Flags are a feudal phenomenon. Not until the French tricolor was the flag a focus of nationalism. Even during the 19th century, flags were used mostly in military, naval, and diplomatic contexts, and were seldom seen by civilians. Often there was not one national flag but a variety for different uses and occasions. Americans did not pledge allegiance to the flag, they swore to uphold and defend the Constitution—the swearing having definite overtones of Christianity and the Anglo-American legal tradition, unlike the secularist Pledge of Allegiance.
Not until the age of mass conscription—World War I for America—did the flag itself become a fixed focus of patriotism. Nevertheless, the Stars and Stripes are now firmly established as such, a symbol of American community in relation to the rest of the world, consecrated by the blood of free men. Most states, quite properly, have laws against desecration of this essential symbol.
The overturning of these laws by the federal Supreme Court, on the plea of freedom of speech, is thus a gratuitous strike at one of the few really binding elements of a large and diverse republic. No matter how many million-dollar Harvard lawyers are hired to develop sophistical arguments for the Court, their reasoning is puerile.
The Founding Fathers viewed freedom of speech as a prerequisite of majority rule, of that debate and deliberation of the public things that was necessary for consensus and decision. When Patrick Henry declared, “If this be treason, let us make the most of it,” he was not engaging in a private fantasy. He was speaking as the delegate of the freeholders of Hanover County, in the councils of the Burgesses of the Commonwealth of Virginia. (The words were uttered, by the way, in the parish church of St. John’s, Diocese of Virginia. Listen up, separation-of-church-and-state fanatics!)
The exercise of free speech is, then, evidence of participation in community, a desire to influence deliberation and decision. It cannot be absolute, since the equal right of others to speak and the rules of deliberation must be preserved. For the Founders, sedition, slander, and blasphemy were not protected by the right of free speech, though nearly all preferred to have offenses defined and punished by other than the central government, the restraint of which was the purpose of the First Amendment.
Such offenses demonstrate not a desire to participate in deliberation, but a contempt for the community and its processes. Thus there is no reason why Rushdie’s infantile blasphemies have to be protected by the Western democracies (though, of course, the laws against murder and assault must be enforced), because such utterances are not an exhibition of deliberation and reason but of contempt for the process of reason.
I am not a Moslem, nor do I particularly wish to see Islam established in my country. Nonetheless, for any decent person, gratuitous slander of the historic faith of millions is a repulsive act, even if it is someone else’s faith. It is something that no decent community tolerates, though it is perhaps better if such offenses are prevented by the community rather than by the state authorities. This would be true even if we were at war with Iran, for to discountenance blasphemy is a function of our own decency and self-respect, not of a phony pluralism.
But flag-burning does not even qualify for the protection offered to blasphemy in a doubtful case. Flagburning is not speech, but an act. It is not participation in free deliberation but a demonstration of contempt for the community, the last step before an act of violence. It is, in this respect, analogous to a sit-in or painting a swastika on a synagogue. It is the instinctive understanding of this that creates the vast popular feeling against the Court’s ruling.
But, alas, the clamor for a Constitutional amendment against flag-burning bears about the same relationship to real statesmanship as flag-burning does to real freedom of speech. It is a mere disingenuous and insulting gimmick. The problem is not flag-burning. The problem is judicial usurpation and a warped reading of the First Amendment. These are the ills that would be attacked by a statesman able to perceive and pursue the welfare of the commonwealth.
The Reagan Revolution had two substantive accomplishments—the control of inflation and the rescue of the judiciary from left-wing extremism. We can only pray that the former will endure. The behavior of Justices Scalia and Kennedy in the flag-burning case must give us reason to wonder how solid the latter achievement really is. It will be a Pyrrhic victory if the justices continue to adhere to a disoriented legal tradition rather than exercising the courage and intellectual skill necessary to renew contact with the real Constitution.