It’s Literally Impossible to “Physically Desecrate” an American Flag

S. J. RES. 12: `The Congress shall have power to prohibit the physical desecration of the flag of the United States.' --- The entire concept of "flag protection" is - with one exception - a blatant legal oxymoron. The only possible desecration at all of an American flag would be the establishment of a law, or worse a constitutional amendment, to “protect the flag,” because that would literally diminish the First Amendment. Put aside that the fingers of anyone's two hands are more than enough to count the total number of flags publicly burned as a protest - the primary means of alleged "desecration" - in the last 40 years. (Or that one cannot help but notice, conspicuous by its absence, any effort to institute "protection" from metaphorical desecration, such as when a politician wraps himself in the flag.) What is important, legally, is that the operative word here is "desecration," not "physical" (or metaphorical, for that matter). To be sure, burning a flag is the officially recognized method for disposing of flags which have become tattered with age. First of all, it must be understood, both as a matter of intellectual honesty and to facilitate a grasp of attending legal ramifications, that the intent of flag protection advocates has nothing whatsoever to do with "protecting" the flag itself, except as a matter of cynically convenient associative symbolism. The flag protectors' agenda, plain and simple, is to punish a political insult, as they choose to see it, and to insulate aspects of their preferred ideological agenda from criticism, by dictating Federal Standards of Patriotic Correctness. Indeed, very few flag protectors are the least bit concerned by the mere altered physical state of a flag - such as may describe clothing or party favors, for example, or Presidents who autograph flags - if no perceived insult obtains. And so flag protection is just an ulterior means for making one form of political dissent a criminal offense. This is obviously of paramount importance. Still, more to the legal point, these self-styled "protectors" rely on the perpetration of semantic fraud to secure their punitive goal, a sort of bait and switch proposition described by asserting (in purely non sequitur fashion) that "desecration" is somehow synonymous with "physical destruction." A simple dictionary easily exposes the plainly specious reasoning employed by flag protection proponents, and thus their arguments cannot pass intellectually credible legal scrutiny. The Random House Unabridged dictionary defines "desecrate" as 1) to divest of sacred or hallowed character or office, 2) to divert from a sacred to a profane use or purpose, and 3) to treat with sacrilege; profane. Intimate with a dictionary or not, most folks fairly take the word "desecration" generally to mean a show of dishonor or contempt - an insult. That is certainly the interpretation favored by protection advocates, in any event, whose stems are wound tightly by flag burning but who, when confronted with inoffensive flag clothing, are not inspired to do much heavy political breathing. And that is precisely the problem: what, exactly, constitutes an insult of sufficient generality that any restriction would be premised on a broad basis without ideological prejudice and linguistic duplicity? And, even more important, is the legal punishment of a political insult what we as a people really want the flag to represent? Certain politicians conveniently substitute themselves and their political agendas for the country as a whole. There is, obviously, rather a huge difference. Anyone who ever burned a flag as a political protest was demonstrating a contempt for a given political policy. Indeed, the whole point of flag burning has always been to demonstrate in defense of our democracy against a particular given policy of government which was seen as antagonistic to it, by means of symbolic action which functioned in essence as a most affirmative salute to our nation's democratic principles. Flag burning has always served thus as a de facto salute to the flag. This fact has rarely been readily apparent to casual observers, to be sure, because most folks - certain politicians in particular - do not trouble themselves with any genuine thoughtful deliberation about such incidents. And the truth is that such pyrotechnic methodology, frankly, has only distracted a typical audience from any given protester's message regardless of its merits; flag burners have invariably displayed pathetically ineffective - and usually counter productive - communication skills. But the fact that flag burners' messages have inevitably been completely compromised by the methodology, and that such displays thereby betray an inability to effectively communicate (for which folks disposed to burn flags may well deserve criticism) in no way diminishes the genuine and sincere respect for our democracy that is inherent to their salutatory action. They are non-conformist in their salute, and so inexorably misunderstood. Some may with justification even be deemed truly stupid. But, then, laws against stupidity would render a majority in Congress criminals for life. So of paramount importance to the contemporary legal equation is just what folks generally understand the American flag to mean, both as a symbol and - more substantively - in terms of the principles it represents. What is it that we as a people stand for, and what is it that we stand against? Besides the ideological vacuity, and the practical problems of implementing any flag protection statute, there exists a distinct and fatal flaw in the automatic assumption that negative character necessarily attends what is conventionally thought of as flag "desecration" activity. Our nation's Declaration of Independence was drafted precisely so that when King George was burned in effigy there could be no governmental retribution. The whole point of our constitutional democracy is that we, as a people, endorse assertive argument with government authority. Insults are, by definition of how we established our nation, invited, and thereby constitute an affirmation of our genuine freedom of political thought and discourse. Ultimately the presence or absence of contempt is quite irrelevant to judging whether someone displays a sincere and abiding respect for the Constitution, and by extension its symbol the flag, although arguably, the more caustic is an insult, the more deeply held may be the patriotic devotion to the principles of our democracy. The presence or absence of contempt is purely a matter of political definition, depending totally on ideological perspective. And the flag represents defense for expressing all points of political view. Therefore, the whole idea of "desecration" applied to the stars and stripes simply describes a clear and complete contradiction in terms, legal and semantic. The physical destruction of a flag, particularly in an act of political dissent, represents the exhibition of profoundly heartfelt respect for the principles embodied by its symbolism. Characterizing the activity of anyone who so clearly exhibits such a resolute trust and confidence in our constitutional principles as perpetrating an insult upon the symbol which represents those principles is an allegation bereft of intellectual credibility. It has no more merit than claiming the display of Christ crucified on the cross is an insult to Christianity. Just as Christ gained his strength, as a symbol for all the good of Christianity, by being crucified on the cross, so too the American flag enjoys strength precisely because it can be physically destroyed. Indeed, it gets stronger every time it is burned. Martyrdom is a well established symbolic principle. At the risk of trivialization (which may, in this case, be appropriate) I note that the fundamental premise of "The Force," in the movie Star Wars, is described when hero Obe Wan Kenobe gains immortality by inducing villain Darth Vader to strike him down. This is really not a difficult idea to grasp. We as a people cherish political freedom, or at least give lip service to the belief, and thus we justifiably take pride in protecting even the most dedicated political antagonist's harshest vilification for our democracy; ergo even a bona fide insult functions as a genuine display of respect. It is impossible to display contempt for the flag because our whole system of democratic governance was built on the foundation of our ability to insult government authority. It is rather quite imperative to recognize that advocates of flag protection go out of their way to espouse a devotion to free speech and political dissent. And this is the crux of the issue: in order for any prosecutor to make a case against an accused flag desecrator, it is disrespect for the principles which the flag represents which must be proved, not just that a flag has been physically altered or ablated. Given that burning a flag actually constitutes a sincere salute to the flag and the principles it theoretically represents, the beauty here is that a prosecutor would have to show that the flag does not mean what average citizens think it means, in order to prove a case of desecration. Any bait and switch substitute case against simple "destruction" would constitute a fraud, and prosecution merely for unconventional displays of respect would be an act of prosecutorial prejudice. Ironically, only by acknowledging that flag protection, as a legal mechanism, constitutes a true desecration to the Constitution, and only then that burning a flag might therefore represent a genuine display of admitted contempt narrowly for flag protection as a legal principle, could a prosecutor win any flag protection case at all. Those who want to impose criminal sanctions for the "physical desecration" of a flag are so pathetically lacking in imagination that they simply cannot conceive of any genuine display of patriotic affection which might entail the physical destruction of Old Glory. They think that a salute is a gesture limited exclusively in meaning to the crisp motion of a hand rising to a forehead, military style. That someone might exhibit an authentic patriotic demeanor by some other means, and especially in a way that compromises the physical integrity of the fabric on which the symbol is manifest, is quite simply beyond their capacity - or at least their willingness - to undertake rationale thought. While efforts to "protect the flag" are without doubt motivated in great measure by terminal cyncism, appealing to raw emotionalism bereft of reason in the narrow interest of partisan gain, the ploy is effective because their exists in the public at large a sincere albeit knee-jerk investment of patriotic passion in the symbol of our nation. And there is a certain machismo charm inherent to rising in outraged defense against what are seen to be insults, whether the perceived aspersions are cast against somebody's mother or against the official insignia of our country. And so considerable political support exists in favor of an amendment to the Constitution, the argument being that the Supreme Court would then be obliged to interpret favorably any laws which are written to punish physical acts that constitute a failed display of patriotic convention. However, the only government interest which may be said to exist in protecting flags is the establishment of a supremacist doctrine of Patriotically Correct ideological superiority, and compulsory rigid adherence, by coercive force of law, to orthodox cultural convention. While not exactly an assertion of Master Race ideology, like with blond hair and blue eyes representing the manifestation of superior culture, the supremacist principle of self-proclaimed patriotic superiority serves, in this case, as the operative philosophical guide. The legal imperative of flag protection ordains individual citizens to display their allegiance to a conformist hyper-nationalist culture, by means of restricting salutes to the flag exclusively to a narrowly prescribed manner decreed by the authority of self-proclaimed patriotic superiors, who regard any display of contempt for them, personally or ideologically, as an insult more broadly contemptuous of the nation’s democratic principles. In other words, flag protection provides legal endorsement for the dishonesty of describing an insult narrowly targeted at a political ideology as if it were instead a broader insult to the principles of democracy as a whole. It could probably go without saying, but it is the potential for grotesque abuse by authorities, who salivate at any excuse to persecute someone based on mere political disagreement, which describes the gravest problem with flag protection Be all that as it may, it is just not a difficult thing to prove, to any jury of honest common citizens in a court of law, that the physical destruction of a flag may be quite easily recognized as sincere patriotic affirmation - not desecration at all - and this proof may be accomplished by exceedingly conventional means completely void of inflamed controversy. For those of deadly literal mind, "desecration" even in the narrowest myopic sense, such as by means of "burning" and "soiling" which so agitate advocates of flag protection, may easily be exposed as a fraudulent proposition. And simultaneously "physical destruction" may be proved to not at all automatically describe action that profanes or dishonors the symbol. I trust there are minds much more imaginative than my own, but even with my limited capacity for creative thought I can offer herewith irrefutable proof that "physical destruction" of a flag, in a political context or otherwise, actually demonstrates a sincere and bona fide exhibition of patriotic respect, an honest salute to the flag and our nation's heritage, even as judged by the very terms of conformist convention that inspire flag protection. It may be universally acknowledged, by dictionary definition, that smudging black paint on a flag constitutes "soiling." But a crude application of black paint by which a flag is "soiled" might describe hand lettered text of the Declaration of Independence. Or a hobbyist's wood-burning tool might "burn" a flag with the text of the First Amendment, or a picture of the Liberty Bell. Portraits of George Washington and Abe Lincoln may be created, for example, as silhouettes cut out of a flag with a pair of scissors. What could be more patriotic than to fuse an association between these acclaimed Presidents and the flag of our nation? A three dimensional sculpture depicting a proud Uncle Sam, defiantly holding aloft a blazing flag, is an image that might provocatively communicate the strength of character and respect for individual rights and civic responsibilities that motivates genuine patriotism. These displays might not function as conventional salutes, and many people might regard them uncomfortably, but they would not be considered “desecration.” I think there could be “Burn A Flag To Celebrate American Greatness” demonstrations. And what better way to confuse and distress our nation’s enemies than by denying them the main symbolic act they have conventionally relied upon to show their anger towards the US? They couldn’t go burning flags when they see that groups of US citizens proudly burn flags as a celebration of American glory. Republicans may as well try and pass a constitutional amendment to punish fish for riding bicycles. If “flag protection” as a legal concept were ever to become integrated into the Constitution, just as bicycle-riding fish simply do not exist, neither do "desecrators" of the flag, and no statute punishing "desecration" could ever succeed in finding a violation.