Search the Site

Did the Flag-Burning Law Really Stop Flag Burning?

Jeffrey Toobin‘s recent New Yorker profile of John Paul Stevens, the retiring leading-liberal Supreme Court Justice, is interesting throughout, and contains this nugget:

Stevens’s Second World War experience also played a part in perhaps his most anomalous opinion as a Justice. In 1989, he dissented from the decision that protected the right to burn the American flag as a form of protest. “The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach,” he wrote in an unusually lyrical dissent. “If those ideas are worth fighting for-and our history demonstrates that they are-it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection.”
“The funny thing about that case is, the only consequence of it-nobody burns flags anymore,” Stevens told me. “It was an important symbolic form of protest at the time. But nobody does it anymore. As long as it’s legal, it’s not a big deal. You just don’t have flag burning.”

Question: is the lack of flag burning truly, as Stevens puts it, a “consequence” of the law? I often wonder where all the civic unrest and rioting in U.S. cities has gone, especially with the increase in income inequality. Should we be looking to Supreme Court explanations for that as well? Or are there perhaps much, much broader and more numerous forces at work?