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| Pix credit HERE; Postcard published by The Foundation Press, Inc., 1932. Reproduction of oil painting from series: Jean Leon Gerome Ferris The Pageant of a Nation |
The objects that tend to manifest social collectives--that serve as the physical incarnation of their collective solidarity--can sometimes acquire a life, and a dignity of their own. These objects manifesting in material form the solidarity of a collective are to be distinguished from idols. Idols, images of the sacred or divine, tend to serve as representations of forces, powers, objects, and the like that are external to the human and the human collective, but around which both the human and their collectives might be organized, rationalized, and develop cognitive strictures of the reality in which they can find some sort of stability. These are ikons--an image or semblance of a thing, object, force or entity external to humanity or the human but sometimes intimately related to it. Objects that tend to represent the human collective itself (even if it is a manifestation under the leadership or sovereignty of some extra-human force) tend toward interiority. That this, these objects to reflect the collective itself. In that sense they may be constructed apart of the collective they represent, but they are intimated part of that collective.
Often the two are conflated. I have argued, for example, that in the United States, the Declaration of independence might be said to have assumed an iconic status. In Reflections on President Trump's "Presidential Message on the 249th Anniversary of the Adoption of the Declaration of Independence" I suggested it this way:
[It] is not merely a relic enshrined both on paper and in the objects that can be venerated in original form and, reproduced, hung up on the wall of the family parlor (assuming people have parlors anymore). The Declaration of Independence is now an Ikon in the form of a reliquary of text on paper. It is a "likeness, image, portrait; image in a mirror; a semblance, phantom image" of something that is itself holy and unapproachable.As we honor 249 glorious years of American independence, we celebrate these rights upon which our nation was built—and we pay tribute to the titans of freedom who risked their lives, fortunes, and sacred honor to secure our sovereignty. (Presidential Message on the 249th Anniversary of the Adoption of the Declaration of Independence)
I have also suggested that through a process like reverse osmosis, the iconic character of the collective can seep back into the bodies of people, who then assume the character of both icon and avatar. Avatars, Icons, and Adversaries--Full Text of Vice President's Harris's Remarks at the Democratic National Convention. I noted in a particular context, the process of what I then called reverse incarnation, in the process noting the difference between avatar and icon:
That is, a political candidate, running on the principle of democratic representation, must effectively undertake a process of reverse incarnation. That is the candidate must transform themselves from a carnate human being into a representative of something larger--of the polity that the candidate seeks to represent. The candidate, then, becomes not merely an avatar but also an icon. Where a divinity might take on human form--an incarnation from generalized representation to a specific human representation; the political candidate must seek to do this in reverse--to manifest themselves not as a single human but as a human whose humanity (or in the current parlance, whose "story") is representative of a larger, aggregated manifestation of the human condition, its aspirations, character and the like. (Ibid.).
This context, perhaps, may help guide an appreciation of a recent Executive Order issued by President Trump, Prosecuting Burning of The American Flag. In that Executive Order, President Trump might be thought to have attempted to accomplish three objectives: animated signification; desecration; and legalization. Flags are particularly potent semiotic objects whose cognitive transformation--its animation as the corpus of the collective itself, has a rich history. In Backer, L. C. (2021). Foreword: Bannermen and Heralds: The Identity of Flags; the Ensigns of Identity. Law and Visual Jurisprudence, 1, v-xxvi, I noted the potency of the flag as swaddling cloth, shield, badge, and shroud for and of the collective it also manifests (referencing Pi-Sunyer O (1995) Under Four Flags: The Politics of National Identity in the Barcelona Olympics. PoLAR: Political and Legal Anthropology Review 18(1):35-56). The notion was to suggest the relationship between the object (the flag) and all of the ideas, history, and abstractions that produce in the flag an avatar of something quite different--in this case the body politic organized within the cognitive cage of its political-economic model, which is, of course, dependent on the social-cultural model from which the animating premises of politics and economics emerge.
The first, animated signification, might be understood as a project to reinforce the object-signification of the flag of the American Federal Republic. Here the President invoked the discourse and premises around the investing of objects with the signification of the collective.
Our great American Flag is the most sacred and cherished symbol of the United States of America, and of American freedom, identity, and strength. Over nearly two-and-a-half centuries, many thousands of American patriots have fought, bled, and died to keep the Stars and Stripes waving proudly. The American Flag is a special symbol in our national life that should unite and represent all Americans of every background and walk of life. (Prosecuting Burning of The American Flag, §1)
That is, of the Republic's flag (an object of cloth made up of various colors and designs) as both the symbol of a human collective and as an object that is itself a physical manifestation of that collective--that is that the flag stands in for the collective as its physical representative. In this way it becomes not an icon or idol, but rather the avatar of the American collective. It is "the embodiment of the abstract, sometimes a divinity or divine essence (from the Sanskrit avatarana), sometimes of the soul or manifestation resident elsewhere. Since the 19th century in the West it has come to mean a ""concrete embodiment of something abstract." (Avatars, Icons, and Adversaries). But more than that, it invests the flag with iconic status--that is that more than the external representation of the American body politic, it becomes the physical manifestation of its divine character, the sacred Logos that the American polity itself represents, and then manifests through its symbols, including the flag of the Federal Republic.
The second follows from the first. The flag, so heavily reconstituted as the abstractedly living flesh of the Republic which is itself a manifestation of the divine force (however one comes to that concept) becomes a holy object (touched by the divine (again as those terms are understood within the collective, and that can be quite messy). Such objects, such sacred objects must be protected against desecration. But what is desecration? The etymology of desecrate suggests acts that strip the object of its sacred character--to profane the object, that is to make it unholy, and therefor to strip the flag of its fundamental significance as incarnation, avatar and icon.
Desecrating it is uniquely offensive and provocative. It is a statement of contempt, hostility, and violence against our Nation — the clearest possible expression of opposition to the political union that preserves our rights, liberty, and security. Burning this representation of America may incite violence and riot. American Flag burning is also used by groups of foreign nationals as a calculated act to intimidate and threaten violence against Americans because of their nationality and place of birth. (Prosecuting Burning of The American Flag, §1).
In this case President Trump's Executive Order calls on ancient discursive and ritual tropes of the sacred--and primarily the powerful trope of blood sacrifice. This is neither unusual nor unknown to political discourse and jurisprudence (for example Justice Holmes's opinion in Missouri v. Holland, 252 US 416 (1920) ("It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. ").
And the third follows from the second. If the flag is itself a physical manifestation of the polity--of the social collective organized as the American Federal Republic, then under certain circumstances physical interactions with that incarnation may be ascribed not just to ideas or ideals, but to the very polity itself. One speaks here, potentially of virtual violence through symbolic interactions in the physical plane. At it is here, at the crossroads of object, symbol, signification, incarnation, and the collective, that it is possible to insert law--at least following the logic and within the cognitive cages of the Executive Order. Legality here has two elements. The first is to remain true to the political-economic system that is deeply embedded in the social collective manifested by the flag. That is focused on the individual and individual autonomy, with a liberal democratic politics, and a markets driven transactional overlay. Not every engagement with the flag is a desecration; some, perhaps many, are equally representative of the interactions that themselves define the character of the Republic incarnated in its symbols, including the flag. One is protected in that sense when one engages in symbolic acts--even symbolic acts with physical manifestations in and through the flag--that touch on beliefs, politics and the like. But psychical manifestations of even the most robust engagement with ideas, and ideas around politics and its consequences (including the values from out of which politics can be rationalized within normative spheres).
The Executive Order thus recognizes that "the Supreme Court’s rulings on First Amendment protections, the Court has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to “fighting words” is constitutionally protected. See Texas v. Johnson, 491 U.S. 397, 408-10 (1989)."(Prosecuting Burning of The American Flag, §1). And it is through the eye of that needle (Mark 10:25, "It is easier for a camel to go through the eye of a needle than for a rich person to enter the kingdom of God") that the Executive Order builds its anti-desecration fortress. Section 2 of the Executive Order is divided into four parts. Section 2(a) invites the Attorney General to use content neutral law to guide the exercise of prosecutorial discretion to advance the cause of anti-desecrationalism ("This may include, but is not limited to, violent crimes; hate crimes, illegal discrimination against American citizens, or other violations of Americans’ civil rights; and crimes against property and the peace, as well as conspiracies and attempts to violate, and aiding and abetting others to violate, such laws"). Section 2(b) invites the spirit of anti-desecrationalism into the enforcement of state and local law ("such as open burning restrictions, disorderly conduct laws, or destruction of property laws, the agency shall refer the matter to the appropriate State or local authority for potential action"). Section 2( c) invites a vigorous engagement with the contemporary construction of the "fighting words" doctrine before the courts, presumably through strategic litigation that brings issues up through the courts ("litigation to clarify the scope of the First Amendment exceptions in this area"). The last, §2(d) encourages the "Secretary of State, the Attorney General, and the Secretary of Homeland Security, acting within their respective authorities, [to] deny, prohibit, terminate, or revoke visas, residence permits, naturalization proceedings, and other immigration benefits, or seek removal from the United States."
To some, at least, the Trump Administration appears to believe that the eye of the desecration needle grounded in fighting words is quite large indeed. Perhaps the litigation project suggested in ¶ 2 of the Executive Order will prove him right, or perhaps it may travel elsewhere within the interpretive universe of American jurisprudence. It is far too early to tell, but it certainly will be a quite interesting ride. The full text of Prosecuting Burning of The American Flag follows below.
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered:
Section 1. Purpose. Our great American Flag is the most sacred and cherished symbol of the United States of America, and of American freedom, identity, and strength. Over nearly two-and-a-half centuries, many thousands of American patriots have fought, bled, and died to keep the Stars and Stripes waving proudly. The American Flag is a special symbol in our national life that should unite and represent all Americans of every background and walk of life. Desecrating it is uniquely offensive and provocative. It is a statement of contempt, hostility, and violence against our Nation — the clearest possible expression of opposition to the political union that preserves our rights, liberty, and security. Burning this representation of America may incite violence and riot. American Flag burning is also used by groups of foreign nationals as a calculated act to intimidate and threaten violence against Americans because of their nationality and place of birth.
Notwithstanding the Supreme Court’s rulings on First Amendment protections, the Court has never held that American Flag desecration conducted in a manner that is likely to incite imminent lawless action or that is an action amounting to “fighting words” is constitutionally protected. See Texas v. Johnson, 491 U.S. 397, 408-10 (1989).
My Administration will act to restore respect and sanctity to the American Flag and prosecute those who incite violence or otherwise violate our laws while desecrating this symbol of our country, to the fullest extent permissible under any available authority.
Sec. 2. Measures to Combat Desecration of the American Flag. (a) The Attorney General shall prioritize the enforcement to the fullest extent possible of our Nation’s criminal and civil laws against acts of American Flag desecration that violate applicable, content-neutral laws, while causing harm unrelated to expression, consistent with the First Amendment. This may include, but is not limited to, violent crimes; hate crimes, illegal discrimination against American citizens, or other violations of Americans’ civil rights; and crimes against property and the peace, as well as conspiracies and attempts to violate, and aiding and abetting others to violate, such laws.
(b) In cases where the Department of Justice or another executive department or agency (agency) determines that an instance of American Flag desecration may violate an applicable State or local law, such as open burning restrictions, disorderly conduct laws, or destruction of property laws, the agency shall refer the matter to the appropriate State or local authority for potential action.
(c) To the maximum extent permitted by the Constitution, the Attorney General shall vigorously prosecute those who violate our laws in ways that involve desecrating the American Flag, and may pursue litigation to clarify the scope of the First Amendment exceptions in this area.
(d) The Secretary of State, the Attorney General, and the Secretary of Homeland Security, acting within their respective authorities, shall deny, prohibit, terminate, or revoke visas, residence permits, naturalization proceedings, and other immigration benefits, or seek removal from the United States, pursuant to Federal law, including 8 U.S.C. 1182(a), 8 U.S.C. 1424, 8 U.S.C. 1427, 8 U.S.C. 1451(c), and 8 U.S.C. 1227(a), whenever there has been an appropriate determination that foreign nationals have engaged in American Flag-desecration activity under circumstances that permit the exercise of such remedies pursuant to Federal law.
Sec. 3. Severability. If any provision of this order, or the application of any provision to any person or circumstance, is held to be invalid, the remainder of this order and the application of its provisions to any other persons or circumstances shall not be affected thereby.
Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) The costs for publication of this order shall be borne by the Department of Justice.
DONALD J. TRUMP
THE WHITE HOUSE,
August 25, 2025.
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