Rallying Around the Flag
Why Any Proposed Flag Desecration Amendment Is Wrong
JD Lock, Lieutenant Colonel, U.S. Army (Retired)
14 June 2007
Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us.
Justice William O. Douglas
The 14th of June—Flag Day by Congressional law and by Presidential proclamation. Whether called the ‘Stars and Stripes,’ ‘Old Glory’ or simply the ‘Red, White and Blue,’ there is no national symbol more endearing to Americans than that of the United States flag, a beacon of liberty and of justice, a declaration of this great Nation’s values, traditions and, most importantly, of individual rights.
Throughout history, the Flag has evoked powerfully stark imagery and induced tremendous emotional passion whether on the high seas during the American Revolution, in ‘the rocket’s red glare’ over Fort McHenry during the War of 1812, on the slopes of Little Round Top during the Civil War, on the summit of Iwo Jima’s Mount Suribachi during the World War II or over the ruins of what had once been the towering World Trade Center in lower Manhattan on 11 September 2001. It is even ‘out of this world’ having been first planted on the Moon on 21 July 1969 during the Apollo 11 mission. As a badge of honor, the American Flag is carried before the Armed Forces of the United States; it drapes the coffins of those who have paid “the last full measure of devotion” in service to their nation; it adorns public buildings, classrooms, churches and private homes as a testimony to national unity and personal pride.
On 14 June 1777, the Continental Congress “Resolved, That the Flag of the United States be 13 stripes, alternate red and white; that the Union be 13 stars, white in a blue field, representing a new constellation.” Flag Day was first observed in 1877 on the 100th anniversary of the Continental Congress' adoption of the Stars and Stripes as the official flag of the United States. In that year, Congress asked that all public buildings fly the flag on June 14. The idea quickly caught on and, soon, many of American society were inspired to organize their own local and state celebrations. On 30 May 1916, President Woodrow Wilson proclaimed the anniversary of the Flag Resolution of 1777 as ‘Flag Day.’ It was not, however, until 3 August 1949, when, by an Act of Congress signed into law by President Harry Truman, that June 14th of each year was designated as National Flag Day.
Flag Day is an American holiday intended to celebrate an exceptionally unique and treasured American symbol. Unfortunately, there are a number of citizens who use this holiday for their own misbegotten agenda, an agenda that fosters friction, argument and discord within the populace and within the national government. At issue is an attempt to adopt a Constitutional amendment that prevents flag burning and desecration.
Flag Burning Demonstrations:
The Flag desecration issue arose as an outgrowth of the 1984 Republican National Convention in Dallas, Texas, when a man named Gregory Lee Johnson, a member of the Revolutionary Communist Youth Brigade—the youth wing of the Revolutionary Communist Party, USA—publicly burned an American flag amidst chants of “America, the red, white and blue, we spit on you” as a sign of political protest after marching through the city streets. Though offensive in nature to many, there were no injuries, nor threats of injury during the demonstration. As a result of his actions, however, Johnson was convicted of “desecrating a venerated object” in violation of a Texas statute and was sentenced to one year in prison and a $20,000 fine. The verdict was appealed and the case, eventually, made its way to the United States Supreme Court which had to determine the following: "Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment?"
Given that the First Amendment literally only forbids the abridgment of “speech,” the answer was not an obvious one given that Johnson was convicted of flag desecration, a physical act, rather than for a verbal communication. Thus, the underlying inherent question was do certain ‘non-speech acts’ qualify to be provided the umbrella protection of ‘Freedom of Speech,’ and, if so, did Johnson’s burning of the flag constitute an expressive conduct that could invoke the First Amendment for protection?
Historical precedence, however, had already been established by the Court that ‘Freedom of Speech’ protections extended well beyond just the spoken or written word by such uncontroversial cases such as the 1919 case of Stromberg v. California—where the Court’s 6-3 ruling recognized that the display of a red flag was ‘speech’—and the 1969 case of Tinker v. Des Moines Independent Community School District—where the Court’s 7 to 2 decision recognized the wearing of a black armband also as ‘speech.’
The Court also recognized that not all non-verbal and non-written action can be or should be construed as ‘speech’ and thus enjoy the protection of the First and Fourteenth Amendments (Note: the XIV Amendment to the United States Constitution is one of the post-Civil War amendments intended to secure rights for former slaves and includes the Due Process and Equal Protection Clauses among others.). In order to be construed as ‘speech,’ the conduct in question must be "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.” Thus, central to the issue of what can be Constitutionally protected as ‘speech,’ the conduct must possess sufficient communicative elements. These communicative elements must convey an intent that "a particularized message was present,” and, if so, was there a great likelihood “that the message would be understood by those who viewed it."
In the end, the Court found that, "Under the circumstances, Johnson's burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment... Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent." This led to the Court’s conclusion that, while "the government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word," it may not "proscribe particular conduct because it has expressive elements."
Ultimately, having conceded that Johnson’s conduct was ‘expressive’ in nature, Texas opted to take a different tact during its oral argument before the Court, defending its actions on two grounds: first, that states had a compelling interest in preserving a venerated national symbol; and second, that the state had a compelling interest in preventing breaches of the peace.
The Court was able to dismiss the second grounds almost immediately for Texas conceded that "no disturbance of the peace actually occurred or threatened to occur because of Johnson's burning of the flag.” Furthermore, Texas’ position became even more untenable when the Court cited Brandenburg v. Ohio, a 1969 ‘per curiam’ decision—made by the court acting as a whole—that held that “government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action.” Brandenburg v. Ohis was in reference to a Ku Klux Clan leader, Clarence Brandenburg, who in the midst of a KKK rally featuring a burning cross, made a public speech that made reference to the possibility of "revengeance" against "niggers," "Jews," and those who supported them. Among those who supported ‘them’ were "our President, our Congress, our Supreme Court, [which] continues to suppress the white, Caucasian race.” As a consequence of his participation in the rally and for his speech, Brandenburg had been convicted under Ohio’s Criminal Syndicalism statue of advocating violence, a conviction eventually overturned by the U.S. Supreme Court when it decided that that the state may only punish speech that would incite “imminent lawless action.” Applying this same logic to Texas’ grounds, the Court found that flag burning does not always pose an imminent threat to lawless action.
Ultimately, Texas v. Johnson came down to whether or not states “possessed an interest in preserving the flag as a unique symbol of nation identity and principles.” Texas’ argument before the Court was that the desecration of the flag “impugned its value” as such a unique symbol and that, as a state, it possessed the legal authority to prevent and punish such actions. The Court ultimately disagreed with this state position.
In June 1989, the U.S. Supreme Court announced its Texas v. Johnson ruling in a 5-4 decision that invalidated the Texas statute—and the similar statutes of 47 other states and the District of Columbia—on the grounds that it was inconsistent with the First Amendment.
Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength ... We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.
The Court’s decision invoked a storm of criticism and protest. With the support of President George H.W. Bush, Congress attempted to pass a Flag Desecration Amendment: The Congress shall have power to prohibit the physical desecration of the flag of the United States. Though the amendment passed in the House with the necessary supermajority, it failed to pass on 19 October 1989 in the Senate by the necessary two-thirds vote. Undaunted in its failure to pass the amendment, Congress quickly enacted the Flag Protection Act, a bill that President H.W. Bush did not sign but which became Public Law 101-131 on 28 October. In opposition to the Flag Protection Act, a handful of protesters set fire to several United States flags on the steps of the U.S. Capitol and in Seattle. One of those protestors, Shawn Eichman, was subsequently convicted under the Flag Protection Act. On 11 June, 1990, the Supreme Court invalidated the Act in U.S. v. Eichman with the same 5-4 decision and rational as it had decided in the earlier Texas v. Johnson—flag burning was expressive conduct protected by the First Amendment. "Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering."
Commencing with the 104th Congress in June 1995, each Congress has attempted to pass a Flag Desecration Amendment, with the most recent attempt on 27 June 2006 failing by a single vote in the United States Senate.
The First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
— The First Amendment to the U.S. Constitution
When the U.S. Constitution was adopted on 17 September 1787 and ratified to become the law of the land on March 4, 1789, the document failed to contain what have become identified as the essential freedoms outlined in the Bill of Rights for, at the time, many of the Constitutional framers felt such inclusions were unnecessary. Following spirited debate, however, the ten amendments known as the Bill of Rights were adopted with the first 45 written words of guaranteed freedoms that would be codified as the First Amendment articulated by James Madison.
With Virginia’s ratification of the amendments providing the majority needed, The Bill of Rights took effective as a law of the land on 15 December 1791. These Rights were specifically drafted to protect citizens from the power of the federal government and the First Amendment’s protections, in particular, of speech, press, religion, assembly and petition, guaranteed that protestors would not be silenced, the press could criticize the government, religious minorities would not be persecuted, citizens could mobilize for social change and individuals could bring suit with the government to correct perceived wrongs. In the words of Justice William Brennan, the First Amendment provides that "debate on public issues ... [should be] ... uninhibited, robust, and wide-open."
The English language, however, is such an inexact and imprecise form of communication. While Americans, in general, are all in agreement with the concept of such First Amendment ‘freedoms,’ it would seem that the ‘devil is in the details’ as to exactly what does one mean by “freedom of speech?” After all, are we not a society that cannot define exactly what pornography is—other than to say we know what it is when we see it—or determine the exact meaning of the Second Amendment’s “A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed?” Ultimately, if there is to be any overwhelming agreement on this issue—an issue of ‘interpretation’—it is to recognize that such difficulties and disagreements are the price we must willingly bear for such freedoms in an open and tolerant society.
Unfortunately, there are those who do not wish such an open or tolerant society, at least not an open and tolerant society as envisioned by the Founding Fathers when it comes to the American flag; they wish for an open and tolerant society as only they see and interpret.
Those who seek to change the Constitution of the United States with a Flag Desecration Amendment offer a myriad of supposed historical and anecdotal evidence in support of their position. Unfortunately, for them, an unemotional and analytical review clearly strips and eviscerates such misplaced support. One organization, in particular, Citizens Flag Alliance, has taken the lead advocating in favor of the Flag Burning Amendment. Founded in 1989 by the American Legion [and, in a moment of full disclosure, I am currently…or maybe was after this piece?...a member of the American Legion], the CFA has been a primary petitioner of Congress since 1994 for the proposed amendment. It is the CFA’s belief that the Supreme Court decision in 1989 protected “flag burning by a communist [and] amended the Constitution by inserting flag burning into the Bill of Rights.” Furthermore, their quest leads them to believe:
…that decision was an egregious error and distorted our Constitution. We do not believe the freedom to burn the American flag is a legacy of the freedoms bestowed on us by Madison and Jefferson and Washington and the other architects of our Constitution. To distort the work of these great men, to put flag burning side by side with pornography as protected speech, is outrageous.
For the sake of brevity, we’ll bypass the sidebar discussion of “pornography” and remain focused on the flag burning and desecration issue at hand. Interestingly, when one reviews the CFA’s writings and Congressional testimony, it would seem that they are the ones to have “distorted” much of what has been said.
Historically, the CFA claims that James Madison, as the author of the First Amendment and an undisputed authority on dominion matters, sustained on three separate occasions, the legitimacy of the sovereignty interest of protecting the flag. Cited as examples are Madison’s comments in defense of flagrant insults to the symbolism and autonomy of flags, in general, specifically (1) an incident in October 1800 when the Algerian ship "Dey of Algiers" forced a United States man-of-war named the "George Washington", to haul down its flag and replace it with that of Algiers (2) the tearing down in Philadelphia in 1802 of the flag of the Spanish Minister 'with the most aggravating insults,' and (3) another naval incident on June 22, 1807, when the British ship HMS Leopard fired upon and ordered the lowering of an American frigate's, the USS Chesapeake’s, flag. While those who support an amendment hold Madison’s physical protection of flags as an example, those attempting to make their point have seemingly overlooked one vital ‘common denominator’ of all of these incidents: all are nation-to-nation and not individual protests. Thus, they are irrelevant in regards to the individual protesting ‘flag burning’ and ‘free speech’ arguments of today.
The CFA also attempts to make the case that Thomas Jefferson, the principal author of the Declaration of Independence, sought to protect the sovereignty interest in the flag in a similar fashion as James Madison when, as George Washington's Secretary of State, Jefferson instructed American consuls to punish "usurpation of our flag.” As with Madison, Jefferson’s position was sovereign protection of the flag among nations and indicated nothing of his thoughts when it came to an individual citizen’s use of it in protest.
Other CFA amendment arguments taking from various editorials and public testimony before Congress follow less objective and more emotional rational:
CFA Point: There are some in America who would deface the U.S. flag, then wrap themselves in the protection of the U.S. Constitution. This outrageous conduct ignores what the flag is -- and what it represents. The flag is much more than just a piece of cloth. It’s our sacred national symbol. Its fabric is the fabric of America -- the bold stripes of a courageous and dynamic people, the bright stars of a tolerant and just society. We would not allow the fabric of our nation to be torn. Nor can we allow our flag to be publicly desecrated. … Those who believe in interpreting the Constitution according to current trends teach us that that sacred document says pornography is protected speech, prayer is not; that you may burn our flag but not your draft card and that you may display in public any obscenity, but not the 10 commandments.
JDL Counterpoint: “There are some in America who would deface the U.S. flag, then wrap themselves in the protection of the U.S. Constitution,” and then there are those who simply wrap themselves in the flag and call all others who will not do the same ‘unpatriotic’ and ‘un-American.’ There is a true dichotomy in play here that the CFA misses—one CAN deface the U.S. flag, then wrap themselves in the protection of the U.S. Constitution. That is the real beauty of the United States; that is what makes us so unique among nations; that is what makes us so different. Do we really want to ‘look’ like the rest of the world? As for the flag being our “sacred national symbol,” for those Christians among us who take this position, how does one ‘square’ that with Exodus 20:4 which speaks of those very 10 commandments that cannot be publicly displayed—“Thou shalt not make unto thee any graven image?” Given the ‘reverence’ we wish to bestow upon the Flag, how is that not ‘idol worship?’ A review of biblical accounts of Moses and the Ten Commandments would indicate that the Israelites were taught that it was the law—in this instance the Constitution—that was important, not the graven image—the Flag.
CFA Point: Amending our nation’s basic charter is a serious step. The Founding Fathers recognized that, and made the amendment process cumbersome and difficult, insulating it from the political passions of the moment. But the Founding Fathers also knew that times would change, and issues they could not even imagine would arise. So they created a mechanism to make our Constitution a living and durable document.
JDL Counterpoint: The amendment process IS “cumbersome and difficult” and designed to insulate it from the political passions of the moment…such as this issue. The Founding Fathers did create a mechanism to make our Constitution “a living and durable document” AND it has worked! So, then, what is the issue? Is it simply the fact that the mechanism emplaced by the Founding Fathers did not provide what amendment supporters desired?
CFA Point: Through the amendment process, with all its unwieldy features, America ended the unconscionable blight of slavery and righted the inexcusable wrong that kept half our population -- women -- from exercising their right to vote. … The will of the people is firmly behind this amendment. Legislatures in all 50 states have passed resolutions memorializing the flag. More than 30 polls since 1989 have repeatedly indicated that Americans favor a constitutional amendment such as the one advocated by the Citizens Flag Alliance.
JDL Counterpoint: “The will of the people” may be firmly behind this amendment as represented by polls and state legislatures…but, that does not make them right. America may have ended the “unconscionable blight of slavery and righted the inexcusable wrong that kept half our population—women—from exercising their right to vote (and black citizens, also, if we recall correctly) but, have we FORGOTTEN that it was the same “will of the people” that tolerated or condoned the slavery in the first place? We were the same ‘people’ who denied women and blacks the right to vote, who forced true ‘Americans,’ the American Indian, onto reservations, incarcerated Americans of Japanese decent into Internment camps during World War II and enacted between 1876 and 1965 state and local Jim Crow Laws in the Southern and border states of the United States. “We The People” do not always get it right the first time.
CFA Point: One of those amendments guarantees freedom of speech to all citizens. Ironically, it is this amendment that many now cite in opposition to an amendment protecting the flag. But those who pit amendment [1st] vs. amendment [Flag Desecration] miss the point. The Citizens Flag Alliance fully supports the Bill of Rights and particularly the right of free speech. But physical abuse of our nation’s flag has nothing to do with free speech. You can say anything you want about the flag, no matter how abhorrent some might find your words. That is and always will be your right. What our amendment does is protect the flag against intentional public actions that deface or mutilate it.
JDL Counterpoint: “One of those amendments?” Well, it seems to be a rather important amendment. Has anyone ever questioned why it is the FIRST of ten amendments? Can one doubt that there was a reason and rational for that? As for “physical abuse of our nation’s flag” having nothing to do with free speech, didn’t the U.S. Supreme Court decide differently? Are they not empowered by the U.S. Constitution, the Executive Branch and the Legislative Branch to adjudicate such issues? Was that not the intent of the Founding Fathers?
CFA Point: Indeed, our laws constantly put limits on action that would be impermissible against speech. For example, you can stand in the public square and yell, “Down with the United States!” or “Long live the United States!” But you cannot climb the Capitol dome and make either announcement. Nor can you spray paint those words on the walls of the Lincoln Memorial. In the interest of public safety and decorum, those actions are prohibited, no matter how agreeable or disagreeable the words. The flag protection amendment rests on the same principle. Words spoken against the flag, no matter their content, are protected by the Constitution. Public actions that deface, mutilate and desecrate this sacred symbol should not be.
JDL Counterpoint: This attempt at an analogy is nothing more than a poorly constructed ‘red-herring’ that has no bearing on the discussion reference the flag desecration amendment. The fact that one “cannot climb the Capitol dome and make either announcement” or “spray paint those words on the walls of the Lincoln Memorial” have nothing to do with ‘Free Speech’ and everything to do with trespassing and defacing public property, both convictional charges. If a protestor opted to climb his own home or spray such words on the side of his own house, he would be protected by the First Amendment.
CFA Point: Our flag is resilient. It waves but never waivers. It can withstand hateful words. Indeed it symbolizes our right to freely say what we think, even to defame the flag itself. But as our most sacred national symbol, its physical protection is a solemn obligation that should be entrusted to the Constitution itself.
JDL Counterpoint: The term resilient, by definition: recovering readily from adversity, depression, or the like. If all are in agreement that “our flag is resilient,” why then do we need an amendment to protect it? Has it not ‘waved’ and ‘never waivered’ since its inception over two centuries ago without such an amendment?
CFA Point: When the Framers of the Constitution adopted the flag in 1777, they understood the long history of law surrounding the flag as an incident of national sovereignty. The Framers inherited from England a legal tradition of protecting the flag as a practical instrument affecting title to areas of land and water, rights of trade and citizenship, causes of war citable in international law, and similar matters with the utmost weight. Thus, the original intent and understanding regarding the protection of the flag plainly consisted of sovereignty concerns. The Framers considered the flag they adopted and sought to protect, apart from being merely a patriotic or any other type of symbol, as an incident of sovereignty. By recognizing the sovereignty interest in the flag, which historically meant responding to violations of its physical integrity, the Framers sought treatment for the United States, at home and abroad, as a sovereign nation.
JDL Counterpoint: Again, the point is being obfuscated, let us use ‘precise terms precisely.’ The term, sovereignty: government free from external control. No one disputes the sovereign aspects and required protections of any flag, not just that of the United States, as enumerated by both Framers of the Constitution, James Madison and Thomas Jefferson, among them. That argument, however, is also irrelevant. The “incident of national sovereignty” reference the flag in this instance is between nations and has absolutely nothing to do with the individual right of an American citizen to desecrate the flag in protest. Furthermore, if the Framers of the Constitution truly “understood the long history of law surrounding the flag,” then why would they have failed to address that in the original draft of the Constitution or amended that oversight in the Bill of Rights? After all, the first ten amendments to the Constitution run the gambit from the ‘basic’ freedoms to the bearing of arms, the ill-legality of quartering troops in “any house,” unreasonable search and seizure, ‘double jeopardy,’ ‘pleading the Fifth’ where one cannot be compelled to be a ‘witness against himself,’ ‘due process of law’ and so on. If the Framers of the Constitution so “understood the long history of law surrounding the flag” why would they not have included a clause of protection for it within the Constitution of the Bill of Rights, given all else that is covered? Maybe it is because the Founding Fathers realized that despite its unique and hollowed position within the history of our nation, the Flag, though revered, was not necessarily so sacrosanct that no action could be taken against it by an American citizen?
CFA Point: When you burn the flag, you burn the Constitution. We must teach our children the immortal immutable truths of our Constitution and there is no better way to do this than through the flag and the Pledge.
JDL Counterpoint: Now, just where in the Constitution does it declare that “when you burn the flag, you burn the Constitution?” And, speaking of burning the Constitution, is that not the most hallowed document, most hallowed symbol in all of democracy, in all of the free world? Yet, there is no debate about a parchment replica of it being burned in effigy, no mention within the document, itself, that it cannot be symbolically torched. As for teaching our “children the immortal immutable truths of our Constitution,” one does not do so by passing a flag desecration amendment. A parent does so by extolling the virtues of tolerance as defined within the Constitution, of showing how, because of that unique document, the United States, as a society, tolerates what many would consider inciteful actions of a relatively few misguided protestors. That is how one teaches our children, and the world, the immortal immutable truths of our Constitution. And, by the way, let’s not attempt to cloud the issue by introducing another controversy in the form of the ‘Pledge of Allegiance.’ That has no bearing in the flag amendment debate.
CFA Point: As a blinded Vietnam veteran, I can only hear Old Glory whispering in the wind as it proudly waves in front of my home. In my mind's eye I can still visualize our sacred symbol covering coffins of fellow Vietnam veterans and being ceremoniously handed to their grieving loved ones as the bugle echoes "Taps". And, in my heart, I know this flag unifies our country and symbolizes the blood that runs through the veins of our nation.
JDL Counterpoint: To this Vietnam veteran, thank you for your selfless service and for your obvious personal sacrifice to the Nation. As noted, it is important to recall the images of the ultimate sacrifice of others. However, does a protestor burning a flag change any of this? Do the sacred symbols “covering coffins of fellow Vietnam veterans” somehow change as a result of the public protests of a few flag burners? I, too, personally recall flag draped coffins, of folded colors lovingly and reverently being handed over to grieving family members, and images of that same flag being burned in protest do not cloud or distort those special and most reverent of memories.
CFA Point: Our honored war dead have been the vault for the values of this nation. And that is what is important to the veterans I have known. They did not take an oath to defend a person, a party, a king or a dictator -- they took an oath to protect and defend the Constitution of the United States -- a set of values. That is what veterans would like for us to honor, not just them, but the values for which they gave so much of body and soul -- values such as courage, a willingness to sacrifice, service to others and to country.
JDL Counterpoint: “They took an oath to protect and defend the Constitution of the United States,” a succinct point often missed by many. On 10 January, 2006, President George Bush made the following statement while addressing war veterans in Washington, D.C.: "You took an oath to defend our flag and our freedom, and you kept that oath underseas and under fire." Well, Mr. President, not exactly. The oath of office every member of the profession of arms has taken to date runs along similar lines to the appointment acceptance and oath of office I took upon being commissioned:
I having been appointed an officer in the Army of the United States, as indicated in the above, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter, so help me God.
Mr. Bush, himself, took the oath of office for the President of the United States as specified in Article II, Section I, of the U.S. Constitution:
I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.
Interestingly enough, in neither of those two oaths does it indicate, as the president and others imply, that any of us who have solemnly raised our right hand to swear such oaths did so “to defend our flag.” Symbolically, yes, of course, we all did. The ‘red, white and blue’ of Old Glory was all about us and, as a Soldier, there was little, if anything, of greater pride to me. That said, however, it was not the flag for which I served, for which I would have fought…and died…for. It was for my oath; my oath to support and defend the Constitution of the United States against all enemies, foreign and domestic. Nowhere in that statement, or in all of my oath, or the oath of the President of the United States, do I read that any of us “took an oath to defend our flag.” That is another trait of uniqueness that sets us apart from the rest of the world. Our oaths are not to a monarch, to a president, to a dictator or to a flag; our oaths are to an ideal of unified greatness and of individual freedoms as espoused in a unique document called the Constitution of the United States. If anything, it is the Flag that symbolizes that document and its inherent ideals. Does that, in the end, elevate the Flag above the Constitution when it comes to ‘protection?’ I think not.
CFA Point: Abraham Lincoln warned, "Don't interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties." We the people must not allow the Supreme Court to interfere with our Constitution. Much of the evil in our society is the result of decisions by black robed unelected judges, and politicians who support them, in defiance of the founders' intent in the Constitution. … The courts demand that we accept flag burning. We are not demanding that people love our flag as we do, we are demanding that the immutable truths of our Founding Fathers be restored to our Constitution. … The 1989 Supreme Court decision defining flag burning as speech should outrage every American, flag burners as well as flag waivers. That decision defiled our sacred Constitution and no American should stand still for that. After the decision, Ninety percent of the Congress voted for a statute which would have corrected the Court's erroneous flag decision. The Court struck it down. … The courts are forcing us to accept flag burning, we are not trying to force the people to love Old Glory, we are trying to force the courts to restore the truth to our Constitution.
JDL Counterpoint: “Much of the evil in our society is the result of decisions by black robed unelected judges, and politicians who support them, in defiance of the founders' intent in the Constitution?” “Evil?” “Black robed?” “Unelected?” My. That sounds very ominous. Here’s a civics lesson for those who seemed to have slept through ‘Constitution 101.’ They’re “unelected judges” because that’s how it’s spelled out in the Constitution:
Article. II. Section. 1.
He [the President of the United States] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
Sad to say, it actually gets worse seeing how the Framers of the Constitution vested the judicial powers of the United States in only the one supreme Court and, horror of horrors, directed that appointments to the Court would be lifetime.
Article III. Section. 1.
The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.
As for the ‘black robes,’ it could have been even more entertaining. Take for instance the Royal court of England and Wales:
High Court judges: When dealing with first-instance criminal business in the winter, a High Court judge of the Queen's Bench Division wears a scarlet robe with fur facings, a black scarf and girdle (waistband) and a scarlet casting-hood or tippet. When dealing with criminal business in the summer, the judge wears a similar scarlet robe, but with silk rather than fur facings. When he tries civil cases, he wears in winter a black robe faced with fur, a black scarf and girdle and a scarlet tippet; in summer, a violet robe faced with silk, with the black scarf and girdle and scarlet tippet.
In addition to the ‘robes’ and ‘girdles,’ all Royal Court judges are also required to wear either a short bench wig composed of horsehair with curls at the side and ties down the back when working in court or a long wig for ceremonial occasions with wing collar and bands.
Fashion sense aside and having cited the above, just how, then, is “much of the evil in our society” “the result of decisions by black robed unelected judges, and politicians who support them, in defiance of the founders' intent in the Constitution?” I’m sorry but the logic eludes me.
Furthermore, just as we seem to have a ‘failure to communicate’ when it comes to interpreting what ‘free speech’ means, we also seem to have a failure to communicate in the interpretation of what Abraham Lincoln meant with his warning about interfering with “anything in the Constitution.” “We the people must not allow the Supreme Court to interfere with our Constitution?” Well, once again, let us go to the ‘source’ to see what it says. Interestingly enough, the Constitution is relatively quiet regarding judicial review. However, there were Framers who did contemplate the idea. One such individual, Alexander Hamilton, a ‘Founding Father, Army officer, one of America’s foremost constitutional lawyers and one of the two leading authors of the Federalist Papers—the most important interpretation of the United States Constitution—was very specific regarding his thoughts on the subject.
The interpretation of the laws is the proper and peculiar province of the courts. A constitution, is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
For those who are “demanding that the immutable truths of our Founding Fathers be restored to our Constitution” given “the Court’s erroneous flag decision,” just how does that ‘square’ with the Founding Father’s written belief that ‘The interpretation of the laws is the proper and peculiar province of the courts?’ Furthermore, the fact that “ninety percent of Congress voted for a statute which would have corrected the Court’s erroneous flag decision” is of little consequence. It was not the ‘right’ ninety percent of Congress as prescribed by the Constitution. “Case closed,” as they say.
CFA Point: However, in 1989, so fairly recently, the United States Supreme Court in one fell swoop, and by the narrowest of margins in a five-four opinion, effectively invalidated all State and Federal laws that prohibited flag desecration. The Court concluded that the burning of an American flag as part of a political demonstration was expressive conduct, protected by the First Amendment. Congress responded to the Supreme Court's decision almost instantaneously, through bipartisan and overwhelming support, with the enactment of the Flag Protection Act of 1989. However, the following year, the Supreme Court again, in a five-to-four decision, held the Flag Protection Act unconstitutional in United States v. Eichman.
JDL Counterpoint: Does the Constitution differentiate between a 9-0 decision or a 5-4 decision when it comes to the highest court interpreting the law of the land? Are all 5-4 decisions of the Court now ‘suspect’ and subject to interpretation by society? ‘Close’ is of no importance in this sense. After all, this is not ‘horse shoes’ or ‘hand grenades.’ In their wisdom, the Framers of the Constitution created a remarkable and brilliant document. Insightfully, they also realized that they could not foresee the future and anticipate the Nation’s changing needs. Having created a document that set forth the basic principles that would apply to as many circumstances as possible, the Framers relegated how the Constitution would apply to specific cases to the Supreme Court to decide.
CFA Point: We are amazed that so many in Congress who support flag burning.
JDL Counterpoint: “…so many in Congress who support flag burning?” Interesting spin. So, to paraphrase this philosophy in a more imaginary representation, “If you do not stand with us [the CFA] in this fight against flag burning, you stand against us…and support flag burning?” Talk about wrapping oneself in the Flag. Sinclair Lewis may have said it best. “When fascism comes to America, it will be wrapped in the flag and carrying the cross.”
CFA Point: In most senses, this majority has spoken in favor of the amendment: 80 percent of the nation, according to recent polls, 50 State legislatures, well over a supermajority of the House of Representatives, and more than a sample majority of the Senate. … Proponents of the flag amendment also seek to protect and promote the unity of values embodied in the flag. Our system of democracy, the Constitution, and all of the freedoms, rights and laws which flow from each are based on this unity. And the flag forms the basis and is a symbol of this unity. It remains - in a time when traditional unifying elements of American language, culture and heritage are fraying - a single embodiment of our unceasing struggle for liberty, equality and a basic committment to others, for all citizens, regardless of language, culture and heritage.
JDL Counterpoint: While a majority may have “spoken in favor of the amendment,” one should first remind the CFA that the United States is a Republic and not a ‘Democracy.’ We elect, per the Constitution, members of Congress who vote on our behalf as they see fit. That’s ‘the deal’ as prescribed in the Constitution. We’ve also ‘signed up’ to an agreement through that Constitution that it takes a supermajority in both the House of Representatives and in the Senate to approve the passage of any amendment to that Constitution to be sent to the states for their ratification or rejection. To date, that supermajority has never been achieved in the Senate. That’s the process as prescribed by the United States Constitution; that is “our system of democracy.”
Interestingly enough, there is also a major fallacy within the CFA’s argument above. If 80 percent of the nation are in overwhelming support of this issue, just how is flag burning a threat to the nation? Just how frayed are our “tradition unifying elements of American language, culture and heritage?” Just how unceasing is our “struggle for liberty, equality and basic commitment to others?” Is the Republic teetering on anarchy? Is there rioting in the streets? When was the last Flag actually burned on American soil? “Oh, the humanity!” Oops…sorry, I digress, that was an earlier disaster. If the CFA claims that burning the flag is a ‘common’ or relatively ‘routine’ event these days, it most certainly does not seem to be a very functional or activist way to protest given I have not seen such a demonstration, in person, on television or in print, since…1991? In reality, is this amendment not a ‘solution’ for a problem that does not exist?
Preamble to the United States Constitution
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
The liberties that we as a society and as individuals enjoy are derived from the Constitution of the United States of America and not from the flag that represents these United States. While the burning of that flag is highly contentious and likely to elicit an exceptionally emotional longing from observers of retribution…read that as a ‘good ol’ ass whooping,’ such emotions do not serve as justifiable…or more fittingly, Constitutional…grounds to pass an amendment that would be the first to alter the Bill of Rights. Of the 9,100 amendments that have been proposed since the 51st Congress in 1889, only fourteen were passed and eleven ratified by the states to be added to the Constitution. Given that track record, this amendment is not worthy enough to be the fifteen passed, much less the twelfth added to the Constitution.
This issue, however, transcends just the simple aspect of ‘flag burning.’ A careful review notes that the proposed amendment reads, The Congress shall have power to prohibit the physical desecration of the flag of the United States. “Rut Ro.” Desecration? How is that defined? We still have yet to come to agreement on what ‘free speech’ means and, now, we’ve opted to muddy the waters, further? Is the flag ‘desecrated’ when it’s worn as a patch on the seat of one’s pants or ‘defiled’ when a peace sign is taped on it? In 1974, the Court did not seem to believe so when it ruled in favor of those who had taken such action. Is a child’s drawing a flag, or is a photograph, or a cake iced in red, white and blue with fifty stars? Is crass commercialization that incorporates the use of the flag desecration? The litigate in me would like to think so on that one. What about all those little flags that are handed out at national conventions, to be waved widely about when the cameras are on but dropped on the floor or tossed in the trash can when the lights are dimmed? And, of course, one could never realistically film an event such as the flag burning, 1979 seizing of the American embassy in Tehran, Iran, without the fear of a politician—or an up and coming district attorney, for that matter—attempting to make a “news at eleven” federal case out of it. If such a proposed flag desecration amendment is passed and ratified, when would the endless parade of lawsuits to determine the exact definitions of ‘flag’ and ‘desecration’ stop? Do we really want to generate more revenue for the legal profession? Don’t they already make enough? Oh well, maybe not. Maybe we’ll just have regenerated the ‘freedom of speech’ judicial cycle all over again except, this time, those nine ol’ folks in their silly—but ominous—black robes will be determining this time around, what we all mean by flag and desecration. How dare they!
Passage of a Flag Desecration Amendment is, in and of itself, desecration of our Constitution. Such an amendment does little more than gratify those who confuse dissent and protest with anarchy and treason. For those who urge others to stand-up against those ‘un-patriotic’ and ‘un-American’ anti-amendment supporters, Samuel Johnson said it best: Patriotism is the last refuge of the scoundrel.
The oath that many of the amendment supporters proclaim to have taken was to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” However, what these supporters of the amendment overlook is that domestic enemies can also take the form of those who seek to weekend and defile the Constitution of the United States by amending this noble and historic document to remove the inherent rights of other American citizens for their own misguided agenda. Supposedly, we all agree that the Constitution is the law of the land. Even many proponents of the amendment have clearly stated and cited they’ve sworn an oath at one time or another to support and defend the Constitution of the United States. If that is the case, how can they then call the Supreme Court’s action un-American, unpatriotic? Did the Court not follow the process as prescribed by that very Constitution we’ve taken an oath to defend? Did Congress not follow the process as prescribed when it failed to pass the Flag Desecration Amendment each session since the Johnson decision of 1989? Can the arguments presented by amendment supporters be nothing more than the ‘sour grapes’ of sore losers?
The Flag of the United States is quite possibly the most powerful symbol of this great Nation, if not in the world. As such, it cannot help but be the target of abuse by the relatively few of those who disagree with the policies or conduct of our government. It is not always, “My country, right or wrong!” Do most American’s find the burning, the desecration of the American Flag offensive? Most certainly. But elevating that symbol above the personal liberties of freedom of speech as guaranteed in our Bill of Rights is a clumsy and unwarranted capitulation. The notion of changing, of ‘attacking,’ our Constitution in order to ‘protect’ a symbol that needs no protection should prove to be alarming to all Americans who have inculcated the true ideals of that Constitution.
Few, if any, are more prideful of the American Flag than I. I carry a thread etched flag that I wore on the right shoulder of my Battle Dress Uniform in my wallet and prominently display in my home the tri-corner folded flag that was presented to me upon retirement from active duty. Flag Day is a celebration of what Old Glory stands for and what it symbolizes. And I, for one, recognize that what it stands for and what it represents may differ in the eyes of my misguided fellow citizens, and that is fine with me, for I swore an oath to personally defend that difference. The Flag is a manifestation of the freedoms and values explicit in our Constitution—which is what I personally cherish the most.
“These colors don’t run!”…and neither do they need our ‘protection.’ To paraphrase Abraham Lincoln’s Gettysburg Address, “But, in a larger sense, we can not defend—we can not protect—we can not hallow—this Flag. The brave men, living and dead, who struggled before it, have consecrated it, far above our poor power to add or detract.” To ‘defend’ and ‘protect’ the Flag with such a ‘Flag Desecration Amendment’ would be an odd twist of distorted logic that both dishonors and debases that very symbol by providing it a status and reverence greater than the very ideals for which it was created .
Thus, on this Flag Day—and all the other days we proudly display and wave the ‘Red, White and Blue as we entertain ourselves with parades, picnics and barbecues, pause and reflect on the true essence and meaning of those colors. The American Flag is the most beautiful and inspiring symbol of greatness, hope and potential that humanity has to offer. Just how beautiful and inspiring, though, is up to you.
The flag I carry in my wallet from my Active Duty days.