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Johnny Reb Waves a Tale of Slavery : If Flags Mean So Much, Stifle Displays of Confederate Banners

<i> Jamin B. Raskin, a writer, is a former assistant attorney general of Massachusetts and an editor of the Harvard Law Review</i>

Nothing could be more dangerous to our freedom as Americans than carving out exceptions to the Bill of Rights. But if flags are to be treated as living things and we are going to privilege the symbolism of flags over freedom of expression, then surely we should start with the real insult and threat to the sacred integrity of the American flag.

A number of states and probably hundreds of thousands of individuals continue to fly Confederate flags, wear Confederate flag insignia on their clothing or caps, wave Confederate pompons, tan themselves on Confederate beach towels or drive cars or trucks decorated with the Confederate flag.

The Confederate flag is the symbol of secession from and armed rebellion against the United States of America. It was flown by those states that conspired to bring down the U.S. government through an act of war. Since the sanctity of the flag is being defined with respect to the places where Americans have lost their lives in battle, it is noteworthy that the treason and disloyalty of the Confederate states resulted in the casualties of more Americans than any other military conflict in history, except World War II. (Those who waved the Confederate flag frequently burned the American flag and often killed loyal citizens who tried to stop them.) Whereas no American died because a young Communist ignited a flag in Dallas at the Republican Convention in 1984, hundreds of thousands of Americans died because the Confederate flag was flown in this land.

That is why the 14th Amendment to the Constitution prohibits any person who “engaged in insurrection or rebellion” against the United States from holding federal office. And that is why the U.S. Supreme Court ruled long ago that the 13th Amendment “clothes Congress with the power to pass all laws necessary and proper for abolishing all badges and incidents of slavery.”

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To brandish the Confederate flag today is to bring into disrepute not only the American Republic but also the flag that stands for it. Indeed, some historians believe that the Confederate flag design was an outright satirical desecration of the American flag, an abstract rendering of an American flag on fire. The flag of the Confederacy advertises contempt for the unity of the states and resistance to our constitutional commitment to the equality of black citizens. To many citizens, especially blacks, the Confederate flag represents a clear and present danger of violence. At the very least, it creates a psychological offense equal to the one President Bush says he experiences at the sight of an American flag burning. And there are certainly more Confederate flags out there than there are U.S. flags on fire.

Thus, surely it must be be asked: How can the flag that symbolizes militant defense of slavery and oppression fly in the land of freedom?

Certainly we can no longer tolerate the continuing insult to, and implicit threat against, the national government of the United States that the flag of the Confederacy signifies.

It will not do, of course, to claim that citizens wearing Confederate flags on their caps are simply trying to express regional pride any more than it will do now for a flag-burner to claim that he is simply trying to express disapproval over a particular U.S. foreign policy. These protestations reflect an obsolete form of reasoning. For the new rules of the game are that the government, not the citizenry, will control and define the meaning of our symbolic expression with respect to flags. And the meaning of the Confederate flag is not only the perpetual desecration of the American flag but the destruction of the American government.

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If he is serious about preserving the sacred character of the flags that wave in our Republic, shouldn’t President Bush add language prohibiting the display of any flag that symbolizes insurrection or armed rebellion to his proposed amendment?

It used to be that you had a right to make a jerk out of yourself whether you burned the flag of freedom or waved the flag of slavery. But now President Bush wants to change all that by way of constitutional amendment. And yet he must face the implications of his position. Either the First Amendment is our preeminent constitutional commitment or the symbolism of flags comes ahead of it. He cannot have it both ways. And if we are going to privilege the symbolism of flags, then let us at least first articulate and enforce what is already implicit in the meaning of the 13th and 14th amendments: that we have only one flag as a nation and the Confederate flag is not it.


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