LIBERTY vs. THE FLAG

October 18, 1996

(originally prepared for Mere Dictum, the school newspaper of UNC School of Law, Chapel Hill, North Carolina)

The upcoming election [November, 1996] has caused me to reflect on my political orientation and how I got here. A good place to start is with my eighteenth birthday, when my father told me to register to vote and to register as a Democrat. At that age and time (1977), I had never experienced patriotic feelings and had not seen much in the way of displays of patriotism. As a nation and especially with young people, unrest over Vietnam, civil rights, and the women’s’ movement, and general government bashing seemed the order of the day. Never trust anyone over thirty was de rigueur. When I was in sixth grade, students staged a sit in because girls were not allowed to wear pants to public school. So, obediently, and indifferently, I registered as a democrat.

The only familiarity I had with patriotism was through my paternal grandmother. She proudly told me the story of her husband, who had volunteered to join the Army during WW I while in his late thirties. Commissioned a Lieutenant and assigned to the Supply Corps because of his age, he parlayed his rear echelon position for a line position in the infantry. He was severely wounded by German artillery, rifle shots and mustard gas and was left for dead on the battle field. He was later retrieved and taken to an aid station. Doctors told him he needed to have his leg amputated or he would die. Being the tame follower of no man, he sought a second opinion, and then a third - until he found a doctor who said he could keep his leg, which he did. He came home to a hero’s welcome and settled into family life. Three children were born to James and Sara Lockhart before he died of a heart attack from his war wounds while in his early forties. Understandably, my grandmother was an upright, proud, and zealous patriot.

When Ronald Reagan burst onto the national scene in the late seventies, I detected the feeling of patriotism, which had been dormant for so long in this country and which I sensed was the feeling my grandmother had always known. I became swept up in the tide and was intoxicated by the promise of a new America. I registered as a Republican. Themes of free trade, personal accountability, laissez faire government, and the greatness of America reverberated in my political vocabulary. I even enlisted in the Army, was assigned to a military intelligence unit in the 82nd Airborne Division, and served in Central America to do my small part in stopping the spread of communism in our hemisphere. I was in the invasion force that liberated Grenada from hard core Maoist Communists in 1983. It was a tremendous privilege to serve and I count myself a proud veteran.

But I have become troubled. As the Republican party has become more closely affiliated with causes and interests further to the right, I have become more and more uncomfortable. The influence of the Christian Coalition unnerves me in the extreme. In my patriotism, liberty is the paramount ideal; it is America’s raison d’etre. Personal and intellectual freedom are the precious fruits of the sacrifice of countless American men and women. Any attempt to proscribe freedoms which do not interfere with the legitimately protected rights of others is anathema to the ideal of democratic liberty.

In the Presidential debates, Senator Dole raised yet again the spectre of flag burning and the proposed amendment to the U.S. Constitution to stop this protest practice. This is, as it has always been, an attempt to pander to the emotions of the people on an issue which is peripheral to the substance of the office of the Presidency. Understandably for many people, the burning of the American flag symbolizes the lamentable decline of patriotism and of appropriate standards of common decency. Yet to elevate this issue to the extent of amending the U.S. Constitution is an ill-considered overreaction to hurt feelings and offended sensibilities.

As a citizen and a veteran, I am offended by the sight of our flag in flames. However, I did not serve or fight for a flag - but for the principles of liberty and justice for which it stands. And one of the elements of liberty that I most highly prize is freedom of expression as expressed in the Bill of Rights and explained in decisions of the U.S. Supreme Court. Under Texas v. Johnson (1989), the court held that a flag burning statute which was motivated by the desire to prohibit an expression which an observer may find offensive was unconstitutional as against freedom of expression. And under U.S. v. Eichman (1990), the U.S. Supreme court held that a U.S. statute which prohibited flag burning (except as a means of disposing of a worn or soiled flag) was likewise unconstitutional because it was clear that the government's interest was "related to the suppression of free expression."

Freedom of expression is perhaps the most fundamental and important guarantee of liberty in the Bill of Rights; it is, after all, contained in the First Amendment. Freedom of expression, even if it offends the valiant veterans and patriots of the United States, should not then be abridged by an amendment to the U.S. Constitution - it is the very stuff for which we fought.

In addition to inarticulable gut feelings about this election and contrary to Bob Dole’s proclamations to the contrary, I do not believe that the conservative agenda is about inclusion or tolerance. The flag burning plank (among others) symbolizes a party and an agenda that is prepared to outlaw behavior which it finds offensive or in poor taste. The very idea of laissez faire government is a charade in the face of such maneuvering. The Dole campaign is either serious about pursuing the flag burning amendment (and what other restraints on liberty?) or it is using the issue to inflame passions and get votes - a pandering to the voters on an issue which is too precious and too tenuous to be rolled up into ball of mud and flung at the opposition. To do so debases the paramount principle of liberty to political cannon fodder.

If the flag burning issue has any business being discussed in this campaign at all, it should be for all parties to agree that protection of fundamental liberties is the sine qua non of government and is thus a non-issue. If fundamental liberties are eroded, then commerce, national security, and a balanced budget will be hollow, soul-less realities. It would seem the first step toward a nation of white, male, middle-class, sycophants. It would be worse than a long-distance commercial with rows and rows of automaton salesmen.

Numerous issues call out for the full attention of the President and the People. Many of these issues are central to our well being as a nation: foreign trade, national security, violence, terrorism, deficit control, the federal budget, welfare, the Social Security trust fund, Medicare and Medicaid, and substance abuse immediately come to mind - flag burning does not. Unfortunately, the Dole campaign cannot seem to find a voice on these issues that resonates with me and millions of other people.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

- First Amendment of the Bill of Rights, the Constitution of the United States of America

Copyright  ©  2005 Ashe Lockhart. All rights reserved.