Why liberals hate America (and other myths)
“The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.”
James Madison wrote these words at the 1st United States Congress, held at Federal Hall in New York City. After several drafts, the amendment in its present day form, together with nineteen others, was ratified in 1789 and adopted in 1791 as the Bill of Rights to the U.S. Constitution. The First Amendment, arguably the most important pillar of American democracy, has shaped our society’s thoughts and views on a host of issues, from our ability to worship as we choose, to pray (or abstain from prayer) in public schools, or to criticize the government. Indeed, the First Amendment sets our nation apart from many other countries, including other civilized first world ones, as a model of a free society that enables its citizens to pursue life and liberty on their own terms.
It is, in fact, the First Amendment that guarantees our right to desecrate the American flag. The Supreme Court affirmed this in 1989 in the case Texas v. Johnson. Justice William J. Brennan, Jr. wrote in the decision that “if there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.”
Why, then, is burning our national symbol a form of protected speech, while burning, say, the LGBT flag considered a form of hate speech? Conservatives are quick to point out this hypocrisy, presumably perpetrated by America-hating liberals. Just last week, Nate Madden of the Conservative Review wrote an article titled, “Memo to Liberals: You Can’t Burn Flags and Ban Hate Speech.”
Actually, yes, you can.
First, let’s get something right. The courts have ruled time and again that burning the American flag is protected under the First Amendment. Texas v. Johnson affirmed it. Subsequent protection acts, such as the 1989 Flag Protection Act, have been struck down. Is flag burning distasteful? Most people think so. But illegal? Not unless there is a breach of peace or injury to someone. That’s why yelling “Fire” in a crowded theater is not protected by the First Amendment.
Second, our peculiar form of government, a democratic republic, was envisioned to keep sovereignty in the hands of the people. Further, Constitutional framers such as Madison were concerned with “tyranny of the majority,” which was a real possibility in a pure democracy. Having just declared independence from an oppressive monarch, the Founders were intent to ensure that such tyranny could not occur in the new nation. Madison discussed this in Federalist Paper No. 51:
“It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.”
See that second clause? That’s the key here. Madison was concerned with the formation of factions, with certain factions oppressing other parts of society. He wrote in Federalist Paper No. 10:
“How is society to prevent oppression of the minority by the majority? History leaves no doubt that society cannot rely on the morals and religious values of men. History also shows that as the number and volume of those in majority grows, or as the need for protection against oppression grows, the effectiveness of those relying on morals and religion diminishes and eventually falls away.”
Protection of the minority was a critical concern for the Founders. They recognized that minority oppression of the majority was unlikely, since the minority could always be voted down by the majority. But the same could not be said in reverse. The majority could indeed oppress the minority by passing laws and regulations that harmed the minority.
This is why burning the LGBT flag is considered hate speech, and why it’s a crime. Is it distasteful? Egregiously so. Does it harm someone? To the extent that it threatens a minority group from pursuing life and liberty, absolutely it does. To be sure, this is nuanced analysis, but it’s really important! That this is ignored by conservatives leads one to conclude that it is either blissful ignorance or wanton disregard. Or perhaps lack of empathy. Conservatives see the LGBT flag issue through the same black and white lens as the American flag issue. Perhaps the truth requires a multicolor (rainbow?) lens. One cannot apply the same rules of the majority to the minority, specifically because of the need to protect minority rights. This is a false equivalency. Desecrating the American flag is an affront to ALL Americans. Burning the LGBT flag threatens a minority group’s right to existence.
Does this sound unfair? Maybe so. Yet it is exactly this consideration to man’s nature to oppress that convinced our Founders to enact such safeguards. The majority would do well to remember that, given current demographic trends in the United States, one day they may no longer remain the majority. Consideration for minority rights now doesn’t seem all that bad, does it? Welcome to democracy.