Flag Burning — The Supreme Court Done Wrong
By Alex Saitta
December 17, 2016
In early December, President-Elect Donald Trump tweeted the following: “Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!”
I voted for Trump in the general election, but he was not my choice in the Republican primary. However, he has a very good point here. I just wish he would be more focused, stay on the point and make the case, rather than just moving on to the next thing on his mind.
As an outgrowth of the 1960’s Vietnam era, and the variety of protests in the 1970’s, 48 of 50 states and the US Congress passed anti-flag burning (desecration) laws. In the 1989 case of Texas vs. Johnson, the US Supreme Court ruled in a 5 to 4 vote that burning the flag was a right of free speech that is protected under the First Amendment to the Constitution.
Free Speech? It is illegal for me to burn US dollars I have in my possession. The government tells me I can’t burn leaves that fall from my trees into my backyard, on my land. Yet it is unconstitutional for the same government to pass a law that says it is illegal to burn the US flag?
I don't think the anti-flag burning laws should have been struck down by the Supreme Court. The First Amendment protects the freedom of speech (words spoken) and freedom of the press (words written). Where does the Supreme Court see freedom of action (flag burning) as a protected right? That is, tell me where in the Constitution the words “speech” also means an “action” like flag burning? It doesn’t.
As a conservative I interpret the Constitution literally. But if you want to open it up to interpretation, then the Supreme Court is to interpret the First Amendment’s meaning through the eyes of the Framers of the Constitution and the Bill of Rights. James Madison wrote the First Amendment. In his initial draft he wrote "right to speak, to write, or to publish their sentiments". Madison was very detailed in the draft and didn’t include acts or all types of expression. Instead Madison drilled down on the spoken and written word.
Be Honest Folks:
Does anyone think if British loyalists in 1780 would have burned the US flag in support of Great Britain in the Revolutionary War that James Madison or the Framers would have stood up and said, that is protected speech? Be honest. It would have been seen for what it was and is today -- giving aid and comfort to our enemy (treason) or an effort to undermine the existence of the US government (sedition). It is not the expression of a political idea or speech for/ against any policy position.
Justice Rehnquist in Texas vs Johnson (1989) decision explained it better than me: “The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another "idea" or "point of view" competing for recognition in the marketplace of ideas... I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.”
Plan and simple the Supreme Court legislated from the bench and added speech also means action as in burning the US flag.
There is a way to amend the Constitution to add such meaning and that is done through the amendment process. Just because that is difficult to do (by design), does not give the Supreme Court the ability to add meaning to the Constitution via court ruling.
The Bill of Rights is a list of inalienable rights of individuals, once and always there, through ups and downs, through good times and bad. Fast forward to the present. Let’s assume Russia invaded the US and occupied Alaska and the West Coast and was moving eastward. Then at the Greenville town square Russian born US citizens gathered and burned the US flag in support for the Russian invasion, would those citizens have the right to burn the US flag? Of course not. Likely they’d be tarred and feathered Sons of Liberty style and the courts would not jump in to say that was protected “speech”. I think it would be looked at the way war-torn officials like Madison and Hamilton would have seen it -- as treason or sedition.
This interpretation that such an action as flag burning is speech is a recent one that has evolved in peacetime America, not what the Framers were thinking at the time the Bill of Rights was written in 1789.
Conservative or Libertarian:
Initially I wrote about the flag burning issues on Facebook when Trump first made his comments. Someone said something like, Alex as a conservative how can you be for the government creating anti-flag burning laws? I responded, you have mistaken me for a libertarian. I’m not; I’m a conservative.
When it comes to the economy, the conservative wants the government to be hands off -- supporting free markets, smaller government and low taxes/ regulation. When it comes to social issues, the conservative wants a hands on government that encourages American traditions and Biblical or the Puritan moral code through laws and the court system.
The libertarian is hands off when it comes to the economy AND hands off when it comes to social issues. For instance the conservative supports laws making drug use, gay marriage and abortion illegal. That is, the conservative supports Biblical morals and wants to see them coded in law. The libertarian opposes such laws.
The liberal is the opposite the conservative with hands on when it comes to the economy, and hands off when it comes to social issues.
The authoratarian is opposite the liberal with hands on when it comes to the economy and social issues.
We are free to write things like this and do pretty much as we please because US soldiers sacrificed their lives, arms/ legs, time, mental health, youth, and more. Old Glory symbolizes what they fought for and it should be protected under the law as a small token for all they have done for us.
Disrespect the US flag like we are doing more and more, and one day those soldiers will stop fighting for us, and then where will we be?
Texas v. Johnson was a 5 to 4 decision saying anti-flag burning laws were illegal. It was a close decision; I'm not way out in left field on this. Hopefully the Court will overturn it sometime. If not, I would amend the Constitution forbidding it.
If a person is upset with America or the US government, instead of burning a flag, he can write a letter to the editor or your Congressman, or he can organize a protest, donate money to the Communist candidate, speak at the next government meeting, convince the newspaper to take an editorial position, or become a talking head on TV and then condemn the US action on this or that. Anti-flag burning laws do not restrict a person’s ability to criticize the government and exercise their First Amendment right.
Bigger picture, all that is falling by the way side beit with flag burning, sanitizing the public square of religious expression, gay marriage, transgender bathrooms, the smut on TV and in the movies (sex, 4 letter words, violence), the list goes on. Most citizens are against these things, and the cultural decline of the past 50 years. My question is, where are the leaders standing up for our traditional American values and Biblical moral code?
I can't imagine the culture we'll face in a decade or two years when the last vestige of traditional values and morality is gone (the Depression/ WWII babies). I'm not for conspiracy theories, but if you were going to destroy a country from within, this is one way to do it -- wipe out the code of morals and values.