October 7, 2010

Truly Objectionable Flag Worship

This is not news -- the Pledge of Allegiance is optional. Always. You are not required, never required, to recite it -- and if you do, feel free to omit the late-addition "under God" clause. Requiring someone to recite it is trampling on their First Amendment rights. West Virginia Board of Education v. Barnette (1943) 319 U.S. 624.

Citing an attorney for contempt of court -- resulting in his same-day incarceration -- for refusing to recite the Pledge before proceedings begin is an abuse of judicial power and a violation of the Constitution judges are sworn to uphold. But that's exactly what Chancellor Talmadge Littlejohn of Tupelo, Mississippi did to attorney Danny Lampley yesterday. (Hat tip.) Lampley need offer no explanation, excuse, or apology for remaining silent while others recited the Pledge of Allegiance -- he is an American citizen and an American citizen need not explain or apologize for their exercise of their rights, particularly before a court and a judge who ought to know better.

Judge Littlejohn, however, owes Lampley an expungement of the contempt citation, and an apology. Whatever other politics, ongoing disputes, or feuds these two men might have, when he puts on that robe, sits on that bench, and issues a contempt citation, Littlejohn stops being an individual and becomes an embodiment of the state. As such, he owes everyone a duty to discharge the powers of the state with integrity, fairness, and in accordance with his oaths to uphold and defend the Constitution. I rather suspect that he will receive a letter with some unkind words from the Mississippi Supreme Court in fairly short order.

This strikes me as at least harmonious with a bizarre cult of flag-worship floating around in our culture, one that seems to have considerable overlap with people who overtly display a mawkish and superficial love of all things military and patriotic -- and which also seems to overlap with spuriously-reasoned tax protests and other claims about the limits of governmental power, from which comes my favorite piece of judicial language addressing the Cult of the Flag:
Nor are the fringe or the eagle of any legal significance. Even were Mr. McCann to prove that yellow fringe or a flagpole eagle converted the state court's United States flag to a maritime flag of war, the Court cannot fathom how the display of a maritime war flag could limit the state court's jurisdiction to take his child away from him. Jurisdiction is a matter of law, statute, and constitution, not a child's game wherein one's power is magnified or diminished by the display of some magic talisman.
 McCann v. Greenway (W.D. Mo. 1997) 952 F.Supp. 647.

I have no problem with respect for the military or patriotism; I personally respect the military and consider myself a patriot. I have no problem with people advancing credible arguments in court about why they need not comply with governmental orders. But the flag is not a holy idol or a wizard's amulet. It is a symbol. What deserves reverence, respect, deference, and veneration is what the flag is a symbol of. America is not a piece of cloth.

The Jehovah's Witnesses in the Barnette case had a social point as well as a legal one -- there are people who do not merely venerate the flag, they worship it.* To confuse the symbol for that which the symbol represents is the very essence of magical thinking. And there is no place for magical thinking on a court's bench.

* ...and then a great many of those people call themselves "Christians" after worshiping that symbol, one which the Gospels would equate with Caesar rather than Jehovah, but this isn't a post about religion.


BlackHand said...

This judge should be removed immediately. He obviously is not qualified to interpret the laws of this country.

Burt Likko said...

A letter of censure seems more appropriate to me, unless he has prior judicial conduct problems.

Mark said...

As a Christian, I totally agree with you. It's odd the level of honor some will give to the flag. As if Americans were somehow God's chosen people. It's just silly.