The Majority's Right To Rule

The right of the people to protect the American flag will be restored. It will happen eventually, one way or another. Just how and when it will happen is, at the moment, unknown. The current lull in the campaign for restoration of this right offers an opportunity, however, to see what we do know. In the heat of any struggle - political, military, even personal - the very shape of the struggle, and so its likely course, tends to elude us. By imagining how future historians will look back on what has happened so far, we may see the way ahead. Historians will put our struggle over the flag into context. They will describe the dynamics that have shaped it, and they will describe its significance in the story of modern America. Anticipating their retrospective perspective, let's look at the ongoing dispute in three contexts: proceeding from a tight focus on particular events, then to a middle-distance consideration of broader political and cultural forces at work, and finally to a panorama of the broadest movements of contemporary U.S. history. As particular events are unfolding, we tend to suppose that whatever happens was bound to happen - or, by contrast, that it was somehow our own responsibility. That ignores what historians call "contingency" - chances, for example, of timing, of the coincidence of separate occurrences, and even of personality. Take the 1989 and 1990 Supreme Court decisions that overturned a longstanding practice of protecting the flag. If the case had come before the court five years earlier - before justices Scalia and Kennedy joined it - or five years later, after the conservative concern about "speech codes" had begun to wane, it probably would have come out differently. Once handed down, however, the decision was more or less locked in, unexpectedly transferring the issue to Congress and the people. Consider next what has happened in Congress over the past 18 years. Time after time, overwhelming majorities in both houses supported restoring protection of the flag. But in the Senate those majorities fell just short, last year by one vote, of 67 needed to send a constitutional amendment to the states. If one senatorial election had turned out differently, the result could easily have been different. Indeed, if just one of two original cosponsors of the amendment had not switched - due to stated concerns about separate matters, such as campaign-finance reform (Mitch McConnell, R-Ky.) and the fall of the ancient Roman republic (Robert Byrd, D-W.Va.) - it would have passed in 2006. Such ill luck ought not be discouraging. The question is whether you contain its effects and turn good luck to advantage. Judging by results, the campaign for the flag amendment has done both. Other amendments proposed at the same time and once widely supported - on a balanced budget and school prayer, for instance - have fallen by the wayside. Only the flag amendment has sustained popular support over two decades. Why, then, hasn't it been easier? In answer, we've got to switch to a middle-distance perspective on deeper forces and deeper trends. Here, we confront what is really surprising, and what will make the flag-amendment campaign fascinating to historians for hundreds of years. Consider the basic story. In 1989, when President George H.W. Bush called for a constitutional amendment to correct the Supreme Court's decision, he seemed to be pushing on an open door. Congressional sentiment, following popular sentiment, was not simply in favor of flag protection; it appeared unstoppable. Events then took a strange turn. A passel of law professors claimed that an amendment wasn't needed. A new statute, they said, would satisfy the court. With suspicious eagerness, Congress jumped at the bait. Nearly unanimously, it enacted a new statute to protect the flag. The court struck it down immediately. As if on cue, liberal Democrats, who had been supporters of flag protection, turned around. They came out as opponents, and they frustrated further consideration of the issue for several years. In 1995, they lost control of Congress. The door seemed open again. The issue got a new hearing. Popular support for the cause had not diminished. In fact, the legislatures of all 50 states passed memorializing resolutions in favor of a constitutional amendment. But opponents of protecting the American flag managed to forestall the amendment for 12 more years. The historical question is what motivated, and what enabled, them to do so. The change was rooted in a century-long shift from local to national-oriented elites; then from social, economic and political to education-based elites; and finally toward elites defined by ideology ("we are better because we have better values"). The new elites were oriented in large part to cosmopolitan rather than national concerns, imagining themselves as "citizens of the world." The upshot has involved, on one hand, an increasing separation of elites from the mass of citizens. On the other hand, it has also involved an increasing influence of these elites defined by their ideas, over ideas fundamental to our political culture. Take, first, the idea of popular sovereignty. Its locus is the Constitution. "We the people" are not just the first words of the document. Through the first two-thirds of the past century, they were taken seriously. Theodore and Franklin Roosevelt, among others, enthusiastically opposed the pretension of judges to interpret the Constitution in ultimate defiance of popular will. Backed by most of the people and a powerful segment of the educated elites of their day, they prevailed. By 1965, a change was under way. The ideological elites were becoming ardent fans of judicial supremacy. They were moved by support for the Warren Court's decisions, especially on civil rights, despite the fact that real progress toward racial equality depended in the end on ordinary politics. Soon, they idealized the court, perhaps in part because it was an arena in which people like them seemed to hold sway. Their judicial idolatry gradually seeped through the subsoil of "informed" opinion to undermine the foundation of popular sovereignty. The flag amendment exposed that idolatry. Like other proposed amendments, it was meant to put in action the old idea of popular sovereignty. It was, however, the first in some time - the first likely to pass - to confront what was said to be a progressive decision of the Supreme Court. So, opponents put it down as tinkering with the Constitution. It usurped the role of judges, they said. Thus it exposed the transformation of elite opinion that, gradually, had occurred since the time of Franklin Roosevelt, and it revealed the powerful influence of that opinion within the liberal wing of what was once Roosevelt's party. Next, consider the idea of patriotism. For much of the past century, it was a sentiment of popular solidarity. It was not controversial. It evoked pride among a people of many views who, despite their differences, ruled themselves. It embodied faith in an ongoing practice of democracy. It bore fruit not just in wars, hot and cold, but in the New Deal's fight against economic insecurity and in the early civil-rights movement. Like other powerful sentiments, its power was compressed into, and evoked by, a symbol: the flag. Just as most Americans felt the sentiment, so did they honor the symbol as - let us say it - something practically sacred. Around 1965, that began to change. Among the mass of the people, of course, there was little change. But among the ideological elite, there was. They were patriotic, to be sure. However, they tended to re-imagine patriotism. For them, it was not so much a popular sentiment. Nor was it about an actual, ongoing practice of democracy. Rather, it was a matter of abstract ideals - ideals which they undertook, on their own, to define and apply. They emphasized pride in the "America that could be," according to their own point of view. In opposition to the Vietnam War, they abandoned the outlook of the early civil-rights movement. They gave up, for a time, on the flag. They identified it not with the nation, but with the government or its policies. They depicted it as the symbol of one point of view, one they opposed.? More recent years have shown that among ordinary Americans the sentiments of patriotism and reverence for the flag are still alive. But in the precincts of "enlightened" people, and among those influenced by them, these sentiments have seemed like lead paint on the walls. Faith in an empowered people cannot much appeal to them if they are to empower themselves. So it was, in 1989 and 1990, that five members of the Supreme Court held that it is unconstitutional to single out the flag for protection. The flag, they said, represents one point of view, a controversial point of view. The law, they said, may not favor expression of such a point of view. The elite's redefinition of patriotism had prevailed. Those who hope to restore protection to the flag did not, at first, grasp the novelty and influence of this idea. They took at face value politicians' protestations of support for the traditional understanding of the flag and of patriotism. They were in for a surprise. For, as certain politicians voted against flag protection and even expressed disdain for it, the subterranean shift in our political culture was manifest. Finally, take the idea of political equality. This, along with popular sovereignty, is the basis of democracy. Every citizen, every voter, is the equal of every other. They may not be equal in everything that can be measured, in wealth or background or experience. But equals they are, nonetheless, as a matter of the right to rule. There was a time, around the middle of the 20th century, when this equality was widely recognized and widely felt. With the rise of the ideological elite, this began to change. To them, all politics were a kind of identity politics; it was about their own identity. They were often devoted to the abstract ideal of equality. They were for the right to vote. But, when it came to ruling, they thought they should do it. The mark of their superiority was their "enlightened" views. What defined their views as enlightened? On one hand, it was their imitation of one another - and, on the other, their difference from the views of the "unenlightened" public. Such behavior is familiar enough. It is not, after all, confined to social cliques in high school. When the flag amendment was proposed, the identity politics of the ideological elite signalled the pose to strike. The mass of Americans were on one side of this "civil liberties" issue. They, then, had to be on the other side. Famous as critics of prejudice, they acted on prejudice, one utterly at odds with democracy. Who, at the time, knew what we were up against? This, however, is not the end of the story. Step even further back and look, from another angle, at the controversy and the political culture in which it has been embroiled. Look at it from the perspective of the great panorama of U.S. history. From this angle, the ultimate conclusion is assured. For it is, at bottom, a struggle for the extension of political democracy. Such struggles, through our history, have come out one way. Sometimes the issue has been the inclusion of a group in our political community. Sometimes it has involved the empowerment of the people, through their representatives, to govern discriminatory behavior or the abuse of economic power. Intense battles have been waged, often for decades. They have taken twists and turns that no one anticipated. In the end, however, democracy has been extended every time. This struggle may, at first, seem different. How can it be compared to the enfranchisement of blacks? Or forbidding discrimination against women? Or to the regulation of economic power? How could it be as important as those issues? And isn't it different because it is about the judicial definition of a constitutional right - the right to burn a flag? In fact, however, every single one of the prior issues involved a struggle against a judicial definition of constitutional rights. In each instance, the judicial definition - of rights to exclude or discriminate or exploit - appeared well-established. In each instance, it was ultimately overcome. What is more, the struggle over the flag amendment is comparable to the ones over prejudice against women or the disenfranchisement of blacks. It is, as we've seen, a campaign against deep-seated prejudice. It is a challenge – like the one leveled by feminists - not to prejudice by a majority against a minority but the other way around: the prejudice of a minority against a majority. Although what is at stake is not the right to vote, it is equally fundamental: the right of a majority to rule. Without that, the right to vote is an empty one. Why is it that these struggles for the extension of democracy are ultimately won, in one way or another? Because Americans will not stand for being treated as inferiors. The campaign to restore the right to protect the American flag may not have begun with all this in mind. It may not have begun as a struggle to extend - and, so, to redeem - our democracy. But that is what it has become. Richard D. Parker is the Williams Professor of Law at Harvard Law School and the author of "Here, the People Rule: A Constitutional Populist Manifesto."