Topic: Constitutional Issues
Let's Burn the US Flag, Shall We?

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Why not? It's your constitutional right, and besides: it will annoy Hillary!

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by Steven McDuffie
(libertarian)
Wednesday, April 29, 2009

"Guard against the impostures of pretended patriotism." – George Washington

The Inverted Flag
I don’t actually believe that there is any maritime law or international treaty that states anything to the effect of ‘the recognized sign of a ship or boat in distress shall be an inverted flag'. Having been a professional sailor for most of my adult life, I have never read an official document making such a declaration, and indeed, on the face of it, it makes no sense. Consider that if you invert the flag of Cote-d'Ivoire you end up flying the flag of Ireland, and what about the poor Libyan mariners? An upside down Libyan flag is a Libyan flag!

Despite the fact that I don’t believe that the upside-down flag is a sign of maritime distress, nonetheless, I very often fly my Stars and Stripes upside-down. Even though I am dubious of the origins of this tradition, I realize that it has come to mean that the country is in distress. One happy side-effect is that  my inverted US flag is mildly provocative to the Archie Bunker types, and indeed, I do get the occassional one-finger salute from alleged 'patriots'. Another happy side-effect is that it has led to some very constructive and illuminating conversations with perfect strangers about what I think has gone wrong with the country.

Flag Burning
So what of flag burning? I have never burned a flag of any kind¹,  much less an American flag. My viewpoint on this issue is hard to talk about standing on one foot, but I'll give it a shot: On the one hand, though I can't picture myself ever doing that, I do understand why some might want to: burning the symbol of the US in effigy makes perfect sense as a form of protest² to me, philosophically speaking. On the other hand, it seems, to me, to be a fairly pointless  and impotent exercise at best, and, at worst, a deliberate attempt at provoking outrage.

Far more important than my opinion on the act itself is the question of whether or not it should be illegal. The answer, obvious to me, is 'no'. If I believe that people should have the freedom to self-medicate for pleasure or for pain—and I do—then obviously, I must necessarily believe that people should have the freedom to burn flags—my opinion on the act itself notwithstanding. Moreover, if there is no victim, there is no crime.

However, unlike the crowd on the left, I don't believe that flag burning is a constitutionally protected form of free speech—so-called 'symbolic speech'. A literal reading of the 1st Amendment reveals no wording that can in any way be construed to mean that flag-burning is protected free speech. Even Justice William Brennan, in the landmark case of Texas v. Johnson³, 491 U.S. 397 (1989), admitted, "The First Amendment literally forbids the abridgement only of speech" [emphasis mine - McD]. Unfortunately, Brennan then went on to  opine, "We have long recognized that its protection does not end at the spoke or written word." Of this United States Supreme Court (USSC) decision, historian and constitutional scholar, Prof. Kevin R.C. Gutzman has written,"What the Court should have recognized is the simple fact that the First Amendment left these issues to the states.⁴" My comment on Brennan's opinion is this: there is a reason it's called an opinion⁵.

In the 20th Century, the USSC found something called 'freedom of expression' within the very specific language of the First Amendment. In fact, the concept of a First Amendment 'freedom of expression' protection is younger than my dad. Surely, it is the height of absurdity to suggest that the authors and ratifiers of  the  Bill of Rights didn't understand what was meant by the First Amendment,  and as a consequence, Americans had to wait 150 years for the Men in Black to figure it out.

Now then, having first annoyed right-wingers and now left-wingers, I have to clarify what I believe: that I don't believe flag desecration is protected under any clause of the First Amendment is not to say that I believe that flag desecration—or freedom of expression—is not protected by the Bill of Rights. Clearly, the Bill of Rights provides for protection of freedom of expression, symbolic speech, speech plus conduct, or whatever you want to call it. That freedom is guaranteed in the oft-forgotten Ninth Amendment, which states, in clear, unambiguous language, that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." In plain, contemporary American English, 'freedom of expression' wasn't taken away from the people in any clause of the Constitution, including the Bill of Rights, thus, the people retain that right.

Like it or not, burning a US flag is your right under the Constitution, and your right as a human being.

Steven McDuffie can be contacted by email at sdmcduffie {at} hotmail {dot} com.

Notes:
1. A few friends of mine and I who were working at the grass roots level on the Ron Paul campaign tried to start a movement to make Oct. 24^th "Burn a U.N. Flag Day". The idea never took off. Surprisingly, very few people in the campaign thought it was a good idea, and we got word from the ‘higher ups’ that it might make for bad press. Astonishingly, some of the most anti-UN people I know, or encountered online, thought that burning the UN flag—that is, burning the UN in effigy—is absurd, immoral, or wrong-headed. I thought it would be fantastic symbolism, and besides, burning the UN flag wouldn't enrage anybody, that I know of. No matter how distasteful someone might have thought it, I can’t imagine any American getting abusive or violent over burning a UN flag.

2. William Lloyd Garrison once burned a copy of the US Constitution to protest slavery. He said the that Constitution was a "compact with Hell."

3. The proponents of flag desecration laws learned their lesson very well after the Johnson case mentioned above, and after a similar federal law was struck down by the USSC the next year. Spurred into action, heroes of freedom, Robert Dole and Joseph Biden (yes, that Joe Biden) crafted competing versions of a proposed Flag Burning Amendment—Dole’s was identical to the version working it’s way through the House, while Biden’s was more narrow in scope. That amendment failed.

Every Congress since 1990 has crafted a Flag Desecration Amendment. Every year since 1994, the Amendment has passed the House, only to be arrested in the Senate. In 2006, Senator Hillary Clinton cynically and duplicitously introduced and co-sponsored a flag burning bill, while voting down the Flag Desecration Amendment. Some commentators saw this as an attempt to thwart the Amendment, however, many others saw it as a transparent ploy on her part to attract the attention of moderate Republicans and center-right Democrats. In other words, it was phase one of laying the groundwork for her 2008 presidential run.

I can say a lot about Hillary Clinton that is negative, but one thing I cannot say is that she is stupid. She clearly is a very intelligent woman. She obviously knew that any flag desecration legislation passed by Congress, and signed by the president, would be shredded by the Supreme Court. Thus we have a situation in which Clinton pandered to the right—attempting to establish ‘street-cred’ as a patriotic flag-worshipper by co-sponsoring a bill that she knew would fail—while simultaneously standing up for liberty by voting down the repugnant, anti-freedom Flag Desecration Amendment.

The end result was good: the Amendment did not get the requisite votes to pass the Senate, and she was an integral part of the opposition, however, considering her obvious ulterior motive, and her aisle-straddling tactics, I have a hard time celebrating her on this victory.

4.  Gutzman, Kevin R.C., The Politically Incorrect Guide to the US Constitution, Washington DC: Regnery Publishing (2007)

5. I am a Rothbardian, however when it comes to the Constitution, I am an originalist/strict constructionist. As such, I follow the view of the framers and ratifiers of the Constitution and the Bill of Rights—and such constitutional scholars as Thomas Jefferson—in viewing the States, not the Supreme Court, as the final arbiter of constitutionality.

©2009 Steven McDuffie, all rights reserved. You must have written permission from the author in order to republish this work.
Published: Wednesday, April 29, 2009
Last modified: Thursday, April 30, 2009

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