the Exposition shows the danger of misplaced and
7 Id at 93.
8 Minersville School District v Gobitis, 310 US 586, 595–600 (1940), revd West Virginia
State Board of Education v Barnette, 319 US 624 (1942). See also Part III.
9 See Jean-Jacques Rousseau, On the Social Contract 96–103 (Hackett 1987) (Donald A.
Cress, ed and trans).
218 The University of Chicago Law Review [79:215
exclusionary values: we see a nation defining itself in terms of elite
achievements and aspirations that exclude common people and their
urgent needs. The aftermath of the Pledge shows us the danger of
burdening minority conscience by enforced homogeneity. Finally,
both the Burnham plan and the ritual of the Pledge show us the
danger that patriotism will short-circuit the critical faculties and
undercut social rationality.
With such problems in mind, many rational people look
skeptically on appeals to patriotic sentiment. They favor
deemphasizing it in education and focusing on developing citizens
who can think for themselves and deliberate about the nation’s
future on the basis of rational principles. In favoring critical reason,
they are surely not wrong. Ever since the time of Socrates—in other
words as long as democracy has existed in the West—it has had too
little careful reasoning and too much hasty enthusiasm. In ignoring
or discarding patriotic emotion, however, such people may have lost
sight of an insight firmly grasped by thinkers of the late eighteenth
and nineteenth centuries: that patriotic emotion can be a necessary
prop for valuable projects involving sacrifice for others. Italian
revolutionary and nationalist Giuseppe Mazzini, seeing the many
ways in which the rise of capitalism threatened any common project
involving personal sacrifice, believed that national sentiment was a
valuable “fulcrum,” relying on which one could ultimately leverage
generous sentiments extending to all humanity. He doubted that the
immediate appeal to love of all humanity could motivate people
deeply sunk in greed, but he thought that things stood differently
with the idea of the nation, which might acquire a strong
motivational force even when people were rushing to enrich
themselves.10
In this paper I shall argue, first, that Mazzini is correct: national
sentiment can play a valuable and even essential role in creating a
decent society, in which, indeed, liberty and justice are available to
all. I shall argue (albeit briefly11) that attachments to good principles,
and even abstract, principle-dependent emotions, are not sufficient
to motivate people to make big sacrifices. For this we need a type of
love, an emotion that is not simply abstract and principle-dependent,
but that conceives of the nation as a particular, with a specific
history, specific physical features, and specific aspirations that inspire
devotion. I shall then examine the problems before us, a type of
10 See Giuseppe Mazzini, Thoughts upon Democracy in Europe (1846–1847) 67–74
(Toscano 2001) (Salvo Mastellone, trans).
11 For fuller arguments, see Martha Nussbaum, Political Emotions XX (under contract to
Harvard University Press).
2012] Teaching Patriotism 219
Scylla and Charybdis that are all too likely to waylay even the wary
voyager. Scylla, the monster that lured voyagers on one side of the
narrow strait, had many heads, each equipped with sharp teeth12—
and so I shall imagine her here. One “head of Scylla” is the danger of
misplaced and exclusionary values. A second “head” is the danger of
burdening minority conscience by the imposition of ritual
performances. A third “head” is an excessive emphasis on solidarity
and homogeneity that threatens to eclipse the critical spirit. On the
other side of the strait, however, awaits Charybdis, a whirlpool that
threatens to entrap and destroy any ship that steers too far away
from Scylla.13 Charybdis, in this argument, is the danger of “watery”
motivation, the problem that Aristotle thought would beset any
society that tried to run its business without particularized love.14
After discussing and illustrating these dangers, I shall give examples
from both US and Indian history of politicians who were able to
construct a form of patriotism that steered successfully through the
narrow strait: Abraham Lincoln, Martin Luther King Jr, Mohandas
Gandhi, and Jawaharlal Nehru. After examining key examples of
their achievements, I shall ask how a patriotism of their type might
be taught in schools, and how considerations of both content and
pedagogy are relevant to its success.
II. WHY PATRIOTISM?
In what follows, I shall understand patriotism as a strong
emotion taking the nation as its object. As I shall understand it, it is a
form of love, and thus distinct from simple approval, or commitment,
or embrace of principles. It is closely connected to the feeling that
the nation is one’s own, and it usually includes some reference to that
idea in its rituals. Consider: “My Country, ‘Tis of Thee,” where the
embrace of the nation as “mine” is explicit;15 “Allons Enfants de la
Patrie,”16 where the first-person plural exhorts all Frenchmen to see
the nation as their parent; or India’s “Jana Gana Mana” (the
national anthem),17 in which the “we” identifies itself as comprising
12 Homer, The Odyssey Book XII, lines 100–16 (Osgood 1871) (William Cullen Bryant, trans).
13 Id at Book XII at lines 117–25.
14 Aristotle, The Politics of Aristotle 1262b (Oxford 1958) (Ernest Barker, trans).
15 For sheet music and lyrics, see John Francis Smith, My Country, ’Tis of Thee, in John
Carroll Randolph, Patriotic Songs for School and Home 9, 9 (Oliver Ditson 1899).
16 “Allons Enfants de la Patrie” is commonly refered to as “La Marseilleise.” For sheet
music and lyrics, see Claude Joseph Rouget de Lisle, La Marseillaise, in W.L. Reed and M.J.
Bristow, eds, National Anthems of the World 213, 213–15 (Cassel 10th ed 2002) (“Arise,
children of the fatherland, The day of glory has come.”).
17 For sheet music and lyrics, see Rabindranath Tagore, Jana Gana Mana, in Reed and
Bristow, eds, National Anthems of the World 263, 263–67 (cited in note 16).
220 The University of Chicago Law Review [79:215
people drawn from all of India’s geographical regions and her major
religious traditions.18
This love may be modeled on quite a few different sorts of
personal love. As with the love of a sports team, so here: different
people think differently about the nation’s relationship to them. For
some, the nation is a beloved parent, and that idea is certainly
prominent in many symbolic appeals to patriotism. At other times,
the nation is seen as more like a beloved child, whose growth and
development one desires to promote. At other times, the nation is
seen in a more romantic light, as a beloved beckoning to the lover.
Different patriotic rituals and songs conjure up subtly different forms
of love, and sometimes the same song appeals to more than one.
(“La Marseillaise” begins by imagining France as a parent, but the
beautiful concluding stanza is far more erotic, as liberté cherie is
addressed in tones of awe. “Jana Gana Mana” appeals to a parental
idea in its depiction of the moral principles of the nation as
sustaining and guiding it; but the music is quite erotic.) Even within
one and the same ritual or part of a ritual, different people may
experience different types of love, in keeping with individual needs
and predilections.
In all its forms, however, patriotic love, as I shall discuss it, is
particularistic. It is modeled on family or personal love of some type,
and, in keeping with that origin or analogy, it focuses on specifics:
this or that beautiful geographical feature, this or that historical
event. The thicker it is in these respects, the more likely it is to
inspire. Thus Americans love “America the Beautiful”19 and Woody
Guthrie’s “This Land Is Your Land,”20 albeit ignoring its political
meaning, more than they love the boringly abstract “My Country.”
The specificity and musical eroticism of “Jana Gana Mana” and
Bangladesh’s “Amar Shonar Bangla,”21 both written, words and
music, by the great Rabindranath Tagore, inspire love, while a thin
plodding abstraction could not sustain attention for long.
Throughout I focus on the nation, and that focus is important,
because the nation, in the modern world, is the central source of
people’s rights and duties as citizens. Nonetheless, it is important to
bear in mind that other forms of patriotic love—addressed to the
state, the city, the region—can coexist with love of the nation and
18 For sheet music and lyrics, see id.
19 For sheet music and lyrics, see Katharine Lee Bates, America the Beautiful, in
Theodore Raph, ed, The American Song Treasury: 100 Favorites 350, 350–52 (Dover 1964).
20 For sheet music and lyrics, see Woody Guthrie, This Land Is Your Land, in Dan Fox
and Dick Weissman, eds, The Great Family Songbook 26, 26–28 (Black Dog 2007).
21 For sheet music and lyrics, see Rabindranath Tagore, Amar Shonar Bangla, in Reed
and Bristow, eds, National Anthems of the World 51, 51–58 (cited in note 16).
2012] Teaching Patriotism 221
reinforce it. Sometimes there will be tensions, as when a city or state
pursues goals that the nation as a whole has not embraced. (This is
happening today, for example, with same-sex marriage, a source of
patriotism for New Yorkers and others, but a corresponding source
of alienation from other states and even at times the nation. This
large and fascinating topic, however, I must leave for another
occasion.)
Why do we need an emotion like this? The very particularity
and eroticism of patriotic love make it ripe for capture, it would
seem, by darker forces in our personalities.
Mazzini’s answer was that our lives are immersed in greed and
self-interest; we need a strong emotion directed at the general
welfare to inspire us to support the common good in ways that
involve sacrifice.22 But to have enough motivational strength, this
emotion cannot have a purely abstract object, such as “humanity”: it
must have more concreteness. The idea of the nation, he thought,
was that sort of idea: sufficiently local, sufficiently ours, sufficiently
concrete, or at least susceptible of being made concrete, to motivate
us strongly, and yet large enough to involve our hearts in an object
beyond greed and egoism.23
Psychology has shown by now that Mazzini is correct.24 Like
some other animals (apes, elephants, probably dogs) human beings
are capable of compassion for the suffering and the needs of others.
We have an innate capacity to take up the perspective of another
person, and to see the world from that point of view. And we also
seem to have evolutionary tendencies toward a genuine altruistic
concern for the well-being of at least some people outside ourselves.
In other species, however, altruistic emotion operates in a very
restricted compass. The kinship group is typically its limit, although
in the case of elephants concern may extend to other members of the
species, and in the case of dogs concern may cross the species
boundary to include symbiotic members of other species. The ability
of animals to occupy distant perspectives is evidently quite restricted,
and experimental work with young children shows that the human
ability is similarly narrow. If people are to be willing to sacrifice for
22 Mazzini, Thoughts upon Democracy in Europe at 3 (cited in note 10).
23 See id at 8–9.
24 For more on this topic, see Nussbaum, Political Emotions (cited in note 11). For a very
impressive defense of patriotism in motivating sacrifice, see David Miller, On Nationality ch 3
(Clarendon 1995). I discuss Miller’s arguments at greater length in my paper, Kann es einen
‘gereinigten Patriotismus’ geben?, in Matthias Lutz-Bachmann, Andreas Niederberger and
Philipp Schink, eds, Kosmopolitanismus: Zur Geschichte und Zukunft eines umstrittenen Ideals
242–76 (Velbrück 2010). For a much shorter version of this paper, see Martha C. Nussbuam,
Toward a Globally Sensitive Patriotism, 137 Daedalus 78 (Summer 2008).
222 The University of Chicago Law Review [79:215
people whom they don’t know, the moral imagination will need to be
extended, somehow, beyond the confines of our animal heritage.
How could concern be extended? Here we arrive at another
problem. The moral imagination, it seems, is highly particularistic,
moved to emotion and thence to helping action by the vivid
imagining of another specific person’s plight. For many years
psychologist C. Daniel Batson has done experimental work on
altruism that shows that a reliable way to trigger altruistic emotion in
human adults is to ask them to listen with vivid involvement to
another person’s story of woe.25 Without such a narrative, subjects
fail to experience emotion, and helping behavior is not triggered.
Moreover, the specific trumps the abstract: when people are aware
of an abstract principle of fairness, for example a policy for
allocating scarce organs, but then hear a specific tale of woe
concerning one person, they get involved in that one person’s fate
and are willing to move that person to the top of the list, violating
the principle of fairness that they have accepted. What this shows us
is that abstract attachments have less motivational power than
attachments made vivid through specific history and narrative.
If altruistic emotion is to have motivational power, then, it needs
to hitch itself to the concrete. The idea of the nation, if we follow
Batson’s research, needs to hook us in through several concrete
features: for example, named individuals (founders, heroes), physical
particulars (features of landscape, and vivid images and metaphors),
and, above all, narratives of struggle, involving suffering and hope.
Patriotic emotion typically does all this: it seeks devotion and
allegiance through a colorful story of the nation’s past, which points,
typically, to a future that lies still in doubt. Indeed, the idea of a
nation is, in its very nature, a narrative construct.26 To say what a
given nation is, is to select from all the unordered material of the
past and present a clear narrative that emphasizes some things and
omits others, all in the service of pointing to what the future may
hold—if people care. In one of the most insightful and justly
influential discussions of the idea of the nation, French philosopher
Ernst Renan argued that a nation is not simply a physical location, it
is an idea, a “spiritual principle.”27 This spiritual principle involves,
on the one hand, a story of the past, usually a story of adversity and
25 See generally C. Daniel Batson, Altruism in Humans (Oxford 2011) (representing a
monumental work summarizing a career of rigorous experimental research).
26 See E.J. Hobsbawm, Nations and Nationalism since 1780: Programme, Myth, Reality 12
(Cambridge 1990).
27 Ernest Renan, What Is a Nation?, in Homi K. Bhabha, ed, Nation and Narration 8, 19
(Routledge 1990). This chapter is taken from a lecture delivered at the Sorbonne in 1882.
2012] Teaching Patriotism 223
suffering, and then a commitment to the future, a willingness to live
together and face adversities for the sake of common goals. The two
sides are linked: the story of the past has to tell people what is worth
fighting for in the future. Renan remarks that the past has to have in
it something great or glorious, but it also needs to have loss and
suffering: “Where national memories are concerned, griefs are of
more value than triumphs, for they impose duties, and require a
common effort.”28 Meditating on the glories and sufferings of the
past, people think, “Yes, for those great ideals I too would be willing
to suffer.” Or, in Renan’s words, “One loves in proportion to the
sacrifices to which one has consented, and in proportion to the ills
that one has suffered.”29 Following Batson, we will add that a good
story of a nation’s past will involve not only abstract ideals, but also
particular individuals; not only a conceptual space, but also physical
places.
The need for emotions of loving concern becomes even more
apparent, and their contours more clearly demarcated, when we
consider another area of psychological research: disgust.30 Human
beings are eager to transcend the animality that everyday experience
makes plain: the evident fact that we are not pure spirits, but have
bodies that excrete a variety of smelly, sticky substances and that will
ultimately die and decay. Strategies to avoid contamination by
animal substances coming from our own bodies form a great part of
social life. But then, apparently in a further strategy to keep
ourselves free from animal contamination, human beings create
subordinate groups of humans whom the dominant group identifies
as quasi-animal, as smelly, base, animal-like—and then considers
those humans contaminating. If contact with those subhuman
humans can be avoided, they are that much further away from being
what they are, namely, animal and mortal.
This dynamic can be seen in virtually every society, although the
subordinated groups are not always the same. We see its operations
in European anti-Semitism, in the Indian caste hierarchy, and in
many forms of misogyny and racism. American racism provides a
handy illustration. White racism portrays African Americans as
“lower,” as quasi-animals, projecting onto them properties such as
bad smell, hypersexuality, and other animal traits that are really
28 Id.
29 Id.
30 I have gone into great detail about this in two books: Hiding from Humanity
(Princeton 2004) and From Disgust to Humanity: Sexual Orientation and Constitutional Law
(Oxford 2010). References to the psychological literature should be sought there, as well as in
Nussbaum, Political Emotions (cited in note 11).
224 The University of Chicago Law Review [79:215
present in all humans. Whites then say, because you have these traits
you are contaminating, we must not eat with you, share swimming
pools and drinking fountains with you, or have sex with you. (Of
course, sex across racial lines was ubiquitous, but it was legally
forbidden.)
Such emotions and ideas constitute a great threat to national
projects, if they involve the notion of altruistic sacrifice for a
common good: for they divide the nation into hierarchically ordered
groups that must not meet. What “common good” could cross those
lines? Given that separations motivated by disgust are so common in
real societies, strategies promoting common efforts need to find ways
to surmount this problem. It seems unlikely that abstract principles
on their own can do this job. Given that the other has already been
vividly depicted in one way, as subhuman, the antidote to that way of
imagining must itself come via the imagination, in the form of
experiences of seeing the other as fully human. If the other has been
dehumanized in the imagination, only the imagination can
accomplish the requisite shift. For example, having formed the view
that gay men are loathsome hypersexual animals and sources of
unspecified contagion and decay,31 people will see them differently
only if they have narratives of their lives that portray those lives
differently—as fully human, and as close to those people’s own lives
and purposes. Any call to altruism that fails to deploy the
imagination and emotions in this way leaves in place powerful forces
of division that are very likely to subvert any common labor.
Disgust might be counteracted in the private sphere, without
recourse to national ideals. But one way to overcome it is surely to
link the narrative of the full humanity of the denigrated group to a
story of national struggle and national commitment in Renan’s
sense.32 We’ll see later that one of Martin Luther King Jr’s great
achievements was to promote this emotional transformation in his
audience.33 If educators can portray the denigrated group as part of a
“we” that suffered together in the past and suggest that “we” are
planning together for a future of struggle, but also of hope, this
makes it far more difficult to continue to see the “other” as a
contaminating and excluded outsider. In patriotic emotion, citizens
embrace one another as a family of sorts, sharing common purposes;
thus stigma is overcome (for a time at least) by imagination and love.
In this way, patriotic emotion appears to be crucial for a further
31 For examples of this way of talking about gay men in the pamphlet literature, see
Nussbaum, From Disgust to Humanity at 1, 94 (cited in note 30).
32 See note 27.
33 See notes 84–88 and accompanying text.
2012] Teaching Patriotism 225
reason: because emotion is needed to get people to see the whole as
a whole, rather than as a balkanized set of hierarchically ordered
parts.
III. SCYLLA: EXCLUSIONARY VALUES, COERCED CONSCIENCE,
UNCRITICAL HOMOGENEITY
“Scylla” represents a variety of dangers of strong patriotic
passion gone awry, the set of dangers most frequently associated
with appeals to patriotic love. We need to describe and confront
them if we are to defend the claim that there is a form of patriotic
love that avoids them. Because these dangers are heterogeneous, the
many-headed monster Scylla is an apt metaphor.
The first and most obvious danger is that of misplaced values. If
we are going to whip up strong passions, we want to make sure we
don’t generate enthusiasm for the wrong thing. And it is easy to see
that patriotic love has served a range of unwise causes: foolish and/or
unjust wars, racial or ethnic hatred, religious exclusion. It is on such
cases that people usually focus when they express horror at the very
idea of patriotic love.
It is a little difficult to know what, precisely, this objection is
supposed to be. Does the objector think that there is any inherent
tendency in patriotism that leads to the support of bad rather than
good ends? If so, this analysis needs to be presented. One could, for
example, imagine an argument that it is always unwise to whip up
disgust in public life, given the specific tendencies of that emotion to
lead to the stigmatization and subordination of vulnerable groups.
Indeed, I have made such an argument.34 However, we are talking
here about love, not disgust, and it is much more difficult to see what
argument could be given for the claim that love is always likely to be
unwise, or connected to bad policy choices.
Maybe the objection, instead, is to the idea of the nation as
object of love. Some believe that the very idea of the nation is a
primitive one, to be superceded ultimately by the universal love of
all humanity (and, presumably, the creation of a world state). But
then, that argument itself needs to be stated and examined. I myself
have argued that even in a world dedicated to the pursuit of global
justice, the nation has a valuable role to play, as the largest unit we
know so far that is sufficiently accountable to people and expressive
of their voices.35
34 See generally Nussbaum, Hiding from Humanity (cited in note 30).
35 See Martha C. Nussbaum, Frontiers of Justice: Disability, Nationality, Species
Membership ch 5 (Harvard 2006).
226 The University of Chicago Law Review [79:215
Most often, though, the misplaced values objection is probably
to be parsed as follows. Emotions are always dangerous: look what
trouble they have caused in this case and in that. We can do without
them as we pursue our good values. So we’d better do that. There
are quite a few problems with this very common way of thinking.
First, the objector typically lists the bad goals that emotions have
supported (Nazism, religious persecutions, unjust and unwise wars)
and not the good (the abolition of slavery, the civil rights movement,
the cause of greater economic justice, just and wise wars). Does the
objector believe, for example, that Hitler could have been defeated
without strong passions connected to the idea of the survival of one’s
own nation, whether it be Britain or the United States? Second, as
this example already suggests, the objector just assumes that good
goals propel themselves into existence and sustain themselves
without any strong emotional motivation. History, I believe, proves
that picture wrong. When people don’t care enough about something
to endure hardship for it, things usually go badly. Third, the objector
seems to forget that the bad goals and bad emotions don’t disappear
as we calmly pursue the good: so the question of what happens to the
emotionless good in competition with the emotion-laden bad is not
posed. (Once again: imagine combating Hitler’s Germany without
any sources of love or emotional motivation.)
The best response to give to this group of objections is that we
must be extremely vigilant about the values we encourage people to
love and pursue, and we must encourage continued vigilance by the
cultivation of a critical public culture, the teaching of history in a
critical mode, and the teaching of critical thinking and ethical
reasoning in the schools. I shall elaborate all of this in Part VI.
One way to avoid this danger is to make sure that the narrative
of the nation’s history and current identity is not exclusionary, and
does not emphasize the contribution of a single ethnic, racial, or
religious group to the exclusion of others. A national narrative may,
and frequently is, based on a set of political ideals that can embrace
all citizens, including new immigrants. Conceiving of the nation in
such a way (as both the United States and India have done, but most
of the nations of Europe have not) helps avoid the danger of
ethnocentrism, a crucial aspect of the danger of misplaced values.
One more version of this objection remains. The objector now
says that if, as suggested, the emotions are particularistic, then we
cannot utterly depend on them to generate evenhanded policies that
treat people as equals—even when the object of strong love is the
entire nation. This seems to me to be the best objection of the
misplaced values type, because it identifies a genuine tendency in the
2012] Teaching Patriotism 227
emotions (well demonstrated in Batson’s recent research on
compassion36). And history shows many cases in which the appeal to
the nation is uneven and even exclusionary, defining certain groups
and people as not really part of the nation.37 We shall shortly see how
patriots from Lincoln to Gandhi address this problem. But one
should acknowledge, too, that a crucial role in any decent society is
played by institutions that take matters out of people’s hands in
some key respects. Compassion, however altruistic, can’t run a fair
tax system. So, we turn many things over to institutions and laws.
Nonetheless, these institutions and laws will not sustain themselves
in the absence of love directed at one’s fellow citizens and the nation
as a whole, as current events are showing. The erosion of the New
Deal results from an imaginative and emotional shift, and this shift is
prompting major changes in institutions and laws. So it isn’t
sufficient to create good institutions and then run away and hide. We
have to get our hands dirty by entering the feared emotional terrain.
The second head of Scylla has deep historical roots, and yet it is
relatively easy to answer. Indeed, it has already been decisively
answered. At one time in our history, as we saw at the opening of
this paper, the urgent importance of patriotism was understood to
justify coercion of the young: many states required the Pledge of
Allegiance and the flag salute, and they suspended or expelled
children who refused to join in.38 In a terrible catch-22, the parents of
these children were fined or even jailed for contributing to the
delinquency of a minor, since their children were not in school.39 In at
least one case, that of Russell Tremain, the parents lost custody of
their child as a result, and little Russell was placed in a children’s
home, where he was compelled to recite the Pledge.40
More than one religious group objected to the Pledge as a form
of “idolatry,” but the Jehovah’s Witnesses were the most publicly
influential such group, because they were willing to engage in
litigation, whereas some other groups (including the sect to which
the Tremains belonged) saw litigation as incompatible with their
pacifism.41 Lillian and William Gobitas42 offered convincing and
36 See generally Batson, Altruism in Humans (cited in note 25).
37 See Ellis, To the Flag at 106–07 (cited in note 6).
38 See Minersville School District v Gobitis, 310 US 586, 595–600 (1940).
39 See Ellis, To the Flag at 93 (cited in note 6).
40 See Martha C. Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of
Religious Equality ch 5 (Basic Books 2008).
41 Id at 203–04. For an excellent history of the key role of Jehovah’s Witnesses in this
period, see generally Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution
and the Dawn of the Rights Revolution (Kansas 2000).
228 The University of Chicago Law Review [79:215
articulate43 testimony that the Pledge was, to them, a violation of
religious requirements.44 Nonetheless, the local school board had no
sympathy for their arguments, contending that their objections were
not genuinely religious.45 Eventually their complaint reached the US
Supreme Court, where they lost.
Minersville School District v Gobitis46 is one of the most infamous
cases in the history of the US Supreme Court. A number of factors
explain the result. Joseph Rutherford, leader of the Witnesses, argued
the case himself and did a very bad job.47 More important still, Justice
Felix Frankfurter’s strong views about patriotism carried the day.
Justice Frankfurter stressed throughout—both in his majority opinion
here48 and in his later dissent in West Virginia State Board of Education
v Barnette49—his personal sympathy with the situation of the Gobitas
children. “One who belongs to the most vilified and persecuted
minority in history is not likely to be insensible to the freedoms
guaranteed by our Constitution,” he wrote, at the time the lone Jew
on the Court.50 Nonetheless, his strong views about the limits of
judicial power, combined with his fervent patriotism,51 led him to
conclude that the regulation requiring the Pledge was not
unconstitutional.52 His patriotic fervor outlived the controversy over
his two opinions: in 1944, as speaker for the District of Columbia’s “I
am an American Day” celebration, he compared love of country to
romantic love, saying that it was too intimate an emotion to be
publicly expressed except in poetry.53 He then read a rather
42 The correct spelling of the name, misspelled as Gobitis in later court documents.
Peters, Judging Jehovah’s Witnesses at 19 (cited in note 41).
43 Lillian wrote out her points as a numbered list, mentioned the biblical texts by number
only, and stressed the constitutional as well as religious arguments. Billy wrote a long
discursive paragraph, quoted the relevant biblical texts, and mentioned his love of his country.
Id at 37.
44 For the background, and a detailed account of the case, see Nussbaum, Liberty of
Conscience at ch 5 (cited in note 40). See also Ellis, To the Flag at 91–105 (cited in note 6);
Peters, Judging Jehovah’s Witnesses at 19–36 (cited in note 41); Peter Irons, The Courage of
Their Convictions 25–35 (Free Press 1988) (containing an interview with the adult Lillan). See
generally Peters, Judging Jehovah’s Witnesses at ch 1–2 (cited in note 41).
45 Peters, Judging Jehovah’s Witnesses at 37–39 (cited in note 41).
46 310 US 586 (1940).
47 Peters, Judging Jehovah’s Witnesses at 48 (cited in note 41).
48 See Gobitis, 310 US at 594.
49 319 US 624, 646 (1943) (Frankfurter dissenting).
50 Id. Despite his allusion to Judaism here, however, Frankfurter was never very Jewishidentified,
in contrast to Brandeis, an influential Zionist.
51 He was known to whistle “The Stars and Stripes Forever” in the halls of the Court,
and he told his biographer, on his deathbed, “Let people see . . . how much I loved my
country.” Peters, Judging Jehovah’s Witnesses at 52 (cited in note 41).
52 Gobitis, 310 US at 600.
53 Peters, Judging Jehovah’s Witnesses at 53 (cited in note 41).
2012] Teaching Patriotism 229
sentimental ode to the flag by Franklin K. Lane, which included the
lines, “I am not the flag, not at all. I am but its shadow.”54 It is
understandable, if not commendable, that the world situation in 1940
led him to take this enthusiasm too far.
In Gobitis, Justice Frankfurter grants that the First Amendment
entails that restrictions on conduct expressive of religious conviction
can be justified only by “specific powers of government deemed by
the legislature essential to secure and maintain that orderly, tranquil,
and free society without which religious toleration itself is
unattainable.”55 He then argues that national unity and cohesion
supply the state with “an interest inferior to none in the hierarchy of
values.”56 The school board’s view that requiring the pledge is crucial
to promote that central interest is plausible, since the flag is “the
symbol of our national unity, transcending all internal differences,
however large.”57 He does not, however, address the real question in
the case: Is it plausible to hold that national unity and cohesion
require enforcing the pledge rule against a small number of children
with sincere religious objections? He focuses on the general issue of
national unity in a time of danger, rather than the conscientious acts
of two respectful teenagers who certainly would not be imitated by
their scoffing peers. So Justice Harlan Stone pointed out in his
stinging dissent: “I cannot say that the inconveniences which may
attend some sensible adjustment of school discipline in order that the
religious convictions of these children may be spared, presents a
problem so momentous or pressing as to outweigh the freedom from
compulsory violation of religious faith which has been thought
worthy of constitutional protection.”58
Justice Frankfurter was wrong and Justice Stone was right, as
the nation soon agreed. The decision was immediately greeted with a
storm of criticism.59 At the same time, escalating violence against
Jehovah’s Witnesses was to some extent blamed on the Court, as if
the decision had given sanction to the popular idea that Jehovah’s
Witnesses were a “fifth column” subverting our nation from within.60
Several Justices gave indications that they might have changed their
54 Id.
55 Gobitis, 310 US at 595.
56 Id.
57 Id at 596.
58 Id at 607 (Stone dissenting).
59 Nussbaum, Liberty of Conscience at 212 (cited in note 40).
60 See note 8 and accompanying text. See also Nussbaum, Liberty of Conscience at ch 5
(cited in note 40) (discussing a variety of cases in which fear motivated discrimination against
religious minorities throughout American history, including Jehovah’s Witnesses).
230 The University of Chicago Law Review [79:215
minds;61 and changed membership on the Court62 suggested that the
other side might now prevail. The Court shortly accepted another
case raising the same issues. In West Virginia State Board of
Education v Barnette, the Court found in favor of the Witness
plaintiffs.63 Justice Robert Jackson’s majority opinion has become
one of the defining landmarks of US political life. Treating the case
as a compelled-speech case rather than one falling under the religion
clauses, he offers a resonant defense of the idea of freedom of
dissent:
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.64
He adds that compulsory unity is not even effective: “Those who
begin coercive elimination of dissent soon find themselves
exterminating dissenters. Compulsory unification of opinion achieves
only the unanimity of the graveyard.”65
Barnette gives the right reply to our second objection. Patriotism
and respectful dissent are not incompatible. Indeed, our particular
tradition emphasizes the freedom of dissent, and we should take
pride in that defense of liberty. Given values of a particular sort,
emphasizing individual liberty and the rights of conscience, the
second objection can be straightforwardly answered: our values
preclude such burdens on conscience, unless a national security
interest is far stronger and more immediate than it was in this case.
In general, children may not be burdened against their conscience by
required patriotic rituals in the schools.
Today the idea of noncoercion is well understood, and even its
subtler aspects have had sympathetic attention. In Lee v Weisman,66
for example, the Court understood the subtle coercion that might be
present if a student were required to stand during a middle-school
graduation prayer, especially when the only alternative was not to
attend her own graduation.67 Justice Anthony Kennedy’s opinion
focused on the dangers of coercive pressure to conscience and
61 Nussbaum, Liberty of Conscience at 212 (cited in note 40).
62 Id.
63 Barnette, 319 US at 641.
64 Id at 642.
65 Id at 641.
66 505 US 577 (1992).
67 Id at 592.
2012] Teaching Patriotism 231
enforced orthodoxy in the schools.68 So central is this decision in
current Establishment Clause jurisprudence that, in the abortive case
involving the words “under God” in the Pledge, Justice Clarence
Thomas would have upheld even a noncompulsory public recitation
of the Pledge primarily by denying the incorporation of the
Establishment Clause and thus discarding this and numerous other
precedents.69
The coercion objection is no longer a serious issue. Young
people may not find their conscience burdened in the schools. Its
legacy, however, is a more subtle form of peer pressure. Lillian
Gobitis recalls how, when the school bus drove by their home,
children jeered and threw things at them.70 So it is not just legal
imposition of conformity that we have to worry about in schools, it is
the tyranny of peer pressure, an all-too-ubiquitous human tendency,
as psychologist Solomon Asch has effectively shown.71 Therefore
teachers and other school officials need to be vigilant in their defense
of minorities—religious and political, as well as racial and sexual.
The problem of bullying, however, is hardly unique to the issue of
patriotism, and it supplies no reason not to teach patriotism that is
not also a reason not to educate children in groups at all!
The question of peer pressure brings us to our third objection on
the side of “Scylla”: Won’t a culture in which patriotic emotion is a
major theme be likely to be all too solidaristic, all too homogeneous,
lacking free spaces for individual expression and for dissent? As with
the second issue, we should begin by saying that this is not a problem
peculiar to patriotism. Human beings are all too prone to defer to
peer pressure, as Asch showed,72 and to be obedient to authority, as
Stanley Milgram showed.73 As Socrates argued, the Athenian
democracy was all too prone to ignore critical argument, making its
decisions by deference to tradition and other unthinking forces. To
Socrates, this meant that democracy was not conducting its business
well, and needed to be awakened by the “gadfly” sting of his critical
reasoning.74 So the problem is one that has beset democracy ever
68 See especially id.
69 Elk Grove Unified School District v Newdow, 542 US 1, 49–51 (2004) (Thomas
concurring).
70 Irons, The Courage of Their Conviction at 25–35 (cited in note 44).
71 See Solomon Asch, Opinions and Social Pressure (Panarchy 1955), online at
http://www.panarchy.org/asch/social.pressure.1955.html (visited Oct 30, 2011).
72 See id.
73 See Stanley Milgram, Obedience to Authority 3–5 (Harper 1974). For my discussion of
both Asch and Milgram, see Political Emotions at ch 6 (cited in note 11).
74 James Riddell, ed, The Apology of Plato: With a Revised Text and English Notes and a
Digest of Platonic Idioms 30E–31C (Oxford 1867).
232 The University of Chicago Law Review [79:215
since democracy began to exist. But certainly, strong patriotic
emotion might be one area in which people seek to silence critical
voices. How might this danger be headed off?
Justice Jackson gives us the best path to follow: we must insist
that the truly patriotic attitude is one that repudiates orthodoxy and
coercive pressure and celebrates liberties of speech and conscience.75
His stirring rhetoric is one example of a patriotic statement that can
move people powerfully, even while making them think and
endorsing the value of thinking. In general, we need to cultivate the
critical faculties early and continuously, and to show admiration for
them, insisting that critical freedom, not herd-like obedience, is the
mark of the true patriot. This can be done in many ways, and some
of them involve strong emotions. Children are herd creatures, but
they are also, at other times, dissenters, and the joy of freedom and
critical dissent can be encouraged from the beginning of a child’s life.
I am sure that my own early love of that young girl who rode farther
than Paul Revere was a love of the idea of the break with tradition,
the pursuit of freedom, that the American Revolution represented.
The idea of America, for me, was characterized from the beginning
by a strong flavor of dissent and experimentation, even defiance.
Many beloved parts of the American literary and filmic canon, from
Twelve Angry Men to To Kill a Mockingbird, valorize the lone
dissenter as the true patriot.
We can have no better example of the way in which patriotic
emotion can focus on the value of critical freedom than the song
“Ekla Cholo Re” by Rabindranath Tagore, which was the favorite
song of Mahatma Gandhi and became a linchpin of his freedom
movement:
If no one answers your call, then walk on alone.
(Walk alone, walk alone, walk on alone.)
If no one says a thing, oh you unlucky soul,
If faces are turned away, if all go on fearing—
Then opening up your heart,
You speak up what’s on your mind, you speak up alone.
If they all turn back, oh you unlucky soul,
If, at the time of taking the deep dark path, no one cares—
Then the thorns that are on the way,
O you, trampling those with bloodied feet, you tramp on alone.
If a lamp no one shows, oh you unlucky soul,
If in a rainstorm on a dark night they bolt their doors—
75 For an example of Jackson’s passionate majority opinion in Barnett, which emphasized
the importance of dissent, see note 95 and accompanying text.
2012] Teaching Patriotism 233
Then in the flame of thunder
Lighting your own ribs, go on burning alone.76
The music expresses determination: there is a rhythm as of
walking on, which continues throughout. It expresses solitude and
exposure: the single vocal line, the sense of passionate risk in the
voice. But above all, it also expresses joy. It is in fact a very happy,
even delighted, song, full of gusto and affirmation. People love this
song, and their love was highly relevant to the success of Gandhi’s
resistance movement. As he walked along with his walking stick and
his simple loincloth—and his childlike delight in life, so often
observed by those who met him—he seemed to embody the spirit of
that song, and the fusion of artistic image with living exemplar was
(and is) powerfully moving. That’s how the spirit of solitary dissent—
combined with joy—can galvanize a population.
Patriotism of the right sort can, it seems, avoid the three dangers
represented by Scylla. But still, one might ask, why play with fire?
IV. CHARYBDIS: “WATERY MOTIVATION”
Martha C. Nussbaum
Hail the flag of America on land or on sea,
Hail the Revolutionary war which made us free.
The British proceeded into the hills of Danbury,
But soon their army was as small as a cranberry.
Remember the brave soldiers who toiled and fought;
Bravery is a lesson to be taught.
—Martha Louise Craven1
I. THE JANUS-FACED NATURE OF PATRIOTISM
In 1892, a World’s Fair, called the “Columbian Exposition,”2 was
scheduled to take place in Chicago. Clearly it was gearing up to be a
celebration of unfettered greed and egoism. Industry and innovation
† Ernst Freund Distinguished Service Professor of Law and Ethics, University of
Chicago.
For a symposium on Understanding Education in the United States, University of Chicago
Law School, June 17–18, 2011. This paper recasts a chapter in my book Political Emotions
(under contract to Harvard University Press), and so I am indebted to all those who have
commented on that manuscript, who are too numerous to list here. I am grateful to Jonathan
Masur for helpful comments. This paper is an abbreviated version of Teaching Patriotism:
Love and Critical Freedom (University of Chicago Public Law and Legal Theory Working
Paper No 357, July 2011), online at http://papers.ssrn.com/sol3/papers.cfm
?abstract_id=1898313 (visited Oct 28, 2011).
1 This poem was “written” by me at age six and a half, according to its label and date; it
was typed up by my mother (I recognize her paper and font), and I found it in her family
album. I am not sure what my contribution to its composition really was, or whether it had
anything to do with a school assignment. But it was clearly a collaborative exercise, and one
from which my mother thought that I would gain something. The general zeal for the
Revolution was certainly my own. At that time I was obsessed with a children’s book called
Ride for Freedom, about a girl named Sybil Ludington (1761–1839), who, on April 26, 1777,
rode out to warn colonial forces of the approach of British troops—riding forty miles over hilly
terrain, a longer distance than Paul Revere, and at the age of only sixteen. See Judy Hominick
and Jeanne Spreier, Ride for Freedom: The Story of Sybil Ludington (Silver Moon 2001). I
remember requiring my parents to act out the story in our basement, using various objects
stored down there as horses. (My colleagues will recognize that the tendency to inveigle others
into dramatic performance exists innately and by nature, and cannot be either altered or
denied.) The “Danbury–cranberry” rhyme is also likely to have been my own, since I loved
visiting my grandparents in Danbury (the town Sybil was really trying to save).
2 Because it celebrated the four-hundredth anniversary of Columbus’s discovery of the
New World. Erik Larson, The Devil in the White City: Murder, Magic, and Madness at the Fair
that Changed America 4 (Crown 2003).
216 The University of Chicago Law Review [79:215
were to be its central foci, as America planned to welcome the world
with displays of technological prowess and material enrichment.
Gross inequalities of opportunity in the nation and in the city were
to be masked by the glowing exterior of the pure white Beaux-Arts
style buildings, right next door to the University of Chicago, that
came to be called “the White City.”3 The architectural choices of the
exhibition’s designers, Daniel Burnham and Daniel Chester French,
expressed the idea that America rivals Europe in grandeur and
nobility. Everything funny, chaotic, and noisy was relegated to the
Midway, outside the precincts of the exhibition: the first Ferris
Wheel, Buffalo Bill’s Wild West Show, children, racial and ethnic
differences, bright colors, poor people. Instead of real human bodies,
disturbing in their heterogeneity and their frailty, the exhibit put
forward the gilded “Statue of the Republic,” a sixty-five-foot-tall
gilded statue of a woman holding a scepter and orb, a smaller replica
of which, only twenty-four feet high, created in 1918 to
commemorate the Exposition, now stands at Hayes Drive and
Cornell.4 The Chicago Tribune wrote, “It impresses by its grand
presence, its serene and noble face, and its perfect harmony with its
magnificent surroundings, by its wonderful fitness.”5
Advocates for the poor, increasingly upset by the plan, got
together to think how the celebration might incorporate ideas of
equal opportunity and sacrifice. A group of Christian socialists
finally went to President Benjamin Harrison with an idea: at the
Exposition the President would introduce a new public ritual of
patriotism, a pledge of allegiance to the flag that would place the
accent squarely on the nation’s core moral values, include all
Americans as equals, and rededicate the nation to something more
than individual greed. The words that were concocted to express this
sentiment were: “I pledge allegiance to the flag of the United States
of America, and to the republic for which it stands: one nation,
indivisible, with liberty and justice for all.”6 At the same time,
Youth’s Companion, a magazine run by two leading advocates for a
Pledge of Allegiance, began an aggressive campaign to promote the
use of the Pledge, along with the flag salute, in the nation’s schools.
3 All of this is well portrayed in Erik Larson’s novel, The Devil in the White City (cited
in note 2).
4 City of Chicago, Explore Chicago: Statue of the Republic (in Jackson Park), online at
http://www.explorechicago.org/city/en/things_see_do/attractions/park_district/statue_of_the_re
public.html (visited Oct 28, 2011).
5 Is a Model of Art, Chi Daily Trib 36 (Jan 29, 1893).
6 For an exhaustive documentation of the history of the Pledge, see generally Richard J.
Ellis, To the Flag: The Unlikely History of the Pledge of Allegiance (Kansas 2005). The words
“under God” were added to the Pledge in 1954, during the Cold War. Id at 136–37.
2012] Teaching Patriotism 217
As so often happens with patriotic sentiment, however, the
Pledge soon proved a formula of both inclusion and exclusion.
Francis Bellamy, the Pledge’s author, was himself both a socialist
and a xenophobe, who feared that our national values were being
undermined by the flood of new immigrants from southern Europe.
By the 1940s, required by law as a daily recitation in schools in
many states, the Pledge became a litmus test for the “good
American,” and those who flunked the test faced both exclusion
and violence. Jehovah’s Witnesses, who refused to recite the Pledge
for religious reasons, seeing it as a form of idolatry, soon found
their children expelled from school for noncompliance. Then, in a
wonderful catch-22, the parents were fined or jailed for
“contributing to the delinquency of a minor” because their children
were not in school!7 The idea grew in the public mind that
Jehovah’s Witnesses were a danger: a “fifth column” subverting
Americans’ values in the lead-up to the war against Germany and
Japan. Accused of German sympathies (despite the fact that
Jehovah’s Witnesses were being persecuted under the Third Reich
for similar reasons and had to wear a purple triangle in the camps),
Witnesses faced widespread public violence, including numerous
lynchings—particularly after the US Supreme Court had upheld the
compulsory flag salute as a legitimate expression of devotion to the
national security.8
Patriotism is Janus-faced. It faces outward, calling the self, at
times, to duties toward others, to the need to sacrifice for a common
good. And yet, just as clearly, it also faces inward, inviting those who
consider themselves “good” or “true” Americans to distinguish
themselves from outsiders and subversives, and then excluding those
outsiders. Just as dangerous, it serves to define the nation against its
foreign rivals and foes, whipping up warlike sentiments against them.
(It was for precisely this reason that Jean-Jacques Rousseau thought
that a good nation needed a patriotic “civil religion” in place of the
dogmas of Christianity, which he found too meek and pacifistic.)9
The story of the Pledge, to which I shall return, shows us that
quite a few different things can go wrong when a nation sets out to
inspire strong emotions with itself as the object, all of which are
pertinent to the project of teaching patriotism in the schools. The
Burnham plan for the Exposition shows the danger of misplaced and
7 Id at 93.
8 Minersville School District v Gobitis, 310 US 586, 595–600 (1940), revd West Virginia
State Board of Education v Barnette, 319 US 624 (1942). See also Part III.
9 See Jean-Jacques Rousseau, On the Social Contract 96–103 (Hackett 1987) (Donald A.
Cress, ed and trans).
218 The University of Chicago Law Review [79:215
exclusionary values: we see a nation defining itself in terms of elite
achievements and aspirations that exclude common people and their
urgent needs. The aftermath of the Pledge shows us the danger of
burdening minority conscience by enforced homogeneity. Finally,
both the Burnham plan and the ritual of the Pledge show us the
danger that patriotism will short-circuit the critical faculties and
undercut social rationality.
With such problems in mind, many rational people look
skeptically on appeals to patriotic sentiment. They favor
deemphasizing it in education and focusing on developing citizens
who can think for themselves and deliberate about the nation’s
future on the basis of rational principles. In favoring critical reason,
they are surely not wrong. Ever since the time of Socrates—in other
words as long as democracy has existed in the West—it has had too
little careful reasoning and too much hasty enthusiasm. In ignoring
or discarding patriotic emotion, however, such people may have lost
sight of an insight firmly grasped by thinkers of the late eighteenth
and nineteenth centuries: that patriotic emotion can be a necessary
prop for valuable projects involving sacrifice for others. Italian
revolutionary and nationalist Giuseppe Mazzini, seeing the many
ways in which the rise of capitalism threatened any common project
involving personal sacrifice, believed that national sentiment was a
valuable “fulcrum,” relying on which one could ultimately leverage
generous sentiments extending to all humanity. He doubted that the
immediate appeal to love of all humanity could motivate people
deeply sunk in greed, but he thought that things stood differently
with the idea of the nation, which might acquire a strong
motivational force even when people were rushing to enrich
themselves.10
In this paper I shall argue, first, that Mazzini is correct: national
sentiment can play a valuable and even essential role in creating a
decent society, in which, indeed, liberty and justice are available to
all. I shall argue (albeit briefly11) that attachments to good principles,
and even abstract, principle-dependent emotions, are not sufficient
to motivate people to make big sacrifices. For this we need a type of
love, an emotion that is not simply abstract and principle-dependent,
but that conceives of the nation as a particular, with a specific
history, specific physical features, and specific aspirations that inspire
devotion. I shall then examine the problems before us, a type of
10 See Giuseppe Mazzini, Thoughts upon Democracy in Europe (1846–1847) 67–74
(Toscano 2001) (Salvo Mastellone, trans).
11 For fuller arguments, see Martha Nussbaum, Political Emotions XX (under contract to
Harvard University Press).
2012] Teaching Patriotism 219
Scylla and Charybdis that are all too likely to waylay even the wary
voyager. Scylla, the monster that lured voyagers on one side of the
narrow strait, had many heads, each equipped with sharp teeth12—
and so I shall imagine her here. One “head of Scylla” is the danger of
misplaced and exclusionary values. A second “head” is the danger of
burdening minority conscience by the imposition of ritual
performances. A third “head” is an excessive emphasis on solidarity
and homogeneity that threatens to eclipse the critical spirit. On the
other side of the strait, however, awaits Charybdis, a whirlpool that
threatens to entrap and destroy any ship that steers too far away
from Scylla.13 Charybdis, in this argument, is the danger of “watery”
motivation, the problem that Aristotle thought would beset any
society that tried to run its business without particularized love.14
After discussing and illustrating these dangers, I shall give examples
from both US and Indian history of politicians who were able to
construct a form of patriotism that steered successfully through the
narrow strait: Abraham Lincoln, Martin Luther King Jr, Mohandas
Gandhi, and Jawaharlal Nehru. After examining key examples of
their achievements, I shall ask how a patriotism of their type might
be taught in schools, and how considerations of both content and
pedagogy are relevant to its success.
II. WHY PATRIOTISM?
In what follows, I shall understand patriotism as a strong
emotion taking the nation as its object. As I shall understand it, it is a
form of love, and thus distinct from simple approval, or commitment,
or embrace of principles. It is closely connected to the feeling that
the nation is one’s own, and it usually includes some reference to that
idea in its rituals. Consider: “My Country, ‘Tis of Thee,” where the
embrace of the nation as “mine” is explicit;15 “Allons Enfants de la
Patrie,”16 where the first-person plural exhorts all Frenchmen to see
the nation as their parent; or India’s “Jana Gana Mana” (the
national anthem),17 in which the “we” identifies itself as comprising
12 Homer, The Odyssey Book XII, lines 100–16 (Osgood 1871) (William Cullen Bryant, trans).
13 Id at Book XII at lines 117–25.
14 Aristotle, The Politics of Aristotle 1262b (Oxford 1958) (Ernest Barker, trans).
15 For sheet music and lyrics, see John Francis Smith, My Country, ’Tis of Thee, in John
Carroll Randolph, Patriotic Songs for School and Home 9, 9 (Oliver Ditson 1899).
16 “Allons Enfants de la Patrie” is commonly refered to as “La Marseilleise.” For sheet
music and lyrics, see Claude Joseph Rouget de Lisle, La Marseillaise, in W.L. Reed and M.J.
Bristow, eds, National Anthems of the World 213, 213–15 (Cassel 10th ed 2002) (“Arise,
children of the fatherland, The day of glory has come.”).
17 For sheet music and lyrics, see Rabindranath Tagore, Jana Gana Mana, in Reed and
Bristow, eds, National Anthems of the World 263, 263–67 (cited in note 16).
220 The University of Chicago Law Review [79:215
people drawn from all of India’s geographical regions and her major
religious traditions.18
This love may be modeled on quite a few different sorts of
personal love. As with the love of a sports team, so here: different
people think differently about the nation’s relationship to them. For
some, the nation is a beloved parent, and that idea is certainly
prominent in many symbolic appeals to patriotism. At other times,
the nation is seen as more like a beloved child, whose growth and
development one desires to promote. At other times, the nation is
seen in a more romantic light, as a beloved beckoning to the lover.
Different patriotic rituals and songs conjure up subtly different forms
of love, and sometimes the same song appeals to more than one.
(“La Marseillaise” begins by imagining France as a parent, but the
beautiful concluding stanza is far more erotic, as liberté cherie is
addressed in tones of awe. “Jana Gana Mana” appeals to a parental
idea in its depiction of the moral principles of the nation as
sustaining and guiding it; but the music is quite erotic.) Even within
one and the same ritual or part of a ritual, different people may
experience different types of love, in keeping with individual needs
and predilections.
In all its forms, however, patriotic love, as I shall discuss it, is
particularistic. It is modeled on family or personal love of some type,
and, in keeping with that origin or analogy, it focuses on specifics:
this or that beautiful geographical feature, this or that historical
event. The thicker it is in these respects, the more likely it is to
inspire. Thus Americans love “America the Beautiful”19 and Woody
Guthrie’s “This Land Is Your Land,”20 albeit ignoring its political
meaning, more than they love the boringly abstract “My Country.”
The specificity and musical eroticism of “Jana Gana Mana” and
Bangladesh’s “Amar Shonar Bangla,”21 both written, words and
music, by the great Rabindranath Tagore, inspire love, while a thin
plodding abstraction could not sustain attention for long.
Throughout I focus on the nation, and that focus is important,
because the nation, in the modern world, is the central source of
people’s rights and duties as citizens. Nonetheless, it is important to
bear in mind that other forms of patriotic love—addressed to the
state, the city, the region—can coexist with love of the nation and
18 For sheet music and lyrics, see id.
19 For sheet music and lyrics, see Katharine Lee Bates, America the Beautiful, in
Theodore Raph, ed, The American Song Treasury: 100 Favorites 350, 350–52 (Dover 1964).
20 For sheet music and lyrics, see Woody Guthrie, This Land Is Your Land, in Dan Fox
and Dick Weissman, eds, The Great Family Songbook 26, 26–28 (Black Dog 2007).
21 For sheet music and lyrics, see Rabindranath Tagore, Amar Shonar Bangla, in Reed
and Bristow, eds, National Anthems of the World 51, 51–58 (cited in note 16).
2012] Teaching Patriotism 221
reinforce it. Sometimes there will be tensions, as when a city or state
pursues goals that the nation as a whole has not embraced. (This is
happening today, for example, with same-sex marriage, a source of
patriotism for New Yorkers and others, but a corresponding source
of alienation from other states and even at times the nation. This
large and fascinating topic, however, I must leave for another
occasion.)
Why do we need an emotion like this? The very particularity
and eroticism of patriotic love make it ripe for capture, it would
seem, by darker forces in our personalities.
Mazzini’s answer was that our lives are immersed in greed and
self-interest; we need a strong emotion directed at the general
welfare to inspire us to support the common good in ways that
involve sacrifice.22 But to have enough motivational strength, this
emotion cannot have a purely abstract object, such as “humanity”: it
must have more concreteness. The idea of the nation, he thought,
was that sort of idea: sufficiently local, sufficiently ours, sufficiently
concrete, or at least susceptible of being made concrete, to motivate
us strongly, and yet large enough to involve our hearts in an object
beyond greed and egoism.23
Psychology has shown by now that Mazzini is correct.24 Like
some other animals (apes, elephants, probably dogs) human beings
are capable of compassion for the suffering and the needs of others.
We have an innate capacity to take up the perspective of another
person, and to see the world from that point of view. And we also
seem to have evolutionary tendencies toward a genuine altruistic
concern for the well-being of at least some people outside ourselves.
In other species, however, altruistic emotion operates in a very
restricted compass. The kinship group is typically its limit, although
in the case of elephants concern may extend to other members of the
species, and in the case of dogs concern may cross the species
boundary to include symbiotic members of other species. The ability
of animals to occupy distant perspectives is evidently quite restricted,
and experimental work with young children shows that the human
ability is similarly narrow. If people are to be willing to sacrifice for
22 Mazzini, Thoughts upon Democracy in Europe at 3 (cited in note 10).
23 See id at 8–9.
24 For more on this topic, see Nussbaum, Political Emotions (cited in note 11). For a very
impressive defense of patriotism in motivating sacrifice, see David Miller, On Nationality ch 3
(Clarendon 1995). I discuss Miller’s arguments at greater length in my paper, Kann es einen
‘gereinigten Patriotismus’ geben?, in Matthias Lutz-Bachmann, Andreas Niederberger and
Philipp Schink, eds, Kosmopolitanismus: Zur Geschichte und Zukunft eines umstrittenen Ideals
242–76 (Velbrück 2010). For a much shorter version of this paper, see Martha C. Nussbuam,
Toward a Globally Sensitive Patriotism, 137 Daedalus 78 (Summer 2008).
222 The University of Chicago Law Review [79:215
people whom they don’t know, the moral imagination will need to be
extended, somehow, beyond the confines of our animal heritage.
How could concern be extended? Here we arrive at another
problem. The moral imagination, it seems, is highly particularistic,
moved to emotion and thence to helping action by the vivid
imagining of another specific person’s plight. For many years
psychologist C. Daniel Batson has done experimental work on
altruism that shows that a reliable way to trigger altruistic emotion in
human adults is to ask them to listen with vivid involvement to
another person’s story of woe.25 Without such a narrative, subjects
fail to experience emotion, and helping behavior is not triggered.
Moreover, the specific trumps the abstract: when people are aware
of an abstract principle of fairness, for example a policy for
allocating scarce organs, but then hear a specific tale of woe
concerning one person, they get involved in that one person’s fate
and are willing to move that person to the top of the list, violating
the principle of fairness that they have accepted. What this shows us
is that abstract attachments have less motivational power than
attachments made vivid through specific history and narrative.
If altruistic emotion is to have motivational power, then, it needs
to hitch itself to the concrete. The idea of the nation, if we follow
Batson’s research, needs to hook us in through several concrete
features: for example, named individuals (founders, heroes), physical
particulars (features of landscape, and vivid images and metaphors),
and, above all, narratives of struggle, involving suffering and hope.
Patriotic emotion typically does all this: it seeks devotion and
allegiance through a colorful story of the nation’s past, which points,
typically, to a future that lies still in doubt. Indeed, the idea of a
nation is, in its very nature, a narrative construct.26 To say what a
given nation is, is to select from all the unordered material of the
past and present a clear narrative that emphasizes some things and
omits others, all in the service of pointing to what the future may
hold—if people care. In one of the most insightful and justly
influential discussions of the idea of the nation, French philosopher
Ernst Renan argued that a nation is not simply a physical location, it
is an idea, a “spiritual principle.”27 This spiritual principle involves,
on the one hand, a story of the past, usually a story of adversity and
25 See generally C. Daniel Batson, Altruism in Humans (Oxford 2011) (representing a
monumental work summarizing a career of rigorous experimental research).
26 See E.J. Hobsbawm, Nations and Nationalism since 1780: Programme, Myth, Reality 12
(Cambridge 1990).
27 Ernest Renan, What Is a Nation?, in Homi K. Bhabha, ed, Nation and Narration 8, 19
(Routledge 1990). This chapter is taken from a lecture delivered at the Sorbonne in 1882.
2012] Teaching Patriotism 223
suffering, and then a commitment to the future, a willingness to live
together and face adversities for the sake of common goals. The two
sides are linked: the story of the past has to tell people what is worth
fighting for in the future. Renan remarks that the past has to have in
it something great or glorious, but it also needs to have loss and
suffering: “Where national memories are concerned, griefs are of
more value than triumphs, for they impose duties, and require a
common effort.”28 Meditating on the glories and sufferings of the
past, people think, “Yes, for those great ideals I too would be willing
to suffer.” Or, in Renan’s words, “One loves in proportion to the
sacrifices to which one has consented, and in proportion to the ills
that one has suffered.”29 Following Batson, we will add that a good
story of a nation’s past will involve not only abstract ideals, but also
particular individuals; not only a conceptual space, but also physical
places.
The need for emotions of loving concern becomes even more
apparent, and their contours more clearly demarcated, when we
consider another area of psychological research: disgust.30 Human
beings are eager to transcend the animality that everyday experience
makes plain: the evident fact that we are not pure spirits, but have
bodies that excrete a variety of smelly, sticky substances and that will
ultimately die and decay. Strategies to avoid contamination by
animal substances coming from our own bodies form a great part of
social life. But then, apparently in a further strategy to keep
ourselves free from animal contamination, human beings create
subordinate groups of humans whom the dominant group identifies
as quasi-animal, as smelly, base, animal-like—and then considers
those humans contaminating. If contact with those subhuman
humans can be avoided, they are that much further away from being
what they are, namely, animal and mortal.
This dynamic can be seen in virtually every society, although the
subordinated groups are not always the same. We see its operations
in European anti-Semitism, in the Indian caste hierarchy, and in
many forms of misogyny and racism. American racism provides a
handy illustration. White racism portrays African Americans as
“lower,” as quasi-animals, projecting onto them properties such as
bad smell, hypersexuality, and other animal traits that are really
28 Id.
29 Id.
30 I have gone into great detail about this in two books: Hiding from Humanity
(Princeton 2004) and From Disgust to Humanity: Sexual Orientation and Constitutional Law
(Oxford 2010). References to the psychological literature should be sought there, as well as in
Nussbaum, Political Emotions (cited in note 11).
224 The University of Chicago Law Review [79:215
present in all humans. Whites then say, because you have these traits
you are contaminating, we must not eat with you, share swimming
pools and drinking fountains with you, or have sex with you. (Of
course, sex across racial lines was ubiquitous, but it was legally
forbidden.)
Such emotions and ideas constitute a great threat to national
projects, if they involve the notion of altruistic sacrifice for a
common good: for they divide the nation into hierarchically ordered
groups that must not meet. What “common good” could cross those
lines? Given that separations motivated by disgust are so common in
real societies, strategies promoting common efforts need to find ways
to surmount this problem. It seems unlikely that abstract principles
on their own can do this job. Given that the other has already been
vividly depicted in one way, as subhuman, the antidote to that way of
imagining must itself come via the imagination, in the form of
experiences of seeing the other as fully human. If the other has been
dehumanized in the imagination, only the imagination can
accomplish the requisite shift. For example, having formed the view
that gay men are loathsome hypersexual animals and sources of
unspecified contagion and decay,31 people will see them differently
only if they have narratives of their lives that portray those lives
differently—as fully human, and as close to those people’s own lives
and purposes. Any call to altruism that fails to deploy the
imagination and emotions in this way leaves in place powerful forces
of division that are very likely to subvert any common labor.
Disgust might be counteracted in the private sphere, without
recourse to national ideals. But one way to overcome it is surely to
link the narrative of the full humanity of the denigrated group to a
story of national struggle and national commitment in Renan’s
sense.32 We’ll see later that one of Martin Luther King Jr’s great
achievements was to promote this emotional transformation in his
audience.33 If educators can portray the denigrated group as part of a
“we” that suffered together in the past and suggest that “we” are
planning together for a future of struggle, but also of hope, this
makes it far more difficult to continue to see the “other” as a
contaminating and excluded outsider. In patriotic emotion, citizens
embrace one another as a family of sorts, sharing common purposes;
thus stigma is overcome (for a time at least) by imagination and love.
In this way, patriotic emotion appears to be crucial for a further
31 For examples of this way of talking about gay men in the pamphlet literature, see
Nussbaum, From Disgust to Humanity at 1, 94 (cited in note 30).
32 See note 27.
33 See notes 84–88 and accompanying text.
2012] Teaching Patriotism 225
reason: because emotion is needed to get people to see the whole as
a whole, rather than as a balkanized set of hierarchically ordered
parts.
III. SCYLLA: EXCLUSIONARY VALUES, COERCED CONSCIENCE,
UNCRITICAL HOMOGENEITY
“Scylla” represents a variety of dangers of strong patriotic
passion gone awry, the set of dangers most frequently associated
with appeals to patriotic love. We need to describe and confront
them if we are to defend the claim that there is a form of patriotic
love that avoids them. Because these dangers are heterogeneous, the
many-headed monster Scylla is an apt metaphor.
The first and most obvious danger is that of misplaced values. If
we are going to whip up strong passions, we want to make sure we
don’t generate enthusiasm for the wrong thing. And it is easy to see
that patriotic love has served a range of unwise causes: foolish and/or
unjust wars, racial or ethnic hatred, religious exclusion. It is on such
cases that people usually focus when they express horror at the very
idea of patriotic love.
It is a little difficult to know what, precisely, this objection is
supposed to be. Does the objector think that there is any inherent
tendency in patriotism that leads to the support of bad rather than
good ends? If so, this analysis needs to be presented. One could, for
example, imagine an argument that it is always unwise to whip up
disgust in public life, given the specific tendencies of that emotion to
lead to the stigmatization and subordination of vulnerable groups.
Indeed, I have made such an argument.34 However, we are talking
here about love, not disgust, and it is much more difficult to see what
argument could be given for the claim that love is always likely to be
unwise, or connected to bad policy choices.
Maybe the objection, instead, is to the idea of the nation as
object of love. Some believe that the very idea of the nation is a
primitive one, to be superceded ultimately by the universal love of
all humanity (and, presumably, the creation of a world state). But
then, that argument itself needs to be stated and examined. I myself
have argued that even in a world dedicated to the pursuit of global
justice, the nation has a valuable role to play, as the largest unit we
know so far that is sufficiently accountable to people and expressive
of their voices.35
34 See generally Nussbaum, Hiding from Humanity (cited in note 30).
35 See Martha C. Nussbaum, Frontiers of Justice: Disability, Nationality, Species
Membership ch 5 (Harvard 2006).
226 The University of Chicago Law Review [79:215
Most often, though, the misplaced values objection is probably
to be parsed as follows. Emotions are always dangerous: look what
trouble they have caused in this case and in that. We can do without
them as we pursue our good values. So we’d better do that. There
are quite a few problems with this very common way of thinking.
First, the objector typically lists the bad goals that emotions have
supported (Nazism, religious persecutions, unjust and unwise wars)
and not the good (the abolition of slavery, the civil rights movement,
the cause of greater economic justice, just and wise wars). Does the
objector believe, for example, that Hitler could have been defeated
without strong passions connected to the idea of the survival of one’s
own nation, whether it be Britain or the United States? Second, as
this example already suggests, the objector just assumes that good
goals propel themselves into existence and sustain themselves
without any strong emotional motivation. History, I believe, proves
that picture wrong. When people don’t care enough about something
to endure hardship for it, things usually go badly. Third, the objector
seems to forget that the bad goals and bad emotions don’t disappear
as we calmly pursue the good: so the question of what happens to the
emotionless good in competition with the emotion-laden bad is not
posed. (Once again: imagine combating Hitler’s Germany without
any sources of love or emotional motivation.)
The best response to give to this group of objections is that we
must be extremely vigilant about the values we encourage people to
love and pursue, and we must encourage continued vigilance by the
cultivation of a critical public culture, the teaching of history in a
critical mode, and the teaching of critical thinking and ethical
reasoning in the schools. I shall elaborate all of this in Part VI.
One way to avoid this danger is to make sure that the narrative
of the nation’s history and current identity is not exclusionary, and
does not emphasize the contribution of a single ethnic, racial, or
religious group to the exclusion of others. A national narrative may,
and frequently is, based on a set of political ideals that can embrace
all citizens, including new immigrants. Conceiving of the nation in
such a way (as both the United States and India have done, but most
of the nations of Europe have not) helps avoid the danger of
ethnocentrism, a crucial aspect of the danger of misplaced values.
One more version of this objection remains. The objector now
says that if, as suggested, the emotions are particularistic, then we
cannot utterly depend on them to generate evenhanded policies that
treat people as equals—even when the object of strong love is the
entire nation. This seems to me to be the best objection of the
misplaced values type, because it identifies a genuine tendency in the
2012] Teaching Patriotism 227
emotions (well demonstrated in Batson’s recent research on
compassion36). And history shows many cases in which the appeal to
the nation is uneven and even exclusionary, defining certain groups
and people as not really part of the nation.37 We shall shortly see how
patriots from Lincoln to Gandhi address this problem. But one
should acknowledge, too, that a crucial role in any decent society is
played by institutions that take matters out of people’s hands in
some key respects. Compassion, however altruistic, can’t run a fair
tax system. So, we turn many things over to institutions and laws.
Nonetheless, these institutions and laws will not sustain themselves
in the absence of love directed at one’s fellow citizens and the nation
as a whole, as current events are showing. The erosion of the New
Deal results from an imaginative and emotional shift, and this shift is
prompting major changes in institutions and laws. So it isn’t
sufficient to create good institutions and then run away and hide. We
have to get our hands dirty by entering the feared emotional terrain.
The second head of Scylla has deep historical roots, and yet it is
relatively easy to answer. Indeed, it has already been decisively
answered. At one time in our history, as we saw at the opening of
this paper, the urgent importance of patriotism was understood to
justify coercion of the young: many states required the Pledge of
Allegiance and the flag salute, and they suspended or expelled
children who refused to join in.38 In a terrible catch-22, the parents of
these children were fined or even jailed for contributing to the
delinquency of a minor, since their children were not in school.39 In at
least one case, that of Russell Tremain, the parents lost custody of
their child as a result, and little Russell was placed in a children’s
home, where he was compelled to recite the Pledge.40
More than one religious group objected to the Pledge as a form
of “idolatry,” but the Jehovah’s Witnesses were the most publicly
influential such group, because they were willing to engage in
litigation, whereas some other groups (including the sect to which
the Tremains belonged) saw litigation as incompatible with their
pacifism.41 Lillian and William Gobitas42 offered convincing and
36 See generally Batson, Altruism in Humans (cited in note 25).
37 See Ellis, To the Flag at 106–07 (cited in note 6).
38 See Minersville School District v Gobitis, 310 US 586, 595–600 (1940).
39 See Ellis, To the Flag at 93 (cited in note 6).
40 See Martha C. Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of
Religious Equality ch 5 (Basic Books 2008).
41 Id at 203–04. For an excellent history of the key role of Jehovah’s Witnesses in this
period, see generally Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution
and the Dawn of the Rights Revolution (Kansas 2000).
228 The University of Chicago Law Review [79:215
articulate43 testimony that the Pledge was, to them, a violation of
religious requirements.44 Nonetheless, the local school board had no
sympathy for their arguments, contending that their objections were
not genuinely religious.45 Eventually their complaint reached the US
Supreme Court, where they lost.
Minersville School District v Gobitis46 is one of the most infamous
cases in the history of the US Supreme Court. A number of factors
explain the result. Joseph Rutherford, leader of the Witnesses, argued
the case himself and did a very bad job.47 More important still, Justice
Felix Frankfurter’s strong views about patriotism carried the day.
Justice Frankfurter stressed throughout—both in his majority opinion
here48 and in his later dissent in West Virginia State Board of Education
v Barnette49—his personal sympathy with the situation of the Gobitas
children. “One who belongs to the most vilified and persecuted
minority in history is not likely to be insensible to the freedoms
guaranteed by our Constitution,” he wrote, at the time the lone Jew
on the Court.50 Nonetheless, his strong views about the limits of
judicial power, combined with his fervent patriotism,51 led him to
conclude that the regulation requiring the Pledge was not
unconstitutional.52 His patriotic fervor outlived the controversy over
his two opinions: in 1944, as speaker for the District of Columbia’s “I
am an American Day” celebration, he compared love of country to
romantic love, saying that it was too intimate an emotion to be
publicly expressed except in poetry.53 He then read a rather
42 The correct spelling of the name, misspelled as Gobitis in later court documents.
Peters, Judging Jehovah’s Witnesses at 19 (cited in note 41).
43 Lillian wrote out her points as a numbered list, mentioned the biblical texts by number
only, and stressed the constitutional as well as religious arguments. Billy wrote a long
discursive paragraph, quoted the relevant biblical texts, and mentioned his love of his country.
Id at 37.
44 For the background, and a detailed account of the case, see Nussbaum, Liberty of
Conscience at ch 5 (cited in note 40). See also Ellis, To the Flag at 91–105 (cited in note 6);
Peters, Judging Jehovah’s Witnesses at 19–36 (cited in note 41); Peter Irons, The Courage of
Their Convictions 25–35 (Free Press 1988) (containing an interview with the adult Lillan). See
generally Peters, Judging Jehovah’s Witnesses at ch 1–2 (cited in note 41).
45 Peters, Judging Jehovah’s Witnesses at 37–39 (cited in note 41).
46 310 US 586 (1940).
47 Peters, Judging Jehovah’s Witnesses at 48 (cited in note 41).
48 See Gobitis, 310 US at 594.
49 319 US 624, 646 (1943) (Frankfurter dissenting).
50 Id. Despite his allusion to Judaism here, however, Frankfurter was never very Jewishidentified,
in contrast to Brandeis, an influential Zionist.
51 He was known to whistle “The Stars and Stripes Forever” in the halls of the Court,
and he told his biographer, on his deathbed, “Let people see . . . how much I loved my
country.” Peters, Judging Jehovah’s Witnesses at 52 (cited in note 41).
52 Gobitis, 310 US at 600.
53 Peters, Judging Jehovah’s Witnesses at 53 (cited in note 41).
2012] Teaching Patriotism 229
sentimental ode to the flag by Franklin K. Lane, which included the
lines, “I am not the flag, not at all. I am but its shadow.”54 It is
understandable, if not commendable, that the world situation in 1940
led him to take this enthusiasm too far.
In Gobitis, Justice Frankfurter grants that the First Amendment
entails that restrictions on conduct expressive of religious conviction
can be justified only by “specific powers of government deemed by
the legislature essential to secure and maintain that orderly, tranquil,
and free society without which religious toleration itself is
unattainable.”55 He then argues that national unity and cohesion
supply the state with “an interest inferior to none in the hierarchy of
values.”56 The school board’s view that requiring the pledge is crucial
to promote that central interest is plausible, since the flag is “the
symbol of our national unity, transcending all internal differences,
however large.”57 He does not, however, address the real question in
the case: Is it plausible to hold that national unity and cohesion
require enforcing the pledge rule against a small number of children
with sincere religious objections? He focuses on the general issue of
national unity in a time of danger, rather than the conscientious acts
of two respectful teenagers who certainly would not be imitated by
their scoffing peers. So Justice Harlan Stone pointed out in his
stinging dissent: “I cannot say that the inconveniences which may
attend some sensible adjustment of school discipline in order that the
religious convictions of these children may be spared, presents a
problem so momentous or pressing as to outweigh the freedom from
compulsory violation of religious faith which has been thought
worthy of constitutional protection.”58
Justice Frankfurter was wrong and Justice Stone was right, as
the nation soon agreed. The decision was immediately greeted with a
storm of criticism.59 At the same time, escalating violence against
Jehovah’s Witnesses was to some extent blamed on the Court, as if
the decision had given sanction to the popular idea that Jehovah’s
Witnesses were a “fifth column” subverting our nation from within.60
Several Justices gave indications that they might have changed their
54 Id.
55 Gobitis, 310 US at 595.
56 Id.
57 Id at 596.
58 Id at 607 (Stone dissenting).
59 Nussbaum, Liberty of Conscience at 212 (cited in note 40).
60 See note 8 and accompanying text. See also Nussbaum, Liberty of Conscience at ch 5
(cited in note 40) (discussing a variety of cases in which fear motivated discrimination against
religious minorities throughout American history, including Jehovah’s Witnesses).
230 The University of Chicago Law Review [79:215
minds;61 and changed membership on the Court62 suggested that the
other side might now prevail. The Court shortly accepted another
case raising the same issues. In West Virginia State Board of
Education v Barnette, the Court found in favor of the Witness
plaintiffs.63 Justice Robert Jackson’s majority opinion has become
one of the defining landmarks of US political life. Treating the case
as a compelled-speech case rather than one falling under the religion
clauses, he offers a resonant defense of the idea of freedom of
dissent:
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.64
He adds that compulsory unity is not even effective: “Those who
begin coercive elimination of dissent soon find themselves
exterminating dissenters. Compulsory unification of opinion achieves
only the unanimity of the graveyard.”65
Barnette gives the right reply to our second objection. Patriotism
and respectful dissent are not incompatible. Indeed, our particular
tradition emphasizes the freedom of dissent, and we should take
pride in that defense of liberty. Given values of a particular sort,
emphasizing individual liberty and the rights of conscience, the
second objection can be straightforwardly answered: our values
preclude such burdens on conscience, unless a national security
interest is far stronger and more immediate than it was in this case.
In general, children may not be burdened against their conscience by
required patriotic rituals in the schools.
Today the idea of noncoercion is well understood, and even its
subtler aspects have had sympathetic attention. In Lee v Weisman,66
for example, the Court understood the subtle coercion that might be
present if a student were required to stand during a middle-school
graduation prayer, especially when the only alternative was not to
attend her own graduation.67 Justice Anthony Kennedy’s opinion
focused on the dangers of coercive pressure to conscience and
61 Nussbaum, Liberty of Conscience at 212 (cited in note 40).
62 Id.
63 Barnette, 319 US at 641.
64 Id at 642.
65 Id at 641.
66 505 US 577 (1992).
67 Id at 592.
2012] Teaching Patriotism 231
enforced orthodoxy in the schools.68 So central is this decision in
current Establishment Clause jurisprudence that, in the abortive case
involving the words “under God” in the Pledge, Justice Clarence
Thomas would have upheld even a noncompulsory public recitation
of the Pledge primarily by denying the incorporation of the
Establishment Clause and thus discarding this and numerous other
precedents.69
The coercion objection is no longer a serious issue. Young
people may not find their conscience burdened in the schools. Its
legacy, however, is a more subtle form of peer pressure. Lillian
Gobitis recalls how, when the school bus drove by their home,
children jeered and threw things at them.70 So it is not just legal
imposition of conformity that we have to worry about in schools, it is
the tyranny of peer pressure, an all-too-ubiquitous human tendency,
as psychologist Solomon Asch has effectively shown.71 Therefore
teachers and other school officials need to be vigilant in their defense
of minorities—religious and political, as well as racial and sexual.
The problem of bullying, however, is hardly unique to the issue of
patriotism, and it supplies no reason not to teach patriotism that is
not also a reason not to educate children in groups at all!
The question of peer pressure brings us to our third objection on
the side of “Scylla”: Won’t a culture in which patriotic emotion is a
major theme be likely to be all too solidaristic, all too homogeneous,
lacking free spaces for individual expression and for dissent? As with
the second issue, we should begin by saying that this is not a problem
peculiar to patriotism. Human beings are all too prone to defer to
peer pressure, as Asch showed,72 and to be obedient to authority, as
Stanley Milgram showed.73 As Socrates argued, the Athenian
democracy was all too prone to ignore critical argument, making its
decisions by deference to tradition and other unthinking forces. To
Socrates, this meant that democracy was not conducting its business
well, and needed to be awakened by the “gadfly” sting of his critical
reasoning.74 So the problem is one that has beset democracy ever
68 See especially id.
69 Elk Grove Unified School District v Newdow, 542 US 1, 49–51 (2004) (Thomas
concurring).
70 Irons, The Courage of Their Conviction at 25–35 (cited in note 44).
71 See Solomon Asch, Opinions and Social Pressure (Panarchy 1955), online at
http://www.panarchy.org/asch/social.pressure.1955.html (visited Oct 30, 2011).
72 See id.
73 See Stanley Milgram, Obedience to Authority 3–5 (Harper 1974). For my discussion of
both Asch and Milgram, see Political Emotions at ch 6 (cited in note 11).
74 James Riddell, ed, The Apology of Plato: With a Revised Text and English Notes and a
Digest of Platonic Idioms 30E–31C (Oxford 1867).
232 The University of Chicago Law Review [79:215
since democracy began to exist. But certainly, strong patriotic
emotion might be one area in which people seek to silence critical
voices. How might this danger be headed off?
Justice Jackson gives us the best path to follow: we must insist
that the truly patriotic attitude is one that repudiates orthodoxy and
coercive pressure and celebrates liberties of speech and conscience.75
His stirring rhetoric is one example of a patriotic statement that can
move people powerfully, even while making them think and
endorsing the value of thinking. In general, we need to cultivate the
critical faculties early and continuously, and to show admiration for
them, insisting that critical freedom, not herd-like obedience, is the
mark of the true patriot. This can be done in many ways, and some
of them involve strong emotions. Children are herd creatures, but
they are also, at other times, dissenters, and the joy of freedom and
critical dissent can be encouraged from the beginning of a child’s life.
I am sure that my own early love of that young girl who rode farther
than Paul Revere was a love of the idea of the break with tradition,
the pursuit of freedom, that the American Revolution represented.
The idea of America, for me, was characterized from the beginning
by a strong flavor of dissent and experimentation, even defiance.
Many beloved parts of the American literary and filmic canon, from
Twelve Angry Men to To Kill a Mockingbird, valorize the lone
dissenter as the true patriot.
We can have no better example of the way in which patriotic
emotion can focus on the value of critical freedom than the song
“Ekla Cholo Re” by Rabindranath Tagore, which was the favorite
song of Mahatma Gandhi and became a linchpin of his freedom
movement:
If no one answers your call, then walk on alone.
(Walk alone, walk alone, walk on alone.)
If no one says a thing, oh you unlucky soul,
If faces are turned away, if all go on fearing—
Then opening up your heart,
You speak up what’s on your mind, you speak up alone.
If they all turn back, oh you unlucky soul,
If, at the time of taking the deep dark path, no one cares—
Then the thorns that are on the way,
O you, trampling those with bloodied feet, you tramp on alone.
If a lamp no one shows, oh you unlucky soul,
If in a rainstorm on a dark night they bolt their doors—
75 For an example of Jackson’s passionate majority opinion in Barnett, which emphasized
the importance of dissent, see note 95 and accompanying text.
2012] Teaching Patriotism 233
Then in the flame of thunder
Lighting your own ribs, go on burning alone.76
The music expresses determination: there is a rhythm as of
walking on, which continues throughout. It expresses solitude and
exposure: the single vocal line, the sense of passionate risk in the
voice. But above all, it also expresses joy. It is in fact a very happy,
even delighted, song, full of gusto and affirmation. People love this
song, and their love was highly relevant to the success of Gandhi’s
resistance movement. As he walked along with his walking stick and
his simple loincloth—and his childlike delight in life, so often
observed by those who met him—he seemed to embody the spirit of
that song, and the fusion of artistic image with living exemplar was
(and is) powerfully moving. That’s how the spirit of solitary dissent—
combined with joy—can galvanize a population.
Patriotism of the right sort can, it seems, avoid the three dangers
represented by Scylla. But still, one might ask, why play with fire?
IV. CHARYBDIS: “WATERY MOTIVATION”