The Original Desecration Of The Flag

by Jamin B. Raskin

When the House of Representatives passed the proposed constitutional amendment against "flag desecration," the politicians struck a blow not for patriotism but government thought control. Yet, ironically, our poorly educated right-wingers have now set America on course to criminalize the displaying of the Confederate flag, an accident that will leave many of them confused and scrambling to rewind their opportunism.

The mistake supporters of the Amendment make is to assume that flag "desecration" means flag burning, which it certainly does not. As any Boy Scout or Girl Scout knows, federal law today recommends flag burning as the proper mode of flag disposal. The U.S. Code provides that a flag that an owner no longer considers a "fitting emblem for display, should be destroyed in a dignified way, preferably by burning."

So, under the new amendment, it will not be a crime to burn a flag. It only will be a crime to burn a flag in a context that suggests you have a political message critical of a nearby government official or authority figure. The Boy Scouts will continue to win promotions and badges for burning flags in public. But protestors deemed patriotically incorrect by local police and prosecutors will go to jail for the same act.

The key element of the newly revived offense will again be thought-crime. Because "desecration" is a metaphysical concept that means to strip something of its sacredness or profane a holy object -- and the "flag" is any of its parts in any form -- the new flag police will have to make moral judgments about the infinite popular uses of the flag in messy everyday life.

Will it be a crime when people wipe barbeque sauce from their mouths with flag-napkins on the Fourth of July? When swimmers dive into polluted rivers wearing Speedo flag-based bathing suits? When Jasper Johns-inspired artists paint mutilated flags? When politicians put flags on balloons that pop and deflate? When grandmothers make flag quilts with peace signs on them, when people let hot wax drip on flag cakes? When Woody Harrelson wears a flag diaper portraying Larry Flynt in the movies, or when Ralph Lauren places flag designs on sweaters and antiperspirant sticks? The government will have to police infringing uses of the trademarked flag design.

However these ambiguities are resolved, one thing should be perfectly clear under our new flag regime. Production and display of the Confederate flag design was the original "desecration" of our national flag and continues to be the most threatening and common form of desecration.

Everyone knows, of course, that the Confederate flag was the banner of secession and treason, as the Union saw it. But most people don't know that the Confederate flag design itself was a taunting rip-off and physical desecration of the Stars-and-Stripes. It takes the physical elements of the Union flag and rearranges them in a provocative parody: five-pointed white stars, against a blue background, against a red field evoking blood or fire. In the first year of the Civil War, the Richmond Dispatch explained it well:

As the old flag itself was not the author of our wrongs, we tore off a piece of the dear old rag and set it up as a standard. We took it for granted a flag was a divisible thing, and proceeded to set off our proportion. So we took, at a rough calculation, our share of the stars and our fraction of the stripes, and put them together and called them the Confederate flag. (Richmond Dispatch, "The Confederate Flag," 7 December 1861)

The Grand Army of the Republic -- a Union veterans' organization -- led the campaign to enshrine the U.S. flag in the 1880s and 90s and vowed never to return captured Confederate flags (the emblems of treason and slavery). The Grand Army of the Republic's demands to criminalize desecration of the U.S. flag were tied to the campaign to make display of the Confederate flag illegal. Dearing, Veterans in Politics (LSU Press 1952) at 410-412; McConnell, Glorious Contentment: The Grand Army of the Republic (UNC Press 1992) at 192, 229-230.

If we are going to amend the First Amendment to criminalize thought crime, we should be certain to pick up enemies of the Republic -- in addition to Republican enemies. The new laws can and should be used to ban all display of the seditious Confederate parody of our flag. After all, no other symbolic defacement of the U.S. flag has been more strongly associated with violent rebellion against the United States. No one died when the adolescent Maoist Gregory Johnson famously burned a flag in 1984 at the Republican Convention. But hundreds of thousands of Americans died fighting to stop the military imposition of the Confederate flag over us.

In our new thought-control regime where symbols will be contraband, people prosecuted for waving the Confederate flag at rallies, pasting it to their car bumpers or wearing it on their jean jackets will not be able to defend themselves by saying that they only "displayed" it. After all, it is just as much a "desecration" presumably to wear a flag diaper or hoist an already half-burnt, blood-spattered or spray-painted flag up a pole as to burn one with the wrong thoughts in mind. The display itself is a physical desecration making the displayer at least an accessory after the fact, entitled to no more constitutional protection than someone who spends counterfeit money someone else made.

What makes this proposed thought-control regime so absurd is that, in a nation of hundreds of millions of people and flags, only a handful of flags are ever consumed by fire in the course of political protest. This is not only because of the patriotism of the American people but because even the most bitter dissidents no longer have any incentive to burn flags since it is perfectly lawful to do so. If the firestarters of the Revolutionary Communist Youth Brigade last seen in Texas v. Johnson (1989) have decided to replay their stunt, no one knows about it since they would just be advertising their own lack of imagination. In a free country, who cares? Like people who wear the Confederate flag, they have every right to make a jerk out of themselves in public.

But, if the amendment passes, the number of flags "desecrated" in protest will rise sharply. Every publicity-starved performance artist on an NEA grant, every self-dramatizing high school junior who has just read Karl Marx or Ayn Rand for the first time, every militiaman with pyromaniac tendencies will be teased out into the streets to test the boundaries of our new flag regime. Indeed, we will see all of the brain-teasing borderline provocations that freedom-loving Americans develop to subvert thought control: the burning of carefully painted 49-star flags and red-white-and turquoise flags; the mass cancellation of flag stamps (government saboteurs?); the tattooing of desecrated flags on inappropriate parts of the body; and the staging of "virtual" flag-burnings on the Internet.

These antics will create law enforcement headaches. But the federal flag police will have one easy and unambiguous target, now seen on beach towels, pom poms and baseball caps everywhere: the flag of treason, slavery and armed destruction of the Union that was deliberately designed to desecrate our own. So what do you say, Congressman DeLay and Sen. Lott? Might you reconsider?