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10/26/71 Thomas Wayne Joyce, v. United States of America

October 26, 1971






NEBRASKA, 205 U.S. 34, 43, 27 S. CT. 419, 422, 51 L. ED. 696 (1907) IN AN OPINION BY JUSTICE HARLAN SAID:


Certiorari Denied February 28, 1972. See 92 S. Ct. 1188.


Fahy, Senior Circuit Judge, and MacKinnon and Robb, Circuit Judges. Fahy, Senior Circuit Judge (concurring in part, dissenting from affirmance).


MacKINNON, Circuit Judge:

Following the Declaration of Independence the Continental Congress, finding the Nation in need of a national flag to symbolize its unity and independence, on June 14, 1777 adopted the following resolution:

Resolved, that the flag of the United States be 13 stripes alternate red and white, that the Union be 13 stars white in a blue field representing a new constellation. *fn1

There is a legend that George Washington, who with Betsy Ross is generally credited with participating in the formulation of the design of the flag, said of its colors:

We take the stars and blue union from heaven, the red from our mother country separating it by white stripes, thus showing we have separated from her, and the white stripes shall go down to posterity representing liberty. *fn2

Other famous citizens of the United States have described the place of the Stars and Stripes in our national life. Justice Holmes in a history of Chief Justice Marshall said:

The flag is but a bit of bunting to one who insists on prose. Yet, thanks to Marshall and the men of his generation -- and for this above all we celebrate him and them -- its red is our lifeblood, its stars our world, its blue our heaven. It owns our land. At will it throws away our lives. *fn3

The flag is the symbol of the Nation's power, the emblem of freedom in its truest, best sense. It is not extravagant to say that to all lovers of the country it signifies government resting on the consent of the governed; liberty regulated by law; the protection of the weak against the strong; security against the exercise of arbitrary power; and absolute safety for free institutions against foreign aggression.

In a Flag Day speech President Woodrow Wilson expressed his sentiments concerning the American flag as follows:

I know of nothing more difficult than to render an adequate tribute to the emblem of our nation. For those of us who have shared that nation's life and felt the beat of its pulse it must be considered a matter of impossibility to express the great things which that emblem embodies.

The flag of the United States has not been created by rhetorical sentences in declarations of independence and in bills of rights. It has been created by the experience of a great people, and nothing is written upon it that has not been written by their life. It is the embodiment, not of a sentiment, but of a history, and no man can rightly serve under that flag who has not caught some of the meaning of that history.

His tribute indicated his deep feeling for our Nation, its history and the principles which had motivated its actions.

Probably the most moving description of what the American Flag symbolizes to us as a nation was expressed, not by one who was native-born, but by the Honorable Franklin K. Lane, who was born a Canadian citizen in one of its maritime provinces and became a citizen of the United States through his father's naturalization. On Flag Day, 1914, before the employees of the Department of Interior in Washington, D.C., Lane, then Secretary of the Interior, delivered his famous oration on "Makers of the Flag." He envisioned the flag as the embodiment of the nation's past accomplishments and its future hopes. He saw all Americans as the "makers of the flag":

The work that we do is the making of the flag.

I am not the flag; not at all. I am but its shadow.

I am whatever you make me; nothing more.

I am your belief in yourself, your dream of what a people may become.

But always I am all that you hope to be, and have the courage to try for.

I am song and fear, struggle and panic, and ennobling hope.

I am the day's work of the weakest man, and the largest dream of the most daring.

I am the Constitution and the courts, statutes and the statute-makers, soldier and dreadnaught, drayman and street sweep, cook, counselor, and clerk.

I am the battle of yesterday and the mistake of tomorrow.

I am the mystery of the men who do without knowing why.

I am the clutch of an idea and the reasoned purpose of resolution.

I am no more than what you believe me to be, and I am all that you believe I can be.

I am what you make me, nothing more.

I swing before your eyes as a bright gleam of color, a symbol of yourself, the pictured suggestion of that big thing which makes this nation. My stars and stripes are your dream and your labors. They are bright with cheer, brilliant with courage, firm with faith, because you have made them so out of your hearts. For you are the makers of the flag and it is well that you glory in the making. *fn4

While he had not known tyranny in the land of his birth, the ennobling thoughts he expressed about the flag are also shared by many millions of our foreignborn citizens who appreciate its myriad blessings from dire personal experience. It may well be that our naturalized citizens are more truly appreciative of the benefits of citizenship under our flag than some of our native-born who do not properly evaluate the worth of their American heritage.

Throughout our history as a nation the flag has been our symbol in many wars, foreign and domestic. It has proudly led our troops in battle and reverently draped the caskets of those who fell. It has signified our national presence on battleships, airplanes, school houses and army forts, and been raised triumphantly in battle on far distant mountain peaks. It was planted on the moon by the Apollo 15 astronauts and one of them, Colonel James B. Irwin, U.S. Air Force, in his historic speech to a Joint Session of Congress on September 9, 1971 said:

The proudest moment of my life was when I saluted our American flag that we had planted on the plain at ...

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