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June 23, 2005

Fiction and facts about flag-burning

From the testimony of  Maj. Gen. Patrick H. Brady, US Army (Ret.) to the US Senate Committee on the Judiciary:

Fact and Fiction on The Right of the People to Protect Old Glory

FICTION: Burning the American flag is protected "speech" as defined by the First Amendment to the Constitution.
FACT: Flag burning is not speech as defined by our Founding Fathers in the First Amendment, which reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the 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."

James Madison, who wrote the First Amendment, condemned flag burning as a crime. Thomas Jefferson agreed with Madison and made clear in his writings that "speech" in the First Amendment meant the spoken word, not expressive conduct. To say otherwise made freedom "of the press" a redundancy. In fact, the words "expression" and "expressive conduct" are not in the Bill of Rights, and for good reason. Activist judges have added them to the Constitution in order to promote their own political agenda.

Since our birth as a nation, we the people have exercised our right to protect our flag. This right has been confirmed by every Chief Justice of the United States and Justices on five Courts in the last century who denied that flag burning was "speech." This fact is also confirmed by current constitutional experts, 70 percent of the Congress, the legislatures of all 50 states and more than three out of four Americans.

FICTION: The flag amendment would amend the Bill of Rights for the first time.
FACT: The Supreme Court amended the Bill of Rights in 1989 when they erroneously called flag burning protected speech and took away our freedom to protect our flag. And they did so without the consent of we the people, an act forbidden by the Constitution. The flag amendment is an exercise of the true ownership of we the people over our Constitution. The flag amendment restores the Bill of Rights to the meaning intended by the Founders. The flag amendment takes ownership of our flag back from the Court and returns it to the people where it belongs and where it resided since our birth as a nation. Our question to those who spout this fiction: If the Supreme Court in 1989 had voted to protect the flag, would they then have amended the Bill of Rights?

FICTION: The flag can be protected by law without the amendment.
FACT: The Supreme Court has made it clear that it will strike down any effort to protect the flag by statute, and did so in 1990. Most lawmakers know this and have also struck down efforts by their colleagues to hide behind flag protection statutes. The fact is that the only way to protect the flag is by statute, but it must come after the passage of the flag amendment. The flag amendment by itself changes nothing, but requires follow-on legislation to return to the people the right to protect the flag.

FICTION: The Supreme Court is the final word on the Constitution.
FACT: The people have the final word on the Constitution. The Supreme Court has boasted that it speaks before all others and has actually contended that it is important to accept their unconstitutional decisions rather than undermine their legitimacy.
The Founders in their wisdom put Article V in the Constitution to protect us from such arrogance. It protects us, too, from the constitutional and cultural pirates who seek to amend the Constitution in the dim light of the courts, away from the bright democratic light of the public square and without the consent of the people. Article V is designed to ensure that the people rule. It protects us from the tyranny of a minority on the courts, or anywhere else, who attack our Constitution. Those who would deny the right of the people to protect their flag tell us that the majority counts when it wears black robes but not when it wears working clothes. The Constitution itself is the result of the opinion of the majority and so is the Bill of Rights. The Founders feared minority rule, which is why they broke from the monarchy. The Constitution is the strongest historical statement against minority rule.

FICTION: Flag burnings are rare and not important enough to justify changing the Constitution to punish a few miscreants.
FACT: First, there have been hundreds of flag desecrations since the Supreme Court's 1989 decision. Second, the flag amendment does not change the Constitution, but restores it. In America the frequency of an evil has nothing to do with laws against that evil. Shouting "fire" in a crowded theatre or speaking of weapons in an airport are rare occurrences, but we have laws against them and we should. It is important to understand that those who would restore the right of the people to protect the flag are not concerned with punishing miscreants who desecrate it. They are not the problem. The problem is from those miscreants who desecrate the Constitution by calling flag burning "speech." We are not amending the Constitution only to protect the flag. We are doing it primarily to protect the Constitution.

FICTION: If the flag is my property, I can do with it as I wish, as with any of my property.
FACT: There are so many governmental restrictions on private property that one can't even formulate a general rule about private property. For instance, you can own your automobile, but how you use it is strictly regulated. Most states even require that you have periodic safety inspections, pay property taxes on it, and wear a seatbelt when operating it. The same is true for privately owned firearms and controlled drugs.

You can own the lot that your home sets on, but you can't use the property for any purpose you want that doesn't comply with zoning ordinances. The same is true for U.S. currency, your own mailbox, and military uniforms and decorations. You can own a billboard, but what you can display on it is regulated. And the same is true with the flag. Justice Byron White said each flag is the property of all the people. Our society has always believed that a citizen could purchase a flag, but ownership remained with the people. And possession of a flag carried with it a responsibility or duty to treat it with dignity and respect.

FICTION: It is impossible to enforce flag protection, as it is impossible to legally define "desecration" or "flag."
FACT: For most of our history we have had laws defining flag desecration and our courts had no problem until the Supreme Court mis-defined flag desecration as "speech." Any fifth grade child knows the difference between an American flag and a flag-embroidered bikini or toilet paper with a printed flag replica.
For those who feign concern over prosecution for burning flag-marked bikinis or toilet paper, and can't discern the two from a flag, we ask: Would you put toilet paper or a bikini on the coffin of a veteran or their own coffin, or raise them from a flagpole during retreat? This is not only a non-issue, it is nonsense.

FICTION: The flag symbolizes my freedom to burn it.
FACT: On the one hand they are saying the flag is a rag to be burned with impunity. And on the other hand they are saying it represents our freedoms. Can't have it both ways. The truth is our flag embodies the values embedded in our Constitution. The word "symbol" is from the Greek word meaning a half-token, which when united with its other half identified the owner. It is meant to recognize something far more elaborate than itself. The other half of the token of the flag is the Constitution and it identifies its owners, the people. There is nothing in the Constitution that authorizes flag burning and the people are fighting to defeat this fiction.

More Medals of Honor, our nation's highest military award, have been awarded for flag protection than for any other act. Some actually died just to keep the flag from touching the ground. Are those who propose this fiction saying that our soldiers who died on America's battlefields to keep dictators and tyrants from defiling our flag did so in order that it could be burned on the streets of America? Who would say this to our warriors?

Supreme Court Justice Felix Frankfurter said, "We live by symbols." Symbols are vital in a democracy. How can one separate ideals from the symbols that house them? It is like separating a person from his soul. Symbols are precious in our lives and our country and all our precious symbols are protected, except our most precious symbol - Old Glory.

FICTION: Dictators protect their flag; protecting our flag aligns us with dictators.
FACT: What American could ever compare Old Glory, designed by the father of our country and protected according to the will of a free people, to the hammer and sickle, or swastika, protected according to the will of a despot?

Madison and Jefferson believed our flag should be protected. Does that align them with Stalin and Hitler? Someone said, "Under majority rule, heads are counted; under minority rule, heads are cracked." It is vital that the will of the majority rule. In a democracy it is the wisdom of the majority that protects us from the tyranny of the minority whether the minority be dictators or those who compare the will of the majority to the will of dictators. How would one say a pledge to a dictator's flag: "I pledge allegiance to the flag of the Communist party and to the totalitarian government for which it stands, one dictatorship, without a god, with oppression and injustice for all"?

The people who compare those that would protect Old Glory with dictators live in a values vacuum and are certainly lost to the ideals of the Founders. But worse, they are distorting the Constitution to achieve their political agenda.

Consider: The California Supreme Court, in breaking new ground on free speech, has ruled that courts may legally ban the use of racial slurs on the job, a ruling promoted and supported by the ACLU. The ACLU said the decision was appropriate and did not represent a threat to freedom of speech. They opined that it is not a novel idea to say that the courts are able to enjoin illegal activity, even when part of that illegal activity involves speech. Really? Burning the flag was illegal in Texas when the courts decided it was speech. The ACLU went on to say that "even though the First Amendment protects speech, it does not protect the right to make terrorist threats, commit fraud, threaten someone, or commit extortion." Nor does it protect flag-burning. That statement mirrors the CFA's argument for the flag amendment.

On flag burning, the ACLU remains hypocritical and has continually stressed that an essential aspect of freedom of expression is the right to choose precisely the manner in which one's ideas are conveyed, even if - indeed, especially if - the manner chosen is deliberately provocative or offensive. What else are racial slurs? The ACLU is enthralled with Justice Harlan's words: "It is often true that one man's vulgarity is another's lyric." A racial slur is not a lyric and neither is flag-burning. Neither should be protected by the First Amendment.

FICTION: Patriotism should not be forced.
FACT: The leftist elite in America are fond of finding good in conduct the majority finds evil or offensive. For example, the ACLU defends flag desecration and pedophilic solicitation of our children on the Internet as "free speech." Not surprisingly, these elite typically find evil in good - patriotism for example.

Patriots are those who love, support and defend their country. "Support and defend" are the operative words. Love is difficult to pin down, but best known by its fruits. To understand the love of a patriot, it is important to understand that sacrifice is best defined as love in action. Those who willingly sacrifice - that is, support and defend - do so out of love. But the love of a patriot is not blind. Just as it is impossible to care for anyone and not correct them, one cannot care for America and not seek to correct its errors.

We must guarantee that dissent and debate are robust, but never damage or be directed against our Constitution, the foundation of our freedoms. It is the wisdom of the people, ultimately the majority of an informed active people, which is our protection from tyranny. The will of the majority should define patriotism, not the will of an elite minority.

"Country" is easily defined as the people, our neighbors, the land, and our leaders. One need not love his neighbors, but he may not harm them. That is against the law. One may not love the land, but he may not pollute it. Is protecting our people and our land forcing patriotism? Yes it is. Is it forcing patriotism to draft citizens to give their life in war to protect and defend their country? It certainly is. Is it forcing patriotism to force our citizens to ration in time of war to support the effort? You bet it is. We may not love our leaders but we are obliged to obey their laws. Is it forcing patriotism to force obedience to the law? What are laws for if not to force the unpatriotic to act patriotic? Patriots, good citizens, don't need laws. Any person who accepts the protection and prosperity of a nation ought to be obedient to the laws of that nation and willing to support and defend it in peace and at war.

No one has a right to control what anyone thinks, believes or loves, but we have every right, indeed an obligation, to control how citizens act.

It is insane to say that a free people cannot control conduct (i.e. flag burning), and that it is unpatriotic to do so. It should be obvious that demanding -- indeed, forcing -- patriotism is the bedrock of our freedom. It should also be clear that patriotism is the lifeblood of any nation. No nation can survive if its people refuse to support and defend it.

FICTION: The flag amendment would start a slippery slope toward other amendments and restrictions on desecrating of other things, such as copies of the Constitution.
FACT: Laws protecting the flag existed since our birth as a nation and promoted no other amendments. Each amendment must stand on its own merit. In fact, there have been over 11,000 attempts to amend the Constitution and the people have allowed it only 27 times. They take this responsibility very seriously.

It is important to remember the difference between a copy of the Constitution and our flag. While many would object to the burning of a copy of the Constitution, few would want a law against it. But no one would say it is OK to burn the original Constitution, which is heavily protected. The difference in burning a copy of the Constitution and a flag is that each flag is an original; there are no copies.

The slippery slope that the elite really fear is that the flag amendment will be the first step by the people to rescue their Constitution from the elite in the courtrooms, the classrooms, the cloakrooms and the newsrooms and return it to the living rooms where it belongs.

Flag Burning Coverage: Captain's Quarters, Volokh, Outside the Beltway, BlogsForBush, Indepundit, GOP Bloggers, PoliBlog, CatHouse Chat, InTheBullpen, Of the Mind, The Anchoress

Other ACLU idiocy: InTheBullpen

Posted by Danny Carlton at June 23, 2005 08:34 AM

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Great post Danny.

Posted by: Chad Evans at June 23, 2005 10:09 PM

They can protect a piece of material called a flag and not a baby. They can protect a piece of material called a flag and not an innocent disabled woman, they can protect corporations and not the people of the US who own (oxymoron) their property. FLAG BURNING? LET HER RIP BOYS! THERE IS NO MORE CONSTITUITION IN THIS COUNTRY! If the flag stands for the US and the US has now been shown to be as communist as red russia, I say BURN IT! My allegiance is to GOD not the FLAG!~ WE LEFT GOD OUT A LONG TIME AGO!

Posted by: kc at June 24, 2005 04:01 PM

You are so right i am doing a debate about flag burning and all of the above is true in so many way the facts part of it anyway

Posted by: Chantel Brocker at November 17, 2005 02:02 PM

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