Glory-Old, New, and Changing: What Nationalism and the American Flag Can Teach Lawyers About Citizenship and Justice

• Author: Ben Phillips
• Position: J.D., Georgetown University Law Center (expected 2022); B.A., University of Washington (2013)
• Pages: 1203-1219

Glory—Old, New, and Changing: What Nationalism

and the American Flag Can Teach Lawyers About

Citizenship and Justice

BEN PHILLIPS*

INTRODUCTION

On January 6, 2021, during the mostly ceremonial joint session of the Senate and

House of Representatives,

1

violent insurrectionists attacked the United State Capitol in a

scene of violent mayhem and seditious domestic terrorism.

2

Starting immediately in the

hours that followed, most lawmakers continued to perform their constitutional duties

while some expressed muted sympathy with the aims of the rioters even while con-

demning their violence.

3

Commentators wrote opinion pieces, law enforcement made

arrests, and citizens across the country watched in combinations of shock, sadness, and

well-worn resignation.

4

Just over one month after the attack—and despite a thorough

presentation by the House Impeachment Managers—Donald Trump was acquitted by

the United States Senate for his role in inciting this insurrection.

5

In the months and

years to come, much must be done to address this event, and to tackle the deep underly-

ing civic rot that led to this moment’s possibility. Lawyers have a role to play in that

endeavor. Not only those in specific career paths nor only those with particular interests,

but every lawyer who would live up to the requirements of the profession.

The Preamble to the Model Rules of Professional Conduct (“Model Rules”)

states that a lawyer is to be a “public citizen having special responsibility for the

quality of justice” and must “further the public’s understanding of and confidence

in the rule of law and the justice system.”

6

Taking these professional responsibil-

ities seriously could transform the legal profession and begin the repair necessary

* J.D., Georgetown University Law Center (expected 2022); B.A., University of Washington (2013).

© 2021, Ben Phillips.

1. See U.S. CONST. amend. XII; 3 U.S.C.A. § 15.

2. Today’s Rampage at the Capitol, as It Happened, N.Y. TIMES (Jan. 6, 2021), https://www.nytimes.com/

live/2021/01/06/us/washington-dc-protests [https://perma.cc/JL7G-BKCQ].

3. See Danielle Abril, Congress members under siege in Capitol tweet their shock and frustration, FORTUNE

(Jan. 6, 2021) https://fortune.com/2021/01/06/dc-riots-tweets-congress-senators-representatives-reactions-

capitol-mob-2020-election-trump-supporters/ [https://perma.cc/S9AG-7HLX].

4. See Peter Grier, et. al., Whither democracy? Americans weigh in on siege of the Capitol, CHRISTIAN SCI.

MONITOR (Jan. 7, 2021), https://www.csmonitor.com/USA/Politics/2021/0107/Whither-democracy-Americans-

weigh-in-on-siege-of-the-Capitol [https://perma.cc/83GB-EUE6].

5. Karoun Demirjian & Tom Hamburger, ‘One down, 44 to go’: Inside the House impeachment teams’

uphill battle, WASH. POST (Feb. 17, 2021), https://www.washingtonpost.com/politics/interactive/2021/

impeachment-managers-trump-trial/ [https://perma.cc/M7SY-LRH3].

6. MODEL RULES OF PROF’L CONDUCT pmbl. (2018) [hereinafter MODEL RULES].

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to address the events of January 6, 2021, and the conditions that made possible

such an event. Even before the attack on the Capitol, our present moment was

one of both rising nationalism and deep concern over declining national unity.

7

In

this moment, the responsibilities enumerated in the Preamble to the Model Rules

take on new urgency and deserve greater exploration.

According to the Preamble, lawyers should strive to “improve the law” and are

tasked with “a vital role in the preservation of society.”

8

In this moment of crisis,

such a role should be welcomed—and better understood. But the language of the

Preamble deals in abstract notions, and the meaning of such concepts as “public

citizen” go unaddressed in the individual rules that follow. To give meaning to

the aspirational language of the Preamble—and to understand the crosscurrents

of ideology that erupted in the riot at the Capitol—requires an investigation of

American nationalism, which in turn compels a focus on national symbols.

“Symbolism,” the Supreme Court said in 1943, “is a short cut from mind to

mind.”

9

In the sprawling, multi-faceted project of putting texture to the aspirational

words of the Preamble, this Note takes that “shortcut.” By analyzing divergent

understandings of national symbols, this Note takes a shortcut to understanding the

ideas beneath the symbols. It is an insight into the country’s 350 million minds and a

guide to how lawyers might live up to the requirements of the profession.

Different views of the country’s most cherished symbols reflect different embodi-

ments of American national identity. One view frames American symbols as power-

ful, unquestionably positive, and largely unchallengeable. A second approach

acknowledges the power of symbols, but sees their power utilized in harmful ways

and responds by undermining and repurposing symbols to critique their conven-

tional message. A third approach embraces and co-opts the symbols and their under-

lying principles to subversively and dynamically manifest something new. Whether

upholding traditional notions of American identity or dissenting from them, criticiz-

ing venerated ideals or extoling the country to more fully embody them, the coun-

try’s symbols are indeed shortcuts—and understanding their meaning provides an

insight into distinct notions of American national identity.

This Note uses different conceptions of the American flag as illustrations of distinct

approaches to American national identity. These different versions of national identity

provide texture to the nebulous concepts of “public citizen,” “quality of justice,” and

“confidence in the rule of law” that appear in the Preamble, and they provide a pathway

to repairing the fundamental problems facing American democracy. In Part I, this Note

outlines the urgency for every lawyer to act in protection of our democratic system,

and the precedent and obligation to do so. Part II explores the meaning of American

7. See Sapna Kumar, Innovation Nationalism, 51 CONN. L. REV. 205, 207 (2019); Lydia Saad, Americans’

Concern Grows About Government, National Discord, GALLUP (Jan. 25, 2021), https://news.gallup.com/poll/

328754/americans-concern-grows-government-national-discord.aspx [https://perma.cc/LJ2X-AATB].

8. MODEL RULES pmbl.

9. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 632 (1943).

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