Flag Case Highlights Court Procedures

Question: Will you please explain for me the difference between a code and a law of the federal government? Two recent events prompt me to ask--the artist in Chicago putting the American flag on the floor of a museum, and the Supreme Court decision that the American flag may be burned. I called the office of my congressman to ask if what I learned in school when I was a child concerning the proper display of the flag was a law or merely custom. The code I was sent proved to me that the flag could not be put on a floor, nor could it be burned. --C.B.

Answer: A code is a law and a law is a code, until a court says it isn’t. If that sounds confusing, let me give you a basic primer in the way our legal system works.

The legislature, be it state or federal, passes bills, which, when signed by the chief executive, become laws. They are also called statutes or even codes. The statutes are printed in code books. That’s why you’ll hear references to the California Code of Civil Procedure, a collection of certain state laws, or the United States Code, which is a collection of all the federal statutes--passed by Congress and signed by the President.

These statutes are then interpreted by the courts. But judges don’t just go out and pick a statute to interpret. Judges hear cases, and they only do that either when people sue each other or the government prosecutes a criminal action against an accused. Whatever laws happen to be at the crux of the cases they hear are the laws that will be interpreted.

During a court’s review of a case, judges apply the statutes to the particular facts before them. Let’s take the simplest example. Suppose a statute says it is illegal to drive a “motor vehicle” in certain areas. If the statute has not defined “motor vehicle” precisely enough, a court may have to decide whether it applies to a motorized tricycle or go-cart. And whatever they decide becomes the law within their jurisdiction.

Written Decisions

As a case moves up the appellate process, written decisions are issued by the various appeals courts, and these decisions are also part of the law. They are known as common law or case law. But even the appellate judges who decide the cases may disagree. The majority decision, which is joined by the majority of the justices on a particular court, contains the “holding” of the court and should be followed in the future by lower courts.

However, the reasoning in the dissenting opinions may still be used later by lawyers or judges in different cases with different facts. And it is even possible that years later, the dissenting view may become the majority view if the holding of the earlier case is rejected. That wouldn’t mean the decision in the earlier case would be reversed, but the court could decide that the decision is no longer the law. (Now perhaps you’ll understand why it takes three years to finish law school.)

There is one more crucial element in our legal system, and it relates directly to your question: the Constitution. The U.S. Constitution is the highest law, the law that towers above all else. Neither a state nor the federal legislature can pass a law that conflicts with the Constitution. Well, actually that’s not quite right. They can pass a law, which they may think does not violate the Constitution. But the judiciary has the final say on whether a statute conflicts with the Constitution. And the U.S. Supreme Court has the final word.

The code section that your congressman sent you contained a provision that made it a crime to burn or desecrate the flag. But in June, the Supreme Court decided in a 5 to 4 vote that the statute conflicted with the free speech guarantees of the First Amendment to the Constitution.

“If there is a bedrock principle underlying the First Amendment,” wrote Justice William J. Brennan Jr. for the majority, “it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

So what you learned in school about flag burning was the law, not just custom. It’s just no longer the law, because the Supreme Court ruled it was unconstitutional.