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Why Flag Burning Can Be Patriotic

By Editor Will Kirsch ‘18

· Will Kirsch

Image from Wikimedia.

President Trump enjoys saying ridiculous, fanciful things that call to mind the speeches of a deranged dictator more so than they do the President of the United States. However, he is now President and since that is the case, it is worthwhile to reflect on some of the seemingly outrageous things he has said–or perhaps more accurately, tweeted–before he took office. After winning the election, Trump offered to the Twitter universe his opinion on the controversial topic of flag-burning.

On November 29, 2016, Trump tweeted, “Nobody should be allowed to burn the American flag - if they do there must be consequences - perhaps loss of citizenship or year in jail!” Poor grammar and extraneous exclamation point aside, Trump’s statement is worthy of consideration.

 

Bans on flag burning have frequently made their way onto the Congressional floor, although ever since the Texas vs. Johnson decision in 1989 and the subsequent United States vs. Eichman case in 1990, any such ban has been designated unconstitutional. Both those Supreme Court cases were in response to a 1968 federal law called the Flag Protection Act, which banned the “desecration” of the American flag in any physical way. It is important to note that the Congress that passed the Protection Act was majority Democrat–apparently this was a surprisingly non-partisan issue.

 

Despite the unconstitutionality of the former federal and state restrictions on flag burning, the question of a ban has never really quite gone away. There were several subsequent attempts to pass an anti-desecration law, although they all ultimately failed. The most recent was in 2005, when Senators Bob Bennett and Hillary Clinton introduced the second Flag Protection Act. Fortunately, the bill was again defeated and this expression of free speech remains protected today.

Now it is back, and with a conservative Congress, there is a real threat of a new ban being passed. The fixation on flag burning as an act of disrespect to a national symbol is one that Congress has yet to relieve itself of, but perhaps their ire is misdirected. One might even ask if flag burning is necessarily an unpatriotic exercise? Perhaps the symbolism of flag burning can be interpreted in another way.

 

Whether or not one agrees or disagrees with the act of flag desecration, it is a form of free speech protected by the Constitution–at least for now. Criticisms often constitute an accusation of idealistic treason, which is a relative interpretation. Indeed, the Flag Code–the rules which dictate one’s interaction with the flag or flag symbols–states that, “The flag, when it is in such condition that is no longer an emblem for display, should be destroyed in a dignified way, preferably by burning.” Therein lies another form of protest, one that cannot be construed as unpatriotic.

 

The flag is the symbol of the United States and serves as a tangible proxy for the values that one perceives the country to be based upon. After the 2016 election, many Americans feel that those values have been undermined by the openly bigoted campaign of a certain archetypal evil capitalist reality TV star. In these circumstances, or indeed any circumstances where one feels that their country is not living up to its values, burning the flag can be a form of respectful protest.

 

When your country has let you down and indeed let itself down, one could argue that the flag is “no longer an emblem for display.” Accordingly, it should be burned—not in act of defiance, but rather one of mourning. For many Americans, the country has indeed let them down. Women, immigrants, people of color, the disabled, Muslims, the working class-- all these groups and many more have reason to be distraught about the current and past state of American politics. What better way to express that distress by respectfully sending its sullied emblem to the grave?

 

Strictly speaking, there are rules and procedures regarding how a flag should be disposed of, but not following these to the tee does not disqualify it from a dignified cremation. Just as the past bans on flag burning were based on intent, so is this protest–one has no grounds to argue against the burning of a flag when the actor’s intent is a patriotic one. Regardless of ideological motivations, flag burning is a constitutionally protected right akin to any other form of freedom of speech.

Trump’s threats of loss of citizenship and jail time are, like so much of what he says, completely ignorant of the legal facts, which hopefully do not change during the next four years. As long as racists and confederate zealots can plant the Virginian Battle Flag on their lawn, anyone can certainly burn an American flag. If you were unsure about your position before, consider the ideological alternative put forth by this article–the act of mourning is a powerful one.

On November 29, 2016, Trump tweeted, “Nobody should be allowed to burn the American flag - if they do there must be consequences - perhaps loss of citizenship or year in jail!” Poor grammar and extraneous exclamation point aside, Trump’s statement is worthy of consideration.

Bans on flag burning have frequently made their way onto the Congressional floor, although ever since the Texas vs. Johnson decision in 1989 and the subsequent United States vs. Eichman case in 1990, any such ban has been designated unconstitutional. Both those Supreme Court cases were in response to a 1968 federal law called the Flag Protection Act, which banned the “desecration” of the American flag in any physical way. It is important to note that the Congress that passed the Protection Act was majority Democrat–apparently this was a surprisingly non-partisan issue.

Despite the unconstitutionality of the former federal and state restrictions on flag burning, the question of a ban has never really quite gone away. There were several subsequent attempts to pass an anti-desecration law, although they all ultimately failed. The most recent was in 2005, when Senators Bob Bennett and Hillary Clinton introduced the second Flag Protection Act. Fortunately, the bill was again defeated and this expression of free speech remains protected today.

Now it is back, and with a conservative Congress, there is a real threat of a new ban being passed. The fixation on flag burning as an act of disrespect to a national symbol is one that Congress has yet to relieve itself of, but perhaps their ire is misdirected. One might even ask if flag burning is necessarily an unpatriotic exercise? Perhaps the symbolism of flag burning can be interpreted in another way.

Whether or not one agrees or disagrees with the act of flag desecration, it is a form of free speech protected by the Constitution–at least for now. Criticisms often constitute an accusation of idealistic treason, which is a relative interpretation. Indeed, the Flag Code–the rules which dictate one’s interaction with the flag or flag symbols–states that, “The flag, when it is in such condition that is no longer an emblem for display, should be destroyed in a dignified way, preferably by burning.” Therein lies another form of protest, one that cannot be construed as unpatriotic.

The flag is the symbol of the United States and serves as a tangible proxy for the values that one perceives the country to be based upon. After the 2016 election, many Americans feel that those values have been undermined by the openly bigoted campaign of a certain archetypal evil capitalist reality TV star. In these circumstances, or indeed any circumstances where one feels that their country is not living up to its values, burning the flag can be a form of respectful protest.

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