Trump Wraps Himself In The Flag For Partisan Advantage
On July 4th, while Mr. Trump was militarizing Independence Day, protesters led by Joey Johnson burned two American flags at the White House. Is it an accident that little more than two weeks after lighting his own fire – calling for an anti-flag burning constitutional amendment – Mr. Trump gets the flag burnings he wants? It is hardly surprising given his concurrent assaults on the Constitution, the 4th of July, and migrants at the border. It works for him. Roughly 67 percent of Republicans want to lock-up flag burners, potentially enough energized voters that one or another state ends up in the Republican column in the 2020 election. Does this mean anything more to Mr. Trump than some votes in 2020?
The 28th Amendment?
A proposed amendment to the Constitution of the United States, as in many prior years, has been filed: “Congress shall have the power to prohibit the physical desecration of the flag of the United States.” This proposed amendment has been passed in the House of Representatives multiple times, but last came close to being approved by 2/3 of both houses of Congress in 2006. The amendment, if adopted by Congress and ratified by ¾ of the states, would become the 28th Amendment to the U.S. Constitution. Rep. Steve Womack (R, Arkansas) on June 13 and Senator Steve Daines (R, Montana) on June 14 introduced the resolution. The President called it a “no brainer” which could be understood in ways other than he intended.
All in for Senator Steve Daines as he proposes an Amendment for a strong BAN on burning our American Flag. A no brainer!
— Donald J. Trump (@realDonaldTrump) June 15, 2019
Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!
— Donald J. Trump (@realDonaldTrump) November 29, 2016
Congress and some states have been looking at ways to prohibit and punish flag desecration since the Supreme Court, citing the “free speech” doctrine of the First Amendment to the Constitution, struck down existing laws in Texas v. Johnson in 1989. If ratified, this amendment would be the first time the Constitution itself has been amended to weaken the Bill of Rights since its passage in 1791.
Amendment proponents argue that the flag is the unifying symbol of the United States, representing the entire people, not just the government or particular policies; that the blood of martyrs who have died defending the United States and the profound sentiments of their families demand this protection; that it is a unique symbol; and that the free speech doctrine has justifiable limits.
How serious is the problem?
Years ago, the Citizens Flag Alliance, a leading pro-amendment organization, and worth checking for the pro-Amendment argument, documented on their web site 20 incidents of flag desecration between January 1995 and February 1998. They reported a further 26 incidents that could be punished under existing arson or vandalism laws. I cite this old data as I’m unable to find current statistics. Flag burning in the US is both rare and no longer recorded by police, as it is not illegal. There is no indication that lack of legal penalty has lead to any increase in flag burning, and seemingly the opposite is true. As rare as flag burning is, particularly offensive action by the government does sometimes elicit intentional offense in response. Mr. Trump hijacks the 4th, puts migrants in cages: someone angrily burns a powerful symbol.
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What is desecration?
“Desecrate” means to violate something sacred, to profane or to treat irreverently or contemptuously something sanctified. If the flag is “sacred”, desecrate means burning the flag in a contemptuous manner or mixing it with waste or garbage, for example. The amendment would force Congress to legislate on or the courts to interpret many acts that may be desecration:
- In 2018 alone, continuing a 50+ year tradition, 6.5 billion US Flag postage stamps were printed proudly bearing Old Glory – until being smudged with ink, torn, soiled, and cast, without ceremony or reverence, into household or business trash; and dumped in landfills – or burned in publicly supported incinerators.
- Flying the flag overnight or in inclement weather was once thought disrespectful. Is it acceptable now?
- Small flags adorn the graves of thousands of veterans. These flags often age where they are planted until their small wooden “flagpoles” rot, the tattered flags fall to the ground, and lawnmowers chew them up. Desecration?
- Do we cheer on the Old Glory swim-suited Olympian – or prosecute her?
- Are flags used in advertising patriotic – or commercial exploitation, and hence desecration?
These acts were subject to fines of up to $1000 and imprisonment of up to one year under US Code Title 36, Chapter 10, the “Flag Code,” which was US law from 1968 until struck down in the Supreme Court’s 1989 decision. The flag, the code specifies, is not to be used for decoration, or for advertising, and should not be embroidered, printed or impressed on anything that will be discarded after temporary use, and can be no part of a costume. No part of something looking like a U.S. flag with however many stars, or however many red and white stripes may be used irreverently. So, take that Captain America, Wonder Woman, Lady Gaga!
A Symbol of our Unity?
Amendment proponents believe that the flag must be an inviolable symbol of American unity. In Texas v. Johnson, the Court declared,
Recognizing that the right to differ is the centerpiece of our First Amendment freedoms, a government cannot mandate by fiat a feeling of unity in its citizens. Therefore, that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol when it cannot mandate the status or feeling the symbol purports to represent.
The “Johnson” in Texas v. Johnson was the same Joey Johnson who burned the flags at the White House on July 4th. It seems the drama playing out is what both Trump and Johnson want.
Unity is impossible without diversity. The desecration amendment would not only bind the few Americans in any year who might burn a flag, but also the millions who, though offended by the act, defend it as free speech. We the People are united by the flag in a way that the rare desecration cannot touch, but we are divided by an amendment that makes the flag a symbol of a diminished Constitution.
Flag desecration, however distasteful, is not treason. In our constitutional system, speech or symbolic expression against the government is not treasonous. Rather, it is a fundamental right – and a fundamental responsibility. Even in times of war, treason is more narrowly defined than political opposition to the war – or as this President seemingly believes, opposition to a President. If flag desecration were treasonous in its effect, laws on treason would punish it; a new law would not be needed.
Dissent in the United States has sometimes been dangerous, sometimes criminalized. The post-World War I Red Scare raids of Attorney General Alexander Palmer, and the harsh laws of the Wilson Administration; the post-World War II Red Scare of Sen. Joe McCarthy, FBI Director Herbert Hoover, and the House Un-American Affairs Committee; intimidation of Viet Nam war opposition are noteworthy examples. Trump’s racist attacks on Elijah Cumming, Maxine Waters and other people of color; his racist and life-endangering attacks on “the Squad”; his attacks on facts, news, and journalists; his equating of criticism of himself and his actions with treason: these are unprecedented in the history of the Presidency.
Intention. Flag desecration law penalizes not an act, but an intention. The proper way, according to the Flag Code, to dispose of an old or damaged flag is to burn it in a dignified manner. Yet a protester who burns the flag, even if in a dignified manner, would be subject to prosecution. Flag burning, far from prohibited, is designated as the respectful way of disposing of an old or damaged flag. Only protest flag burning would be affected; it is political expression that would be punished. Political expression is protected by the First Amendment. Changing that begins to open a door to penalizing other political expression.
Emotional Distress. Punishment may have more to do with emotional distress than with unity or the sacred. Flag burning upsets people. Texas v. Johnson cited a 1949 ruling that the
… function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Terminiello v. Chicago
If my distress at seeing a flag burned is sufficient cause to restrict your rights, then am I next going to be distressed at critical comment about the President, or Congress, or singing the national anthem off-key? If we open this Pandora’s box, dare we imagine what might come out? Emotion is a vital aspect of love of country, but it must be handled prudently in making laws, particularly constitutional law. I can’t help but reflect on the anger one man aimed at me while I was handing out campaign literature at a polling place, at the legal distance from the polls of course. He said in unambiguous language, that we Democrats who did not support our President should be shot.
In 2017, in the United States, there were 39,773 reported firearm-related fatalities. However, any effort to restrict the Second Amendment – the “right to bear arms” – unleashes a firestorm. Why does reducing our First Amendment guarantees have so little pushback from some of the same people? The constitutions of nations come and go. The U.S. Constitution has protected individual liberties and challenged the nation to expand liberties in fulfilling its vision since the Bill of Rights was adopted in 1791. Changing the Constitution, for the first time in 228 years, from the guardian of dissent to its oppressor, is a journey best not commenced.
In Texas v Johnson, the Supreme Court wrote,
We can imagine no more appropriate response to burning a flag than waving one’s own, no better way to counter a flag burner’s message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by – as one witness did here – according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.
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