Treason Has Found a Refuge:
Part II


Back in 1989, the Supreme Court declared (Texas v. Johnson) that the Constitution bars any law against burning the American flag.  This was a surprising new discovery on the Court's part.  According to The American Legion, five Supreme Court rulings prior to Texas v. Johnson upheld the people's right to protect the flag from public gestures of contempt.  For more than 100 years, the federal government and as many as forty-nine states had laws to do just that.  Polls in the 1990's indicated that 80 percent of the American people wanted to retain those laws [1].

In Texas v. Johnson the Court said that flag burning was "symbolic speech" and "expressive conduct."  Therefore our forefathers had intended the First Amendment to protect it from government sanctions.  One can give that claim a sanity check by reviewing the Constitution; a copy can be found in any encyclopedia.  You'll find that the First Amendment says nothing about flag burning, symbolic speech, or expressive conduct [2].

One must assume, therefore, that other convincing evidence supports the judicial claim regarding the Constitution makers’ intent.  No such evidence can be found; the weight of the available evidence is strongly to the contrary.  When America adopted the First Amendment our founders and their sons and brothers had recently risked their lives to defend the Stars and Stripes.  Any politician that proposed amending our Constitution to protect flag burners would have risked being tarred and feathered.

It’s also beyond dispute that our founders intended the First Amendment to protect us only from the federal government.  It begins: "Congress shall make no law . . ." and most of the states had Bills of Rights in their own constitutions.  "We the People" didn't want federal judges protecting us from our own states.  That would have been like asking the Mafia to protect you from a spanking by your mother.  The Court admitted this in 1833; the name of the case was Barron v. Baltimore.  Chief Justice John Marshall and his colleagues had a well-documented bias in favor of federal power vs. state power.  So they would undoubtedly have preferred to rule the other way.  But they knew the people would not accept it.  In 1833 the truth was still fresh in our collective memory [3].

For more than 100 years after Barron v. Baltimore, the Supreme Court admitted that the Bill of Rights only limited the powers of the federal government.  The book by Professor McCloskey mentions cases in 1883, 1908, and 1922.  Then the Court turned that understanding on its head.  Over the next few decades, it gradually asserted that the due process clause of the Fourteenth Amendment makes states, cities, towns, villages, and public schools subject to parts of the Bill of Rights.  The Court would let us know, from time to time, exactly which parts [4].

In Texas v. Johnson, the Court avoided reliance on the 14th Amendment.  The opinion cited the First Amendment 24 times and the 14th only once.  One can only speculate on the reasons for this omission.  Let’s speculate.  Our judicial employees did not want to remind us of certain embarrassing historical facts.

The 14th Amendment was drafted in 1866 right after the Civil War ended; let me remind you how the war began.  A fraudulent Supreme Court ruling (the Dred Scott Decision) caused the continuing controversy over slavery to explode. This led the South to secede from the Union; and its forces soon fired on the American flag at Fort Sumter.  That caught the attention of the public, transforming our flag into "an object of public adoration."  The cry went up in northern cities, "War! war to restore the Union; war to avenge the flag!" [5]

During the Civil War, public desecration of the American flag was viewed as treason and was punishable by death.  In 1862, a flag desecrator named William B. Mumford was actually hanged in New Orleans.  No record was found of First Amendment objections to the hanging.  Jefferson Davis, confederate president, published a fourteen-hundred-word proclamation denouncing Mr. Mumford's execution.  It called the hanging a "deliberate murder," and referred to "numerous other outrages and atrocities."  However, the proclamation made no mention of the "First Amendment."  It also made no mention of "symbolic speech" or "expressive conduct."  Apparently such things were non-existent or unknown in 1862.  Our judicial employees downplayed the Fourteenth Amendment because they thought it would be too much of a stretch to assert that Congress took steps to amend the Constitution to protect "expressive conduct" a few short years after having sanctioned a policy to punish it with death [3].

One can't avoid the following conclusion: the black-robed high priests of the Supreme Court trashed the Constitution by handing down Texas v. Johnson.  The opinion imposed a fraudulent constitutional mandate on “We the People,” the Court’s masters.  It gave and still gives aid and comfort to enemies of the United States.  That’s how our Constitution describes treason.  In 1866 a Washington newspaper observed that “treason” had “found a refuge in the bosom of the Supreme Court.”  So treason in the bosom of the Supreme Court is not a new problem [7].

The Constitution also empowers Congress to "declare the Punishment of Treason."  But the hacks that scramble to the top of our political heap wouldn’t touch that idea with a ten foot pole.  When the Supreme Court trashes the Constitution, some members of Congress might pretend to support a new Amendment to partially nullify the fraudulent Court ruling; but they will not directly challenge the fraud itself.  Fraudulent Court rulings often have a fair amount of support among the people who send them money.

All of this has the makings of a comic opera.  Our Constitution mandates that the people of every state must enjoy a "Republican Form of Government;" and it also directs that any amendment to it must originate in Congress or in a constitutional convention.  The Supreme Court defied both of these provisions and amended the Constitution, against the will of 80 percent of the people, to protect flag burning, in the process giving aid and comfort to the enemies of the United States.  Members of Congress have quit trying to amend it back to the way it was for 200 years, the way the people still want it.  Perhaps some of them also favor giving aid and comfort to the enemies of the United States.



1.  The American Legion statements quoted were taken from a Letter to the Editor published by The Washington Post on July 25, 1998.  The letter's author was Anthony G. Jordan, the Legion's National Commander.

2.  A transcript of Texas v. Johnson can be found on the Internet.

3. See the discussion of Barron v. Baltimore in the online essay; Our Secular Papacy and Sacred Porn.

4.  See McCloskey, Robert G. The American Supreme Court, Second Edition , Revised by Sanford Levinson, University of Chicago Press, 1994, pages 113-120.  See also the online essay, Unnatural Selection.

5.  See Robert Justin Goldstein: Burning the Flag: The Great 1989-1990 American Flag Desecration Controversy, Kent State University Press, 1996, page 1.  See also Note 3 above and the online essay, A Scam is Born.

6.  See Goldstein, Robert Justin, Saving Old Glory: The History of the American Flag Desecration Controversy, Westview Press, 1995, pages 5-8.  The text of President Davis's proclamation can be found on the World Wide Web at

7.  See the online essay; Unnatural Selection.


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D. J. Connolly