President-Elect Donald Trump recently floated an idea for a law that would punish flag burning with jail time and a loss of citizenship. The internet quickly took him to task, and, in response, conservatives pointed out that then-Senator Hillary Clinton once actually sponsored a bill that, if passed, would have made flag burning a federal crime. It’s time to put this ridiculous debate to bed. And, in the process, we’re going to learn a lot about our government.
First, we mercilessly shred the most common arguments offered in favor of laws that prohibit flag burning. Then we consider the manner in which the First Amendment mandates people who do not like flag burning respond to it. From there, we turn to the Supreme Court, using the flag burning cases as a vehicle both to learn about how judges and Justices do their jobs and to dispel certain myths. After that, we turn to the political branches, revealing what the flag burning debate tells us about our elected officials—and about ourselves, too. Finally, we wrap up by looking inward.
SHREDDING THE ANTI-FLAG BURNING ARGUMENTS
According to polling data, a decent majority of American citizens support laws that prohibit flag burning. In both houses of Congress and in state legislatures, anti-flag burning laws and a constitutional amendment to the same effect have a great number of votes in their favor. As for the Supreme Court, both flag burning cases to reach it split the Justices five to four. And, in all these venues—the court of public opinion, the courts of law, and the legislatures—people who support laws that prohibit flag burning give more or less the same four arguments: (1) burning a flag is not “speech” at all; (2) doing so is so disrespectful to such an important national symbol that, even if it is speech, an exception to the First Amendment is warranted; (3) flag burning is highly offensive to certain people; and (4) burning a flag is akin to spitting in the face of every soldier who has ever fought for it.
We visit each of these arguments in turn, and, though I treat them separately in order to cover all bases, there is a deal of overlap between them. And, as you read here, understand one important distinction. What follows is not an attempt to convince people to be cool with flag burning, to embrace it with open arms. What follows is a list of reasons why, though a lot of people may not like it, flag burning simply cannot be made illegal.
One: burning a flag is not “speech.” In other words, to say this is to say that flag burning doesn’t have anything to do with the First Amendment at all. This is the most fundamental—and most fundamentally incorrect—of all four arguments. To understand why the previous sentence is true, we need to learn a little bit about one of the First Amendment’s most general principles.
I quote from an earlier piece written by me, for this publication, on a different First Amendment topic: “What exactly is speech? Pure speech, for sure—talking out loud. How about painting the words ‘[Flag Burning Laws Suck]!’ on a sign and going to a protest? Sure, the message on your sign isn’t pure speech, but it’s still language and words, so the First Amendment protects that too. What about giving someone the thumbs-up? Yeah, it’s not pure speech, and yeah, there aren’t any words, but everyone knows what you’re trying to say. Should the government be able to ban thumbs-up? Of course not; the First Amendment protects that as well. Alright, but how about wearing a bright yellow shirt? I mean, maybe there’s no language involved, and maybe the message isn’t immediately apparent to people who see the shirt, but you really like the color, so you should be able to express yourself that way, right? The answer: you bet, and the First Amendment has your back.
You see what I’m getting at here? The First Amendment says ‘speech,’ but it is interpreted much more broadly to mean ‘expression.’”
“Expression” includes expressive conduct. And, when someone burns a flag, what their conduct expresses is crystal clear: “I don’t agree with my government.”
This is why flag burning is “speech” protected by the First Amendment. Further, every single American can celebrate this fact; if expressive conduct, like burning a flag, or giving a thumbs-up, or wearing a yellow shirt is not protected by the First Amendment, then the amount of liberty we enjoy shrinks by a great deal. In other words, this first argument is not only flat-out wrong, it’s also dangerous, counter-productive, and—dare I say—idiotic.
Two: burning a flag is too disrespectful to our most important national symbol to be tolerated. Unlike the first argument, this one concedes that flag burning is expression covered by the First Amendment, saying instead that an exception to the amendment is warranted for this particular type of expression. Of the four, this is the argument that backfires.
The freedom of expression is nice. It’s really cool that the First Amendment prevents the government from passing laws that ban thumps-ups or yellow shirts. Yet, if it came down to it, we could probably make do without either of those. Our lives wouldn’t be too greatly affected, and our system of government would certainly survive. What our republic could not survive without, however, is the First Amendment’s most essential function: protecting our ability to criticize our own government.
Can you think of a more powerful way to express criticism of our government than by setting its most important symbol aflame? People who make this second argument contend that, because the flag is so important and because burning it is so disrespectful, this particular form of expressive conduct warrants an exception to the First Amendment. Yet, the opposite is actually true. It is precisely because the flag is so important and because burning it is so disrespectful that this particular form of expressive conduct absolutely must be afforded the First Amendment’s full protections. Like I’ve said: this second argument backfires.
Three: flag burning is too offensive to certain people to be tolerated. Like the second argument, this one concedes that flag burning is expression covered by the First Amendment, saying instead that an exception to the amendment is warranted for this particular type of expression. Of the four, this argument is the easiest to shred.
We hardly need the First Amendment to protect speech that no one finds offensive. The very fact that the speech is not offensive provides almost all the protection needed. If the First Amendment is to mean anything, we simply cannot carve out exceptions for expression that a majority finds offensive. In other words, if you don’t support legal protection for offensive speech, then you, in fact, don’t support legal protection for any speech.
Conservatives, you guys are always talking about how liberals and millennials are too sensitive—about how P.C. culture has run amok. Hell, to a great extent, I agree with you. Yet, you must consistently practice what you preach. To decry P.C. culture while simultaneously supporting laws that prohibit flag burning is to be a hypocrite.
Four: burning the flag is akin to spitting in the face of every soldier who has every fought for it. Again, like the second and third arguments, this one concedes that flag burning is expression covered by the First Amendment, saying instead that an exception to the amendment is warranted for this particular type of expression. Of the four, this one is the most delicate, and the response to it has three, inter-related parts.
First, the premise is faulty. Our men and women in uniform do not fight for a flag. They fight for our families. They fight for our freedoms. They fight for our way of life. And they fight for the whims of the elite.
Yes, the flag can be a symbol for these things—as well as so much else—and many consider it to be the most significant symbol of them at that. Still, it is just a symbol.
Though symbols are important, at what point does the symbol become more important than that which is being symbolized? Well, in this context—where freedom is one of the things being symbolized—the answer to this question is clear: the point where we forsake a freedom in the name of the symbol.
Second, the flag symbolizes something different for everyone. Yes, for some people it symbolizes freedom above all else. These people are not going to burn a flag simply because of what it represents to them.
Yet, for other people, it symbolizes our government more than anything—our elected officials, our policies, our elite class, and on. For these people, burning a flag is not burning the embodiment of our freedoms; it is burning the embodiment of decisions with which they disagree.
And third, the vast, vast majority of Americans—including flag burners—support the troops wholeheartedly. Hell, some people who burn flags are former soldiers themselves. People understand that our troops are not the ones deciding where troops are going to be deployed. People are grateful towards those individuals who risk their lives towards national objectives. People do not hold the men and women in uniform responsible for the manner in which the government uses them.
With this premise understood, it becomes inescapably clear that, when people burn flags, they are not saying or thinking anything about the troops. They are criticizing the government. They are protesting the government’s decision to send troops into harm’s way for causes they believe to be unjust or otherwise wrong. The list goes on and on. Hell, they may even be burning the flag in celebration of the very freedom to burn the flag. None of this is meant to disrespect the troops. In fact, it is often meant to do the exact opposite.
THE RESPONSE THAT THE FIRST AMENDMENT MANDATES
Thus, we’ve ripped apart the most common arguments that people offer in support of flag burning prohibitions. What, then, is someone who does not like flag burning to do? Does the First Amendment make it impossible for this person to respond?
Of course not. Simply put, the First Amendment tells this person one thing: exercise your rights too.
The First Amendment does not exist in the abstract. All these judicial precedents that define the amendment’s parameters and spell out its protections are guided by a theory. And, here, I once again quote from an earlier piece written by me, for this publication, on a different First Amendment topic.
“The theory at hand is the marketplace of ideas. Picture an actual market, except, instead of people selling and buying products, they’re hawking and shopping for ideas. Like products, some ideas in the marketplace sell better than others. With more people buying a particular idea, there in turn are necessarily more people selling that idea. As time goes on, some ideas lose popularity or disappear entirely, even as new ones appear for the first time. Oftentimes, a new idea will pop up in direct response to an already existing one. All the while, ideas compete with each other, for someone who sells or buys idea “X” can’t at the same time sell or buy idea “not X” without being a hypocrite—hypocrisy that the marketplace itself exposes, as buyers call out anyone trying to sell both ideas at the same time. Indeed, this competition is responsible for strengthening and expounding upon ideas; if idea “X” exists in isolation without challenge, then there’s nothing forcing it to improve and grow. The more ideas in the marketplace, the better it is. The only way for an idea to vanish is for another one to be there competing with it. During the struggle, the victorious idea becomes all the stronger, gaining more and more buyers and sellers while simultaneously sharpening its edges and giving birth to new, related ideas.”
The First Amendment, with the marketplace of ideas theory as its guiding force, protects both one person’s right to burn a flag and another person’s right to call that person out for burning the flag. If your neighbor decides to make a bonfire of the stars and stripes, you are free to let everyone in the neighborhood know. And, for every person in the neighborhood who agrees with you, the idea that flag burning is wrong gains strength, while the person who has burned the flag loses popularity. This is the marketplace of ideas at work, and it is profoundly effective. Though the First Amendment prohibits the government from throwing someone in jail for burning a flag, it has nothing to say about citizens who want to ostracize their flag-burning fellows.
FLAG BURNING AND THE SUPREME COURT
With the conceptual stuff behind us, it’s time to use the flag burning debate in an effort to learn about our government, starting with the Supreme Court. The flag burning cases provide an excellent vehicle to do two, inter-related things: (1) learn the nuances of how judges operate and (2) dispel the myth that courts—particularly the Supreme Court—are political.
Let’s start by acknowledging that, yes, politics does sometimes make its way into courts. Still, it happens a lot less than people think it does, and this fact is important because, if the courts are perceived to be purely or largely political, then the public’s faith in them plummets. Of the three branches, the judiciary is far and away the best at its job, especially when we’re talking about the need to keep politics out. Indeed, the courts are extremely reluctant to be dragged into cases that they deem to be political in nature, often kicking both Republicans and Democrats out, saying “this case is inappropriate for the courts; take your squabbles elsewhere.” On everything from partisan gerrymandering to election recounts, the courts loathe being dragged into the political arena, and they only enter it when they absolutely must.
The most important point to be understood here is that calling a judge “liberal” or “conservative” it at least partially incorrect on a fundamental level. Yes, like everyone else, judges have political views. Yet, there are multiple judicial philosophies, just as there are multiple political philosophies. Judges do not decide cases as conservatives and liberals. They decide cases as formalists and functionalists. At risk of over simplifying, the former group of judges stick as closely as possible to what the law actually says, while the latter group dives into the reasons that the law exists. Formalists think functionalists stray too far from a judge’s proper role, and functionalists think formalists don’t know what a judge’s proper role is.
The distinction between conservative/liberal and formalist/functionalist is incredibly important. Yes, conservatives tend to be formalists, and liberals tend to be functionalists. Yet, that is not always the case. For example, Justice Kennedy, who is fairly conservative, is by far the most functionalist Supreme Court Justice serving today. Chief Justice Roberts, who is even more conservative, is a functionalist as well. Like political ideology, there is no hard and fast line between formalism and functionalism; rather, the two exist on a spectrum. Further, formalist analysis does not always come to a conservative outcome, just as functionalist analysis does not always come to a liberal one. Further still, some cases are so complicated that judges need to move one way or the other on the spectrum of judicial philosophy, in order to avoid absurd outcomes. Finally, formalists do not always agree with other formalists on what the proper formalist outcome is, and functionalists do the same with other functionalists.
Now we return to flag burning, to see how this all plays out in practice. Two flag burning cases reached the Supreme Court: Texas v. Johnson and United States v. Eichman. In both cases, the Court struck down flag burning prohibitions, splitting five to four. Justice Brennan—a liberal and the most functionalist Justice in all of our history—wrote both majority opinions. You know who else signed onto these opinions? Justice Scalia, a conservative and a staunch formalist.
There probably aren’t two Justices more dissimilar than Brennan and Scalia. Yet, in the flag burning cases, they agreed. Further, Justice Scalia would have regarded anyone who burns a flag with disdain, and he would have favored a constitutional amendment making it lawful to punish flag burning. Nonetheless, he signed on to an opinion that was greatly at odds with his own personal and political beliefs. Meanwhile, Justice Stevens—a liberal and a functionalist—dissented in both, arguing that flag burning prohibitions are constitutional.
Now let’s go deeper into how the flag burning cases relate to everything we’ve already discussed about formalism and functionalism. We are heading out into the legal weeds here. The best legal scholars spend a lot of time studying this stuff. You may need to read what follows twice. And remember, we’re walking through this for two important reasons: (1) to learn the nuances of how judges operate and (2) to dispel the myth that courts—particularly the Supreme Court—are political.
For Justices Scalia and Brennan, both formalist and functionalist analyses of the First Amendment in the flag burning context led to the same exact conclusion. In other words, both the First Amendment’s text (formalism) and purpose (functionalism) mandated that the flag burning prohibition be struck down. These Justices expressly rejected an argument that we already visited here—that the flag was a unique symbol deserving special treatment—saying there was nothing in the amendment indicating that “a separate judicial category exists for the flag alone.”
Justices Rehnquist, White, and O’Connor—formalists all, to varying degrees—came to the opposite conclusion. They accepted the “uniqueness” argument, though not because they believed that the First Amendment on its own mandated the argument’s acceptance. To do so would have been to employ a functionalist approach. Rather, their acceptance of the “uniqueness” argument came in a formalist manner. The Court is supposed to be judicious in striking down laws passed by the political branches. It is designed to wield this power rarely, for a very good reason: laws passed by the political branches purportedly reflect the will of the majority, and our entire system of government is founded upon majoritarian rule. Thus, when the Court strikes down a law, it is bypassing the will of the majority and undermining our system of government. To a formalist, this means that the Court can only strike down laws if said law clearly violates the Constitution’s text. As there was nothing in the First Amendment’s text about the flag, and as the federal government and forty-eight different states passed laws prohibiting flag burning—using the flag’s “uniqueness” as the reason for doing so—then, to these three, a formalist analysis demanded that the law be upheld.
And, finally, we have Justice Stevens. He dissented on his own, and his dissent was the result of functionalism. He, too, accepted a form of the “uniqueness” argument, yet—being a functionalist—his analysis was not concerned with the Court’s anti-majoritarianism, unlike the Rehnquist dissenters. Rather, the First Amendment allows for exceptions when carving one out prevents a serious, specific harm. Generally speaking, functionalists are more willing to carve out exceptions than formalists are, even in the absence of a clear majoritarian will. In other words, functionalists are more willing to find that certain harms are of the serious, specific variety warranting exceptions. And, given the flag’s “uniqueness,” Justice Stevens’ functionalist analysis led him to the conclusion that is was okay to carve out an exception to the First Amendment for flag burning prohibitions.
Whew. Pat yourself on the back; you’ve just walked through a legal maze the likes of which most lawyers don’t care to enter. We saw how a formalist analysis led to one conclusion, while a different formalist analysis led to a different conclusion. We saw how a functionalist analysis led to one conclusion, while a different functionalist analysis led to a different conclusion. And we saw how both one formalist analysis and one functionalist analysis led to the same exact conclusion. So what are the take-aways? I mean, if either type of analysis can come to either conclusion, why bother learning about this at all?
Simple. First, notice what’s missing in all this? Politics. As we’ve already said, politics comes into the court far less often than people think it does, and it is important to understand this, lest we mistakenly heap scorn on our judges.
Second and related, interpreting the law is not simple. Judges have really hard—though admittedly cushy—jobs. One judge who consistently uses a formalist approach can come to a different conclusion than another judge who consistently uses the same. Judges are people, just like members of Congress and presidents, and people often disagree, especially when we’re talking about finer points (e.g., what a formalist analysis mandates in any particular case), as opposed to general principles (e.g., whether a formalist approach is better than a functionalist one). This is why we have nine Justices on the Supreme Court and a whole bunch of lower courts.
Finally—and most important of all—when we start to understand the differences in judicial philosophy, we are that much wiser about a third of our government. That, ladies and gentlemen, is only a good thing.
FLAG BURNING AND THE POLITICAL BRANCHES
This section is a lot easier. Laws prohibiting flag burning are unconstitutional. Period. This has been the Supreme Court’s final word on the matter for twenty-five years, and all politicians know it. So what gives? Why did President-Elect Trump float a plainly unconstitutional idea? Why did then-Senator Clinton introduce a plainly unconstitutional bill?
Simple. Pandering. As we’ve discussed, a majority of American citizens oppose flag burning and support laws prohibiting it. These politicians are simply playing to the crowd, looking for some cheap political points.
Yet, that’s nothing new. We know politicians pander. Can we go deeper and learn anything else?
Well, we learn that politicians don’t mind wasting our tax dollars and other resources on doomed proposals. Members of Congress wasted the people’s time debating Senator Clinton’s clearly unconstitutional bill, to say nothing of the countless state legislators who did the same. Further, if the bill had become law, our tax dollars would have been wasted defending it in court. From this, we see how seriously politicians take their civic duties.
Worse, the flag burning debate sharply divides Americans. Our politicians keep dragging us into heated arguments, with the end result being deep divisions. So we learn that our politicians have no problem forcing us into vehement disagreement over plainly unconstitutional proposals, so long as they can score some cheap political points along the way. From this, we see the distract, divide, and conquer agenda.
Worst of all, we learn that our politicians do not shy from attempting to pass laws that infringe upon our clearly defined rights. They have no problem playing fast and loose with our liberties, so long as the majority provides them with some shelter. And, from this, we see that keeping elected officials in check requires constant vigilance, not just a trip to the polls every four years.
OF, BY, AND FOR THE PEOPLE
A long time ago, in a place called Gettysburg, a lawyer from Kentucky of humble beginnings promised to fight. He promised to fight, all in an effort to ensure that the “government of the people, by the people, and for the people shall not perish from the Earth.”
My question is this. Has it?
Sure, the United States of America remains. But that’s not what President Lincoln said. He said the “government of the people, by the people, and for the people.” So the question becomes this. Does the American government still fit this description?
We have a legal system so esoteric that most lawyers can’t even track why the Supreme Court decides what it decides, to say nothing of lay people. Laws that everyone is both presumed to know and required to live by are the play things of politicians, who spend immeasurably more time considering how their proposals affect their own popularity than how the same affect the lives of their constituents. Legislators and executives dump massive dilemmas on judges, who few citizens understand and who are utterly defenseless before the public, given that the courts do not have P.R. wings. When judges hand down opinions—trying to make sense of messes created by the political branches—the same legislators and executives who are responsible for the problem in the first place then use the courts as a scapegoat, knowing that it is easy to do. Worse, elected officials and the people they appoint have long since stopped serving the people that they purport to represent, instead working hard on behalf of the special interests and donors who enable them to stay in power. They are flippant in their duties and show little regard for our liberties. Further, most come from an elite, wealthy class so far disconnected from the reality that the vast majority of Americans face day in and day out. And, finally, they make a game of distracting, dividing, and conquering us, all to keep us in line and under their control.
The government that President Lincoln fought to preserve is no more. The American government can no longer be described as one of, by, and for the people. So excuse me while I go contemplate burning a flag. Though I love Americans and the idea of America, the stars and stripes now symbolizes something else. Something that is good only for kindling.
Featured image by Steve Rhodes via Flickr.