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Monday
Last week we saw what happens when America’s justice system works, with an impartial judge and a jury taking their responsibilities seriously. Unfortunately, not all judges are like Juan Mercham, as we’ve learned from the story of Justice Samuel Alito flying a “Stop the Steal” flag at his home during Joe Biden’s 2021 inauguration. We then learned that he had also been flying a Christian nationalist flag at his summer home.
I feature today a beloved poem about the opposite situation, a woman waving an American flag in the face of enemy fire to remind rebellious traitors of their patriotic duty. More on that in a moment.
Alito blamed both flag incidents on his wife—“She likes to fly flags”—but he has blown all appearance of impartiality by allowing the flags to fly at all. (Further, his story about the flags keeps changing.) That appearance is vital in the presidential immunity case currently before the Supreme Court, which has bearing on the insurrection and stolen documents cases. Alito is refusing to recuse himself from the case, as is Clarence Thomas, whose wife actively lobbied lawmakers in Arizona and Wisconsin (29 in Arizona, two in Wisconsin) to appoint fake electors.
In fact, there’s a chance that Alito was part of the plot by Trump supporters to stop the certification of Biden’s victory. According to Trump lawyer Sidney Powell was part of Trump’s post-election strategy
to delay certification of the Electoral College vote until Alito, who sits as Circuit Justice for Pennsylvania’s Third Circuit, could issue an injunction further delaying certification so the election could be thrown into the House of Representatives — where Trump had an advantage, as each state would get one vote to decide a contested presidential election. According to Powell, Speaker Nancy Pelosi thwarted the plot by proceeding immediately to the certification once the Capitol was secured.
Whether or not Alito was actively involved or was just regarded as a useful tool is unclear. But given how he and other rightwing members on the Court appear to be slow walking the immunity case—potentially pushing Trump’s January 6 trial to after the election (when, if elected, he would appoint an attorney general who would quash the charges)—it’s a plausible scenario.
John Greenleaf Whittier wrote “Barbara Frietchie” in 1863 at the height of the Civil War, the last time that America experienced an internal threat this serious to democracy. While Whittier doesn’t get all of his history right—he may have merged two women and two different incidents while the Confederate general involved was probably A.P. Hill rather than Stonewall Jackson—nevertheless he captures the immense significance of raising a flag. While Alito (or at least his wife) inverted their American flag to express solidarity with the January 6 insurrectionists, Frietchie waves hers right-side up in support of those fighting to preserve the union.
Alito and Thomas espouse the judicial philosophy of “originalism,” claiming to interpret the Constitution as it was originally written. Barbara Frietchie, however, proves to be the true originalist.
Barbara Frietchie
By John Greenleaf Whittier
Up from the meadows rich with corn,
Clear in the cool September morn,
The clustered spires of Frederick stand
Green-walled by the hills of Maryland.
Round about them the orchards sweep,
Apple and peach tree fruited deep,
Fair as the garden of the Lord
To the eyes of the famished rebel horde,
On that pleasant morn of the early fall
When Lee marched over the mountain-wall;
Over the mountains winding down,
Horse and foot, into Frederick town.
Forty flags with their silver stars,
Forty flags with their crimson bars,
Flapped in the morning wind: the sun
Of noon looked down, and saw not one.
Up rose old Barbara Frietchie then,
Bowed with her fourscore years and ten;
Bravest of all in Frederick town,
She took up the flag the men hauled down;
In her attic window the staff she set,
To show that one heart was loyal yet.
Up the street came the rebel tread,
Stonewall Jackson riding ahead.
Under his slouched hat left and right
He glanced; the old flag met his sight.
“Halt!” — the dust-brown ranks stood fast.
“Fire!” — out blazed the rifle-blast.
It shivered the window, pane, and sash;
It rent the banner with seam and gash.
Quick, as it fell, from the broken staff
Dame Barbara snatched the silken scarf.
She leaned far out on the window-sill,
And shook it forth with a royal will.
“Shoot, if you must, this old gray head,
But spare your country’s flag,” she said.
A shade of sadness, a blush of shame,
Over the face of the leader came;
The nobler nature within him stirred
To life at that woman’s deed and word;
“Who touches a hair of yon gray head
Dies like a dog! March on!” he said.
All day long through Frederick street
Sounded the tread of marching feet:
All day long that free flag tost
Over the heads of the rebel host.
Ever its torn folds rose and fell
On the loyal winds that loved it well;
And through the hill-gaps sunset light
Shone over it with a warm good-night.
Barbara Frietchie’s work is o’er,
And the Rebel rides on his raids no more.
Honor to her! and let a tear
Fall, for her sake, on Stonewall’s bier.
Over Barbara Frietchie’s grave,
Flag of Freedom and Union, wave!
Peace and order and beauty draw
Round thy symbol of light and law;
And ever the stars above look down
On thy stars below in Frederick town!
We not seeing much of a “shade of sadness, a blush of shame” from those Republicans who are voicing support for Trump’s assaults on elections and the court system–which makes insisting on “peace and order” and “light and law” more important than ever. May the true flag of Freedom and Union, not flags of division and Christo-nationalism, forever wave!
