This has been an issue causing conflict for years now, and is entirely misunderstood. It has a history that many don’t know about, and we are going to take some time to learn.
After the civil war, many states viewed flag burning in a serious light. There were no previous laws on the books to prevent any people angry with the results of the war, or private individuals with no respect for flag etiquette, from desecrating the flag in any way they saw fit.
In 1897 the first state laws banning flag desecration were on the books, and by 1932, all 48 states of the union had laws on the books banning such actions.
In 1942, President Roosevelt put forward a federal flag code which gave guidelines to civilians about conduct concerning the flag. These were more instructional in nature and had no corresponding penalties associated with not following them. It was simply a guide for the general public to follow when they had questions of etiquette.
In the mid to late 60’s, Vietnam had become a volatile subject in the minds of the American public. Anti war protests and civil disobedience were the norm, and in 1967 an anti war demonstration where flag burning occurred was a bridge too far for our government.
In 1968, following this incident, congress passed a federal anti flag desecration law which stated:
“Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both.”
The flag desecration laws stayed on the books without a significant challenge until 1989. During the 1984 Republican National Convention, Gregory Lee Johnson burned an American flag at a protest in the city of Dallas, Texas. Nobody was harmed in any way, but many people were offended and he was subsequently charged under the flag desecration laws.
He was convicted in lower Texas state courts, but on appeals, his case eventually reached the US Supreme Court. The ruling was a tight one at 5-4, with a single justice’s vote making the difference. This judgement overturned the previously enforceable flag desecration laws, and ruled that flag burning was indeed “symbolic speech” effectively legalizing the practice (Notice the power of the Supreme Court?). They found the practice was aimed at limiting free expression, and decided the broad definition of 1st Amendment rights was more important than a symbol of national pride.
In 2006, an attempt to ban flag burning by means of a constitutional amendment was narrowly defeated. The amendment failed by a single vote in the Senate. The reasoning for the attempt, was that burning a flag is not an expression meant to persuade or convince someone of a position, but was simply an act of anger meant to inflict fear or reflect a vengeful viewpoint. It nevertheless failed to pass. And that brings us to the present day.
President-elect Trump recently proposed jailing or stripping the citizenship of those that burn the flag. While the idea of a jail sentence or loss of citizenship for an act of personal expression seems ludicrous to the majority of the public, there is precedent for the spirit behind his call to action, as we have seen above.
With the constitutional amendment failing so narrowly in its last attempt at passing, we will likely see it come back up during the next 4 years for the Senate to vote on. If an amendment is agreed upon and passed, however, any repercussions involving jail time would likely not make the cut, and the stripping of citizenship would never be a realistic consequence that could be applied.
I have seen a lot of discussions involving this subject over the last few years, and it is an issue that is deeply personal to me.
Having spent some time in the military, I have seen the flag in a somber context that most of the country has not. My friends coming home under one, and their widows and parents being handed the flag in a ceremonial triangle after hearing the echoing of a 21 gun salute.
This is how I will always see the flag, and where my mind will without fail fall back to whenever I hear the National Anthem play or see Old Glory waving freely on a breezy day.
That said, not everyone has that kind of experience defining what the flag means to them. For many of our fellow citizens, it represents broken social contracts, the establishment they feel vitriol for or just a tangible outlet for frustration with the way their lives in this country has gone. I don’t agree with what they do, and never could, but I value the freedoms we have much more than any piece of fabric, no matter the connection I may feel to it. For that reason, I don’t wish ill will on those I may view as misguided and disruptive. They are free to express themselves in ways I disagree with, and that concept of freedom is the most American thing I can imagine.
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