• Emily PD

On Flag-Burning

Last week, The United States’ soon-to-be Pussy-Grabber-in-Chief tweeted -- quite elegantly -- that “Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or a year in jail!” As per usual, there was an immediate outrage from the liberal and left communities of the Internet as they responded in the only way it seems people know how to these days -- by tweeting back. Members from both the far-left and far-right referenced the proposed 2005 Flag Protection Act initially sponsored by Senator Robert Bennett of Utah (a Republican) and co-sponsored by Hillary Clinton. The 2005 Act was brought up in some effort to point out the ways that limiting the rights of a citizen has always been a bipartisan effort -- that Democrats, too, can have suppressive ideologies. The criminalization of flag-burning, as I assume many people learned this week, was struck down as unconstitutional by the Supreme Court decision in Texas v. Johnson (1989) wherein Gregory Lee Johnson, then a member of the Revolutionary Communist Youth Brigade, burned a flag as part of a political demonstration during the 1984 Republican National Convention. Johnson, in protesting the policies of the Reagan administration, offended several spectators leading to his conviction on the basis of the desecration of a venerated object. The Texas Court of Appeals reversed this conviction, finding that the act of flag burning was consistent with the rights protected by the First Amendment. The Supreme Court held this opinion and across the land, flag-burners rejoiced.

Citing West Virginia Board of Education v. Barnette, the court states that

a government cannot mandate by fiat a feeling of unity in its citizens. Therefore, that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol when it cannot mandate the status or feeling the symbol purports to represent.

Those who stop reading Supreme Court opinions after the first two pages find this statement most satisfactory -- that a government cannot make everyone feel like friends -- that, though our country was founded upon the banding together of (white, male, land-owning) citizens, there’s no law that says you have to be friends with someone just because you are both Americans. That the government cannot prescribe a symbol out of this faux unity and then create arbitrary rules about how to treat this symbol if it cannot even mandate this unity in the first place. What may be missed later on is this assertion, made in Justice Kennedy’s concurrence - that the holding that overturned Johnson’s conviction was not one meant to free others from the shackles of the symbolic unity the flag represents but instead remind them

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.

In other words, you can burn the flag all you want but it is the symbolic power of the flag that enables you to burn it. Just as much as you may want to resent the flag and its symbolic power, so much are you beholden to it. It grants you the freedom to resent it, thereby remaining in control -- one may never escape the specter of the American flag.

I reference this whole issue of flag-burning and flag-waving and tweeting and whatever Marla Maples’ former husband wants to criminalize next because this power that the American flag holds over all of us, is representative of the ways in which the American Constitution and legislation holds the citizens of the United States beholden to a system that will never liberate -- no matter how many times the word “liberty” is referenced in the rhetoric of patriotism. When the four-time-bankrupted President-elect tweets about criminalizing flag-burning and removing citizenship from those who engage in flag-burning the so-called progressive movement is inclined to reach for our copies of the ACLU issued pocket Constitution to point out the ways in which he is acting unconstitutionally. When we hold up the Constitution as a shield and weapon of American truths and ensured freedoms without reflecting on the ways in which the Constitution already violates those same truths and freedoms, we ignore the ways it has been used as a foundational text for those actors who seek to quarantine and eliminate threats to the Constitution. When Donald Trump speaks of removing citizenship, the response to hold up the Constitution and shout the freedoms of the First Amendment ignores that twelve amendments down the Constitution states, in the Thirteenth amendment:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Beyond the Constitutional permitting of slavery for those imprisoned, looking towards the prison system is the easiest way to investigate the ways in which the Constitution is used as a means to quarantine those who dare to violate. While in prison, the imprisoned are deprived of their right to vote; even after release, ex-felons face barriers to voting -- a basic right theoretically guaranteed to every citizen. In Alabama, Arizona, Florida, Iowa, Kentucky, Mississippi, Nevada, Virginia and Wyoming, an ex-felon’s voting rights cannot be restored unless by Court or Governor’s action. Removing or impeding one’s right to participate in the creation of a government -- national or otherwise -- strips away an aspect of citizenship that is theoretically guaranteed. If the right to participate in democracy is a core value of the United States -- if not at least a core value in the rhetoric of patriotism -- what does it say that we willfully strip away this right from those who dare to transgress the Constitution. The Constitution is the protector and punisher, it is the means by which citizens are able to announce their freedoms and denounce those they see as threats to the democratic ecosystem of the United States.

The US Senate writes that the Constitution’s first three words -- “We the People” -- “affirm that the government of the United States exists to serve its citizens,” but just as much as “We the People” demonstrates the servitude of the government to those it represents, “We the People” also projects authorship onto the American public. This authorship creates the obligation of surveillance that wills people to police others based upon their interpretation of the Constitution. It is this obligation of surveillance that compelled the liberal and progressive communities to respond to the Home Alone 2: Lost in New York cameo actor’s tweet regarding flag-burning with such swiftness -- holding up the First Amendment as if the First Amendment were the last and final word to any argument. As Americans we are beholden to protect and preserve a document that neither liberates nor allows the possibility for liberation -- by virtue of citizenship (through a jus sanguinis or otherwise), we are endowed with the obligation to punish those who dare to defy it, thus making us the builders of our own cage.

In conversation with Athena Athanasiou, Judith Butler states that

if we are beings who can be deprived of place, livelihood, shelter, food, and protection, if we can lose our citizenship, our homes, and our rights, then we are fundamentally dependent on those powers that alternately sustain and deprive us, and that hold a certain power over our very survival. Even when we have our rights, we are dependent on a mode of governance and legal regime that confers and sustains those rights. And so we are already outside of ourselves before any possibility of being dispossessed of our rights, land, and modes of belonging. In other words, we are interdependent beings whose pleasure and suffering depend from the start on a sustained social world, a sustaining environment.

As citizens under a form of governance we are already dispossessed of any theoretical natural rights as we give up our autonomy and independence to a government in exchange for the protection of those rights. We paradoxically rely on a dispossession for possession. Further, because our “pleasure and suffering” depend on the sustenance of this same government, we are compelled to become the regulators of our own system. While the State may be the initial author of the system -- the citizen is its regulator and its protector. So long as Americans see their rights and liberties bound up in the Constitution and the Government it details, so long will Americans be bound to the obligation of surveillance and punishment of their fellow citizens -- removing the possibilities for a true community of progress. This dependence on the State means a culture of enforcement -- Americans have always already been the fascists that they fear.


Athanasiou, Athena and Judith Butler. Dispossession: the Performative in the Political. Polity Press, 2013.

“Constitution Day.” United States Senate. United States Senate, 2016. http://www.senate.gov/artandhistory/history/common/generic/ConstitutionDay.htm.

“Felon Voting Rights.” National Conference of State Legislatures. National Conference of State Legislators, 2016. http://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx.

Texas v. Johnson. 491 U.S. 397. U.S Supreme Court. 1989. Legal Information Institute. Web.

U.S. Constitution. Amend. XIII

#JudithButler #LegalStudies