Schoolchildren in Norfolk, Va., recite the Pledge of Allegiance in March 1941. (Library of Congress)
Robert L. Tsai is professor of law at American University and author of "America’s Forgotten Constitutions: Defiant Visions of Power and Community" and the forthcoming "Practical Equality: Forging Justice in a Divided Nation" (W.W. Norton, February 2019).

Last week, President Trump congratulated the NFL for requiring every team’s employees and players to stand for the playing of the national anthem if they are on the sidelines, though he would have gone further and prevented dissenters from remaining sight unseen in the locker room. “You shouldn’t be playing” at all if you don’t pay homage to the flag, he said. “Maybe you shouldn’t be in the country.”

Many have become numb to the president’s provocations, so much so that it’s easy to forget that it wasn’t always this way. At a similar moment of ascendant nationalism in the 1940s, President Franklin D. Roosevelt’s administration forged a different path on the exact same issue, an approach characterized by modesty and concerns about suppressing valuable dissent while unwittingly stoking vigilantism.

Roosevelt’s supporters certainly took advantage of patriotic sentiment to rally ordinary citizens to favor American participation in the war in Europe. But officials chose not to insist upon ritualistic obedience to national symbols. Quite the opposite: Roosevelt and his surrogates not only declined to whip up patriotic fervor against individuals who refused to salute the flag, but also emphasized that the Constitution protected their right to dissent. They understood that safeguarding this freedom was a far greater mark of patriotism than demanding rote participation in political rituals.

In 1940, the U.S. Supreme Court ruled in Minersville School District v. Gobitis that public schools could punish students for refusing to participate in the daily flag salute. The decision met immediate resistance from the administration. Roosevelt apparently never once publicly endorsed the decision, even though a loyal New Dealer, Felix Frankfurter, had written it. And behind the scenes, several members of his Cabinet registered their strong disapproval of nationalism run amok. Harold Ickes shook his head: “As if the country can be saved, or our institutions preserved, by forced salutes of our flag by these fanatics or even by conscientious objectors!”

Attorney General Robert Jackson was reportedly “bitter about the decision” and thought it might be necessary to “indict some prominent local or state officials in order to make it known to the country that we were not being ruled by disorderly mobs.” Once elevated to the High Court, he would gain the power to translate disagreement into law: in 1943, he penned West Virginia State Board of Education v. Barnette, the famous decision that gutted Gobitis with great fanfare and extolled the virtues of “intellectual individualism” that comes from “free minds.”

Others in the administration assumed a more public role in protecting dissenters. In one of her “My Day” columns from 1940, first lady Eleanor Roosevelt worried that the country was in danger of being “swept away from our traditional attitude toward civil liberties by hysteria about Fifth Columnists.” She deplored the wave of violence faced by Jehovah’s Witnesses, whose beliefs prevented them from saluting the flag. “Must we drag people out of their homes to force them to do something which is in opposition to their religion?”

Key lawyers in the Department of Justice actively worked to undermine the court’s parsimonious understanding of the First Amendment. Solicitor General Francis Biddle took to the airwaves to denounce oppressive actions by both private actors and local officials, saying, “we shall not tolerate such Nazi methods.”

When Biddle became attorney general a year later, he put the Justice Department firmly on the side of peaceful public protest. He declared it the “duty of the Department to protect that freedom as well as other constitutionally secured rights,” a “duty [that] becomes more imperative, albeit more difficult, in time of war.” Biddle instructed federal prosecutors in every state to work with local officials to punish vigilantism and discourage the pursuit of policies such as “flag laws” that suppressed dissent.

Two lawyers in the Civil Rights Division authored an essay for the American Political Science Review in 1942 urging the justices to admit they had been wrong. Arguing that Gobitis had not been “accepted as a firmly rooted precedent,” Victor Rotnem, chief of the Civil Rights Division, and F.G. Folsom Jr., blamed the “uninterrupted record of violence and persecution of the Witnesses” squarely on the court’s cramped reading of the First Amendment. Simply for refusing to demonstrate allegiance to the flag, students were expelled and their parents prosecuted for promoting delinquency.

The two lawyers felt that such consequences flowed predictably from a wrongheaded reading of the Constitution: “The placing of symbolic exercises on a higher plane than freedom of conscience has made this symbol an instrument of oppression of a religious minority.” To ensure the effectiveness of political rituals like the pledge, the right to opt out had to be elevated over the goal of enforcing unanimity of sentiment. Rotnem and Folsom expressed confidence that reversing the ruling would not only “profoundly enhance respect for the flag” but also serve the broader cause of educating the public on the meaning of liberty.

Officials in the current administration have taken precisely the opposite tack. They have rekindled the view that appearances matter more than authenticity. Vice President Pence even made a show of leaving an NFL game the moment he saw players take a knee, later saying, “It is important to enjoy that national moment” and to show respect for soldiers who have died for the flag.

Now it’s true that the Constitution, strictly speaking, protects only against reprisals by the state, so there’s nothing about the NFL policy that violates the First Amendment. But Roosevelt’s Justice Department was equally concerned about private suppression of dissenting views when it came to national symbols. Conversely, Trump has drawn no distinctions between actions by the state and those by private actors — for him, all of it undermines national cohesion, all of it detracts from his populist agenda and all of it is therefore worthy of serious sanction.

Trump is pushing a vision of nationalism that is unrelenting, that makes the critical thinker an enemy of the state and justifies the routine use of force against detractors.

Recognizing there is a different model of presidential leadership doesn’t absolve Roosevelt of other civil rights violations, of course. He bears responsibility for the mass detention of innocent Japanese Americans, attacks on the press and aggressive wartime surveillance of opponents of the war. Yet on this matter — coercing respect for national emblems — he did the right thing. It’s an approach worth remembering.