It is Literally Impossible to Desecrate an American Flag

The "Flag Protection Act of 1989," which was passed by the 101st Congress, was rejected by the Supreme Court. It decreed that "Whoever knowingly mutilates, defaces, physically defiles, burns, or maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both." And thereby a child in school who wanted to celebrate Lincoln's and Washington's birthday, who used a pair of scissors to make a patriotic collage, would thereby be perpetrating a felony.

Those who want to impose criminal sanctions for the "physical desecration" of a flag are so pathetically lacking in imagination that they simply cannot conceive of any genuine display of patriotic affection which might entail the physical destruction of Old Glory. They think that a salute is a gesture limited exclusively in meaning to the crisp motion of a hand rising to a forehead. That someone might exhibit an authentic patriotic demeanor by some other means, and especially in a way that compromises the physical integrity of the fabric on which the symbol is manifest, is quite simply beyond their capacity - or at least their willingness - to undertake rationale thought.

While efforts to "protect the flag" are without doubt motivated in great measure by terminal cyncism, appealing to raw emotionalism bereft of reason in the narrow interest of partisan gain, the ploy is effective because their exists in the public at large a sincere albeit knee-jerk investment of patriotic passion in the symbol of our nation. And there is a certain machismo charm inherent to rising in outraged defense against what are seen to be insults, whether the perceived aspersions are cast against somebody's mother or against the official insignia of our country. And so considerable political support exists in favor of an amendment to the Constitution, the argument being that the Supreme Court would then be obliged to interpret favorably any laws which are written to punish physical acts that constitute a failed display of patriotic convention .

It is important to understand that, given enough motivated voters, any ideological proposition may be incorporated into the Constitution, by means of the amendment process. If sufficient political reward were to attend, a constitutional amendment may be passed the sole intent of which is to prevent fish from riding bicycles.

It wouldn't matter in the least that animalia ichthyic have absolutely no anatomical structure whatsoever that would allow any one of 'em to pedal a bike in the first place. If enough vote casting minds were to become thus predisposed to empower the federal government to formally forbid fish/bicycle interface activity, they could without question institutionalize such doctrinal sentiment into the legal canon, predicated as fish bicycling is on logical impossibility.

Consider the 18th Amendment, a genuine triumph of ideologically driven stupidity. The legislative success enjoyed by this Amendment's proponents is best described by one of Big Brother's favorite slogans, featured in George Orwell's novel 1984: "IGNORANCE IS STRENGTH." One should never underestimate the power of rabid blind faith in service to pontificating self-proclaimed superior righteousness. Tyrannies throughout history, antagonistic to intellectually credible reason, have commonly boasted the support of mass publics, based on prototypically Pavlovian appeals to a citizenry's vain narcissist emotions.

But a constitutional amendment is subject to Supreme Court interpretation. (The precedent for establishing judicial review was set early in our nation's history, in the case of Marbury v Madison.) And, notwithstanding the current presence on the Court of certain grotesquely defective ideological minds, which have commonly displayed a total void in their capacity for intellectually credible reason, the most devout ideologue is still constrained somewhat by the dictionary, and the universally accepted terms of definition by which language is used as a tool for communication.

It is true, of course, that Justices of the Supreme Court have been known at times to decree, in essence, that "red means green" and that "up means down." But in any such doing they have risked ridicule, both personally in the historical sense, and more important even to them, for the institution of the Court. And presuming that, in their own minds, their judgments are sincerely reasoned despite any flaws, and predicated on some fundamental underpinnings of universally accepted legal connotation, their arguments are crafted using common language and corollary definitions of words, which can only have force of authority if they enjoy consensus in dictionary meaning.

In any bicycle case brought against a fish, the burden of proof on the prosecution, to establish that an accused had, by the terms of common universal linguistic understanding, accomplished a fishy feat of pedaling, would quite literally be an impossible cargo to shoulder.

By the same token, it is, in point of fact, a literal impossibility to "desecrate" an American flag, physically or otherwise. This is not just a philosophical polemic, but an argument based firmly on the rules of law and the universally accepted dictionary meaning of words. The concept of "flag protection" is a blatant legal oxymoron.

There have, in recent times, been several attempts to "protect" the American flag (more accurately identified as the flag of the United States) from "physical desecration." Put aside that the fingers of anyone's two hands are more than enough to count the total number of flags publicly burned - the primary means of alleged "desecration" - in the last 30 years. (Or that one cannot help but notice, conspicuous by its absence, any effort to institute "protection" from metaphorical desecration, such as when a politician wraps himself in the flag.) What is important, legally, is that the operative word here is "desecrate," not "physical" (or metaphorical, for that matter).

But first of all, it must be understood, both as a matter of intellectual honesty and to facilitate a grasp of attending legal ramifications, that the intent of flag protection advocates has nothing whatsoever to do with "protecting" the flag itself, except as a matter of convenient associative symbolism. The flag protectors' agenda, plain and simple, is to punish a political insult, as they choose to see it, and to insulate aspects of their preferred ideological agenda from criticism, by dictating Federal Standards of Patriotic Correctness. Indeed, very few flag protectors are the least bit concerned by the mere altered physical state of a flag - such as may describe clothing or party favors, for example - if no perceived insult obtains. And so flag protection is just an ulterior means for making one form of political dissent a criminal offense.

This is obviously of paramount importance. Still, more to the legal point, these self-styled "protectors" rely on the perpetration of semantic fraud to secure their punitive goal, a sort of bait and switch proposition described by asserting (in purely non sequitur fashion) that "desecration" is somehow synonymous with "physical destruction." A simple dictionary easily exposes the plainly specious reasoning employed by flag protection proponents, and thus their arguments cannot pass intellectually credible legal scrutiny.

The Random House Unabridged dictionary defines "desecrate" as 1) to divest of sacred or hallowed character or office, 2) to divert from a sacred to a profane use or purpose, and 3) to treat with sacrilege; profane.

Intimate with a dictionary or not, most folks fairly take the word "desecration" generally to mean a show of dishonor or contempt - an insult. That is certainly the interpretation favored by protection advocates, in any event, whose stems are wound tightly by flag burning but who, when confronted with inoffensive flag clothing, are not inspired to do much heavy political breathing.

And that is precisely the problem: what, exactly, constitutes an insult of sufficient generality that any restriction would be premised on a broad basis without ideological prejudice and linguistic duplicity? And, even more important, is the legal punishment of a political insult what we as a people really want the flag to represent?

The historical precedents that exist for "flag protection" law do not exactly provide comfort. On December 19, 1932, immediately after the Nazis achieved their electoral triumph in the Reichstag and while Hitler orchestrated his appointment as Chancellor a couple weeks later, the government of theThird Reich passed its first flag protection statute, and became one of only a couple governments in all of world history to federally criminalize displays of contempt for a nation's flag. The Republic of China, not exactly a bastion of free political dissent, passed a flag protection statute in 1973, with language that also imposed criminal punishment for "dishonoring" the portrait of iconic political personage Sun Yat-sen.

RGB 1-I, 548, Statutory Criminal Law of Germany

This history merits considerable discussion, for it is surely revealing about state of mind, but it is not terribly useful as an argument to persuade the folks emotionally inclined towards flag protection to change their mind. They perceive any such discussion of history as another political insult, not an edifying insight which poses an obstacle to their legal agenda.

So of paramount importance to the contemporary legal equation is just what folks generally understand the American flag to mean, both as a symbol and - more substantively - in terms of the principles it represents. What is it that we as a people stand for, and what is it that we stand against? Besides the ideological vacuity, and the practical problems of implementing any flag protection statute, there exists a distinct and fatal flaw in the automatic assumption that negative character necessarily attends what is conventionally thought of as flag "desecration" activity.

Our nation's Declaration of Independence was drafted precisely so that when King George was burned in effigy there could be no governmental retribution. The whole point of our constitutional democracy is that we, as a people, endorse assertive argument with government authority. Insults are, by definition of how we established our nation, invited, and thereby constitute an affirmation of our genuine freedom of political thought and discourse.

Ultimately the presence or absence of contempt is quite irrelevant to judging whether someone displays a sincere and abiding respect for the Constitution, and by extension its symbol the flag, although arguably, the more caustic is an insult, the more deeply held may be the patriotic devotion to the principles of our democracy. The presence or absence of contempt is purely a matter of political definition, depending totally on ideological perspective. And the flag represents defense for expressing all points of political view.

Therefore, the whole idea of "desecration" applied to the stars and stripes simply describes a clear and complete contradiction in terms, legal and semantic. The physical destruction of a flag, particularly in an act of political dissent, represents the exhibition of profoundly heartfelt respect for the principles embodied by its symbolism.

Characterizing the activity of anyone who so clearly exhibits such a resolute trust and confidence in our constitutional principles as perpetrating an insult upon the symbol which represents those principles is an allegation bereft of intellectual credibility. It has no more merit than claiming the display of Christ crucified on the cross is an insult to Christianity.

Just as Christ gained his strength, as a symbol for all the good of Christianity, by being crucified on the cross, so too the American flag enjoys strength precisely because it can be physically destroyed. Indeed, it gets stronger every time it is burned. Martyrdom is a well established symbolic principle. At the risk of trivialization (which may, in this case, be appropriate) I note that the fundamental premise of "The Force," in the movie Star Wars, is described when hero Obe Wan Kenobe gains immortality by inducing villain Darth Vader to strike him down. This is really not a difficult idea to grasp.

We as a people cherish political freedom, or at least give lip service to the belief, and thus we justifiably take pride in protecting even the most dedicated political antagonist's harshest vilification for our democracy; ergo even a bona fide insult functions as a genuine display of respect. It is impossible to display contempt for the flag because our whole system of democratic governance was built on the foundation of our ability to insult government authority.

Anyone blessed with an ounce of capacity for honesty with themselves knows that flag burning has always been undertaken narrowly as a demonstration against some particularly specified government activity or other, and never as a demonstration of contempt for the broader principles upon which our constitutional democracy was established. Indeed, the whole point of flag burning has always been to demonstrate in defense of our democracy against a particular given policy of government which was seen as antagonistic to it, by means of symbolic action which functioned in essence as a most affirmative salute to our nation's democratic principles. Flag burning has always served thus as a de facto salute to the flag.

This fact has rarely been readily apparent to casual observers, to be sure, because most folks - certain politicians in particular - do not trouble themselves with any genuine thoughtful deliberation about such incidents. And the truth is that such pyrotechnic methodology, frankly, only distracts a typical audience from any given protester's message regardless of its merits; especially given the contemporary political climate celebrating a Patriotic Correctness, flag burners display pathetically ineffective - and usually counter productive - communication skills.

But the fact that flag burners' messages have inevitably been completely compromised by the methodology, and that such displays thereby betray an inability to effectively communicate (for which folks disposed to burn flags may well deserve criticism) in no way diminishes the genuine and sincere respect for our democracy that is inherent to their salutatory action. They are non-conformist in their salute, and so inexorably misunderstood. Some may with justification even be deemed truly stupid. But, then, laws against stupidity would render certain prominent owners of professional baseball teams criminals for life.

Be all that as it may, it is just not a difficult thing to prove, to any jury of honest common citizens in a court of law, that the physical destruction of a flag may be quite easily recognized as sincere patriotic affirmation - not desecration at all - and this proof may be accomplished by exceedingly conventional means completely void of inflamed controversy. For those of deadly literal mind, "desecration" even in the narrowest myopic sense, such as by means of "burning" and "soiling" which so agitate advocates of flag protection, may easily be exposed as a fraudulent proposition. And simultaneously "physical destruction" may be proved to not at all automatically describe action that profanes or dishonors the symbol.

I trust there are minds much more imaginative than my own, but even with my limited capacity for creative thought I can offer herewith irrefutable proof that "physical destruction" of a flag, in a political context or otherwise, actually demonstrates a sincere and bona fide exhibition of patriotic respect, an honest salute to the flag and our nation's heritage, even as judged by the very terms of conformist convention that inspire flag protection.

It may be universally acknowledged, by dictionary definition, that smudging black paint on a flag constitutes "soiling." But a crude application of black paint by which a flag is "soiled" might describe hand lettered text of the Declaration of Independence. Or a hobbyist's wood-burning tool might "burn" a flag with the text of the First Amendment, or a picture of the Liberty Bell. Portraits of George Washington and Abe Lincoln may be created, for example, as silhouettes cut out of a flag with a pair of scissors. What could be more patriotic than to fuse an association between these acclaimed Presidents and the flag of our nation? A three dimensional sculpture depicting a proud Uncle Sam, defiantly holding aloft a blazing flag, is an image that might provocatively communicate the strength of character and respect for individual rights and civic responsibilities that motivates genuine patriotism. Another sculpture might depict Lady Liberty's torch fueled by the primary symbol of our nation's freedom. These displays might not function as conventional salutes, but they would unmistakably be understood as salutes nevertheless.

There are surely lots more - probably better - examples out there, I am most confident. And I defy anyone to explain how crafting a portrait of George Washington could possibly constitute "desecration," in any negative sense of insult, and why such creative patriotic endeavor should perforce warrant legal punishment.

The American flag is recognized as the primary symbol of our nation, and as such it supposedly serves to represent the collective principles of democracy by which the United States government is guided. It is the public's abstracted sentiment towards democratic principle, in the broadest sense, which informs the attending emotional investment in the flag. Flag protection therefore functions as symbolism too, as well as constitutional construct, because of the presumed specific legal purpose for which it has been contrived and the broader corollary implications of governmental philosophy.

It is, of course, perverse legal constructs such as flag protection which truly desecrate and show contempt for democratic principle. So it is that flag protection, as a legal mechanism, does not just repudiate long-established First Amendment guarantees, but the entirety of our constitutionally established principles, upon which we stake our claims to political freedom.

This insight may be entirely unpersuasive with respect to securing votes for passage of a monumentally stupid flag protection amendment, such as has been promoted. But as far as the development of flag protection case law is concerned, symbolism is valid substance. The main point here is that understanding the meaning of flag symbolism is imperative. And it is the symbolism of the Constitution, rather than its technical application, which has the effect of rendering flag protection law a blatant oxymoron on its legal face. It is a prime example of self-contradictory paradox, equivalent to the mentality that ordained US soldiers in Vietnam to "destroy the village in order to save it." or, more concisely, in terms favored by Orwell's Big Brother: "WAR IS PEACE, FREEDOM IS SLAVERY, IGNORANCE IS STRENGTH."

But this oppositional view does not stand alone; by their own terms of professed belief in our nation's constitutional freedoms - taken as sincerely expressed - advocates of flag protection can suppport their prohibitive agenda only by voiding the legal mechanism of "protection" from any broader legal context. They are betrayed by their own claims of respect for freedom.

It is rather quite imperative to recognize that advocates of flag protection espouse a devotion to free speech and political dissent. And this is the crux of the issue: in order for any prosecutor to make a case against an accused flag desecrator, it is disrespect for the principles which the flag represents which must be proved, not just that a flag has been physically altered or ablated.

Given that burning a flag actually constitutes a sincere salute to the flag and the principles it theoretically represents, the beauty here is that a prosecutor would have to show that the flag does not mean what average citizens think it means, in order to prove a case of desecration. Any bait and switch substitute case against simple "destruction" would constitute a fraud, and prosecution merely for unconventional displays of respect would be an act of prosecutorial prejudice.

Ironically, only by acknowledging that flag protection, as a legal mechanism, constitutes a true desecration to the Constitution, and only then that burning a flag might therefore represent a genuine display of admitted contempt narrowly for flag protection as a legal principle, could a prosecutor win any flag protection case at all.

More so than any practical consideration, the contradictions between flag symbolism and legal purpose of "flag protection" are most significant to understand. Never mind for the moment the problem of literal definition, that, for purposes of criminal prosecution, nobody knows whether or not a cocktail napkin or pair of pants might fulfill the legal meaning of "a flag," or if penalties may be imposed on someone who "soils" their own personal flag in the privacy of their bedroom. Put aside that, from the instant of purchase, a "protected" flag would, in fact, never truly belong to the private buyer, in the same sense of ordinary private property ownership that attends purchase of any other commercially available product. Don't bother considering any unintended consequences of confusing taxation, nationalized property, government contracting guidelines, or the portent of conflicting constitutional rights. These questions have remained entirely unaddressed in the excruciatingly vague language contained in the variety of offered amendments.

The only government interest which may be said to exist in protecting flags is the establishment of a supremacist doctrine of ideological superiority, and compulsory rigid adherence, by coercive force of law, to orthodox cultural convention. While not exactly an assertion of Master Race ideology, like with blond hair and blue eyes representing the manifestation of superior culture, the supremacist principle of self-proclaimed patriotic superiority serves, in this case, as the operative philosophical guide.

The legal imperative of flag protection ordains individual citizens to display their allegiance to a conformist hyper-nationalist culture, by means of restricting salutes to the flag exclusively to a narrowly prescribed manner decreed by the authority of self-proclaimed patriotic superiors, who regard any display of contempt for them, personally or philosophically, as an insult more broadly contemptuous of our democratic principles. In other words, flag protection provides legal endorsement for the dishonesty of describing an insult narrowly targeted at a political ideology as if it were instead a broader insult to the principles of democracy as a whole.

It could probably go without saying, but it is the potential for grotesque abuse by authorities, who salivate at any excuse to persecute someone based on mere political disagreement, which describes the gravest problem with flag protection

By the terms of the sundry proposed flag protection laws and amendments, anyone moved to associate the American flag with the Declaration of Independence or the Bill of Rights or our country's most honored heroes, may rightfully fear becoming subject to criminal prosecution, if such association fails to rigidly adhere to orthodox federal standards of Patriotically Correct propriety, as contrived by self-proclaimed yet thoroughly unimaginative cultural superiors. The threat of criminal penalty has been proposed, to coerce a salute to the flag in the exclusively limited manner approved by government authority. The language of the various amendments portends a legal construct so broadly encompassing that, by strict interpretation of dictionary meaning, a motivated and enthusiastic prosecutor could likely indict a defendant for the crime of printing a cropped photograph of a flag. I submit that no case of "flag desecration" could ever be proved, at least not in terms of intellectual credibility. But indictments might conceivably serve as a constitutionally permissible harassment technique against political opposition.

Orwell's Big Brother claimed that IGNORANCE IS STRENGTH. He might have said that A LACK OF IMAGINATION IS INVINCIBLE. If a creative association between the American flag and the Constitution may be punished, simply because the display does not pass a test of Culturally Correct conformity, and if the stars and stripes are reduced, as a symbol of our nation's character and guiding philosophy, equivalent to the level of a swastika, then the American flag will no longer represent the democratic principles in which we profess to believe. Using the instruments of political power, to dictate a particular program of cultural orthodoxy, mere dissent from which is deserving of criminal punishment, describes the operative character of despotism. The public is well-acquainted with the notion that "patriotism is the last refuge of a scoundrel." There is no better proof in support of that famed observation than advocacy of "flag protection" by self-proclaimed patriotic superiors.

Most important in the end, even if flag protection as a legal concept were to become integrated into the Constitution, just as bicycle-riding fish simply do not exist, neither do "desecrators" of the flag. Statutes punishing mere "destruction" would remain unconstitutional and no statute punishing "desecration" could ever succeed in finding a violation.

return to front page