When the Framers of the Constitution adopted the flag in 1777, they understood the long history of law surrounding the flag as an incident of national sovereignty. The Framers inherited from England a legal tradition of protecting the flag as a practical instrument affecting title to areas of land and water, rights of trade and citizenship, causes of war citable in international law, and similar matters with the utmost weight. Thus, the original intent and understanding regarding the protection of the flag plainly consisted of sovereignty concerns. The Framers considered the flag they adopted and sought to protect, apart from being merely a patriotic or any other type of symbol, as an incident of sovereignty. By recognizing the sovereignty interest in the flag, which historically meant responding to violations of its physical integrity, the Framers sought treatment for the United States, at home and abroad, as a sovereign nation.
By the pronouncements in the earliest years of the Republic, the Framers made clear that the flag, and its physical requirements, related to the existence and sovereignty of the nation and in no way interfered with the rights established by the First Amendment. The sovereignty interest in the adoption of the flag was tied to concrete legal and historical factors which distinguished it sharply from any asserted ideology, patriotism or viewpoint. The Framers, through their words and actions, demonstrated the historic core of consistency between flag protection and the First Amendment.
As the Supreme Court has pronounced,
In the 1600's, just as England had proceeded against those who failed to treat properly the flag, so Massachusetts colonists prosecuted, tried and convicted a domestic defacer of the flag in 1634. The trial court concluded that defacing the flag was considered an act of rebellion.
Endecott's Case establishes a key historic point: from the earliest days of the legal system in America, the law deemed an individual to be engaging in a punishable act for defacing a flag, even domestically and in peacetime. Defacing the flag invaded a sovereign government interest, even when undertaken for reasons of protest. At the time, the colonists saw the need to punish the act in clear sovereignty terms: that defacing the flag would be taken as an act of rebellion, even when unaccompanied by danger of violence or general revolt.
The original intent of the Framers of the Constitution and the Bill of Rights clearly indicates the importance of protecting the flag as an incident of American sovereignty.
James Madison, as an original draftsman of the First Amendment, was an authoritative source on sovereignty matters. In this regard, James Madison consistently emphasized the legal significance of infractions on the physical integrity of the flag. On three different occasions, Mr. Madison recognized and sustained the legitimacy of the sovereignty interest in protecting the flag.
His earliest pronouncements concerned an incident in October, 1800, when the Algerian ship "Dey of Algiers" forced a United States man-of-war named the "George Washington", to haul down its flag and replace it with that of Algiers. As Secretary of State under Thomas Jefferson, Madison pronounced such a situation as a matter of international law, a dire invasion of sovereignty, which "on a fit occasion" might be "revived." (Brief for the Speaker and Leadership Group of the U.S. House of Representatives, Amicus Curiae, at 33 United States vs Eichman, 496 U.S. 310 (1990) (No. 89-1433)[hereinafter, Brief], citing II American State Papers 348 (Lowrie and Clarke ed, 1982).
James Madison continued his defense of the integrity of the flag when he
pronounced an act of flag defacement in the streets of an American city to
be a violation of law. Specifically, Mr. Madison pronounced a flag
defacement in Philadelphia as actionable in court. As Judge Robert Bork
described this historic pronouncement:
And, on June 22, 1807, when the British ship "Leopard" fired upon and
ordered the lowering of an American Frigate's (The Chesapeake) flag,
Madison told the British Ambassador "
James Madison did not conclude - as some defenders of the right to deface the flag contend - that the First Amendment protected Americans' rights to tear down a flag or that defacing the flag was a form of expression protected by the First Amendment. On the contrary, it would appear that James Madison had an intimate familiarity with the significance of protecting the physical integrity of the flag, especially as such protection related to the First Amendment, which he helped draft and move through the First Congress. He knew there had been no intent to withdraw the traditional physical protection from the flag.
Madison's pronouncements consistently emphasized that "insults" to the physical integrity of the flag continued to have the same legal significance in a variety of different contexts, abroad, at sea, and at home. To James Madison, sovereignty entailed a relationship not only between nations and foreign entities, but between nations and domestic persons in wartime and peacetime.
Like James Madison, Thomas Jefferson sought to protect the sovereignty interest in the flag. Jefferson recognized its complete consistency with the Bill of Rights, and deemed abuse of that interest a serious matter of state, not the suppression of some form of protected expression. Thus, for Jefferson, the flag as an incident of sovereignty involved a concrete legal status with very practical advantages for the nation and citizens, who obtained those advantages through protecting a flag from usurpation or indignities.
During the period of foreign war and blockades in the 1790's, the American
flag was a neutral flag, and the law of trade made foreign ships desire to
fly it. As George Washington's Secretary of State, Thomas Jefferson
instructed American consuls to punish "
To prevent invasion of the sovereignty interest in the flag, Jefferson did
not consider the First Amendment an impediment to a "
James Madison and Thomas Jefferson intended for the government to be able to protect the flag consistent with the Bill of Rights. This was based upon their belief that obtaining sovereign treatment was distinct from an interest in protecting against the suppression of expression. James Madison and Thomas Jefferson consistently demonstrated that they sought commerce, citizenship and neutrality rights through the protection of the flag. They did not seek to suppress the expression of alternative "ideas", "messages", "views," or "meanings;" James Madison and Thomas Jefferson would have found such an interest anathema.
From the time of the Endecott case to the present, protection of the flag has continued to serve the Framers' original intent, as an instrument and embodiment of this nation's sovereignty. Those who both framed the First Amendment and adopted the flag had an original purpose for the flag quite unrelated to control of expression. The Framers considered the protection of the flag as an incident of sovereignty, not a suppression of expression.