President Donald Trump recently stated that he supported a proposal to ban the burning or desecration of the American flag, a position he has consistently iterated several times before as well. The idea to protect the symbol of our nation – the stars and stripes – the red, white, and blue – has long been a mainstay and norm of our country.
Perhaps it is time to correct the error of allowing the beacon of our country to be torn and destroyed. In fact, it would be a return to a practice and legal structure that throughout our history reminded us of the importance – the sacredness - of what the flag represents and that goes to the core of our social contract in the United States.
In 1989, 48 out of 50 states had statutes that outlawed desecrating the American flag. However that would soon change as in 1984, a Communist burned an American flag and was arrested outside the Republican National Convention where President Ronald Reagan was renominated.
Upon the case reaching the Supreme Court, the Court stated in Texas. v. Johnson, 491 U.S. 397 (1989) that destroying the symbol of our nation was protected speech under the First Amendment. The decision was 5-4, with Chief Justice Rehnquist and an ideologically mixed group of Justices Sandra Day O’Connor, John Paul Stevens, and Bryon White dissenting.
As Rehnquist stated in his dissent, “[t]he American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy… Uncritical extension of constitutional protection to the burning of the flag risks the frustration of the very purpose for which organized governments are instituted.”
In response the United States Congress immediately passed the Flag Protection Act of 1989, with overwhelming bipartisan margins of 91-9 in the Senate and 371-43 in the House, attempting to protect again the cloth that so many see hope in and that so many of our citizens have given their lives with its vision in mind. The Court soon promptly struck that down too, 5-4.
After those decisions the representatives of our nation attempted Constitutional amendments that would reverse the Supreme Court decisions. For those unaware, the Flag Desecration Amendment has actually already passed both houses of Congress not one, not twice, but three times since 1995 and each time by overwhelming bipartisan margins.
In 1995 it passed the House 312-120 and the Senate 63-36. In 1999-2000 it passed the House 305-124 and the Senate 63-37. In 2005-2006 it passed the House 286-130 and the Senate 66-34. It also passed the House on its own 310-114 in 1997, 298-125 in 2001, and 300-125 in 2003.
Indeed, among the various versions that the Congress considered at the time we also should note S. 1911, the Flag Protection Act of 2005. It was sponsored by Senator Bob Bennett (R-UT) and Senator Hillary Clinton (D-NY) and later would be co-sponsored by others including, Senator Barbara Boxer (D-CA).
As a Constitutional amendment requires a strong two-thirds majority, the 2006 version failed by just one Senate vote.
Public opinion polls from Gallup showed in the 1990s and 2000s an overwhelming majority of Americans, generally between 55% to 63%, supported such a measure. A Huffington Post from 2016 showed Americans still support a Flag Desecration Amendment, 48% to 37%.
Free speech in the United States has never been, and never should be, absolute, whether that be in the form of yelling “fire” in a crowded theater, provoking others, divulging classified information, or certain forms of obscenity.
Our flag represents our nation, its history, future, and people. It is a crystallization of what keeps us together. The act of destroying it is an act of aggression against the United States and the principles of the humanity, freedom, equality, and justice we represent. Seeing our flag degraded decreases the morale of our citizenry and amounts to an undermining of our country’s unity and constitutional government. Whether the punishment be a fine, prison, or otherwise, it is clear that for such an act there must be consequences.
The flag is not just another piece of cloth. It is a symbol – of the sacrifices made by countless throughout our history in defending it and its principles and of all our nation has done and achieved. To protect it with at least, in Chief Justice Rehnquist’s words, “the most minimal public respect” almost really seems like, in the president’s statement, a “no brainer.”
Erich Reimer is a Captain in the United States Army. He previously served as a government affairs lawyer and media commentator. Views expressed are his own and not those of the Department of Defense