FROM THE ARCHIVES: WHAT EVER BECAME OF SENSIBLE REPUBLICANS?:

The Patriot's Flag: An excerpt from Making Patriots by Walter Berns

It is important to understand that America is the result of the coming together of theory and practice, and nowhere is this more evident than in the men who founded it. They were both political theorists and political practitioners, or, to put it differently, there was not then, as there is now, a division between intellectuals and politicians. The Declaration of Independence was drafted by Thomas Jefferson, John Adams, and Benjamin Franklin, men who had distinguished political careers, but who also wrote books and scientific papers, and founded universities (Jefferson, the University of Virginia; and Franklin, the Philadelphia Academy, which became the University of Pennsylvania). Not only that, but Franklin was one of the founders of our first so-called learned society (the American Philosophical Society), and Jefferson served as one of its first presidents. As for James Madison, Alexander Hamilton, and John Jay, they combined to write The Federalist (or Federalist Papers), which has been described in our own time as "the most important work in political science that has ever been written, or is likely ever to be written, in the United States."

But where there was once a unity there is now a division. Our politicians typically know nothing about what is going on in the world of political theory, and our theorists typically do not believe it part of their job to promote the cause of republican government. Some do—those who are not Marxists or "postmodernists"—but even they are likely to teach a version of republicanism different from that espoused by the Founders. There are no citizens in this new version, not in any meaningful sense, and no common good, only "autonomous" individuals, each with his own idiosyncratic view of the good. It follows—or is said to follow—that government may not put the weight of its authority behind any particular view of the good. On all such matters, it must be neutral or, as the current cant would have it, nonjudgmental.

This new republican theory made its first public appearance in the dissenting opinion written by Justice Oliver Wendell Holmes in a free speech case decided by the Supreme Court of the United States in 1925. Holmes said, and among libertarians became famous for saying, "If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way." This view was repeated, again in a dissenting opinion, by Justice Hugo Black in a Communist Party case in 1961. As he put it, "education and contrary argument" may provide an adequate defense against communist (or fascist) speech, but if that "remedy is not sufficient," he added, echoing Holmes, "the only meaning of free speech must be that the revolutionary ideas will be allowed to prevail." First expressed by dissenters, this is now the accepted or prevailing view. The only meaning of free speech turns out to mean that it is worse to punish the advocacy of Stalinism or Hitlerism than to be ruled by a local Stalin or Hitler. This, quite obviously, could not have been the view held by James Madison and the other members of the Congress who drafted the First Amendment in 1789. They were sensible republicans.

Among other things, they knew what the Founders generally knew, and what they emphatically say in Federalist 2, namely, when instituting a government, the people are expected to surrender "some of their natural rights, in order to vest [the government] with requisite powers." But Holmes and Black are unmindful of this. Unlike Madison and the other authors of the First Amendment, they treat the constitutional right of freedom of speech as if it were a natural right, the right men possessed in the state of nature; there, as autonomous individuals, men might speak (and do) as they please without regard to political consequences because, there being no political community, nothing said (or done) could have political consequences. But, as the Founders made clear, that ceased to be the case when men entered civil society and formed a political community.

Under what is now the prevailing view of the First Amendment, however, men retain the right to speak as they please, regardless of the consequences of their speech, because the government is forbidden to weigh those consequences or take them into account. Just as Congress may not make any law favoring religion, especially one religion over another, so it may not favor, or put the weight of its authority behind, one or another view of republican government. Accordingly, while Americans, out of habit, might continue to "pledge allegiance to the flag of the United States of America, and to the Republic for which it stands," the Republic itself stands for nothing in particular, which means that the flag stands for nothing in particular. This, of course, was not the view of those who designed it. For them the flag, and its ceremonies, was one of the means of promoting patriotism.

The flag carried by the Continental army in January 1776 had thirteen stripes and the British ensign in the upper left-hand corner; but, after we declared our independence in July of that year, the Continental Congress resolved that "the flag of the thirteen United States be thirteen stripes, alternate red and white: that the union be thirteen stars, white in a blue field, representing a new constellation," which is to say, a new and different kind of country. Congress later declared the "Star-Spangled Banner" to be the national anthem, and June 14 to be Flag Day, and, later still, John Philip Sousa's " Stars and Stripes Forever" was designated the national march. As Madison indicated, republican government especially requires public-spiritedness, and Congress obviously intended the celebration of the flag—on Flag Day, for example—to be one of the means of promoting it.

In due course, the governments of the United States and forty-eight of the fifty states enacted statutes forbidding the burning (and, generally, the desecration) of the flag. They saw it as the symbol of this new country, this novus ordo seclorum, a country dedicated to the principles set down in the Declaration of Independence: liberty, equality of opportunity, and religious toleration. Its friends pledge allegiance to it and salute it, and its enemies burn it. (What better way to express contempt for the country than by burning its flag, or otherwise showing disrespect for it, for example, by spitting on it or by wearing it attached to the seat of one's trousers?) And when a person was tried and convicted under one of those statutes, the Supreme Court upheld the conviction, saying, "The state [of Nebraska] may exert its power to strengthen the bonds of Union, and therefore, to that end, may encourage patriotism and love of country among its people."

But this was said in 1907, before the new political theory took hold. In 1984, with his friends chanting, "America, the red, white, and blue, we spit on you," one Gregory Lee Johnson burned the American flag and was convicted under a Texas statute forbidding the desecration of a venerated object; and in 1989 the U.S. Supreme Court, by the narrowest of margins, declared the statute a violation of the First Amendment. Writing for the five-justice majority, Justice William Brennan said that Johnson's act was a form of expression, that the First Amendment protects the freedom of expression, that the Texas statute was not neutral insofar as it was aimed at this particular kind of expression, and, therefore, was unconstitutional.

This was sufficient to dispose of the case, but Brennan went on for another five pages to argue that Johnson was convicted for exercising the "freedom that this cherished emblem represents." Like the American Civil Liberties Union, Brennan believes that the flag stands, above all, for freedom of expression, which implies that, by prohibiting Johnson from expressing himself, the state of Texas, not Johnson, had committed an offense against the flag. His argument, although not stated as such, takes the form of a syllogism: the flag stands for the Republic, the Republic stands for freedom of expression, therefore the flag stands for freedom of expression.

But the First Amendment protects freedom of speech, not expression, and, whereas all speech may be expression of a sort, not all expression is speech, and there is good reason why the framers of the First Amendment protected the one and not the other. A person can express himself in isolation, or (and it amounts to the same thing) by burning the flag or a draft card, by denouncing Catholics, or by marching through a Jewish neighborhood brandishing swastikas. But speech implies a listener—one speaks to someone—and, as well, the willingness to be a listener in return. In a word, speech implies conversation and, in the political realm especially, deliberation. It is a means of arriving at a decision, of bringing people together, which requires civility and mutual respect; and in a polity consisting of blacks and whites, Jews, Muslims, and Christians, liberals and conservatives, and peoples from every part of the globe, civility and mutual respect are a necessity. So understood, speech is good, which is why the Constitution protects it.

Even so, the flag and country obviously stand for more than freedom of speech (to say nothing of freedom of expression). Even Johnson knew this. He was part of a group gathered "to protest the policies of the Reagan administration and of certain Dallas-based corporations," which, of course, he was entitled to do; indeed, he would not have been arrested—not under the statute involved—had he burned an effigy of Ronald Reagan. (Reagan may be venerated in some quarters, but he is not a "venerated object.") Instead, he burned the flag, evidently because he wanted to show his contempt for it and, therefore, what it stands for. If, however, the right to speak freely, or even to express oneself, is all it stands for, he could not have shown his contempt for it by exercising the freedom for which it stands. In that circumstance, he would be paying tribute to it; and that, surely, is not what he intended to do.

I do not mean to belittle the importance of freedom of speech; as I suggested above, it is an essential feature of republican government. I mean only to say that the flag stands for everything the country stands for, and, therefore, that Brennan's understanding of it is partial or incomplete. As such, it cannot explain why it is, as Brennan said it was, a "cherished emblem." It cannot explain why, for example, the marines on Iwo Jima, where some six thousand of them died fighting for their country, raised the flag on Mount Suribachi, in fact (as we know from the famous photograph, and especially from the Marine Corps Memorial in the Arlington National Cemetery), struggled to raise it on the only staff available to them, a piece of battlefield pipe. Nor can it explain why it was thought appropriate to drape the flag over the body of the marine sergeant killed in the 1998 bombing of our embassy in Nairobi, Kenya, or why the embassy staff—I'm quoting the Marine Corps report—"stood erect and silent as the body was removed from the rubble and placed in a waiting vehicle." The fact is, the flag is used to express what is in the hearts and minds of most Americans on such occasions. The chief justice said as much when, in his dissenting opinion in the Johnson case, he spoke of "the deep awe and respect for our flag felt by virtually all of us." We are, as the chief justice suggests, emotionally attached to it.

For it is our emotions, more than our rational faculties, that are triggered by the sight of the flag, not when it is used (or abused) for commercial purposes, but when it is waved and flown on Flag Day and the Fourth of July, and displayed at the various war memorials on the Mall in Washington or, for that matter, in towns and cities around the country, and on the battlefields at Bull Run, Antietam, and Gettysburg, and at the cemeteries where those who fought and died are buried, not only at Arlington and Gettysburg, but in the faraway places we sometimes visit, among them, Manila in the Philippines, Cambridge in England, Château-Thierry in the north of France, and, perhaps most famously, above Omaha Beach in Normandy. The sight of it, especially in these places, evokes memories of past battles and of those who fought them, and to whom we are indebted. They served our country and were the better for it; by honoring them, as we do, we pay a service of our own and are the better for it. I can make this point with an analogy: not every American can be a Lincoln, but all Americans are made better by reading his words and coming to love him and the cause for which he gave his life.

To the end that we remember him, and by remembering, come to love him, the government authorized the building of the Lincoln Memorial; and no one, I think, not even the most zealous civil libertarian, would argue that the Johnsons among us are free to express themselves by spraying it with graffiti. There is something about the memorial that forbids its desecration, and, because it, too, causes us to remember, the same ought to be true of the flag.

The idea that anything within the four corners of the Constitution requires the protection of those who would destroy it is ludicrous and obviously contradicts its own stated purpose:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The Constitution creates a Republic, not the means of getting rid of one.

[originally posted: 2004-07-29]

Posted by Orrin Judd at July 4, 2008 12:00 AM