Corporate Toilet Paper?

Flag Day - © HW

Today is that forgotten holiday, Flag Day.

Established by Woodrow Wilson, by proclamation in 1916, Congress enshrined “National Flag Day” in 1949.

On this day in 1777, the Congress adopted our flag (which has been modified over time). This is “Old Glory”s Two Hundred and Thirtieth (and no/100s) birthday.

As you may have noticed, it is our forgotten holiday — even though we must constantly suffer the exaltation of a piece of cloth into a religious icon, trumping the First Amendment, according to Congress and the various state legislatures, who wear sackcloth and ashes, rend their garments and wail about flag burning.

Flag burning is such an uncommon crime that its very rarity generally kills “anti-flag burning” amendments and laws.

In Texas v. Johnson, the Supreme Court in 1989 managed to delineate the range of opinion — from the sacredness of the flag to the secularity of a piece of cloth — in two appendices: Justice Kennedy’s concurrence, and William “Wild Bill” Rehnquist’s dissent.

The Court held that flag burning was constitutionally protected free speech.

The great American jurist, Justice William Brennan wrote the majority decision.

Brennan himself is a great American story: a Catholic Democrat from New Jersey, known for his specialty, union busting, he was a RECESS appointment by President Eisenhower in 1956.

Freed from the need to serve his corporate masters, Brennan became the heart and soul of the Warren Court, the very antithesis of the sort of Justice that Eisenhower had attempted — in that Imperial Presidency manner — to slither past Congress. (Shades of John Bolton).

Wrote Brennan:

“Under the circumstances, Johnson’s burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment… Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent.” The court concluded that, while “the government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word,” it may not “proscribe particular conduct because it has expressive elements.”

That was all very nice, but a point needed to be made. So, Justice Kennedy wrote in his concurrence:

I do not believe the Constitution gives us the right to rule as the dissenting Members of the Court urge, however painful this judgment is to announce. Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.

And, wrote Rehnquist in his (loony) dissent:

The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another “idea” or “point of view” competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.

[Any reasonably intelligent high school civics student can refute the Cheap (sic) Justice, which is a sad commentary on the state of Constitutional law.]

This was the quotable portion. The remainder consisted of pages of maundering, flag waving, quoting poetry, doggerel and song lyrics, and generally making very little sense as an adult, but firmly establishing Rehnquist’s reputation in my mind as a jingo of the first water. Wikipedia (and most legal writers) pass over the quintessential sophomoric smarminess of this classic piece of jurisprudential bullshit:

CHIEF JUSTICE REHNQUIST, with whom JUSTICE WHITE and JUSTICE O’CONNOR join, dissenting.

In holding this Texas statute unconstitutional, the Court ignores Justice Holmes’ familiar aphorism that “a page of history is worth a volume of logic.” For more than 200 years, the American flag has occupied a unique position as the symbol of our Nation, a uniqueness that justifies a governmental prohibition against flag burning in the way respondent Johnson did here.

At the time of the American Revolution, the flag served to unify the Thirteen Colonies at home, while obtaining recognition of national sovereignty abroad. Ralph Waldo Emerson’s “Concord Hymn” describes the first skirmishes of the Revolutionary War in these lines:

“By the rude bridge that arched the flood
Their flag to April’s breeze unfurled,
Here once the embattled farmers stood
And fired the shot heard round the world.”

And that’s just the beginning.

Later, Wild Bill would show his reverence for the flag by aiding and abetting the theft of the 2000 Election in the insane decision (this is not a precedent, quoth the decision) in Bush v. Gore.

And this well represents the spectrum of American opinion on the flag, whose day this is. From worship to respect, we all honor the flag.

Some of us would just rather deify it.

So, while we’re here, let’s ask: if everybody loves the flag so much, and honors it, to the point of wanting to amend the Constitution to elevate it ABOVE the First Amendment, sanctifying a piece of cloth, then how come nobody ever says a WORD about all the flags displayed at McDonalds, at motels and hotels, and flown without ever illuminating the flag at night, without taking it down in rain, letting the flag wave until tattered and faded, and replaced with as little ceremony and attention as we replace a roll of toilet paper?

Isn’t that at least as disrespectful as flag burning?

Moreso, since flag burning at least has a POINT. Flying the flag as a cynical decoration has no point, save to goose sales.

So, if you don’t celebrate Flag Day — like nearly all Americans — at least take the day to notice how many abused flags you see, flapping insincerely in front of fast food joints, motels and car dealerships.

And ask yourself: is this how we honor the flag?

Here is the full text of Justice Kennedy’s concurrence, in six brilliant, straightforward paragraphs:

JUSTICE KENNEDY, concurring.

I write not to qualify the words JUSTICE BRENNAN chooses so well, for he says with power all that is necessary to explain our ruling. I join his opinion without reservation, but with a keen sense that this case, like others before us from time to time, exacts its personal toll. This prompts me to add to our pages these few remarks.

The case before us illustrates better than most that the judicial power is often difficult in its exercise. We cannot here ask another Branch to share responsibility, as when the argument is made that a statute is flawed or incomplete. For we are presented with a clear and simple statute to be judged against a pure command of the Constitution. The outcome can be laid at no door but ours.

The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result. And so great is our commitment to the process that, except in the rare case, we do not pause to express distaste for the result, perhaps for fear of undermining a valued principle that dictates the decision. This is one of those rare cases.

Our colleagues in dissent advance powerful arguments why respondent may be convicted for his expression, reminding us that among those who will be dismayed by our holding will be some who have had the singular honor of carrying the flag in battle. And I agree that the flag holds a lonely place of honor in an age when absolutes are distrusted and simple truths are burdened by unneeded apologetics.

With all respect to those views, I do not believe the Constitution gives us the right to rule as the dissenting Members of the Court urge, however painful this judgment is to announce. Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.

For all the record shows, this respondent was not a philosopher and perhaps did not even possess the ability to comprehend how repellent his statements must be to the Republic itself. But whether or not he could appreciate the enormity of the offense he gave, the fact remains that his acts were speech, in both the technical and the fundamental meaning of the Constitution. So I agree with the Court that he must go free.

And so he did. The flag waves on, protecting us all. For now.

Courage.

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About Hart Williams

Mr. Williams grew up in Wyoming, Nebraska, Kansas and New Mexico. He lived in Hollywood, California for many years. He has been published in The Washington Post, The Kansas City Star, The Santa Fe Sun, The Los Angeles Free Press, Oui Magazine, New West, and many, many more. A published novelist and a filmed screenwriter, Mr. Williams eschews the decadence of Hollywood for the simple, wholesome goodness of the plain, honest people of the land. He enjoys Luis Buñuel documentaries immensely.
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6 Responses to Corporate Toilet Paper?

  1. Darrell Prows says:

    Do us all a favor and send this piece over to Justice Kennedy to remind him of who he used to be. Lately he’s been acting more like a used car salesman, the way he’s been wheeling and dealing in putting together “his” majorities.

  2. Darrell, *spot on*. Have you read Jan Crawford Greenburg’s book on the court? She said that Kennedy actively lobbied for the Chief’s position when Rehnquist was ailing, but (obviously) the WH never considered it.

    I’m sure all those glowing “Forget Roberts, It’s the Kennedy Court” articles in the Times and WaPo about his “crucial swing vote status” have gone to his head. He sees it as his court. And you’re right, those words from ’89 are a long way from the Kennedy of today.

  3. Yes, it’s true. That was the part that was left to you readers: people change in sometimes radical ways on the Supreme Court.

    Kennedy once seemed a very decent justice.

    BTW: did anyone catch the “left to the reader” joke?

    “By the rude bridge that arched the flood
    Their flag to April’s breeze unfurled,
    Here once the embattled farmers stood
    And fired the shot heard round the world.”

    There WAS no American flag at the time of Concord and Lexington, so WHAT the hell was Rehnquist talking about?

    One prays that Alito and Roberts will pull the radical change that Harry Blackmun did: Warren Burger’s friend since grade school, Nixon was sure that Blackmun would be a safe vote. Instead, he wrote Roe v. Wade (one of the reasons it’s so weirdly shaky, legally).

    They could still surprise us.

  4. Darrell Prows says:

    Kennedy did the right thing too many times to have a prayer as Chief. Scalia was going to get it before Kennedy ever would and probably could have had it if he had bothered to write even one thing that he believed mere mortals could understand.

    Now for the real question of the day. Have things gone so far that a Dem. President with a veto proof majority should consider a court packing play?

  5. Ginny Cotts says:

    Darrell,

    I am really curious to know if a case could be made against at least a couple for impeachment. The 2000 decision on the Florida vote is a starter.

  6. Darrell Prows says:

    Article II, Section 4

    The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

    Geez, you don’t ask hard questions, do you? Remember when Alcee Hastings was impeached from his federal judgeship? Does that mean that Supreme Court Justices are “civil officers” also? I don’t know.

    Do you remember the Adam Clayton Powell situation when The House of Representatives voted to refuse to allow him to take his seat? It seems like they would have used impeachment if they thought they could. But, again, I don’t know.

    I do believe that nothing could or would be done about that vote in 2000 unless there was proof of money changing hands in return for the vote. Justices are allowed to make bad decisions/votes and frequently do. The consequences of few are as monumental as that one turned out to be but I doubt that there would be many Republicans wanting to deliver the message that the same sort of thing must never be done again.