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Published online by Cambridge University Press: 03 March 2004
This is another in the Landmark Law Cases and American Society series from Kansas, joining such topics as the Salem witchcraft trials, Marbury v. Madison, the Pullman case, and Bakke. The series editors have chosen wisely in making this selection, both in topic and author. Goldstein is the nation's leading expert on legislation and judicial review related to flag desecration. He brings to this project considerable knowledge, prolific publications in this area, and a clarity of voice and focus. There are no provocative and startling new approaches or theories, but that is not the purpose. I highly recommend this book as assigned coursework for college seminars on civil religion, the separation of powers doctrine, First Amendment rights, Supreme Court functioning, or the interplay between politics, the media, and the Constitution. It will work well in classes not only in political science but also in intellectual and cultural history, American studies, philosophy, and communication studies.
Aware that subjectivity is inevitable in an analysis of such a controversial and often emotional concern, Goldstein openly shares his stance in the Preface: “I believe that although flag desecration is usually a completely counterproductive activity that primarily alienates people, it nonetheless is a form of political expression and therefore must be constitutionally protected in a society that claims freedom of expression as its philosophical touchstone” (p. xv). He summarizes the three basic arguments in favor of criminalizing flag desecration, then ponders scenarios when it might serve “socially useful purposes” (p. xviii). Goldstein is precise in establishing chronologies of events and carefully selects quotations to let the adherents of varying positions speak for themselves.
The text is organized into nine chapters. The first is the best brief overview I have yet seen on the early cultural history of the American flag, and it emphasizes the beginning of what Goldstein terms the “Flag Protection Movement” (FPM) around 1890. Chapter 2 is a succinct yet comprehensive summation of flag desecration laws and prosecutions in the period 1897–1980. Getting to the main focus of the book, chapter 3 offers a longer, more detailed consideration of the Texas trials of Gregory Lee Johnson for his infamous flagburning protest outside the 1984 Republican National Convention in Dallas, which renominated Ronald Reagan for president. Next, there are chapters on the Supreme Court handling of and ruling in that case, the media and political backlash that followed, and a comparatively lengthy appraisal of the congressional debate provoked by that backlash, which ultimately led to the Flag Protection Act (FPA) of 1989. The last one-third of the book turns to how the FPA was tested in the courts from October 1989 through May 1990, the Supreme Court response in Eichman in June 1990, and the ongoing and unresolved struggle during the 1990s over a constitutional amendment to outlaw flag desecration.
I particularly enjoyed the way Goldstein elaborates on the workings of the Supreme Court in chapter 4, including private musings of the justices and procedural insights gleaned from clerk interviews. He also brings to life some of the more dramatic personages involved in the chain of events, such as the revolutionary Gregory Lee Johnson, the dynamic lawyer William Kunstler, or the meticulous solicitor general destined for later fame, Kenneth Starr. Two other features accentuate this work's usefulness as a college text: a handy chronology of flag desecration law and a superb bibliographic essay that points to the best reference sources should students wish to follow up on different aspects of this topic.
The American flag is the most sacred symbol in our civil religion. Historically, in times of economic and political crisis or great cultural dislocation, forces in society have emphasized cohesion through enforced demonstrations of nationalistic commitment. This is not going to change, although the specific rituals, rules, and ceremonies may. But we also have a long (and to my mind, admirable) tradition of honoring, protecting, and even expanding our interpretation of First Amendment rights. The tension of these coexisting truths has been at the core of much of America's historical experience, and the fact that this issue is not going away is what makes this book not only timely but also significant for undergraduate reading and reflection.
George Bush was in the White House in June 1990, when the Supreme Court, in a 5–4 ruling, upheld the right to express symbolic political dissent by burning a flag. He immediately renewed the call for a constitutional amendment to correct what he felt was an error on the part of the Court. That drive, of course, did not succeed, although it came very close. In 2002, in large part due to a 5–4 ruling by another Supreme Court (with two members appointed during his father's presidency), another George Bush sits in the White House, and many of his political views and practices are committed to fulfilling the earlier agendas and aims of his father. We live in a time when close Court decisions are overturning or reexamining issues of privacy, the separation of church and state, and the relationship between federal and state authority. Goldstein convincingly explains why the movement for a constitutional amendment against flag desecration diminished in effectiveness from 1995 to 2000, but he ends the book by reaffirming how divided our nation is on this issue and how it will inevitably resurface in legal and political battles.
For the most scholarly and throughly documented analysis of Texas v. Johnson or for a wide range of primary sources to assess, look to earlier books written or edited by Goldstein (Burning the Flag: The Great 1989–90 American Flag Descration Controversy, 1996; Desecrating the American Flag: Key Documents of the Controversy from the Civil War to 1995, 1996). For a handy, accessible text appropriate for general readership, and faithful to Goldstein's well-established scrupulous attention to all his sources, this is the book for you.
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