Flag Burning and Free Speech: The Case of Texas v. Johnson
Flag Burning and Free Speech: The Case of Texas v. Johnson by Robert Justin Goldstein, published by University Press of Kansas
Chapter One
"The Early History of the American Flag Desecration Controversy"
The Pre-Civil War Cultural History of the American Flag
At least from the historical perspective of the year 2000, the American flag's role in the life of the nation before the Civil War was remarkably unimportant. Although the flag ultimately became a ubiquitous symbol of the United Sates, displayed widely in front of government buildings, private homes, and commercial enterprises and extensively used as a design springboard for clothing, advertising, and the widest possible variety of products, it attracted little interest or public display for over eighty years after it was first adopted as the symbol of a new nation by the Continental Congress on June 14, 1777. The government of the newly self-declared nation did not even bother to proclaim a new flag until a year after the Declaration of Independence, and no one seems to have taken much notice of it at its creation. Moreover, the flag's design was left so unclear or was so poorly known that it flew with widely varying arrangements, numbers and colors of stars and stripes. Reflecting its lack of general popularity, the American army did not fight under it for over fifty years and demand for flags was so low that no private company manufactured them until after 1845. Only the Civil War turned the flag into a widely beloved object of adoration (but only in the North).
The most important impetus for the creation of a new flag following the 1776 Declaration of Independence was apparently the communication of an American Indian, Thomas Green, who in early 1777 sent the Continental Congress "three strings of wampum to cover [the] cost" of an American flag, which he requested for the protection of Indian chiefs should they travel to meet with the Congress. On June 14, 1777, eleven days after Green's request was presented to the Congress, that body adopted a resolution that declared, "the flag of the United States be made of thirteen stripes, alternate red and white; that the union be thirteen stars, white in a blue field, representing a new constellation." This action, which occupied one sentence in the congressional proceedings, went unmentioned in the press until ten weeks later when the August 30 Pennsylvania Evening Post reported it.
The apparent general lack of interest in the new flag, compounded by the vague description of the arrangements of the stars in its canton as "representing a new constellation" and the (mostly informal, until 1818) addition of new stars and stripes as new states joined the Union, led to endless confusion about the flag's design. American emissaries abroad could not accurately describe it eighteen months after its creation—one said the flag consisted of "13 stripes, alternately red, white and blue"—and as late as 1847 the Dutch government politely inquired, "What is the American flag?" More than a dozen arrangements of the stars in the thirteen-star flag have been documented between 1779 and 1796, including the well-known circular arrangement, but also with stars in the shape of a cross, a straight line, and a square with four stars on each side and one in the middle. Almost every other aspect of the flag also appeared in at least some variations: the number of points in the stars, the color of the stars, and the color order of the stripes. Moreover, even though the 1777 resolution described the stripes as red and white, some flags had red, white, and blue stripes, including the flag flown by American soldier John Paul Jones during his famous Revolutionary War capture of the British frigate Serapis.
The number of stripes varied so widely as new states were admitted to the Union that in 1818 Congressman Peter Wendover complained to the House of Representatives that although a 1795 law that recognized the addition to the Union of Vermont and Kentucky directed "that the flag shall contain fifteen" stripes, the banner then flying over Congress had thirteen stripes, those at the nearby Navy Yard and Marine barracks each had "at least 18 stripes," and "the flag under which the last Congress sat during its first session . . . from some cause or other unknown to me, had but nine stripes." Congress fixed the number of stripes permanently at thirteen in 1818, adding one new star for each state joining the union, but other aspects of the flag's design, including the arrangement of the stars, the color order of the stripes, and its length-height ratio were only standardized by a 1912 executive order issued by President William Howard Taft.
In historical retrospect, far more significant than confusion about the flag's design was that before the Civil War the flag was not widely displayed and played only a minor role in the nation's patriotic oratory and iconography. The main function of the new flag until the Civil War was to designate American ships at sea and federal buildings rather than to serve as a general rallying standard. The flag was not flown over state and local government buildings—not even schools—and, as the director of the Betsy Ross house in Philadelphia noted during the 1989—1990 flag desecration controversy, "It would have been unthinkable to fly an American flag at a private home."
Even as a utilitarian object, the flag's antebellum use was highly limited. Until the 1830's, for example, the American army primarily flew distinct regimental emblems, and the 1846—1848 Mexican War—which finally stimulated enough demand to make viable the establishment of the first full-time private flag manufacturer—was the first conflict during which American army units fought under the Stars and Stripes. The flag was at best a minor icon in the panoply of American patriotic symbols: far more popular were depictions and stories about George Washington, the American eagle (when John Frémont explored Indian territory in the 1840's he did so under an eagle flag), and "Columbia," a feminized representation of "Liberty" (as in the lady with the torch depicted today at the beginning of Columbia motion pictures). Although the War of 1812, which produced Francis Scott Key's "Star Spangled Banner," and the Mexican War clearly boosted the flag's popularity (during the latter, for example, newspapers wrote lurid accounts about flag raisings over the "halls of Montezuma"), textbooks and even patriotic Fourth of July oratory rarely invoked the flag, and artifacts of popular culture, such as textiles, wallpaper, and china, used flag imagery far less than other patriotic icons. Thus, a 1997 book by historian Len Travers, Celebrating the Fourth: Independence Day and the Rites of Nationalism in the Early Republic, barely mentions the flag. "The Star Spangled Banner," set to the tune of an English drinking song, which eventually became the national anthem in 1931, was often parodied during the antebellum period with such alternative lyrics as, "Oh! Who has not seen by the dawn's early light/Some bloated drunkard to home weakly reeling."
Perhaps the clearest sign of the flag's early insignificance was that American politicians did not begin to use flag imagery in their campaigns until 1840, when supporters of successful presidential candidate William Henry Harrison inscribed political slogans supporting their hero on the flag's white stripes, an innovation to be repeated in virtually all subsequent nineteenth-century presidential campaigns. In a few instances, nonmainstream political groups also employed the flag during the antebellum period, as when the anti-Catholic/anti-immigrant Know-Nothing movement of the 1840's adopted the flag (along with the eagle and George Washington) to represent their conception of the nation as rightly consisting of Anglo-Saxon Protestants. On July 4, 1854, Boston abolitionists flew flags upside down and draped them in black to protest congressional enactment of the fugitive slave law (requiring the return of escaped slaves), while their leader, William Lloyd Garrison, burned a copy of the Constitution.
The Civil War and the Flag
Only the outbreak of the Civil War in April 1861, symbolically begun by Confederate troops firing on flag-bedecked Fort Sumter, South Carolina, transformed the Stars and Stripes into a true national icon (in the North). "Until now," a woman named Nancy Cunningham wrote in her diary, "we never thought about the flag being more than a nice design of red and white stripes." According to the leading nineteenth-century flag historian, George Preble, "When the stars and stripes went down at Sumter, they went up in every town and county in the loyal states," as the flag developed a "new and strange significance" and flags "suddenly blossomed" from "every city, town and village," including from churches, "colleges, hotels, store-fronts and private balconies." The demand for flags so outstripped supply that the price of flag bunting in New York jumped from $4.75 to $28.
My Library
