I am proud of the fact that my office recently defended Utah's flag-abuse statute before the 10th Circuit Court of Appeals.
As a United States Naval officer, I thrilled at the opportunity every time I stepped aboard a warship, faced the stern, squared my shoulders and saluted the flag of the United States of America. My salute was not to a beautiful piece of cloth but to our nation and to the liberties and the ultimate sacrifices that the flag represents. It brought me great comfort and pride to know that wherever that ship sailed, the flag declared, and guaranteed, its sovereignty.
As the chief law enforcement officer of Utah, I swore an oath to uphold and defend the Constitution of the United States and to protect the rights of her citizens. It is with that authority that I declare my full support of Sen. Orrin Hatch's bipartisan flag amendment.
The framers of our Constitution understood that the flag was in a very real sense a protective seal declaring the existence and sovereignty of our nation. They understood that laws to protect and preserve this unique symbol did not interfere with First Amendment rights. For most of our history, this commitment to the flag, one distinguished from any particular ideology or viewpoint, was accepted and supported by our courts.
In 1634, a colonial trial court concluded that defacing the flag was considered an act of rebellion and tantamount to an invasion, even when done at home, in peacetime and for reasons of peaceful protest. James Madison, "Father" of the Constitution and the Bill of Rights, condemned the defacement of the flag of any nation as an attack upon that nation's sovereignty and a violation of the law.
Likewise, Thomas Jefferson recognized the sovereignty interest in the flag and said the First Amendment did not prohibit "systematic and severe" punishment for those who violated the flag. Both Jefferson and Madison believed that protecting the flag did not suppress expression but protected the incidents of sovereignty, including commerce, citizenship and neutrality rights.
In 1907 the Supreme Court confirmed "from the earliest periods in the history of the human race, banners, standards and ensigns have been adopted. It is not then remarkable that the American people . . . early in their history, prescribed a flag as symbolical of the existence and sovereignty of the Nation."
Which is why many patriotic citizens of Utah were surprised when an activist Supreme Court ignored that history, and over 300 years of legal precedent, and created a right to desecrate the flag. In 1994, Utah's Legislature spoke for the people of this state with a nearly unanimous resolution asking Congress to send a flag protection amendment to the states for ratification. That resolve has not wavered. A recent poll shows that 69 percent of Utahns support a constitutional amendment that would protect the flag.
Some support legislation, rather than an amendment, to protect our flag. I agree we should be very cautious about amending our Constitution. But I also agree with most experts that a statute would be struck down by the Supreme Court. Therefore, Congress must send an amendment to the American people for ratification.
Despite some misgivings, most people realize that this amendment does not compromise our rights to free speech; we are restoring important rights we held for hundreds of years. Support for the flag amendment is growing rapidly and crossing party lines. The House of Representatives has passed the amendment many times, and this year it received another overwhelming endorsement, with a vote of 286-130.
The Senate has held 10 hearings on the amendment, heard numerous witnesses, and now appears to be only one or two votes shy of the 67 needed to send this amendment to the states for ratification.
I am pleased to join other supporters who have placed their lives on the line to protect and defend our flag and the sovereign nation and people it represents. I hope that the Senate passes this amendment soon and sends it to the states for a vote by the people. Hatch's flag amendment simply and permanently restores the traditional right of the American people to protect the flag that protects their sovereign rights.
Mark Shurtleff is Utah's attorney general.