[flags]

I love those flags from the Revolutionary War era. The excitement of the times must have led some colonists to stay up nights on CorelDRAW (it was a while ago) designing flags to express why their people were fighting. “Everything is new and yielding,” Benjamin Rush enthused about his generation’s time, and everyone may have had a fair shake at making his design into his local regiment’s – or even his colony’s – flag.

I didn’t know until today that many Tea Party movement members have appropriated one of our nation’s early flags to represent the movement – the “Don’t Tread on Me” flag, called the Gadsden flag. I think many Tea Partiers and I have at least this in common: we envy the Revolutionary Generation’s opportunity to help shape a young republic.

I like movements as well as flags, and I’m glad the Tea Party movement is looking into our nation’s founding documents with the idea of turning the nation’s attention back to something it has overlooked somewhere between its founding and now. I’d love to watch a series of debates by real authorities over what certain phrases and sections in the founding documents mean and how they might apply to us today. Wouldn’t that be the best political theater? Maybe a separate session for each document, one, say, for the Treaty of Tripoli that the U.S. Senate ratified in 1797, giving the force of law to the proposition that “the government of the United States is not, in any sense, founded on the Christian religion.”

Another Revolutionary-era flag better represents my own, one-man movement to reclaim our founders’ natural law understanding: a variation of the Pine Tree flag known as the Washington’s Cruisers flag. These two flags have always been my sentimental favorites: where I grew up, a few miles from where Cornwallis surrendered, it seemed like pines accounted for three-quarters of the tree population.

The Pine Tree flag is a simple jack of a green pine on a white field. The Massachusetts Navy pulled the idea for the flag’s design from the more complicated Bunker Hill flag, which had a much smaller pine stuck in the flag’s upper-left corner. Washington used the basic design of the Pine Tree flag for his own squadron of schooners in 1775, adding the words “Appeal to Heaven” or “An Appeal to Heaven” to it.

Perhaps the experts could debate founding flags as well as founding documents. Most sites I looked at attribute the origin of the words “An Appeal to Heaven” to a kind of prayer, to the American Navy’s realization that, going up against the greatest navy in the world, they would need all the help from heaven that they could get. I had no reason to doubt this explanation until I started reading John Locke’s Second Treatise of Government. He used the phrase “appeal to heaven” several times in it as a term of art.

For Locke, the state of nature was like the state of war: in both situations, individuals, groups, or nations are “without a common superior on earth with authority to judge between them” (III.19). The difference between the state of nature and the state of war is how the parties in such a situation relate to each other. If they live together “according to reason,” then they are in a state of nature. But if one party uses “force, or the declared design of force upon the person of another,” then they are in a state of war (id.). A state of war may exist between individuals or nations, or it may exist between people and their rulers who exercise “a power the people never put into their hands” (XIV.168). Because there is no “common superior” to appeal to in such a state of war, the aggrieved party may appeal to heaven. That is, they may resist their rulers based on an unwritten law superior to the rulers’ law:

. . . where the body of the people, or any single man, is deprived of their right, or is under the exercise of their power without right, and have no appeal on earth, there they have a liberty to appeal to heaven whenever they judge the cause of sufficient moment. And therefore, though the people cannot be judge, so as to have by the constitution of that society any superior power to determine and give effective sentence in the case, yet they have, by a law antecedent and paramount to all positive laws of men, reserved that ultimate determination to themselves, which belongs to all mankind, where there lies no appeal on earth, viz. to judge whether they have just cause to make their appeal to heaven. (Id.)

Such an appeal would be ineffective if heaven were bound by the rulers’ laws, Locke here says. Instead, heaven judges the people’s case “by a law antecedent and paramount to all positive laws of men” – natural law.

So our nation’s first navy sailed under a flag that proclaimed our rights under natural law.

References to God or heaven in our nation’s founding documents, or even on its flags, are not necessarily indicia of its founders’ intent to form a Christian nation.  Natural law, while it was coherent enough for a navy to grasp, was not as simple as that.

[The above detail is from an illustration in an 1885 American high school textbook.]

[Washington Cruisers flag]