On May 14, 1990, the United States Supreme Court [heard] argument in two flag burning cases: United States v. Haggerty and United States v. Eichman. Both cases involve violations of a new federal statute making it a crime to destroy or deface an American flag. The statute was enacted in reaction to the 1989 decision of the Supreme Court in Texas v. Johnson, in which a similar state statute was held to violate the First Amendment right to free speech. The language of the federal statute was carefully crafted in hopes of circumventing the Court’s decision in Johnson.
The flag burning cases are widely regarded as a classic face-off between the political right and the political left, whose positions are seen as diametrically opposed. In fact, their positions are fundamentally indistinguishable. Both are wrong; both reveal premises which are the antithesis of the basic American values they purport to defend.
The analyses in the flag burning cases are based on the incorrect view that governmental power is the norm, and rights the exceptions. Today, courts generally apply a two-step process in considering whether the government may prohibit a particular action by an individual or whether the action is fully protected by a right. First, the individual must convince the court that his action falls within the ambit of a right appearing on a constitutional checklist. But even if the action fits within a protected category, such as freedom of religion, the individual is not necessarily safe. The court will uphold the government’s prohibition of the conduct, in disregard of the right, if the government can show that it has a sufficient “interest” in regulating the conduct.
Without exception, from the Department of Justice to the Center for Constitutional Rights, the parties and interested others in the flag burning cases all seem to agree that this analysis is just dandy. The only dispute is over what level of “interest” the government must demonstrate, and whether it has been demonstrated. (Correction: the Department of Justice does argue additionally that flag burning, like obscenity, is outside the protection of the First Amendment entirely.)
In the flag burning cases, it so happens, the conduct has thus far been held by the courts to fit within an enumerated category (free speech), and the reason offered by the government for overriding the right has been considered insufficient. In other words: We can burn the flag because that activity is on the list of permitted conduct, and there doesn’t seem to be a good enough reason for the government to forbid it.
This is not the way rights work; it is not what the founders of this country intended, and it is not what the flag represents.
Rights arise out of the nature of man; as Ayn Rand has explained, they are “conditions of existence required by man’s nature for his proper survival.” They are not gifts of the state, or permissions, to be withdrawn at any time. Indeed, the only proper purpose of government is to protect the rights of individuals from those who seek to violate them by the initiation of physical force. Ayn Rand puts it as follows: “[I]t cannot be repeated too often that the Constitution is a limitation on the government, not on private individuals—that it does not prescribe the conduct of private individuals, only the conduct of the government—that it is not a charter for government power, but a charter of the citizens’ protection against the government.”
The flag is an important symbol of the system of government embodying these principles, and a showing of contempt for it is despicable. But the destruction of the flag, if the flag belongs to the person burning it and the conduct endangers nobody, is not an initiation of force or a violation of anyone’s rights, and nobody seems to be claiming it is. On the contrary, any statute forbidding flag burning is an initiation of force and a violation of an individual right: the right to property, which includes the right to use the property to express any ideas the owner wishes.
Any other view of rights is terribly dangerous. The view that you are not free unless the particular action you wish to take is on an approved list, that you are not free to act unless the government tells you that you may, leaves us all defenseless against those who wish to dictate what we can do, what we cannot do and what we must do—whether it be someone who has ascertained that pornography is outside the protection of any listed right, or someone who has determined that cigarette companies should not be able to advertise, or someone who wishes us to raise our hands in salute to a swastika, or hammer and sickle.
The above is an op-ed article written by a TAFOL officer and circulated to various newspapers by The Ayn Rand Institute on behalf of TAFOL.