Flag Burning, Essay Example

Contempt of Freedom?

Consecration of the U.S. Flag as renunciation of sovereignty

In Quis Custodiet Ipsos Custodes, James Buchanan (1975) emphasizes that the collective agency of the State must be empowered to enforce the rights of individuals so that it does not exceed its limits. In this spirit, and in keeping with the first constitutional amendment, the Supreme Court has held many times that burning the flag is a protected form of speech. Power of enforcement once applied to the flag as a symbol of sovereign authority has differed state to state, yet concurrent with federal law is the understanding of the sacred object as an effect beyond standard tort grievances related to property damage. This is the crux of the legal issue surrounding burning the American flag. While it has been argued that the US Code applies a misdemeanor charge for any person within the District of Columbia that alters the appearance of the flag for advertisement purposes, nothing is said about destruction of the flag for political or personal reasons, or about this use of the flag for any persons outside of D.C. (Legal Information Institute, 2010)

There have been a number of attempts to pass laws that make burning the American flag illegal, as well as numerous court rulings on the issue. In 1968, congress adopted the Federal Flag Desecration Law (18 U.S.C. 700 et seq.), making it illegal to mutilate the American flag. A notable cases concerning flag burning and the issue of free speech are Spence v. Washington (418 U.S. 405). This was the first time that the Supreme Court expressed the notion that flag burning could be seen as a protected form of free speech. The first time the Supreme Court directly applied the first amendment to flag burning was in Texas v. Johnson (491 U.S. 397). The passage of the 1989 Flag Protection Act was an attempt to secure legal consequence for those who burned the American flag. By 1990 the Court had dismissed the Flag Protection Act as unconstitutional with the overturning of several convictions brought under the Act. Today the burning of the American flag remains legal as a form of free speech, pending the adoption of a “content neutral” law prohibiting the action.

In American society, the flag is perhaps one of the only institutions that render an ideological narrative about nationhood on sight. It is to preserve the ideology of nationhood that we would want to protect the flag. It is also because of its very strength as this symbol that makes the flag such a powerful tool of protest and expression. To this end, the equity and the tacit faith in the United States as a sovereign territorial state, and all its attendant symbolic forces such as Old Glory, might wave in perpetuity but only if the war against the right to dissent is not waved. The burning of the American flag as an act of free expression and speech is rightfully protected by the constitution and should be left as such.

Works Cited

Buchanan, J. (1975). The Limits of Liberty: Between Anarchy and the Leviathan. Indianapolis: Liberty Fund.

Texas v. Johnson 491 U.S. 397 (1989). Certiorari to the Court of Criminal Appeals of Texas, No. 88-155. Decided: June 21, 1989.  Legal Information Institute. Cornell University Law School.Retrievedfrom: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0491_0397_ZO.html

Legal Information Institute. (2010). US Code. Retrieved August 13, 2010, from Cornell University Law School: http://www.law.cornell.edu/uscode/htmml/uscode04/usc sec 04 00000003—-000-.html