This astonishing sentence from Federal District Court Judge Michael Ponsor appeared on The New York Times opinion page last Friday. "I can offer no opinion as to whether the flag display at the justice’s house was unlawful." This refers to two "revelations" delivered earlier in the week by the Times: "Last summer, two years after an upside-down American flag was flown outside the Virginia home of Justice Samuel A. Alito Jr.," wrote Times reporters Jodi Kantor, Aric Toler, and Julie Tate on May 22, "another provocative symbol was displayed at his vacation house in New Jersey." This one was the "Appeal to Heaven" liberty-tree flag, which, though it features a quotation from classical liberal hero John Locke and was commissioned by George Washington as a naval ensign, has, in recent years, been associated with "Christian nationalism."
I can see how it might occur to a Chinese Communist Party member, a kindergartner, or a person struggling with psychosis, that it might be unlawful, in the United States, to fly a flag flown by George Washington. But I find that surprising coming from a federal judge. I'm assuming he went to law school, clerked for someone, worked as an associate in someone's law firm. Michael Ponsor was appointed to the bench by Bill Clinton and confirmed by the United States Senate. I think we should go back retroactively impeach everyone involved.
Judge Ponsor didn’t assert flatly that it's illegal to fly the liberty tree flag or an American flag upside-down (a symbol of distress). Rather, he says he "can" offer no opinion, as though he’s constrained by judicial ethics from doing so. But he raises the possibility that flying historical flags might be illegal in the United States, and he does it in the second sentence of his essay. And having just read the code of conduct for federal judges, it strikes me that if someone asks Ponsor whether it's illegal, for example, to sit in a chair or turn on the television in the privacy of one's own home, he’s perfectly free to say, "Of course not," which is also the only possible response here.
That he wouldn’t say that strikes me as extremely disturbing. I wonder what rights, if any, Ponsor believes that citizens of the United States retain, or what citizenship rights he takes himself to be permitted by his code of ethics to affirm, if any. He takes the judicial code of ethics as being in direct contradiction to the Constitution, and he's in a position in some situations to enforce his views on that. If you see Ponsor coming, pray, is my advice to you.
But it's not only the federal judiciary that’s going flag-wacky, it's the media, which has hopped all over this story of guilt by symbolic association.
On PBS’ NewsHour, White House correspondent Laura Barrón-López said: "That flag has been associated with violence since the Revolutionary War." What an extraordinary thing to say, and of course that standard would discredit more or less all flags of any nation. This is a reporter, not a pundit. The News Hour has declared their opposition to the American Revolution, but is that really a strategically effective move in their effort to aid Biden's re-election?
The "Appeal to Heaven" flag isn’t associated with anything like the violence of the Stars and Stripes, for example. The producers of NewsHour, like the editors of the news sections of the Times, are trying to produce a particular electoral outcome. They’d say or do absolutely anything to help Biden get elected and discredit Trumpy Republicans. That isn’t the job of the NewsHour or the Times news section. Yet they are at it all day every day, and they’re incredibly bad at it; they produce nothing but backfire.
Indeed, the Appeal to Heaven flag is awfully sweet, and is the only one I know that quotes a philosopher. In this case it's the all-time champion of classical democracy John Locke, whose thought is fundamental to the American system. "Should either the Executive, or the Legislative, when they have got the Power in their hands, design, or go about to enslave, or destroy them," Locke writes in his Second Treatise of Government, "the People have no other remedy in this, as in all other cases where they have no Judge on Earth, but to appeal to Heaven. For the Rulers, in such attempts, exercising a Power the People never put into their hands (who can never be supposed to consent, that any body should rule over them for their harm) do that, which they have not a right to do. And where the Body of the People, or any single Man, is deprived of their Right, or is under the Exercise of a power without right, and have no Appeal on Earth, there they have a liberty to appeal to Heaven."
This isn’t a declaration of the legitimacy of violence. Locke is saying that when all else fails and you face a crushing oppressive state power that can’t be resisted, all that's left is prayer. That's just where you'll be when Judge Michael Ponsor and the NewsHour get through with you.
Senate Judiciary Committee chair Dick Durbin and many others claim that because he flew the "Appeal to Heaven" flag, Alito ought to recuse himself from cases involving January 6. That’s ridiculous. We have no idea what Alito meant by flying that flag. It doesn’t create any financial stake in the outcome of any case. It could be interpreted as a political expression, though what it means is completely ambiguous. But even Supreme Court justices have First Amendment rights.
I used to have a thing for historical flags. It's an easy habit to acquire here near Gettysburg PA, which features historical flag stores It's one of the few places in the country where (well, maybe 10 years ago) you could see Confederate battle flags and not think the person flying it was a racist, because they were also flying the Stars and Stripes, and were commemorating the Civil War on the anniversary of the deadliest battle ever fought on American soil. At any rate, driving by my house out here on Town Hill Road, you might over the years have gotten a glimpse of a Culpeper Minuteman flag, or the Fort Moultrie flag with its crescent moon, and "Liberty" on a deep blue ground, which I particularly favor.
I just hope there are no pictures of my house with these flags flying. They'd cancel me again. And speaking of cancellation, I call for the immediate resignation of Federal Judge Michael Ponsor and NewsHour White House correspondent Laura Barrón-López. That's the only effect the flag flap ought to have on anything.
—Follow Crispin Sartwell on X: @CrispinSartwell