Of all the things to continue to be obsessed about, flag burning? Seriously? Yep. The Worldnutdaily apparently still thinks it matters and they’ve published an inane and inaccurate column by Maj. Gen. Patrick Brady to rail against the incredibly rare practice that was protected by the Supreme Court. Brady’s legal and historical arguments are about what one would expect from someone who knows nothing about either subject.
In 1989, in response to a flag burning by an avowed communist, the Supreme Court by one vote declared that burning the American flag was constitutionally protected speech. They did this despite overwhelming constitutional evidence to the contrary, an outcry from three-fourths of the people and the legislatures of all 50 states – not to mention James Madison the author of the Constitution and his friend Thomas Jefferson who denounced flag burning as a crime.
I love that phrase “overwhelming constitutional evidence to the contrary.” What exactly is “constitutional evidence”? I have no idea; I doubt Brady does either. And that last bit about Madison and Jefferson is utter nonsense. Neither of them ever said anything at all about flag burning. Brady has been making this claim for two decades now and it’s still as false as the first day he said it. Phillip Taylor details what those two men said about the subject:
The only flag-related quote attributed to Jefferson came during his tenure as Secretary of State under President George Washington. Faced with British impressment of American sailors, Jefferson instructed American consuls to not accept the “usurpation of our flag.”
Jefferson, in short, said the United States would not accept a foreign country seizing American ships and pulling down the U.S. flag. And he, too, said the United States condemned foreign countries that flew the American flag — a sign of neutrality at the time — over their trade ships.
As for Madison, letters reveal three cases where the architect of the First Amendment mentions the “sovereignty” of the U.S. flag.
In October 1800, an Algerian ship forced an American ship, George Washington, to replace its flag with the Algerian colors. Madison, as Jefferson’s secretary of state, denounced the action.
In 1802, in a letter to then-Pennsylvania Gov. Thomas McKean, Madison said an act of flag defacement in Philadelphia could be prosecuted. The flag, flying over a government-owned building, was government, not personal, property.
Lastly, Madison denounced a June 22, 1807, incident in which the British ship Leonard fired upon the American Chesapeake and ordered it to haul down the flag. Madison, in a letter to James Monroe, wrote that ” the indignity offered to the sovereignty and flag of the nation demands … an honorable reparation … [such as] an entire abolition of impressments from vessels under the flag of the United States.”
Such comments only addressed the flag flown in its official capacity, such as maritime use or over a government building. Neither Jefferson nor Madison ever commented on whether a citizen had a right to purchase a U.S. flag and then burn it or rip it apart in protest.
Now here’s the funny part. After inaccurately citing Jefferson and Madison on flag burning, in the very next paragraph he claims that there is no such thing as separation of church and state and explicitly denies the validity of the language they both used to describe the religion clauses of the First Amendment:
Burning our flag is not speech; it is a form of expression some say is protected by our Constitution. “Freedom of Expression” is right up there with “Wall of Separation” as constitutional frauds. The Constitution protects three forms of expression: the spoken word, the written word and peaceful assembly. Flag burning is none of these.
So the views of Jefferson and Madison are absolutely dispositive when he inaccurately claims they’re on his side on flag burning, but the wall of separation between church and state, which they actually did support is a “constitutional fraud.” The laws of logic must be really weird on Planet Wingnuttia.
The legalized desecration of the symbol of the Constitution symbolizes the ongoing desecration of our Constitution. The examples are legion – judges who believe that the Constitution is what they say it is. I can think of only a few societal disasters that are not the result of judicial insanity; think of the assault on prayer, religion, the Decalogue, pornography, Obamacare, coddling of criminals, etc. ad infinitum.
“Judges sometimes allow things I don’t like, so judges are evil and insane.” Such a compelling argument.
As an aside, I spoke to Sen. Obama on the constitutional issues of legalized flag burning. I had with me the law professor who taught Mr. Obama constitutional law at Harvard. We hoped to get Obama on our side, although he had spoken against the right of the people to protect their flag. There were no teleprompters present, and he had absolutely nothing to offer in defense of his position. In fact, the only thing I remember him saying was to request a picture and compliment us on our arguments. He then voted against the flag amendment. After this meeting, I wondered how this man could have become the celebrity he was.
I’m very curious to know who that con law prof was. Lawrence Tribe was Obama’s con law prof and he certainly is not in favor of flag burning being illegal. It’s possible that he took another con law course that was not taught by Tribe, but I don’t know of any law prof at Harvard who thinks flag burning should be illegal. As for Obama having nothing to say, that certainly wouldn’t surprise me. He was probably struggling to keep a straight face while thinking, “Is this guy serious?”