Essay: Texas v. Johnson US constitutional law

When the founders of the United States of America were in the process of creating the Constitution, there was debate over whether to include a list of protected rights reserved to the people. The Federalists argued that establishing a Bill of Rights would not be necessary considering the the power to protect civil liberties was given to the states by the “Necessary and Proper Clause” of the Constitution (Art. I/Sec. 8). However, the Anti-Federalist feared that without an established list of protected rights, the people of the United States would not have a way to safeguard their individual liberty from the federal government. The result of the heated debate: ten new amendments that outlined the protected rights of the people called the Bill of Rights (“Bill of Rights”). Yet, I imagine the founders of the Constitution never thought the Bill of Rights would be used to defend a citizen’s right to burn the American flag in an act of symbolic speech against the United States government. In the case of Texas v. Johnson, the Supreme Court used the 14th Amendment to extend the right of free speech to the states, and expanded the First Amendment to acknowledge symbolic speech as a protected right. Despite its unpatriotic nature, I believe that Texas v. Johnson demonstrates that individual rights must be protected under the Constitution even if they do not adhere to the values of popular opinion. If the common good was always preferred over individual liberties, the voices of the minority would be stifled out by the tyranny of the majority. The United States is a government of free ideas, and the decision of Texas v. Johnson defends that.
In the summer of 1984, Gregory Lee Johnson burned an American flag in front of the Dallas City Hall in protest of Reagan administration policies. His actions resulted in a $2,000 fine and a one year sentence in jail. Following the verdict, the Texas Court of Criminal Appeals reversed the conviction, and the case was sent to the Supreme Court (“Texas v. Johnson”). The case of Texas v. Johnson, addresses a controversial question: is symbolic speech protected under the First Amendment? In a 5-4 decision, the Court decided that Johnson’s choice to desecrate the American flag, was a protected expression of speech under the First Amendment. In addition to broadening the definition of free speech, the Court also claimed that the Texas law outlawing flag desecration was unconstitutional. Justice Brennan wrote the opinion of the Court, claiming, “if there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable” (“Texas v. Johnson”). This is an example of how our civil liberties should interact with the common good. As long as speech does not create a “clear and present danger,” citizens should be able to express freely. Although Johnson’s decision was disagreeable, it should be protected; otherwise, free speech would cease to exist.
In order to apply this ruling to the states, the Supreme Court cited the “Due Process Clause” of the 14th Amendment. The incorporation doctrine is a legal process in which the Supreme Court nationalized the Bill of Rights to state legislators. This is necessary because the text of the Bill of Rights states that “Congress shall make no law…” which implies that states can make a law abridging the freedoms outlined in the Bill of Rights that would have otherwise been upheld by the federal government. However, following the Civil War, the 14th Amendment was passed, which explains that, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The “Due Process Clause” was used in the case of Texas v. Johnson, since the First Amendment was interpreted by the Supreme Court, changing the ruling of the Texas federal court decision. This meant Gregory Lee Johnson had the constitutional right to desecrate the flag despite the Texas legislation outlawing it. In order to formally allow him this privilege, the “Due Process Clause” was necessary to overrule the Texas law. Additionally, because symbolic speech was established as protected speech under the First Amendment by this case, the “Due Process Clause” ensures that all citizens have “equal protection of the laws” of all states when it comes to this particular freedom in the future.
Although I do agree with the ruling by the Supreme Court, there are convincing points made by the opposition. Burning the flag is unpopular in America. Flag desecration is seen as incredibly offensive, especially by those in the Armed Services. To burn a flag, is to burn a symbol that represents all those who have died serving our country. Yet, as disrespectful as that action may seem, I would argue that the Armed Services very existence is to protect all rights of the Constitution. One of the pioneering cries of the  Revolutionary War was a desire by the colonies to speak out against the oppressive nature of the British during the time period. Without protecting the right to desecrate the American flag, the United States would be no different than the modern countries that suppress the right to speak out against their government today. Despite this fact, according to The Bill of Rights Institute, “The House of Representatives has, on six different occasions, voted on a Constitutional Amendment known as the Flag Desecration Amendment, which states: ‘The Congress shall have power to prohibit the physical desecration of the flag of the United States.’” The Amendment was passed by the House with a two-thirds majority each time it was introduced, but the necessary 67 votes by the Senate were never obtained. This action by Congress is an example of checks and balances in the Constitution. The Supreme Court ruled that flag desecration is a form of protected freedom of expression by the current Constitution; but if the Congress makes an amendment outlawing flag desecration, then the Supreme Court would have to adhere to the standards outlined in the new amendment since they are tasked with interpreting the constitution in court decisions.
In conclusion, the case of Texas v. Johnson demonstrates that individual rights should be protected, even when they do not coincide with the views of the common good, because freedom of expression is protected under the First Amendment of the Constitution. The Supreme Court established this in the case of Texas v. Johnson, using the “Due Process Clause” to apply the ruling to the states, a process used by the Supreme Court called selective incorporation. Despite the unpatriotic nature of flag desecration, which is seen as offensive to many, the right to symbolic speech is still protected. However, this particular Supreme Court ruling, could be overturned by Congress with the passing of an act prohibiting flag desecration by a two-third majority in both houses. Whether you agree or disagree with flag desecration, it is important to analyze what symbolic speech means to you. If you believe all forms of expression should be protected as long as they do not present a “clear and present danger,” then you should write or call your congressional representatives of the House and the Senate to let them know where you stand on the issue. If they do not adhere with your values, look for a candidate that stands for what you support and vote for them. This is a fundamental step any registered voter can take to  influence policy. Additionally, if you feel particularly passionate about the issue, you could participate in a rally or sign a petition. By bringing attention to the issue or voting in new congressional leadership you can shape the policy agenda. The actions citizens take, protect our fundamental rights, as seen in Texas v. Johnson.