"The Star-Spangled Banner" echoes the past and gives voice to our present. It is a living historic performance that resounds with the hopes and devotion of many to the nation, while also serving as witness to the country's legacy of contradictions and a vehicle for social comment.
Kaepernick's star-spangled protest is part of this tradition, and thus is a productive call for Americans to make this "land of the free" serve all its people. However, related claims about the song and its author as especially racist have been distorted
"The Star-Spangled Banner" in no way glorifies or celebrates slavery. The middle two verses of Key's lyric vilify the British enemy in the War of 1812, what Key refers to in Verse 3 as "hirelings and slaves." This enemy included both whites and blacks, largely British professional soldiers (hirelings) but also the Corps of Colonial Marines (slaves). The Colonial Marines were escaped black American slaves who joined British forces because of the promise of freedom in return for fighting their former masters.
Fortunately, Britain honored this promise after the war, relocating the former slaves and their families to Halifax and Trinidad. For Key, however, the British mercenaries were scoundrels and the Colonial Marines were traitors who threatened to spark a national insurrection.
The graphic language of Key's denunciation of this British enemy led to the removal of Verse 3 in sheet music editions of the song in World War I, when the United States and Britain became staunch allies.
Yet in 1814 Key's lyric honored American soldiers both black and white. "The Star-Spangled Banner" celebrates the heroes who defended Fort McHenry in the face of almost certain defeat against the most powerful gunships of the era. America's soldiers included mainly whites, but also free and escaped blacks
. Escaped slave William Williams served in the US infantry at Fort McHenry and was killed by a fragment of a British bomb. Another escaped slave, Charles Ball, writes in his memoirs
of being among the American soldiers of the Chesapeake Bay Flotilla who courageously repelled a night attack and saved the city. "The Star-Spangled Banner" thus honors American military heroes, black and white, without regard to race. In this respect, "The Star-Spangled Banner" is not racist.
"The Star-Spangled Banner" nevertheless shares its conceptual DNA with the United States as a whole. It is a product of a time when the stain of slavery was clear on the nation and part of US law. To understand the anthem and its legacy, we need to know more than just Key's words. We need to understand their author's feelings and actions about slavery.
Francis Scott Key owned seven slaves through inheritance, and, as attorney for the District of Columbia, he notoriously prosecuted
the abolitionist Reuben Crandall in the aftermath of the 1835 race riot in Washington. Key was not an abolitionist, yet he was not an ardent supporter of slavery either and is better understood as one dedicated to ending slavery.
Key freed four of his slaves in 1842. To one, Clem Johnson, Key offered to provide a "home until his death." As a founder and officer
of the American Colonization Society (1816--1964), Key viewed slavery as a moral wrong that required a solution.
Rather than abolish slavery, however, the society purchased slaves and offered them passage to Africa. That most American slaves had been born on American soil and had never set foot in Africa made the American Colonization Society controversial. The group struggled, never receiving government support, and its often troubled African settlement eventually became the independent nation of Liberia in 1847.
Key is complicit to the extent that he was a pragmatist, who, like nearly all of America's founders and early leaders, inexcusably put the prevailing social order ahead of universal human freedom. In the context of his era, however, Francis Scott Key was surprisingly progressive.
During Key's day, Washington was a bustling capitol of a new nation that hosted both a thriving commercial slave market that traded enslaved black people as commodities as well as the largest community of free blacks in the United States. To serve this community, Key helped establish
the Georgetown Lancaster School for freed people of color and even taught there. Over 1,000 black children were students at the school, and most attended tuition-free.
As detailed in Marc Leepson's recent biography
, Key put his skills and reputation as a lawyer at the service of blacks suing for freedom, most notably in an 1825 case of the slave ship Antelope (a precursor of the Amistad). Speaking to the US Supreme Court, Key described the treatment of slaves as "extreme cruelty" and slaves as "unhappy victims." Key said that those aboard the ship "are men, of whom it cannot be affirmed that they have universally and necessarily an owner." Key lost this case, but most of the enslaved captives were returned to Africa — a moral, if not legal victory.
Key also lost cases for Sally Henry, a woman named Kitty, and William Jordan. They remained enslaved, but Key won the freedom of Harry Quando in 1830 and Joseph Crawford in 1834. Typically, he undertook these cases gratis, without expectation or potential for payment of legal fees. Key even led a fundraising effort to help defend a man, woman and child represented by an abolitionist lawyer.
On the other hand, Key also represented slave owners as clients suing in court for the return of their then-legal "property." In Key's professional career, the matter often seemed a legal one. Those illegally enslaved should be freed. Those legally slaves had to be freed by their owners voluntarily or purchased and released from bondage. Any moral objections Key had against slavery were often shamefully set aside at times in his legal practice.
Thus, it is remarkable that the fourth verse of "The Star-Spangled Banner" begins
with this opening line: "O thus be it ever, when freemen shall stand between their loved home and the war's desolation." When Key used the word "freemen," he used a legal term encompassing any man who was free, that is both blacks and whites. As a lawyer, Key used language precisely.
It is thus my belief that "The Star-Spangled Banner" encompasses all Americans; not only is Key's use of the word "freemen" surprisingly inclusive, but because nation and song have both changed — if imperfectly — since it was written
. As our nation's anthem, it can and should be sung by any and all for everyone.
The history of "The Star-Spangled Banner," like the United States as a whole, is convoluted. The lines between justice and injustice are crisscrossed by crippling social blindness that each era must own and overcome. Colin Kaepernick's protest draws our attention to the unvarnished fact that today many Americans feel that the "home of the brave" is not necessarily their "land of the free."
Yet America's history and thus America's anthem can be powerful tools to achieve a better understanding to learn about ourselves and to imagine a better collective national future. To sing "The Star-Spangled Banner" can be to explore our history if one gets beyond rote singing to consider Key's song and its history. For this inspiration of a national conversation, I am grateful to Colin Kaepernick.