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Flag-amendment backers, foes say Founding Fathers on their side

By Phillip Taylor
Special to freedomforum.org

07.18.01

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In the debate over a constitutional amendment to forbid flag desecration, both proponents and opponents are wont to quote James Madison and Thomas Jefferson in their praise or condemnation of the measure.

Ret. Maj. Gen. Patrick Brady of the Citizen Flag Alliance peppers his speeches and monthly column with references to Jefferson and Madison, in particular claiming that both men abhorred desecration of the U.S. flag.

"If some say flag protection aligns us with dictatorships, ask them how a flag protected according to the will of a free people, a flag designed by the Father of our country, could be compared to a flag protected according to the will of a tyrant," Brady wrote recently. "Madison and Jefferson believed our flag should be protected, does that align them with Hitler and Stalin?"

As for amendment opponents, they claim it's logical to assume that these two Founding Fathers, who praised the burning of the Union Jack and the effigy of King George during Revolutionary times, would tolerate such treatment of the U.S. flag.

But the truth is, neither man — one the architect of the First Amendment, the other the author of the Declaration of Independence — ever considered, at least not in letters or speeches, the sovereignty of the flag in an actual free-speech setting.

The only flag-related quote attributed to Jefferson came during his tenure as Secretary of State under President George Washington. Faced with British impressment of American sailors, Jefferson instructed American consuls to not accept the "usurpation of our flag."

Jefferson, in short, said the United States would not accept a foreign country seizing American ships and pulling down the U.S. flag. And he, too, said the United States condemned foreign countries that flew the American flag — a sign of neutrality at the time — over their trade ships.

As for Madison, letters reveal three cases where the architect of the First Amendment mentions the "sovereignty" of the U.S. flag.

In October 1800, an Algerian ship forced an American ship, George Washington, to replace its flag with the Algerian colors. Madison, as Jefferson's secretary of state, denounced the action.

In 1802, in a letter to then-Pennsylvania Gov. Thomas McKean, Madison said an act of flag defacement in Philadelphia could be prosecuted. The flag, flying over a government-owned building, was government, not personal, property.

Lastly, Madison denounced a June 22, 1807, incident in which the British ship Leonard fired upon the American Chesapeake and ordered it to haul down the flag. Madison, in a letter to James Monroe, wrote that " the indignity offered to the sovereignty and flag of the nation demands ... an honorable reparation ... [such as] an entire abolition of impressments from vessels under the flag of the United States."

Such comments only addressed the flag flown in its official capacity, such as maritime use or over a government building. Neither Jefferson nor Madison ever commented on whether a citizen had a right to purchase a U.S. flag and then burn it or rip it apart in protest.

And it's likely they wouldn't have, said Alan Brinkley, a history professor at Columbia University. The concept of "protecting" the flag from desecration didn't arise until after the Civil War, when candidates for political office began using the flag in their campaigns.

"Most 19th-century Americans considered the nation's founding ideals so powerful that nationalistic symbols were of relatively minor importance to them," Brinkley wrote in the introduction to Flag and the Law, a collection of legal documents about flag desecration. "The flag was popular, but it was not yet ubiquitous and not yet an object of worship.

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