The American Standard Bearer

We have a saying here at Flagstuff.com: Don’t confuse activity with results! We use this expression often around the office because most people have a tendency to  jump into a task without a clear idea of exactly what they hope to accomplish. The idea is to start with determining exactly what the result is you want to achieve, then deciding how to go about acheiving that result. Sounds simple, but most people don’t tackle a job that way.

To illustrate my point, consider people who burn American flags in protest. Whatever point a flag burner hopes to make will be subordinate to the futility of the act itself. No one is going to watch some knucklehead burn the American flag on the street and then think, "you know, he’s got a point." The result will more likely be that people will perceive the flag burner to be a psycho and keep a safe distance.

Compare flag burning as a form of protest to the course of action taken by Logan Darrow Clements of California. Mr. Clements is spearheading an effort to build a hotel on a parcel of land in the small town of Weare, New Hampshire. This particular piece of property currently contains the home of Supreme Court Justice David Souter, one of the Justices who ruled to allow private business interests, such as hotel developers, to act in collusion with local governments to seize private property, like the home of Justice Souter, for example. Mr. Clements efforts immediately gained national attention and a flood of supporters, including, perhaps, some government officials in Weare, New Hampshire. Weare’s code enforcement officer, Charles Meany, said yesterday, "Am I taking this seriously? But of course. In lieu of the recent Supreme Court decision, I would imagine that some people are pretty much upset. If it is their right to pursue this type of end, then by all means let the process begin."

You gotta love this! This is the type of protest that has teeth. Even if Mr. Clements is unsuccessful in ousting Justice Souter from his home, he has placed this issue in front of the American people in a way that makes clear the folly and arrogance of this Court.

I, for one, will be waving my small American flag (not burning it) at our local parade this Fourth, partly in celebration of the founding of this great nation, and partly in celebration of the spirit of thoughtful political dissent embodied by the actions of Mr. Clements.

I must confess, I didn’t watch the President’s speech last night, because, as a general rule, I would rather have a root canal than watch a politician make a speech. However, I did scan quite a few reviews of the speech and was struck by how polarized the reactions were. It was either a triumph of American freedom or  the harbinger of doom, depending on  which review you were reading.

Acting on a tip from a loved one, I located a transcript of the speech and was able to find the single most important line, which I reveal to you now:

"This 4th of July, I ask you to find a way to thank the men and women defending our freedom, by flying the flag, sending letters to our troops in the field or helping the military family down the street."

If you think that I’m only using this line as a blatant sales pitch to sell more flags (American flags, Betsy Ross flags – we have ‘em all!), well, your partly right. But there is a much more serious point to be made. There’s a whole lot of people who love this country, who recognize and respect all those who have made a personal sacrifice on their behalf, and fly an American flag as a symbol of gratitude. And many people with the same point of view don’t fly American flags, but show their gratitude in other ways.

Then there are those who also love this country, but fear the direction we’re going in, are against the war, strongly dislike the President and feel that to fly the American flag would be a show of support for the opposition. This attitude is dead wrong.

Opposition is inherently part of the American political system, yet regardless of viewpoint, we are all Americans. To relinquish the very symbol of our national identity, our flag, to one political party or another is a mistake. The American flag does not belong to or represent any one political ideology, religious belief, etc. – it belongs to us all.

The current issue regarding the flag amendment and whether or not we ought to be able to burn American flags in protest reveals a much larger debate – one which has profound implications for the future of our country. For decade upon decade, the courts, and most notably, the Supreme Court, have been bit by bit changing the foundational document of our country, the U.S. Constitution itself.

We see it in the flag burning issue, where the courts have morphed the original protections of  free speech and the written word into a much broader collection of behaviors known as expression. We can also see it in the ruling of two days ago that gives one private citizen the right to seize the property of another private citizen if his buddies in city hall deem it to be in the public good.

Judge Robert Bork, in a piece entitled, "Our Judicial Oligarchy" that appeared in First Things in 1996, makes an excellent case that when judges veer from a strict interpretation of the Constitution, they place themselves above the Constitution and the other two branches of our government.

"If there is an "actual" Constitution it can only be the set of principles those who made the Constitution law understood themselves to be ordaining. The idea that the Constitution should be interpreted according to that original understanding has been made to seem an extreme position. That is convenient for those who want results democracy will not give them, but the truth is that violation of original understanding ought to be the extreme position."

If it were only about some goofballs burning American flags, it would hardly be worth talking about.

As many of you know, I have been devoting most of the posts recently to the pending amendment to the Constitution to prohibit the desecration of the American flag. Several readers have emailed me with the message that to amend the Constitution with the intent to prevent the burning of American flags is a violation of the First Amendment right of free speech that will lead to the loss of all sorts of rights.

So I thought it would be a good time to reiterate and clarify my point. The First Amendment guarantees Americans the right of free speech and to peaceably assemble. Period. The word, "expression" is often substituted for the word, "speech" by those who would like to broaden the protections afforded by the First Amendment to include actions as well as speech.

If you accept the First Amendment at face value, the only action specifically named is the right to assemble peaceably. My position is that burning American flags in public cannot reasonably be viewed as peaceable assembly, especially considering that most locals have laws on the books prohibiting the burning of anything in a public place.

That being said, I should also point out that I have no problem with the message of political dissent manifested by the act of burning American flags. If your views are anti-war, anti-government, anti-republican, anti-democratic or any other thing, that’s fine with me. You are entitled to have those views and make them known without fear of reprisal. In fact, if you have so much hatred for America that you feel utterly compelled to desecrate American flags, – say, you wad one up and stuff it in your shorts – as vile as that would be to my sensibilities, I would view that as a deranged but peaceful act of protest.

But to interpret the First Amendment to protect behavior that carries with it a real potential of violence, as burning the American flag does, is in my opinion, a very dangerous idea.

My post of June 9th titled "American flag dance" was about a group in New York City that goes by the name of The Islamic Thinkers Society. They had publicly desecrated some American flags on a city street and videotaped the event which was then posted on their website for all the world to see.

In that post, I stated that we are the most tolerant nation on earth – so much so that it may eventually threaten our very existence. The implied point was that we are so tolerant that we grant First Amendment rights that currently include desecration of American flags, as well as other rights, to illegal aliens.

As it turns out, the June 9th post is somewhat prophetic. The Islamic Thinkers Society is a shadowy organization that operates as an arm of The Islamic Society headquartered in the Bay Ridge section of Brooklyn that, in turn, has ties to Al Queda. In fact, one member, Shahawar Matin Siraj, was arrested on terrorism charges in August of last year for planning to blow up the 34th Street/Penn Station Subway, which is located directly beneath Madison Square Garden.

When Individals who are living in this country illegally, and very possibly are planning terrorist acts, are granted the same rights as American citizens and allowed to desecrate the American flag, we have a very serious problem on our hands.

Our policy is that we do not respond to comments or emails in regards to a blog.  The purpose of our blog is discuss important or interesting issues regarding flags, injecting our point of view along the way, and to welcome other points of view in an atmosphere of respect and trust. We want you, the reader of this blog, to know that you can offer your opinion without fear that we will skewer you in the next post. Sometimes, readers will add their two cents in the comments section for all to see, and sometimes I receive a comment via email.

Lately, our blog has been pretty much exclusively devoted to the pending amendment to the Constitution to prohibit the desecration of the American flag. Yesterday, I received an email that I think warrants that I make an exception to our policy in order to illustrate the type of comment that should be entered in the comments section for all to read, rather than an email that is read by me only. I have not included the gentleman’s name or email address, because this is not so much about what a particular individual said as it is about using abusive and derogatory language in place of reasoned debate. Have a look:

Subject: You’re an Idiot

You’re missing the point on the flag-burning issue, as much of the right wing is. It’s not about people wanting to burn the flag, it’s about people wanting to preserve the right to do so.  Typical semantic baloney, not unlike the abortion issue in which the conservatives paint abortion rights advocates as people who want to encourage abortions.

Next thing you know, you’ll advocate an amendment to prohibit people from speaking out against the government.

Don’t be stupid by giving up your rights.  Stop messing with your freedom.  Start thinking.

My reply:

It may come as a surprise to a lot of Americans, but as American citizens, we are not accorded unlimited rights. To the contrary, we have a very limited set of rights guaranteed to us and they are clearly spelled out in the Constitution. And where, through our history, it has been deemed neccessary to further define rights, Congess has done so via the mechanism of the amendment that the framers of the Constitution wisely provided.

When the First Amendment was written, the authors allowed for political dissent in very specific forms, being  "freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." Nowhere does it allow for illegal acts or acts of violence or acts that have a potential to be violent. If you light a cardboard carton on fire on a street corner in your city, chances are you will be arrested for the illegal act of lighting a fire in public. Why should the Constitution protect you from prosecution if the object happens to be the American flag instead of cardboard?

Many of my fellow citizens are of the belief that the Constitution should be a "living" document, subject to the changing trends of the day. These are the folks, I suspect, who insist on stretching the meaning of the words, "free speech" to include freedom of "expression."

To the gentleman who sent me the email, that is my point. If you protect an otherwise illegal act such as flag burning – how do you then define which other acts will be protected as "expression" and which will not? If you would answer that question for me, I think we would then have the basis of a meaningful dialog instead of name calling.

It’s anybody’s guess at this point which way the Senate will fall on the pending vote to protect the American flag, but one thing is for sure – between now and then, every "expert" on the issue of the desecration of the American flag will weigh in with their penetrating analysis.

One organization that is making noise is the highly respected LexisNexis Group. The LexisNexis Group is a division of Reed Elsevier, a U.K.-Netherlands based company, that provides all types of information to various professional, commercial and governmental entities. You may be familiar with the LexisNexis searches that are often done by T.V. news pundits.

LexisNexis recently issued a press release in which they predict that a Constitutional amendment prohibiting the desecration of the American flag is unlikely to pass. Everyone is entitled to an opinion (protected by the First Amendment), but the opinion expressed by LexisNexis should be taken with a degree of skepticism. You see, they polled fifty lawyers and legal experts associated with the organization with the following simple question, "Do you foresee a constitutional amendment that would outlaw burning, damaging or in any other way desecrating the flag of the United States?"

I think it would be fair to say that the current view of a majority of the legal profession favors a loose interpretation of the Constitution, hence  the persistent substitution  of the concept of "free expression" for the more narrow term "free speech" that is actually contained in the Constitution. So it stands to reason that if you poll only lawyers and legal types about American flag desecration issues, the answer you get will be predictible.

And, of course, the results of the survey was entirely predictable. Here’s one comment from a LexisNexis author and adjunct professor at Trinity Law School in Santa Ana, California, Merritt McKeon:

"If a constitutional amendment outlawing desecration of the flag of the United States of America ever passes, the First Amendment regarding free exercise of religion and expression must also be altered or amended."

There’s that nasty word, "expression,"  – a word that never appears in the First Amendment.

Here’s another response, coming from a LexisNexis author and California trial attorney, Joseph Devine:

"Although most people would support a law prohibiting desecration of the flag, they would not favor any restriction on free expression."

And there it is again! "Free expression." The debate over the desecration of the American flag should really center around the differences in meaning between "expression" and "speech."

As we reported yesterday, the House of Representatives passed a controversial amendment to the Constitution that would prevent, among other things, the burning of the American flag as a form of protest. The simple single sentence amendment reads as follows:

"The Congress shall have power to prohibit the physical desecration of the flag of the United States."

Speaker of the House, Dennis Hastert was overflowing with eloquence about what a powerful symbol the American flag has been throughout our history. I take no exception with what he said – all of it is true. But I do take exception with what he didn’t say. He didn’t tackle, or even mention the real issue – that the First amendment should not protect acts of violence, near violence, or potentially dangerous behavior. Instead, he pandered to the patriotic side of the coin. He reveals his true agenda, that is to do what he believes his constituency wants him to do, in the following statement:

"Today’s legislation gives Congress the constitutional power it needs
to protect this American treasure. All 50 states have passed
resolutions calling on Congress to pass such an amendment, and I
believe an overwhelming majority of the American people support this
action."

And he’s not the only one who believes a majority of Americans want to protect the flag from closet arsonists. Here’s how Democrat strategist Ray Strother analyzes the mood of the country:

"I can’t imagine when it gets down to it that any Democrat would vote against the ban. Something strange is happening in this country. More than ever, people seem to be looking for symbols. What does this flag amendment really mean? Doesn’t matter; it’s a symbol for something else. People, particularly the conservative movement, are trying to leave a trail of signs that have larger implications. We now know the power of these symbols."

Let me translate that for you – it means that he has no idea what real people think or want. the line, "Something strange is happening in this country," is the giveaway. People are fed up with a handful of nut cases who, under the guise of political protest and under the protection of the First Amendment, want to hit the streets with provacative and threatening behavior.

You know, these political types maybe ought to give the average American a little more credit and recognize that most people are going to take the phrase, "free speech" at face value – it refers to "speech" and not to a broad variety of actions fondly referred to as "expression."

As expected, the U.S. House of representatives has passed the Flag Protection Amendment by a 286-130 vote margin. No big news there – the House has passed similar measures every time they have been introduced.

The real test comes sometime after the 4th of July holiday, when the Senate will vote on it. Unlike in years past, however, the vote count is very close. Many Senators who otherwise would vote against an amendment that bans desecration of the American flag, may consider voting for it to avoid alienating constituents.

What worries us is that while opponents of a measure that would ban flag burning understand exactly what is at stake, supporters, judging by their statements, seem to just want to convey the appearance of patriotism. To illustrate what I mean, consider the following statements:

In a column on Monday, writer Jan Larson, an opponent of the amendment wrote, "America is the land of the free.  If we are to remain free, we can and must tolerate dissent no matter how offensive it may be."

This statement nails the opposition position exactly – the First Amendment should protect all forms of dissent, not just speech. Well, what about spitting in a politicians face. Should that be protected? Or throwing objects – pies, tomatos, etc. – at speakers you disagree with? Should that be protected?

Here’s a comment from Congressman Randy Cunningham, R-CA, made during the debate in the House today, "Ask the men and women who stood on top of the (World) Trade Center. Ask them and they will tell you: pass this amendment." As noble as that sentiment is, it misses the real issue. Where do you draw the line for which "forms of dissent" will be tolerated and which will be prosecuted?

The rhetoric surrounding the Flag Protection Amendment is heating up, and mostly coming from opponents of the measure.

The usual complaint goes something like this: "Every year around this time (Fourth of July), certain members of Congress rattle their sabers about protecting the American flag from desecration. They just do it to get some free publicity – it shouldn’t really be taken seriously." The oldest trick in the book in the political realm is to impune the motives of your opponent rather than debate the issue. So this argument just rings hollow.

However, now that it looks likely that a Costitutional amendment will pass – at least in the House of Representatives – opponents are attempting to debate the issues. Paul McMasters of the First Amendment Center has weighed in with this warning, "Even after an amendment is passed and ratified, then come the problems of how to write a law that fairly and constitutionally defines `U.S. flag’ and defines `desecration.’ Those are two very real hurdles."

A definition of the U.S. flag has already been addressed by Congress. The`flag of the United States’ means "any flag of the U.S. or any part of one, of any substance, or any size in a form commonly displayed.”  I don’t think they are talking about your American flag beach towel.

The second part of Mr. McMasters’ statement questions what the definition of desecration might be. He goes on to elucidate, "How do you make a distinction in deciding who to prosecute regarding a group or person burning a flag out of respect, as provided for in current law, and a person who intentionally or unintentionally desecrates it?"  Does he mean to say that he would be unable to tell the difference between a flag burning ceremony at the local VFW and a flag burning protest on the sidewalk?

Here’s another one from McMasters, "What about an American Olympic athlete who accidently drags a flag on the ground during a victory lap?"  Well, what about him?

If this is the best the opposition can do, no wonder the Flag Protection Amendment seems likely to pass.