The Democratic Party

of Hood County, Texas

The U.S. Constitution and the U.S. Flag

October 10, 2018


DISRESPECTING THE FLAG? NO! - Over the last year much has been said about disrespecting the flag of the United States. It may come as a surprise to many that the Constitution of the United States is silent about the Stars and Stripes. The design of the flag is codified under Title 4 of the U.S. Code. It is not illegal to desecrate the flag and it is not illegal to “disrespect” the flag.


USE OF THE FLAG IN PROTECTED SPEECH - In 1968 the U.S. Congress passed the Flag Protection Act and over the following years 48 of 50 states also enacted similar laws. In 1984 the United States Supreme Court in a 5-4 decision, ruled that burning the U.S. Flag was protected speech under the First Amendment of the United States Constitution. If it is not illegal to burn the U.S. Flag, then certainly it is not illegal to generically “disrespect” the U.S. Flag.


THE SCOTUS DECIDERS WERE MOSTLY REPUBLICAN - The majority decision was written by Justice William Brennan and was supported by Justices Thurgood Marshall, Henry Blackmun, Antonin Scalia, and Anthony Kennedy. Chief Justice Brennan was appointed by President Eisenhower (R). Justice Marshall was appointed by President Kennedy (D). Justice Blackmun was appointed by President Nixon (R). Justice Scalia and Justice Kennedy were appointed by President Reagan (R). It is interesting that four of the five majority were appointed by Republican presidents.


The U.S. Congress was not happy with the ruling of the predominantly Republican majority of the Supreme Court and numerous attempts have been made by the House of Representatives to amend the Constitution to make it illegal to desecrate the flag but each has been defeated by the Senate over the past 50 years.

If it is not illegal to physically desecrate the U.S. Flag, it is certainly not illegal to kneel before the flag as an exercise of the First Amendment exercising the freedom of speech. This brings us to the current unrest regarding professional athletes who choose to kneel before the flag rather than standing with their right hand over their heart. As those athletes have repeatedly said, they are not protesting the U.S. Flag, the U.S. Military, or the U.S. National Anthem.

Colin Kaepernick and his fellow athletes are protesting the oppression of black people and other people of color. Mr. Kaepernick stated the following: “I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color. To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder.”


LAWFUL EXPRESSION - Whether you agree with Mr. Kaepernick or not, he is lawfully exercising his rights under the First Amendment of the U.S. Constitution.

I’ve heard many people demeaning Mr. Kaepernick’s exercise of his First Amendment rights by talking about American Soldiers dying to protect the U.S. Flag. Many American soldiers who were killed in action or gravely wounded were doing so not because of a symbol of our freedom, but to protect the actual freedom of the people of the United States and the United States Constitution that provides the very foundation that has enabled the US to become and remain great.

Our energy would be better spent by removing the current elected officials who show disdain for the people and the Constitution of the United States by voting them out of office. Make your voice heard by calling and writing your elected representatives, but more importantly vote to remove them from office. And take 5 friends with you.


Further reading

Title 4 of the US Code

Trump’s “Strawman” Argument is Weak

Zinke wearing American Flag Socks

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