The epic tale of Col. Van T. Barfoot's valiant stand against his supposedly unpatriotic neighborhood association has transformed the 90-year-old veteran into a national hero and an admired defender of Old Glory.
But did the three-time war hero, career military veteran and recipient of the Medal of Honor trample on a social contract in favor of the flag it represents?
In human conflict it can be difficult to find real heroes sometimes. Barfoot's battle to plant his U.S. flag on a vertical flagpole to which his neighbors object is somewhat morally challenged in light of the circumstances, ethicists say. Barfoot seemingly won last week when the association's lawyers backed down on legal threats against the retired soldier.
“That's what's so great about this situation is everybody looks terrible,” says Randy Cohen, the nationally known New York Times contributor, whose column the Ethicist also is featured on National Public Radio.
“To me, a big piece of this is I despise homeowner's associations,” Cohen says, acknowledging that even he was somewhat swept away with the seeming romance of Barfoot's victory.
But from a purely ethical standpoint, he says, Barfoot's initial attack wasn't necessarily a charge launched from the moral high ground. By erecting his flagpole, even after the Sussex Square Homeowner's Association denied his application to do so, he initiated the fight.
“Col. Barfoot's personal history [as a war hero] strikes me as beyond the point,” as does the American flag, Cohen says.
The broader point, he says, is that Barfoot was willing to violate a social contract — one to which he agreed when moving into the neighborhood.
Ellis West, a University of Richmond political science professor whose focus is the First Amendment and constitutional scholarship, agrees and goes further to lament the association's loss. West says Barfoot's actions undermine the very rule of law for which Barfoot fought as a young man.
“It's yet again a reflection of the fact that we have soldiers who are willing to defend the country,” West says, “but you have to ask if they really understand what's really important about what they're defending.”
What Barfoot defended during the long arc of his service was not a flag, West says. “It's simply a symbol of the values and institutions that we hold as important.”
Counted among the institutions he defended, whether popular or not, is the neighborhood association.
“Our whole society is based on contracts and on keeping contracts,” West says.
Cohen agrees that Barfoot broke his contract, but questions whether association agreements really represent morally binding contracts.
“That isn't my idea of true consent,” he says. “One sign of progress in democracies is they spread the vote to more people. Well, in a neighborhood association they limit the vote to property owners only.”
Be that as it may, America's use of neighborhood associations may reach all the way back to Nov. 21, 1621, when a shipload of about 100 tired, bedraggled Pilgrims anchored in Provincetown Harbor. Off course from their original destination to the Virginia colony, some of those tired colonists decided to test the rules, claiming that when they went ashore they no longer owed allegiance to English investors.
So their leaders decided to write up a little contract. Anybody who was anybody on that ship signed it. The Mayflower Compact remains a celebrated founding document in our nation's history.
In the week or so since Barfoot's celebrated stand against his neighbors, he's gained national acclaim. His willingness to stand against tyranny won support from Henrico Rep. Eric Cantor and even President Barack Obama.
But it's in the thrill of his victory that the true victim is forgotten: the foundation of society that says the needs of the group are more important than those of one member.
“It's certainly possible to make an exception for Mr. Barfoot, West says, “but [the association] has got to have a principled reason for the exception to Mr. Barfoot. And it should be “one they would be willing to give to others,” West says.
Cohen sees Barfoot as an anti-hero based on his lifetime of living under the strictures of military life, only to decide now that rules no longer apply based on that same lifetime of service.
“If Colonel Barfoot actively sought this kind of undemocratic hierarchical bastion” by moving into a covenanted neighborhood, Cohen says, “the only reason [for his objection to their flag decision] is he doesn't like the rules applying to him.”
The association's defeat, if it were taken as any sort of broader precedent, West says, could be truly damaging to the broader institutions the flag represents.
“It's, ironically, a First Amendment issue for a reason that people don't think about,” West says, reviewing well-trod arguments by Barfoot's few public critics — and initially by the association's lawyers — that the objection was not to the flag, but to the flagpole's nonconformance with the neighborhood's overall aesthetics.
“When it comes to the time, place and manner of [freedom of] expression,” West says, “the law is that that is not protected nearly as much by the First Amendment as the content is protected.”
“I don't want to condemn this guy, I would rather condemn the reaction of the public to what he has done,” West adds. “They just have not thought things through. I'm not saying a case can't be made for exempting [Barfoot]. But you have to think about the implications: If you're going to exempt him, what are the implications?”