Capturing The Flag

By Marc Leepson
Sunday, July 6, 2008

The presidential candidate needed to prove beyond a doubt that he loved his country and could appeal to a wide range of skeptical voters. So he wrapped himself in red, white and blue.

No, not Sen. Barack Obama, who took to a flag-adorned stage to orate on patriotism last week. The candidate in question was William McKinley, whose campaign manager, Mark Hanna, draped the Civil War veteran in the Stars and Stripes during the presidential election of 1896. In McKinley's contest against Democrat William Jennings Bryan, the Republicans handed out hundreds of thousands of flags at rallies across the country. Hanna's "Patriotic Heroes Battalion," a group led by revered Civil War generals, toured the Midwest and West aboard a train bedecked with oceans of bunting. At countless stops, campaign workers unfurled the Stars and Stripes on two 30-foot, collapsible flagpoles that sat atop one of the train's flatcars. It was a veritable Patriotism Express. And it worked.

The American flag has been used by virtually every candidate in every presidential election since then. But the tactic was relatively novel in McKinley's day; before 1861, it was almost unheard of for individual Americans to fly the flag. Today, wherever we see a would-be officeholder, we also see a sea of flags, as well as audiences sporting T-shirts, baseball caps, earrings and halter tops in red, white and blue.

The flag is everywhere -- everywhere it was never really supposed to be. It's difficult to believe that our founding fathers envisioned the flag being reproduced on any commercial product, much less a beer cozy, a beach towel or a grill-ready apron. Even the lapel pin, a small piece of patriotic accessorizing that has been granted outsize importance in the current presidential campaign, can technically be interpreted as a violation of the United States Flag Code -- the oft-misquoted, mostly misunderstood and sometimes confusing series of detailed guidelines for the proper use of the American flag. (It frowns on any item of commercial merchandise upon which is "printed, painted, attached, or otherwise placed" a representation of the flag.)

But what exactly does this overabundance of flag-embossed merchandise mean -- for our campaigns and our culture? There is something off-kilter about revering the ideals that our flag embodies, attempting to ban its destruction, then using it as a political club or sitting down in a flag-patterned lawn chair, tucking into red-white-and-blue-frosted cupcakes and dabbing our mouths with a Stars and Stripes napkin. Does the flag embody American idealism, American cynicism or American comfort? Which values, precisely, have captured our flag?

The history of the cultural meaning of the American flag doesn't do much to answer this sticky question. The first flag-protection laws in the early 1890s tried to stem the burgeoning use of the flag's image in advertising and on countless commercial products. But those measures also served to outlaw what could only be described as well-meaning patriotic displays -- not a good thing. On the other hand, there's something disingenuous and patronizing about using displays of huge flags to lure in customers at car dealerships, and advertisers' propensity for creating flag-bedecked newspaper ads every Presidents' Day, Memorial Day, Fourth of July and Veterans Day -- not to mention their ubiquity as campaign-stop backdrops.

The Flag Code was supposed to prevent this patriotism-drenched hucksterism. It was drawn up at the first National Flag Conference in Washington in 1923, a meeting convened by the American Legion to take the dozens of different flag codes used by the military services, veterans' groups, patriotic societies and others and come up with one national code.

It has been part of the U.S. Code, the official document that contains the codified general and permanent laws of the United States, since 1942. But the Flag Code is not enforced, and it's not enforceable. It's simply a set of guidelines that carries no penalties for noncompliance; it doesn't even have enforcement provisions. Think of it as a sort of federally mandated Miss Manners manifesto. It tells U.S. civilians (the military branches have their own flag codes) what to do -- and not to do -- with our national emblem. You won't get arrested if you run afoul of it, and it's difficult to believe that the code was written to discourage patriotic Americans from displaying representations of the flag on their clothing. This inherent dichotomy in the Flag Code is, at the very least, confusing. At worst, it sends the wrong message to those who proudly wear flag apparel.

If you think what we do with the flag these days is bad, you should have been around in the 1800s. With no laws governing the use of the flag's image or any accepted rules of flag etiquette -- and with a boost from advances in color printing and mass production -- late-19th-century marketers and advertisers routinely printed flag images on their products and advertisements. And they had no qualms whatsoever about stamping their messages directly on the banner itself. Politicians also took liberties with the flag, beginning in the mid-1840s, including plastering candidates' names and messages across the stripes and among the stars.

The rampant use of the star-spangled banner for commercial purposes didn't sit well with veterans, patriotic organizations and some members of Congress. The first attempt to deal with the misuse of the flag's image in commercial products came in the late 1880s with what was known as the flag-protection movement. It was led by the Grand Army of the Republic (the powerful Union Civil War veterans' organization), the fledgling Sons and Daughters of the American Revolution and a newly formed nonprofit lobbying group, the American Flag Association.

Beginning in the mid-1890s, these groups launched a nationwide campaign to lobby state and federal governments for flag-protection laws. The first such legislation was aimed solely at reining in the commercial use of the flag's image, and by 1932, flag-protection laws were on the books in all 48 states. Beyond commercial use, politics began to creep in to how the United States regulated the flag. During the domestically repressive World War I years, many states added new flag-desecration language and increased the penalties in their flag-protection laws. Much later, during a different time of war, Congress got around to passing the first federal flag-protection act in 1968. It came in reaction to acts of flag burning and other types of flag desecration by anti-Vietnam War protesters.

But in 1989, the Supreme Court declared that law, and all the state flag-protection laws, unconstitutional on First Amendment grounds. That led to the movement to get around the high court by adopting a constitutional amendment to protect the flag. Legislation has come to the floors of the House and Senate regularly since 1990 but has failed to get the required two-thirds majority for the first step of adopting what would be the 28th Amendment.

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